Opinion
No. 1 CA-SA 13-0298
02-04-2014
BURL SWAIN, Petitioner v. THE HONORABLE BETHANY HICKS, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the county of MARICOPA, Respondent Judge DIANE SWAIN, Real Party in Interest.
Berkshire Law Office, PLLC, Phoenix By Keith Berkshire, Max Mahoney Counsel for Petitioner Burl Swain Law Office of Amber L. Guymon, PLLC, Phoenix By Amber L. Guymon Counsel for Real Party in Interest Diane Swain
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Special Action from the Superior Court in Maricopa County
No. FC2004-090657
The Honorable Bethany G. Hicks, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire, Max Mahoney
Counsel for Petitioner Burl Swain
Law Office of Amber L. Guymon, PLLC, Phoenix
By Amber L. Guymon
Counsel for Real Party in Interest Diane Swain
DECISION ORDER
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Patricia K. Norris joined. JONES, Judge:
¶1 Burl Swain (Burl) seeks special action relief, requesting this Court vacate the family court's August 6, 2013 minute entry ruling. Burl asserts the family court erred through its inclusion of his Title 38 Veterans Administration disability benefits (Title 38) in the calculation and award of spousal maintenance in violation of Arizona Revised Statutes (A.R.S.) section 25-530 (2013).
¶2 The marriage between Burl and Diane Swain (Diane) dissolved after 33 years of marriage with the terms of the original spousal maintenance provision entered on June 22, 2005. Therein, Burl was required to pay Diane $1,500 a month for an unspecified period of time. In November 2012, Burl petitioned the family court to modify the order and to implement the modification retroactively, citing his deteriorating health and current unemployment as illustrating a substantial and continuing change in circumstances.
¶3 Following an evidentiary hearing, the family court found Burl had failed to meet the requisite burden to allow for a modification of spousal maintenance. The family court further noted the health conditions of both of the aging parties, Diane's inability to support herself in light of her current disability, notwithstanding the then-existing spousal maintenance award, and Burl's decreased income. In calculating and awarding spousal maintenance to Diane, the family court included in its computations Burl's Title 38 disability benefits.
The family court found Diane's disabled condition precluded employment.
The Under Advisement Ruling dated August 8, 2013, was filed on August 14, 2013.
¶4 We do accept jurisdiction of this Special Action as Burl lacks an adequate remedy by way of appeal and his petition presents a pure question of law. Ariz. R.P. Spec. Act. 1(a); see Orme Sch. v. Reeves, 166 Ariz. 301, 303, 802 P.2d 1000, 1002 (1990).
¶5 Arizona statutes protect disability benefits awarded to veterans for service-connected disabilities pursuant to Title 38 from consideration in the disposition of property in dissolution of marriage proceedings, or in the consideration of spousal maintenance awards. Ariz. Rev. Stat. §§ 25-318.01(1) (2013), -530 (2013). "In determining whether to award spousal maintenance or the amount of any award of spousal maintenance, the court shall not consider any federal disability benefits awarded to the other spouse for service-connected disabilities pursuant to 38 United States Code chapter 11." Ariz. Rev. Stat. § 25-530.
Title 38 authorizes disability compensation for injuries incurred during times of peace and war as well as other federal benefits. In re Marriage of Priessman, 228 Ariz. 336, 339, ¶ 10, 266 P.3d 362, 365 (App. 2011).
¶6 While serving in Vietnam, Burl incurred service-related injuries, including but not limited to a shrapnel injury to the lower back and post traumatic stress disorder. As a result, Burl receives disability compensation awarded pursuant to Title 38. Under the clear language of A.R.S. § 25-530, the family court should not have considered Burl's Title 38 disability benefits when determining spousal maintenance.
¶7 Diane concedes a family court is prohibited from considering Title 38 benefits under A.R.S. § 25-530, but speculates the family court's inclusion of Burl's disability benefits in its A.R.S. § 25-319 (2013) analysis was only a calculation, and does not establish the family court definitively included the disability benefit in its ultimate award.
¶8 Assuming Diane were correct, and the family court excluded Burl's disability benefits, but included prospective part-time minimum wage employment, Burl's monthly income would be approximately $2,925.98. After deducting the $1,500.00 monthly spousal maintenance award, Burl's monthly income would be approximately $1,425.00, while Diane would have monthly income of approximately $2,639.00. Furthermore, when Burl's monthly payment of awarded arrearages and attorney fees are deducted from his monthly income, Burl retains approximately $1,025.00 for monthly expenditures. Such a result would be contrary to the language of A.R.S. § 25-319(B)(4), which requires a spousal maintenance award take into consideration "[t]he ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance."
The spousal maintenance award anticipates Burl will procure minimum wage employment for a minimum of 30 hours a week. In 2013, the minimum wage in Arizona was $7.90 an hour. Burl's prospective gross monthly earnings, therefore, would be $948.00. Also included in the calculation of Burl's monthly income is social security ($1,705.00) and pension ($272.85).
Diane is no longer able to work due to a disability. Her monthly income consists of social security ($1,027.00), pension ($112.00), and spousal maintenance ($1,500.00).
In July 2011, Burl was ordered to pay a total sum of $400.00 a month in arrearages and attorney fees. The trial court affirmed these payments until both arrearages and attorney fees balances are satisfied.
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¶9 Review of the record indicates the family court, contrary to the mandatory language of A.R.S. § 25-530, did include Burl's Title 38 disability benefits in its consideration of Burl's monthly income when determining the spousal maintenance award pursuant to A.R.S. § 25-319(B)(4). As explained in In re Marriage of Downing, "[t]he mandate of § 25-530 as applied to § 25-319(B)(4) and (5) is clear—when evaluating [t]he ability of the spouse from whom maintenance is sought to meet that spouse's needs and [t]he comparative financial resources of the spouses, the court shall not take into account, regard, or consider the portion of that spouse's income derived from title 38 benefits." In re Marriage of Downing, 228 Ariz. 298, 300, ¶ 7, 265 P.3d 1097, 1099 (App. 2011) (internal quotations omitted); see In re Marriage of Priessman, 228 Ariz. at 339, ¶ 10, 266 P.3d at 365 ("The plain language of § 25-530 prohibits trial courts from considering disability benefits awarded pursuant to 38 United States Code chapter 11. Thus, in determining whether to award spousal maintenance or the amount of an award, trial courts are prohibited from considering disability benefits awarded pursuant to title 38 . . . . ") (internal quotations omitted).
¶10 Based upon the foregoing, the family court should not have considered Burl's Title 38 service-connected disability benefits in calculating the spousal maintenance award. ¶11 IT IS ORDERED vacating the minute entry ruling dated August 6, 2013, and remanding to the family court for further proceedings consistent with this decision. ¶12 IT IS FURTHER ORDERED that the clerk of this court provide a copy of this Decision Order to the Honorable Bethany Hicks, a Judge of the Superior Court, and to each party appearing herein.