Opinion
1 CA-CV 12-0356
05-09-2013
In re the Matter of: RICHARD C. FREEMAN, Petitioner/Appellee, v. JUDITH L. FREEMAN, Respondent/Appellant.
The Law Office of Carrie M. Wilcox By Carrie M. Wilcox Attorneys for Appellant Richard C. Freeman Appellee Pro Se
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY
NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FN2010-002930
The Honorable David J. Palmer, Judge
AFFIRMED IN PART; REVERSED IN PART AND REMANDED
The Law Office of Carrie M. Wilcox
By Carrie M. Wilcox
Attorneys for Appellant
Phoenix Richard C. Freeman
Appellee Pro Se
Phoenix GOULD, Judge ¶1 Respondent/Appellant Judith L. Freeman (Wife) appeals the superior court's order denying her petition to modify spousal maintenance, amending its Qualified Domestic Relations Order (QDRO), and modifying the dissolution decree to reduce the amount Petitioner/Appellee Richard C. Freeman (Husband) owed Wife. For the following reasons, we affirm the court's denial of Wife's petition to modify and its reduction of Husband's payment obligation. We reverse its amendment of the QDRO and remand for further proceedings consistent with this decision.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On January 5, 2011, the superior court entered a Consent Decree dissolving the parties' marriage. The Decree ordered Husband to pay Wife spousal maintenance of $200 per month until January 31, 2012. It also provided Wife would receive one-half of Husband's retirement benefits and one-half of the value of his company stock at the time of vesting. In addition, it directed Husband to pay Wife $4,100 no later than January 31, 2012, and required him to maintain her medical insurance. ¶3 On July 18, 2011, Wife filed a petition to modify spousal maintenance. She requested the court increase the amount of Husband's obligation to $400 per month and order that it continue indefinitely until her health issues resolved. She also asked the court to order Husband to pay her the retirement, stock, and other monies ordered in the Decree prior to January 2012. ¶4 Husband opposed the petition, arguing that no substantial and continuing change of circumstances had occurred that would support a modification. He alleged that he had not provided Wife with one-half of his company stock because he was unable to access it until he terminated his employment. Husband also asserted Wife had violated the provisions of the Decree by withholding Husband's portion of the parties' $6,200 tax refund. ¶5 Wife then filed a model QDRO in which she proposed that $7,059.53 of Husband's retirement account be segregated for her benefit. She noted this amount included one-half of Husband's company stock as ordered in the Decree. Husband objected to the proposed QDRO, disputing Wife's valuation of his retirement account. ¶6 Wife moved the court to hold Husband in contempt because he objected to her model QDRO and refused to release her share of his retirement benefits. She also claimed Husband had cancelled her medical benefits in violation of the Decree. Husband denied he had cancelled Wife's health insurance benefits, and asked the court to modify the Decree to terminate his obligation to provide health insurance to Wife when his current employment ended. ¶7 After conducting an evidentiary hearing, the court denied Wife's petition to modify spousal maintenance. It modified the QDRO to indicate Wife would receive one-half of $6,470.99, the value of Husband's retirement benefits as of the date of service of the petition. It also amended the QDRO to provide that Wife would receive one-half of $5,006.17, the vested value of Husband's employee stock plan. The court denied Wife's contempt claim related to the health insurance coverage, finding Husband had established that Wife continued to be covered by his insurance. Finally, it modified the Decree to reduce Husband's $4,100 payment to Wife by $3,100, one-half of the amount of the tax refund Wife had not shared with Husband. ¶8 Wife appealed the court's signed ruling. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2) (2012).
The court had previously signed Wife's proposed QDRO.
The court did not resolve Husband's petition to modify the Decree to terminate his obligation to provide health insurance for Wife when his employment ended. However, because the signed order resolved Wife's entire petition, it is a final, appealable special order after final judgment. Williams v. Williams, 228 Ariz. 160, 166, 55 22-23, 264 P.3d 870, 876 (App. 2011) (holding an order completely resolving a post-decree petition is appealable notwithstanding the fact that other matters remain ongoing).
ISSUES
¶9 Wife challenges the superior court's denial of her petition to modify spousal maintenance and its modification of the QDRO. In addition, she argues the court erred by reducing Husband's obligation to her by one-half of the amount of the parties' tax refund.
Wife also challenges the court's denial of her motion for contempt. However, that ruling is not appealable. Elia v. Pifer, 194 Ariz. 74, 80, ¶ 30, 977 P.2d 796, 802 (App. 1998) ("[O]rders adjudicating whether a person should be held in contempt for refusing to obey a court order are not appealable in Arizona. By case law, it has long been held that this kind of contempt order is reviewable in appropriate circumstances by special action, but not by way of appeal."). Accordingly, we do not consider that argument.
DISCUSSION
A. Modification of Spousal Maintenance ¶10 Wife argues the superior court erred by denying her petition to modify spousal maintenance. We review the court's ruling for an abuse of discretion, viewing the evidence in the light most favorable to support the decision. Schroeder v. Schroeder, 161 Ariz. 316, 323, 778 P.2d 1212, 1219 (1989); Cooper v. Cooper, 167 Ariz. 482, 487, 808 P.2d 1234, 1239 (App. 1990). We will sustain the superior court's decision if any reasonable evidence supports it. Cooper, 167 Ariz. at 487, 808 P.2d at 1239. ¶11 A modification is appropriate only if there has been "a continuing and substantial change in circumstance[s]." A.R.S. § 25-327(A) (West 2012). To determine whether circumstances have changed, a court must compare the current economic circumstances to those existing at the time of the original award. Richards v. Richards, 137 Ariz. 225, 226, 669 P.2d 1002, 1003 (App. 1983). The relevant factors include the financial resources of the party receiving maintenance, the ability of that party to produce sufficient income, and the financial resources of the party paying spousal maintenance. Nace v. Nace, 107 Ariz. 411, 413, 489 P.2d 48, 50 (1971); see also A.R.S. § 25-319(B) (2012). ¶12 Wife claimed her circumstances changed after entry of the Decree in January 2011 because her medical condition did not resolve as expected and she is now disabled and unable to work. She testified that she had surgery for a compressed spinal cord in November 2010, but learned after entry of the Decree that she had a compressed nerve root at the fusion site. She admitted, however, that she had applied for disability benefits in December 2010, prior to entry of the Decree, and would receive benefits retroactive to August 2010. ¶13 Husband testified that it had been difficult for him to meet his spousal maintenance obligation and it would be a hardship for it to continue beyond the date specified in the Decree. He explained that he had been diagnosed with an advanced and severe case of chronic obstructive pulmonary disease (COPD) and offered a letter in which his physician opined that Husband would not be able to sustain employment for more than six months to a year before he became permanently disabled. Husband also emphasized that Wife's income had increased since the entry of the Decree because she would be receiving disability benefits, whereas his income was likely to decrease when he stopped working. ¶14 The superior court ruled Wife had not established a substantial and continuing change of circumstances because she was being treated for spinal pain issues when the court entered the Decree and her subsequent diagnosis did not indicate that her condition had substantially changed. It also found that because Husband had a worsening medical condition his ability to meet his own needs would be jeopardized if the court required him to continue paying spousal maintenance beyond the agreed date. ¶15 The court's rulings are supported by substantial evidence and we find no abuse of discretion in its denial of Wife's petition to modify spousal maintenance.
B. Modification of the QDRO ¶16 Wife argues the court erred by awarding her one-half of the value of Husband's stock when it was 80% vested, rather than one-half of the value of the fully-vested stock, as provided by the Decree. We accept the court's findings of fact unless they are clearly erroneous. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21, 212 P.3d 842, 848 (App. 2009). ¶17 The Decree awarded Wife 50% of the value of Husband's company stock "at the time of vesting." The parties offered evidence at the hearing that Husband's stock was 100% vested on June 30, 2011, at a value of $6,203.60. Nevertheless, the superior court, apparently misreading Husband's account statements, awarded Wife $2,503.09, one-half of the $5,006.17 value of Husband's company stock as of March 31, 2011, when it was 80% vested. ¶18 We therefore remand this matter with directions that the court amend that portion of the QDRO concerning Husband's company stock to award Wife $3,101.80, one-half of the value of the account as of June 30, 2011.
The court stated the parties had only provided information that the account was 80% vested as of June 30, 2011. In fact, the account statements showed a 100% vested value as of June 30, 2011.
--------
C. Reduction of the Amount Husband Owed to Wife ¶19 Finally, Wife complains the court erred by reducing the amount of money the Decree required Husband to pay to her. ¶20 As discussed, the Decree directed Husband to pay Wife $4,100 no later than January 31, 2012. It also required the parties to file joint federal and state income tax returns for 2010. In response to Wife's petition to modify, in which she demanded that Husband pay her the monies due under the Decree, Husband asserted that Wife had withheld Husband's half of the parties' $6,200 income tax refund and requested the court offset his $4,100 obligation to Wife by $3,100. The court granted Husband's request. Wife argues the court abused its discretion because she presented evidence that she did pay Husband one-half of the 2010 tax refund. We review the court's findings for clear error. Engel, 221 Ariz. at 510, ¶ 21, 212 P.3d at 848. ¶21 Wife claimed her bank records showed she withdrew approximately $2,500 in cash in June 2011 and she testified that she gave that money to Husband. She asserted she did not share the parties' $1,200 state tax refund with Husband because he sent her a text message indicating she could keep that money. Husband testified he never received any money from the parties' 2010 federal and state tax refunds and denied Wife's claim that he allowed her to keep the state tax refund. ¶22 We find no abuse of discretion in the superior court's determination that Wife did not pay Husband one-half of the parties' 2010 income tax refund. See Lee Dev. Co. v. Papp, 166 Ariz. 471, 475-76, 803 P.2d 464, 468-69 (App. 1990) (stating appellate court will defer to the trial court's factual findings because it is in a superior position to judge witness credibility and make reasonableness determinations). Accordingly, we find no error in the court's decision to offset Husband's obligation to Wife by one-half of the tax refund amount.
CONCLUSION
¶23 For the foregoing reasons, we affirm the court's denial of Wife's petition to modify spousal maintenance and its order modifying the Decree to reduce the amount Husband owed to Wife by one-half of the amount of the parties' tax refund. We reverse the court's modification of that portion of the QDRO concerning the company stock and remand for further proceedings consistent with this decision.
________________________
ANDREW W. GOULD, Presiding Judge
CONCURRING: ____________
MARGARET H. DOWNIE, Judge
____________
PATRICIA A. OROZCO, Judge