Opinion
2 CA-CV 2019-0112-FC
08-24-2021
In re the Marriage of Sheri Taubert, Petitioner/Appellee/Cross-Appellant, and Walter Taubert, Respondent/Appellant/Cross-Appellee.
Law Office of Ethan Steele PC, Tucson By Ethan Steele Counsel for Petitioner/Appellee/Cross-Appellant Law Offices of Joseph Mendoza PLLC, Tucson By Joseph Mendoza Counsel for Respondent/Appellant/Cross-Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20181678 The Honorable Deborah Pratte, Judge Pro Tempore.
Law Office of Ethan Steele PC, Tucson
By Ethan Steele
Counsel for Petitioner/Appellee/Cross-Appellant
Law Offices of Joseph Mendoza PLLC, Tucson
By Joseph Mendoza
Counsel for Respondent/Appellant/Cross-Appellee
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Espinosa and Judge Eckerstrom concurred.
MEMORANDUM DECISION
STARING, Vice Chief Judge.
¶1 Walter Taubert appeals from the trial court's decree dissolving his marriage to Sheri Taubert. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's decree. See In re Marriage of Foster, 240 Ariz. 99, ¶ 2 (App. 2016). The parties were married in 1999, and in May 2018, Sheri filed a petition for dissolution. Following a bench trial, the court ordered the outstanding balance of Walter's loan taken from his retirement account to be "added back" to the account before its balance was divided as community property; the parties to sell the marital residence; and Sheri to be awarded "spousal maintenance in the amount of $900 per month for an indefinite term." This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Sheri filed a notice of cross-appeal as to the same order but did not file a combined opening brief on cross-appeal with her answering brief as required in Rule 15(a)(4), Ariz. R. Civ. App. P., or raise cross-appealable issues in her answering brief.
Apportionment of Retirement Account
¶3 Walter first argues the trial court erred in adding back the balance of his loan taken from his retirement account before dividing the account between the parties. We review the court's characterization of property de novo, see Davies v. Beres, 224 Ariz. 560, ¶ 6 (App. 2010), but review its apportionment of community property for an abuse of discretion, see Kohler v. Kohler, 211 Ariz. 106, ¶ 2 (App. 2005). The court ordered:
Husband is awarded as his sole and separate property:
....
One-half of the Raytheon 401(k) Plan as of the date of service subject to the following: The outstanding loan balance taken by the Husband from this account after filing the Petition for Dissolution will be added back to the balance before the balance is divided. The amount of $1,187 (one-half of the $2,374 balance in Wife's 401(k) as of the date of service) shall be deducted from the amount owed to Wife from the Raytheon 401(k) prior to the division by [qualified domestic relations order (QDRO)].
....
Wife is awarded as her sole and separate property:
....
The one-half share of the Raytheon 401(k) with the adjustment as stated above ....
¶4 Walter essentially claims that because the balance of his loan was to be "added back" to the retirement account balance, he was therefore held solely responsible for the loan. He argues this de facto characterization of the loan balance as separate debt, rather than community debt, was based on the trial court's erroneous conclusion that the "dividing line" for such a designation was the filing of the petition, not when he was served. See A.R.S. § 25-213(B) (property acquired by a spouse after service of petition for dissolution is separate property of that spouse if petition results in decree of dissolution). Sheri, however, alleges that despite the decree's language, pursuant to a subsequent QDRO, the division was ultimately "correctly done and did not include the pre-Petition loans in the account balance." In reply, Walter counters that regardless of the QDRO, Sheri nonetheless was given "an incorrect amount."
¶5 Walter accepted service of the petition on August 2, 2018. As of August 1, 2018, the retirement account held a balance of $19,013.37, and, as of August 31, the outstanding loan balance was $6,028. Half of the account balance is approximately $9,506.68, which, reduced by the $1,187 offset from Sheri's 401(k), is approximately $8,319.68. Thus, the QDRO, entered after the trial court's dissolution order and signed by the court, correctly stated Sheri's interest in Walter's retirement account "shall be $8,319.68." This does not reflect the loan balance being added in before division.
¶6 And, although Walter also argues in reply that in this scenario there are "two court orders that are diametrically in opposite and must be corrected," we nonetheless conclude the QDRO renders his complaints as to the initial order moot. See Kondaur Cap. Corp. v. Pinal County, 235 Ariz. 189, ¶ 8 (App. 2014); ASH, Inc. v. Mesa Unified Sch. Dist. No. 4, 138 Ariz. 190, 191 (App. 1983) ("issues which no longer exist because of changes in the factual circumstances" are moot). Federal law controls the payment of retirement plans, see 29 U.S.C. §§ 1144(a), (c)(1), 1002(2)(A); U.S. Const. art. VI, cl. 2, and provides that "[e]ach pension plan shall provide for the payment of benefits in accordance with the applicable requirements of any qualified domestic relations order," 29 U.S.C. § 1056(d)(3)(A).
Spousal Maintenance
¶7 Walter also challenges the trial court's award of spousal maintenance. "We review the award of spousal maintenance for an abuse of discretion and will affirm the judgment if there is any reasonable evidence to support it." Helland v. Helland, 236 Ariz. 197, ¶ 22 (App. 2014). Relevant here, "[i]n a proceeding for dissolution of marriage or legal separation," the court "may grant a maintenance order for either spouse . . . if it finds that the spouse seeking maintenance . . . [l]acks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs [or i]s unable to be self-sufficient through appropriate employment." A.R.S. § 25-319(A)(1), (2). Upon a determination that a party is entitled to maintenance, the court must then decide the amount and duration based on thirteen enumerated factors. § 25-319(B).
¶8 Walter primarily argues the evidence presented at trial showed he "does not make enough to meet his own reasonable needs," let alone pay spousal maintenance. Further, he alleges Sheri's wages "allow her to be self-sufficient through her current and ongoing employment." Walter also claims "there was a lack of substantial evidence to show that an indefinite term was necessary and appropriate" or that Sheri needed $900 per month.
¶9 Here, the trial court concluded Sheri was entitled to maintenance based on § 25-319(A)(1) and (2), and it considered each of the thirteen factors in subsection (B). The court's conclusion that Sheri "lacks sufficient property to meet her reasonable needs" is supported by her testimony that she would not be able to support herself on the income she currently earns and that she did not have any assets "[o]ther than the income [from] the house." This is consistent with her financial affidavit, which listed her average monthly gross income as $2,237.98 and her total monthly expenses as $3,363.
¶10 As to the sufficiency of Walter's wages, the trial court concluded his net monthly income of over $5,000 was "sufficient . . . to meet his own needs as well as to pay spousal maintenance." See § 25-319(B)(4). His list of income supports this figure. As Walter recognizes, and as shown by the record, "his expenses, minus any debt, [are] approximately $3,000.00 per month." Although Walter argues the court erroneously failed to exclude various "voluntary contributions or repayment arrangements" in calculating his net pay, based on the pay stubs he provided, his net pay nonetheless averaged approximately $5,000 per month after all deductions. Thus, reasonable evidence supports the court's conclusion that Walter could meet his own needs and pay $900 per month in spousal maintenance, and he has failed to demonstrate any abuse of discretion. See Helland, 236 Ariz. 197, ¶ 22; Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9 (App. 2006) (we may affirm trial court if legally correct for any reason apparent in the record).
¶11 Finally, as to Walter's challenge to the award's amount and duration, we again note that Sheri's amended financial affidavit listed her average monthly gross paycheck as $2,237.98, with her monthly expenses amounting to $3,363. Moreover, as Sheri points out, an indefinite award of spousal maintenance is appropriate when the recipient is unlikely to achieve financial independence. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 24 (App. 1998).
¶12 Notably, Sheri testified that she suffers from various medical conditions causing symptoms such as skin pain, joint pain, chest pain, fevers, exhaustion, fatigue, trouble breathing, kidney stones, leg swelling, heartburn, nausea, and trouble sleeping. She further explained that, because of these symptoms, she has had to "leave [work] early or go in late," and, accordingly, she presented a list of thirty-nine days between January and October 2018 on which she had "either had to leave early or take off." And, Sheri confirmed that she did not expect any change in her employment or medical condition in the future-an estimation echoed by her doctor in her Family and Medical Leave Act form-and that she was "[un]able to do anything to increase [her] earnings over what [she was] presently earning." Again, reasonable evidence supports the trial court's order, and we find no abuse of discretion. See Helland, 236 Ariz. 197, ¶ 22.
¶13 Walter generally asks us to reweigh the evidence on appeal, which we will not do. See Gutierrez, 193 Ariz. 343, ¶ 13; see also Vincent v. Nelson, 238 Ariz. 150, ¶ 18 (App. 2015) ("[T]he family court is in the best position to judge the credibility of witnesses and resolve conflicting evidence, and appellate courts generally defer to the findings of the family court."). For these reasons, we uphold the trial court's award of spousal maintenance.
Mortgage Payments
¶14 Lastly, Walter argues the trial court erred "by not offsetting the amount [he] paid into the mortgage from the filing of the petition of dissolution to June of 2019." Again, we review this decision for an abuse of discretion. See Flower v. Flower, 223 Ariz. 531, ¶ 14 (App. 2010). "[A]ll debt incurred by either spouse during marriage is presumed a community obligation." Id. ¶ 12. Accordingly, "the family court has broad discretion in determining an equitable division" of debts and assets. Id. ¶ 28; cf. A.R.S. § 25-318(A) (court "shall . . . divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind"). An equitable division is based on "a concept of fairness dependent upon the facts of [a] particular case[]," Toth v. Toth, 190 Ariz. 218, 221 (1997), and its determination need not be based on any particular set of factors, see Flower, 223 Ariz. 531, ¶ 14.
The parties do not appear to dispute that the mortgage is a community obligation.
¶15 Walter claims that despite his requests at closing argument and testimony indicating he had been making the mortgage payments since August 2018, the trial court erroneously failed to "address[] the issue of offsetting" or consider an "equalization payment crediting [him]" based on Sheri having lived in the residence during that time as well. Sheri, however, responds that a portion of the payments to which Walter refers were actually paid with community funds. She further argues Walter's "responsibility to make those payments is set forth in the Parties' [stipulated] Temporary Order," and "the facts and law applicable" to the case nonetheless support the court's implied rejection of his requests. Specifically, Sheri contends that under the court's temporary orders, she received "only $137.50 every paycheck" in spousal maintenance "plus a place to live in the shared house," and therefore, "upon ordering a final division of property, it is completely sensible that the Trial Court would not also hold [her] responsible for 50% of the mortgage payments for that period."
¶16 Although the reasoning behind the trial court's implicit denial of Walter's requests is unclear, again, we may nonetheless affirm if its decision was legally correct for any reason apparent in the record. See Forszt, 212 Ariz. 263, ¶ 9. As Sheri points out, and as explained above, the court had broad discretion in the equitable division of community assets and debts. See Flower, 223 Ariz. 531, ¶ 28. Given the foregoing discussion of the parties' relative financial positions, the record supports the court's decision not to credit Walter or offset funds for his contributions to the mortgage during the pendency of the dissolution proceedings. Thus, we cannot say the court abused its discretion.
Attorney Fees
¶17 Sheri requests attorney fees and costs on appeal pursuant to A.R.S. § 25-324. In our discretion, we award her reasonable attorney fees and costs upon her compliance with Rule 21, Ariz. R. Civ. App. P.
Disposition
¶18 For the foregoing reasons, we affirm.