Opinion
No. 2 CA-CV 2018-0163-FC
07-30-2019
IN RE THE MARRIAGE OF ANISSA MCTAGUE, Petitioner/Appellant, v. NATHANIAL MCTAGUE, Respondent/Appellee.
COUNSEL Anissa McTague, Apache Junction In Propria Persona Bryson Law Firm PLC, Mesa By Brent H. Bryson Counsel for Respondent/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pinal County
No. DO201701109
The Honorable Richard T. Platt, Judge
AFFIRMED
COUNSEL Anissa McTague, Apache Junction
In Propria Persona Bryson Law Firm PLC, Mesa
By Brent H. Bryson
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Chief Judge Vásquez and Judge Espinosa concurred. BREARCLIFFE, Judge:
¶1 Anissa McTague appeals from the trial court's ruling awarding her and Nathanial McTague equal parenting time and joint legal decision-making authority over their two minor children, the child support award, the division of property, and the denial of spousal support and attorney fees. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the trial court's ruling. See In re Marriage of Downing, 228 Ariz. 298, ¶ 2 (App. 2011). Anissa and Nathanial were married in 2014 and have two minor children, E.M. and I.M., ages four and two, respectively. Anissa filed a "Petition for Dissolution of a Non-Covenant Marriage (Divorce) with Minor Children," along with a proposed parenting plan, in June 2017. She requested sole legal decision-making authority and asked that Nathanial's parenting time be supervised. She also requested child support and spousal maintenance.
¶3 Following a three-day bench trial, the trial court granted the parties joint legal decision-making authority and equal parenting time, ordered Nathanial to pay child support, divided the community real and personal property, allocated marital debts, and did not award attorney fees, costs, or spousal maintenance to either party. This appeal followed. We have jurisdiction under A.R.S. § 12-2101(A)(1).
Analysis
Legal Decision-Making and Parenting Time
¶4 Anissa argues the trial court abused its discretion in its award of joint legal decision-making authority and equal parenting time, by "[d]isregarding key evidence," asserting there were "safety issues for the children." "We review the family court's decision regarding child custody for an abuse of discretion." Owen v. Blackhawk, 206 Ariz. 418, ¶ 7 (App. 2003). "An abuse of discretion exists when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision." State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, ¶ 14 (App. 2003). Trial courts are given broad discretion to determine what is in a child's best interest because they are in the best position to make that fact-based determination. See Porter v. Porter, 21 Ariz. App. 300, 302 (1974); see also Downs v. Scheffler, 26 Ariz. 496, ¶ 8 (App. 2003). We defer to a trial court's discretionary findings, assessment of witness credibility, and the weighing of evidence so long as the trial court "remains within the bounds of that discretion." Gutierrez v. Fox, 242 Ariz. 259, ¶ 49 (App. 2017).
¶5 Under A.R.S. § 25-403(A), the trial court shall determine legal decision-making and parenting time "in accordance with the best interests of the child." The statute lists eleven enumerated factors for the court to consider; among them are the nature of the parent/child relationship, the mental and physical well-being of the parents and children, and whether there has been domestic violence or child abuse. § 25-403(A)(1)-(11). In a contested case, the court must make specific findings on the record "about all relevant factors and the reasons for which the decision is in the best interests of the child." § 25-403(B).
¶6 Here, the trial court's ruling reflected that it considered each of the enumerated best-interest factors in § 25-403(A) and made the required specific findings on the record. Anissa alleges no legal errors, but only reargues the evidence and essentially asks this court to reweigh that evidence, something outside our appellate purview. Hurd v. Hurd, 223 Ariz. 48, ¶ 16 (App. 2009) (We will not reweigh conflicting evidence or redetermine a preponderance of the evidence.). We therefore find no abuse of discretion and affirm the custody rulings. See Gutierrez, 242 Ariz. 259, ¶ 49.
Child Support
¶7 The trial court ordered Nathanial to pay Anissa $7 per month in child support, ordered Anissa to provide medical insurance for the children, and allocated responsibility for any uncovered medical expenses 44% to Nathanial and 56% to Anissa. Anissa claims Nathanial misled the court about his income and incorrectly calculated her income; by this she presumably alleges an improper child support calculation. She also contends she was entitled to retroactive child support from the filing of the petition for dissolution, in June 2017, until December 1, 2017, the date the court ordered child support payments to begin. We will not disturb an award of child support absent an abuse of discretion. Fuentes v. Fuentes, 209 Ariz. 51, ¶ 10 (App. 2004).
¶8 The trial court may "order either or both parents . . . to pay an amount reasonable and necessary for the support of the child." A.R.S. § 25-320(A). Our supreme court established the Arizona Child Support Guidelines, from which a court may deviate only upon a written finding that application of the guidelines would be "inappropriate." § 25-320(D). The trial court may, in its discretion, order pre-petition child support retroactive to the date of separation. § 25-320(C).
¶9 Here, the record shows the trial court considered the required financial factors and any discretionary adjustments pursuant to the Arizona Child Support Guidelines as set forth in the Child Support Worksheet and incorporated those into its ruling. Additionally, the record reflects any errors Nathanial made in reporting his income were corrected during his testimony at trial. There is sufficient evidence in the record to support the award, and we presume the court considered this evidence prior to issuing its decision. See Fuentes, 209 Ariz. 51, ¶ 18. As previously noted, we will not reweigh the evidence. Gutierrez, 193 Ariz. 343, ¶ 13. Anissa asserts no other claimed errors. Therefore, we conclude the court did not abuse its discretion and affirm its child support order.
Division of Property and Assets
¶10 The trial court confirmed that a house Anissa purchased before the marriage was her sole and separate property. It also confirmed certain firearms, ammunition, and other related property as Nathanial's sole and separate property. It awarded Anissa and Nathanial each a vehicle and awarded Nathanial a motorcycle, a quad, a small fishing boat, motor, and trailer, and it divided other personal property between them. It also awarded Anissa her entire 401k retirement account, in part to offset the award of personal property to Nathanial. It also divided responsibility for various medical and credit card debts between them.
¶11 "The apportionment of marital property in a dissolution proceeding rests within the discretion of the trial court." Miller v. Miller, 140 Ariz. 520, 522 (App. 1984). It must result in substantial equality. Id. We will not disturb a court's division of marital property absent an abuse of discretion. Gutierrez, 193 Ariz. 343, ¶ 5. Anissa argues the trial court abused its discretion in dividing the community property and maintains she is entitled to equalization. Nathanial argues Anissa relied on false valuations and the division of property was equitable.
¶12 "[T]he court shall assign each spouse's sole and separate property to such spouse" and divide marital property equitably, although "not necessarily in kind." A.R.S. § 25-318(A). "In dividing property, the court may consider all debts and obligations that are related to the property, including accrued or accruing taxes that would become due on the receipt, sale or other disposition of the property." § 25-318(B). The court may order an unequal division of property in the event of "excessive or abnormal expenditures," § 25-318(C), but an unequal division of community property is not appropriate to achieve equity in most cases. See Toth v. Toth, 190 Ariz. 218, 221 (1997).
¶13 Here, the trial court made detailed findings related to the division of real property, personal property, and debt. It found the case does not present "a unique set of facts or circumstances" that would require an unequal division of property to achieve equity. The court also found that the "allocation of real and personal property, when considered with the division of debt, is fair and equitable under the circumstances and that no further adjustments are necessary." The evidence in the record supports this conclusion. Anissa again asks this court to reweigh the evidence, which we will not do. Gutierrez, 193 Ariz. 343, ¶ 13. We find no abuse of discretion and affirm the trial court's division of property. Attorney Fees , Costs , and Spousal Maintenance
¶14 The trial court did not award attorney fees or costs to either party, and it made no explicit findings regarding spousal maintenance in its final order nor award maintenance to either party. Anissa contends she should be awarded "spousal support" and attorney fees in order to "compensate [her] for waste." Nathanial argues Anissa waived the issue of spousal maintenance. While Nathanial requests attorney fees and costs "he incurred in responding to [Anissa's] appeal," he does not contest the denial of attorney fees and costs below.
Attorney Fees
¶15 Section 25-324, A.R.S., allows a trial court to award attorney fees and costs. However, if the trial court finds that a party filed a petition in bad faith, not grounded in fact, or for an improper purpose, it must award reasonable costs and fees to the other party. § 25-324(B). The award of attorney fees is "within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion." Fuentes, 209 Ariz. 51, ¶ 10 (quoting Kelsey v. Kelsey, 186 Ariz. 49, 53 (App. 1996)). In exercising its discretion, the court considers the financial resources of both parties and whether either party acted unreasonably during litigation. In re Marriage of Cotter and Podhorez, 245 Ariz. 82, ¶ 16 (App. 2018).
¶16 Here, the trial court found 1) there was no substantial disparity of financial resources between the parties, 2) both parties have acted unreasonably, 3) § 25-324(B) was inapplicable, and 4) neither party knowingly presented a false claim. We do not reweigh the evidence but defer to the court's resolution of factual disputes. Lehn v. Al-Thanayyan, 246 Ariz. 277, ¶ 31 (App. 2019). We have no basis to find an abuse of discretion in the court's denial of attorney fees.
Spousal Maintenance
¶17 In her petition for dissolution, Anissa requested $1,000 per month in spousal maintenance because she "[l]acks sufficient property . . . to provide for [her] reasonable needs." In her amended pretrial statement, she stated "she does not have enough money to pay for her needs," and she requested, in the form of support, half of the value of certain assets she claims Nathanial wasted. During trial, Anissa made, at best, an equivocal request for maintenance. When asked if she was seeking spousal maintenance, she replied, "The judge said I did not have spousal maintenance, so no." Later in her testimony, when asked if she was waiving spousal maintenance, she said, "I was under the understanding that I have—I was not going to get spousal support. If the judge finds that I am eligible for spousal support, I can—I definitely would like to get spousal support." In her closing argument, Anissa made a demand for "waste damages," but did not specifically mention spousal maintenance.
In its temporary orders, the trial court ruled Anissa did not meet the statutory requirements to receive a maintenance award. --------
¶18 Due to the equivocal nature of Anissa's trial testimony and the absence of a demand for maintenance in her closing argument, the trial court could reasonably have considered Anissa's claim for spousal maintenance to have been abandoned. This court cannot address a claim the trial court did not have the opportunity to address. See In re Marriage of Gibbs, 227 Ariz. 403, ¶ 14 (2011). However, even had the issue been adequately preserved, we would find the record insufficient to support a spousal maintenance award.
¶19 In reviewing a claim for spousal maintenance, we review the evidence in the light most favorable to the non-appealing party, Nathanial. See In re Marriage of Pownall, 197 Ariz. 577, ¶ 31 (App. 2000). The award of spousal maintenance is within the trial court's "sound discretion," id., and will not be disturbed if there is any reasonable evidence to support the judgment, Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984). "An abuse of discretion exists when the trial court commits an error of law in the process of exercising its discretion." Fuentes, 209 Ariz. 51, ¶ 23.
¶20 A trial court may order maintenance to a spouse based on a set of five enumerated grounds, which generally involve the degree of the receiving spouse's financial independence. A.R.S. § 25-319(A)(1)-(5). In determining, as a threshold matter, whether the requesting spouse is eligible for spousal maintenance, the court considers "only the circumstances of the requesting spouse." Marriage of Cotter, 245 Ariz. 82, ¶ 7; see also § 25-319(A). If the court in its discretion awards spousal maintenance, there are an additional thirteen factors the court must evaluate in determining the amount of spousal maintenance to be paid and its duration. § 25-319(B)(1)-(13).
¶21 One of the statutory criteria for receiving maintenance under § 25-319(A)(1) is that a party not be able to meet her "reasonable needs." Anissa stated in her petition that she lacked sufficient property to provide for her needs. At trial, she testified she is "going into a deficit every month." The record does not reflect, however, any evidence—testimonial or otherwise—as to what Anissa's "reasonable needs" were. A trial court is not required to make express findings on the value of Anissa's property, her "reasonable needs," or whether the value of her property could be expected to provide for those needs. Marriage of Cotter, 245 Ariz. 82, ¶ 12. And the court here made no such findings. Because Anissa did not request findings of fact or conclusions of law, we must assume the "trial court found every fact necessary to support its judgment." Stevenson v. Stevenson, 132 Ariz. 44, 46 (1982). We will not substitute our judgment for that of the trial court, Cooper v. Cooper, 130 Ariz. 257, 261 (1981), and we have no basis here to gainsay the court's refusal to award maintenance. Therefore, we find no abuse of discretion and affirm the court's denial of spousal maintenance.
Recusal of Judge and Change of Venue
¶22 For the first time on appeal, Anissa contends the trial judge, presumably after reversal and remand, should be removed from her case due to bias stemming from a case involving a family member in 1998, and the trial judge having been a Deputy Pinal County Attorney at that time. She also requests a change of venue from Pinal County to Maricopa County because the Mayor of Apache Junction currently employs Nathanial. We will not consider issues the trial court did not have the opportunity to address. In re Marriage of Gibbs, 227 Ariz. 403, ¶ 14. Because Anissa did not raise either claim in the trial court, we will not consider them.
Disposition
¶23 For the foregoing reasons, we affirm the decree of dissolution and the trial court's orders as to legal decision-making and parenting time, child support, division of property and assets, and the refusal to award attorney fees, costs, and spousal maintenance. Nathanial has requested an award of attorney fees and costs on appeal under Rule 21, Ariz. R. Civ. App. P., and A.R.S. § 25-324. In our discretion, and because he did not develop arguments in support of such an award, we deny Nathanial's request.