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Gray v. Gray

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 23, 2020
No. 1 CA-CV 19-0230 FC (Ariz. Ct. App. Jun. 23, 2020)

Opinion

No. 1 CA-CV 19-0230 FC

06-23-2020

In re the Matter of: JASON DAVID GRAY, Petitioner/Appellee, v. PAMELA L.B. GRAY, Respondent/Appellant.

COUNSEL John Bednarz PC, Gilbert By John G. Bednarz Counsel for Petitioner/Appellee Pamela L.B. Gray, Gilbert Respondent/Appellant


NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2014-091063
The Honorable Michael S. Mandell, Judge

AFFIRMED

COUNSEL John Bednarz PC, Gilbert
By John G. Bednarz
Counsel for Petitioner/Appellee Pamela L.B. Gray, Gilbert
Respondent/Appellant

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen joined. HOWE, Judge:

Judge Johnsen was a sitting member of this court when the matter was assigned to this panel of the court. She retired effective February 28, 2020. In accordance with the authority granted by Article 6, Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief Justice of the Arizona Supreme Court has designated Judge Johnsen as a judge pro tempore in the Court of Appeals, Division One, for the purpose of participating in the resolution of cases assigned to this panel during her term in office.

¶1 Pamela L.B. Gray ("Wife") appeals the family court's order directing the sale of the marital residence based on a finding that Jason David Gray ("Husband") can no longer afford to pay the mortgage payments on the home. For the following reasons, we affirm.

Wife moved this Court to stay her appeal and re-vest jurisdiction in the family court so she could present newly discovered evidence that Husband returned to his old job before the family court issued its final decree. After staying the appeal and considering the parties' arguments, we decline to re-vest jurisdiction with the family court because Husband's job change occurred after the family court issued its final decree and was therefore not newly discovered evidence. We therefore lift the stay and address Wife's arguments on appeal.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife married in 2009 and have one child in common. In 2014, Husband petitioned for dissolution of their marriage. Later that year, the court entered a decree of dissolution by consent, which included a stipulated parenting plan and property settlement agreement.

¶3 Under the property settlement agreement, Husband would pay the mortgage on the former marital residence on Millbrae in Gilbert, Arizona ("Millbrae"), and Wife would continue to live there. Section 25(D) of the agreement, however, provided that Husband would be relieved of the mortgage payment obligation if he "cannot afford the mortgage payment." In that event, the agreement provided that Millbrae would be sold and the proceeds divided 70% to Husband and 30% to Wife.

¶4 In 2018, Husband petitioned for contempt for violation of a court order regarding the transfer of separate property, citing Arizona Rule of Family Law Procedure ("Rule") 92, to enforce the decree as to the Millbrae house. Husband asserted that he could no longer afford the mortgage payments and Millbrae should be sold. The family court held an evidentiary hearing on Husband's petition, along with other matters, including the parties' parenting plan, the payment of Wife's student loans, and the sale of the residence.

¶5 After a September 2018 hearing, the family court ordered Millbrae sold. Wife moved for new trial and for reconsideration. The court denied the motion for reconsideration, then held an evidentiary hearing on Wife's motion for a new trial and Husband's subsequent petition for contempt related to Millbrae. The court denied Wife's motion for new trial, found her in contempt of its order regarding the sale of Millbrae, and awarded $2,500 in attorneys' fees to Husband because of Wife's unreasonable positions and actions during the litigation. Wife timely appealed.

"[W]e have an independent duty to determine whether we have the authority to consider an appeal." McCleary v. Tripodi, 243 Ariz. 197, 199 ¶ 7 (App. 2017). Ordinarily, a civil contempt order is not appealable. See Peace v. Peace, 234 Ariz. 546, 547 ¶ 4 (App. 2014). "[C]ivil contempt adjudications may only be reviewed by means of a special action." Lund v. Donahoe, 227 Ariz. 572, 578 ¶ 16 (App. 2011). However, in this matter Husband's petition was mis-titled, as it sought an order enforcing the decree given a change in circumstances. Accordingly, we treat this as an appeal from a signed final order. --------

DISCUSSION

¶6 Wife raises one primary issue on appeal: whether the family court erred by finding Husband could no longer afford the Millbrae mortgage payments and ordering its sale. She argues, variously, that the court's ruling was an error of law or that insufficient evidence supported the finding.

¶7 Neither party requested specific findings of fact and conclusions of law pursuant to Rule 82(A). Therefore, we presume the court found every fact necessary to support its ruling. See Rinegar v. Rinegar, 231 Ariz. 85, 90 ¶ 20 (App. 2012). We review the evidence in the light most favorable to upholding a family court's judgment if any reasonable evidence supports it. Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984).

¶8 Husband is a pilot who, at the time of the entry of the decree, made approximately $100,000 a year. At the September 2018 hearing on his petition, Husband testified that he had taken a new job with a new employer, which paid less than he was previously earning but allowed him to have a more stable work schedule that permitted him to spend more time with his child. The court found that Husband now made approximately $80,000 a year. The court also found that Husband worked a side job but that his side job was not substantial.

¶9 Wife asserted that the evidence Husband offered about his finances was not credible. In determining Husband's income, however, the family court expressly took Husband's "history of not being forthcoming with his earnings" into account. The court chastised Wife for continuing to assert, without evidence, that Husband was hiding assets and found that Wife had taken a spurious position designed to portray Husband in a false light. Despite the income disparity in Husband's favor, the family court ordered Wife to pay his attorneys' fees and costs under A.R.S. § 25-324(B) based on its finding that Wife acted unreasonably with respect to the mortgage issue.

¶10 The court assessed the parties' credibility when it made its ruling. See In re Marriage of Foster, 240 Ariz. 99, 101 ¶ 5 (App. 2016). We defer to the court's determinations of witness credibility and the weight to give conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347 ¶ 13 (App. 1998).

¶11 While Wife repeatedly points to expenses reflected in Husband's finances, the family court had discretion to consider Husband's income and expenses when making its ruling, and did so. Given the conflicting testimony, we cannot find that the court abused its discretion by ruling that Husband's current income after taxes, child support, and other expenses was insufficient to continue paying the Millbrae mortgage. Additionally, to the extent Wife is attempting to relitigate or appeal the terms of her 2014 consent decree, that decree became final when she failed to appeal it.

CONCLUSION

¶12 For foregoing reasons, we affirm. In our discretion, we decline to award Husband his attorney's fees. As the prevailing party, however, Husband is entitled to his costs incurred on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.


Summaries of

Gray v. Gray

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 23, 2020
No. 1 CA-CV 19-0230 FC (Ariz. Ct. App. Jun. 23, 2020)
Case details for

Gray v. Gray

Case Details

Full title:In re the Matter of: JASON DAVID GRAY, Petitioner/Appellee, v. PAMELA L.B…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 23, 2020

Citations

No. 1 CA-CV 19-0230 FC (Ariz. Ct. App. Jun. 23, 2020)

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