Opinion
2 CA-CV 2021-0109-FC
08-15-2022
In re the Marriage of Brandon C. Bennett, Petitioner/Appellee, v. Tammi S. Hanna-Bennett, Respondent/Appellant.
Berkshire Law Office PLLC, Tempe By Keith Berkshire and Kristi Reardon Counsel for Petitioner/Appellee Richard A. Beck, Sahuarita Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20180067 The Honorable Deborah Pratte, Judge Pro Tempore
Berkshire Law Office PLLC, Tempe
By Keith Berkshire and Kristi Reardon
Counsel for Petitioner/Appellee
Richard A. Beck, Sahuarita
Counsel for Respondent/Appellant
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE:
¶1 Tammi Hanna-Bennett appeals the trial court's denial of her request for spousal maintenance. Tammi contends that the court erred by: finding her ineligible for spousal maintenance; making certain findings of fact regarding her employment; awarding Brandon Bennett his attorney fees and costs; and engaging in "deep-seated favoritism toward" Brandon. For the following reasons, we affirm the award of attorney fees, reverse the denial of spousal maintenance, and remand.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to sustaining the trial court's findings and will uphold them unless they are clearly erroneous or unsupported by the evidence." In re Marriage of Priessman, 228 Ariz. 336, ¶ 2 (App. 2011). Tammi and Brandon were married in Arizona in June 2006 and had one child together in December of that year. Brandon filed a petition for dissolution of marriage with children in January 2018. In his petition, Brandon requested that "no spousal maintenance be ordered," and that Tammi be ordered to pay his attorney fees and other costs if this matter was contested. In Tammi's response to the petition for dissolution, she claimed she was "entitled to spousal maintenance pursuant to A.R.S. § 25-319(A)," and requested that she receive a "modifiable award of spousal maintenance in the amount of $2,000 for a period of 5 years." In June 2018, the trial court ordered Brandon to temporarily pay Tammi $1,500 per month in spousal maintenance, beginning on July 1, 2018.
¶3 At trial, Tammi sought an award of $1,500 in spousal maintenance for a term of seven years. The trial court denied her request for spousal maintenance. The court found that Tammi was not eligible for spousal maintenance because none of the five conditions for eligibility under § 25-319(A) applied to Tammi. In addition to making the findings under subsection A, the court also found that, during the time that Brandon had been paying temporary spousal maintenance, Tammi "chose not to significantly work and/or to expand her work experience" and that she had applied for and received an additional $875 per month in support from Brandon's Department of Veterans Affairs (V.A.) disability benefits. The final order of dissolution was issued in July 2021.
It is unclear from the record when exactly Tammi began receiving these payments from the V.A. Regardless, the exact start-date of these payments has no bearing on our decision.
¶4 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Analysis
Eligibility for Spousal Maintenance
¶5 Tammi first argues on appeal that the trial court erred by concluding she did not qualify for spousal maintenance. We will affirm the court's order if reasonable evidence supports it. In re Marriage of Cotter, 245 Ariz. 82, ¶ 6 (App. 2018). "However, when an issue presents a mixed question of fact and law, 'we will accept the trial court's findings of fact unless clearly erroneous and draw our own legal conclusions based on those facts.'" Id. (quoting Muchesko v. Muchesko, 191 Ariz. 265, 271-72 (App. 1997)).
Tammi also argues that the trial court erred by finding that she had not worked significantly while the dissolution was pending. Because we conclude the court erred on other grounds, we do not address this argument. See Stonecreek Bldg. Co., Inc. v. Shure, 216 Ariz. 36, n.3 (App. 2007) ("[T]his court does not give advisory opinions or decide issues it is not required to reach in order to dispose of an appeal.").
¶6 When deciding whether to grant an award of spousal maintenance, a trial court must first consider the factors in § 25-319(A) to determine if the spouse seeking maintenance is eligible. The court need only find one of the factors to be met to allow for an award of maintenance. See § 25-319(A) ("the court may grant a maintenance order for either spouse for any of the following reasons" (emphasis added)); see also Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 17 (App. 1998). Under § 25-319(A), the spouse seeking maintenance is eligible if that spouse:
1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.
2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
3. Has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse.
4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
5. Has significantly reduced that spouse's income or career opportunities for the benefit of the other spouse.
The spouse's eligibility is based solely on that spouse's circumstances. Cotter, 245 Ariz. 82, ¶ 7. Only if the court finds the requesting spouse eligible may it then consider, among other things, the circumstances of both spouses to determine if the award of maintenance should be granted and, if so, how much. See id.; see also § 25-319(B).
¶7 Here, the trial court found none of the factors to be satisfied and therefore concluded that Tammi was ineligible for spousal maintenance. As to the first factor-the only factor at issue on appeal-the court found that Tammi has "sufficient property to provide for her reasonable needs." Tammi argues that the court erred on several grounds.First, she argues that the court conflated the factors that may be considered to determine whether she had sufficient property with the factors to determine whether she can be self-sufficient through reasonable employment under § 25-319(A)(2). Tammi also asserts that the property she was awarded cannot be deemed sufficient.
Tammi also argues that, because the trial court considered the portion of Brandon's military retirement awarded to her as income in its calculation of child support, the court could not consider it as allocated property when determining her eligibility for spousal maintenance. Tammi provides no legal support for this argument, and "[w]e generally decline to address issues that are not argued adequately, with appropriate citation to supporting authority." In re J.U., 241 Ariz. 156, ¶ 18 (App. 2016); see also Ariz. R. Civ. App. P. 13(a)(7)(A) (argument on appeal must contain issues presented for review with citations to legal authorities).
¶8 In support of her argument, Tammi relies on Cotter, in which a wife seeking maintenance was awarded $36,000 in cash and marital assets. 245 Ariz. 82, ¶ 11. The trial court made no express finding whether, under § 25-319(A), such property was sufficient to meet her reasonable needs, the value of the property she had been awarded, or how long that property could sustain her. Id. ¶ 12. Although this court recognized that the trial court was not obligated to make such findings on the record, it nonetheless could not determine whether the court had applied the proper test for sufficiency under the statute. Id. This court therefore remanded the matter to the trial court to make a determination as to whether the wife's property "could provide for her reasonable needs without being exhausted." Id. The property would be sufficient under the law, this court said, if the property "standing alone" - also described as "without supplement" -"can provide for [the] spouse's reasonable needs during his or her lifetime." Id. ¶¶ 8, 10. Consequently, the trial court, for purposes of § 25-319(A)(1), could not consider the wife's ability to earn through labor in evaluating whether her awarded property could support her. See id. ¶¶ 10-11. The court had to evaluate the sufficiency of that property alone- at least as to the threshold determination of eligibility.
¶9 As in Cotter, the trial court here did not expressly find that Tammi had or had not been awarded property sufficient to provide for her reasonable needs during her life without supplement. And, also as in Cotter, because neither party requested the court make findings of fact or conclusions of law, it was not required to do so. Higgins v. Higgins, 154 Ariz. 87, 88 (App. 1987); see also Ariz. R. Fam. Law P. 82(a)(1) (requiring court to make express findings of fact and conclusions of law "[i]f requested before trial"). However, when such findings and conclusions are not required, the record on appeal must still contain reasonable evidence to support the court's conclusion of eligibility for spousal maintenance under § 25-319(A). See Cotter, 245 Ariz. 82, ¶ 12; see also Femiano v. Maust, 248 Ariz. 613, ¶ 12 (App. 2020).
Tammi asserts in her opening brief that, because the "trial court made no specific findings concerning [her] 'reasonable needs' . . . its ruling therefore lacks 'reasonable evidence to support a determination that [Tammi] is ineligible for an award under § 25-319(A).'" However, because neither party requested the court make specific findings of fact or conclusions of law, it was not required to do so and we therefore cannot say it erred on those grounds. See Higgins, 154 Ariz. 87, 88; see also Ariz. R. Fam. Law P. 82(a)(1).
¶10 As an initial matter, we agree that the trial court erroneously considered factors relevant to whether Tammi could be self-sufficient through reasonable employment when determining if she possessed sufficient property. When it discussed its determination under § 25-319(A)(1) regarding the sufficiency of her property, the court expressly relied on the fact that Tammi had "not worked significantly during the pendency of this matter, nor pursued other potential occupations of her choice during this period of time." It also considered that Tammi had not pursued or completed her paralegal certificate and that, at the time of trial, Tammi testified that she was not pursuing education as an x-ray technician as she had previously claimed. Although certainly relevant to any determination of eligibility under § 25-319(A)(2), none of these facts relate to whether Tammi's separate property or property awarded to her were sufficient to meet her reasonable needs-and therefore her eligibility-under § 25-319(A)(1). The court erred, therefore, in considering factors not required by the law.
¶11 On the latter question, because the trial court erroneously considered Tammi's employment history in its analysis of § 25-319(A)(1), we cannot conclude that the court would have found ineligibility under the proper test. Apart from the irrelevant facts the trial court considered discussed above, the court relied on Tammi being "awarded an equitable division of the parties' accounts, the Volkswagen, which she sold and retained the proceeds, 18.96% of [Brandon's] military retirement, which is in pay status." The record shows that Tammi received $5,000 for the Volkswagen. Tammi was also awarded $7,280 in past-due military retirement payments from January 8, 2018 through January 31, 2020. Tammi's monthly expenses, as reflected in the testimony and affidavits of financial information, were approximated at $4,697. This evidence was not substantially disputed. Although it seems unlikely that the identified property awarded Tammi "standing alone" and "without supplement" would be "capable of independently providing for [Tammi's] reasonable needs during . . . her life," we cannot make that factual determination in the first instance on appeal. Cotter, 245 Ariz. 82, ¶¶ 11, 12 (remand issue to trial court if record lacks reasonable evidence to support finding of ineligibility under § 25-319(A)). On remand, the trial court must make that determination under § 25-319(A)(1) consistent with Cotter and this decision.
Although the record supports that Tammi had also been receiving $875 a month from Brandon's disability benefits, we cannot say the addition of that property would mean Tammi had sufficient property to independently provide for her needs for the rest of her life.
¶12 As recognized in Cotter, the test for eligibility based on the sufficiency of awarded and separate property is a low bar. One may be ineligible for maintenance under § 25-319(A)(2)- because one is able to be self-sufficient due to a substantial income-yet remain eligible under § 25-319(A)(1) by virtue of not having or having been awarded insufficient property. See Cotter, 245 Ariz. 82, ¶ 10. Nonetheless, the spousal maintenance determination does not end with eligibility. Notwithstanding a requesting spouse's bare eligibility for maintenance under § 25-319(A)(1), the trial court still possesses substantial discretion pursuant to § 25-319(B) in determining whether to award maintenance at all, and, if so, in what amount. The court may consider a myriad of factors, including the circumstances of the paying spouse, as well as all other sources of income or potential income available to the requesting spouse. Id.
Attorney Fees Below
¶13 Tammi also appeals the trial court's award of attorney fees to Brandon. Despite our remand for reconsideration of spousal maintenance, we will address the award of attorney fees, which is unrelated to the court's erroneous determination of spousal maintenance. "We review a trial court's order concerning attorney fees under [A.R.S.] § 25-324 for an abuse of discretion." Cotter, 245 Ariz. 82, ¶ 16. Therefore, "we defer to the court's factual findings so long as there is competent evidence to support them." Quijada v. Quijada, 246 Ariz. 217, ¶ 13 (App. 2019). The court acknowledged the substantial attorney fees incurred by Brandon in this litigation. Nonetheless, the court only awarded Brandon $7,000 in reimbursement for half of the custody evaluation costs he paid because it found that he "was reasonable in his positions and [Tammi] was not reasonable in many of her positions." After considering the requirements of § 25-324, the court found that, despite a financial disparity between the parties, "it is due in part to [Tammi's] failure and refusal to sufficiently work during the pendency of this matter, and significantly due to [Tammi's] unreasonableness during the past three years in this matter." Specifically, the court found that Tammi's failure to notify the court of her application for and receipt of funds from the V.A., and her failure to credit Brandon's support obligations with the funds from the V.A., were unreasonable positions.
¶14 Section 25-324(A) allows the trial court to order one party to pay the other's attorney fees and costs after the court has considered "the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." Tammi asserts that the court's "findings concerning 'excessive, unwarranted motions', 'taking unreasonable positions at trial . . . throughout this case' are insufficient." We disagree. The record shows that Tammi requested money from the V.A. in September 2018, but according to the record on appeal, the court was not informed of this until August 2019. She also did not credit the amount she received from the V.A. toward what Brandon owed her in spousal maintenance. As to the court's finding that Tammi filed excessive, unwarranted motions and took unreasonable positions, we cannot say it clearly erred "[b]ecause the trial court is in the best position to observe and assess the conduct of the parties before it." MacMillan v. Schwartz, 226 Ariz. 584, ¶ 38 (App. 2011).
¶15 Tammi further argues that the trial court erred in finding that any disparity in income between the parties was caused by her choosing not to work. First, "[financial] disparity alone does not mandate an award of fees." Myrick v. Maloney, 235 Ariz. 491, ¶ 9 (App. 2014). And regardless of any financial disparity between the parties, the court may order a party to pay the other's fees if it finds that party adopted unreasonable positions. See MacMillan, 226 Ariz. 584, ¶¶ 37-38 (affirming award of fees to Husband because Wife, although least able to pay, took unreasonable positions throughout proceedings). A trial court may also, in the absence of misconduct by a party, order the parties to share in litigation costs equally. Cf. Hefner v. Hefner, 248 Ariz. 54, ¶¶ 22-23 (App. 2019) (concluding trial court correctly denied reimbursement requests for expenses pending dissolution when expenses were necessary and "both parties substantially contributed in equal shares to the effort"). But because the court found Tammi's positions to be unreasonable, and competent evidence in the record supports its decision, we affirm the court's award of reimbursement to Brandon under § 25-324.
Tammi argues that the trial court's order that she "pay $7,000 towards the child's evaluation directly conflicts" with its prior orders. However, the prior order stating Brandon would pay for 100% of the custody evaluation was not a final order and therefore that ruling was "subject to revision at any time before the entry of a judgment adjudicating all the claims." McCarthy v. McCarthy, 247 Ariz. 414, ¶ 6 (App. 2019) (quoting Ariz. R. Fam. Law P. 78(b)). Therefore, because the court could change its order, it did not err by then ordering Tammi to pay for half of the custody evaluation in its final ruling.
Bias Against Tammi
¶16 Tammi additionally argues "that the trial court was biased against her and that she was prejudiced by such bias." "We presume that a judge is impartial," and the party alleging impartiality must show bias or prejudice exists by a preponderance of the evidence. In re Aubuchon, 233 Ariz. 62, ¶ 14 (2013); see also State v. Macias, 249 Ariz. 335, ¶ 22 (App. 2020). To overcome this presumption, a party needs to show evidence of actual bias and must go beyond mere speculation. Macias, 249 Ariz. 335, ¶ 22. "Judicial rulings alone do not support a finding of bias or partiality without a showing of an extrajudicial source of bias or deep-seated favoritism." Id.
¶17 Tammi has not overcome the presumption that the trial court was impartial. She argues that "[b]ased on the totality of the circumstances - or such other elevated standard of review- the trial court's rulings in this case arguably cannot be explained other than as the result of bias or some deep-seated animosity toward [her]." First, although she argues for a higher standard of review, we find no reason to adopt a new standard to determine whether a trial court was biased. Furthermore, Tammi asserts the evidence of bias can be found in the court's "undue emphasis on the mistaken belief that [she] simply chose not to work." However, as discussed above, that finding was supported by the record, and the court did not place undue emphasis on such a finding to justify its decisions. The court's rulings alone do not support a finding of bias or partiality, and Tammi has provided no evidence of some extrajudicial source of bias. Therefore, we do not conclude that the court was biased against her.
In his answering brief, Brandon requests that Tammi "and/or her counsel" be sanctioned for making this argument, stating she "impugn[ed] the integrity of the trial court" by seeking to "obtain a different, and perhaps fictitious, standard of review in her favor." Brandon cites no legal authority to support the issuing of sanctions here. Therefore, in our discretion, we decline to sanction Tammi or her counsel for making this argument. See Sotomayor v. Sotomayor-Muñoz, 239 Ariz. 288, ¶ 13 (App. 2016). However, we advise counsel against making spurious allegations that the trial court was biased. A party's or counsel's disagreement with the rulings of a trial court is not evidence of bias. Even if the trial court erred below, such errors alone "do not overcome the presumption that the court was free of bias, and the record suggests no such impropriety." Chaidez v. Grant, 252 Ariz. 578, ¶ 17 (App. 2022). Counsel have an ethical obligation not to impugn the integrity of the court without basis. Ariz. R. Sup. Ct. 42, ER 8.2(a).
Attorney Fees on Appeal
¶18 Brandon requests his attorney fees and costs on appeal pursuant to Rule 21, Ariz. R. Civ. App. P., and § 25-324. In the exercise of our discretion, we hold that each party shall bear his or her own attorney fees on appeal. See Coburn v. Rhodig, 243 Ariz. 24, ¶ 16 (App. 2017). However, as the successful party on appeal, Tammi is entitled to her costs on appeal upon compliance with Rule 21. See A.R.S. § 12-342.
Although the table of contents in Tammi's opening brief states a request for attorney fees, the brief itself makes no request for attorney fees and costs on appeal.
Disposition
¶19 For the foregoing reasons, we affirm the trial court's ruling with respect to attorney fees, and do not agree that the court was biased against Tammi, but we reverse its determination that Tammi was ineligible for spousal maintenance. We remand to the trial court for a redetermination of the spousal maintenance request consistent with this decision.