Opinion
No. 2 CA-CV 2018-0013
09-13-2018
IN RE THE MARRIAGE OF SUSAN BETH PLUMMER, FKA SUSAN BETH EDWARDS, Petitioner/Appellant, and JAMES R. EDWARDS JR., Respondent/Appellee.
COUNSEL Aboud & Aboud, P.C., Tucson By John Eli Aboud and Michael J. Aboud Counsel for Petitioner/Appellant Benavidez Law Group, P.C., Tucson By Elisabeth I. Benavidez and Javier Alatorre 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NOT FOR PUBLICATION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 Pima County
No. D20103851
The Honorable Greg Sakall, Judge
VACATED AND REMANDED
COUNSEL Aboud & Aboud, P.C., Tucson
By John Eli Aboud and Michael J. Aboud
Counsel for Petitioner/Appellant Benavidez Law Group, P.C., Tucson
By Elisabeth I. Benavidez and Javier Alatorre
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Susan Plummer appeals from the trial court's order modifying and imposing a termination date on her spousal maintenance in favor of her former husband, James Edwards. She contends the court abused its discretion because it found no substantial or continuing changes justifying the modification, but rather relied on impermissible factors. We agree, and therefore vacate the court's order and remand the case for the court to enter an order consistent with this decision.
Factual and Procedural Background
¶2 In February 2012, the trial court entered a consent dissolution decree, dissolving the twenty-two-year marriage between Susan and James. The decree allocated community property and debts, established child support, and stated James would "pay [Susan] $3,746.00 per month for spousal maintenance, beginning on February 1, 2012."
¶3 In August 2017, James filed a petition to modify his spousal maintenance obligation. He asserted that the improved housing market constituted a "substantial and continuing change of circumstances" that would allow Susan, who had worked as a realtor, "to be self-supporting." James further argued the spousal maintenance amount left him "with no discretionary income and . . . no savings apart from his 401(k)." He thus requested that the trial court "significantly modify" the maintenance award "and impose a date of termination." In her response, Susan denied James's assertion that she was able to support herself and counter-petitioned that the court increase the spousal maintenance award. She stated that since the decree had been entered, James's "income ha[d] increased" and his "expenses ha[d] decreased," whereas her "expenses ha[d] increased" and she "continue[d] to meet the criteria . . . for an award of maintenance."
James's petition also included a request to terminate spousal maintenance entirely, but he later abandoned that request. --------
¶4 Following an evidentiary hearing, the trial court found that, since the 2012 decree had been entered, there had been no substantial changes to either Susan's or James's income or expenses. After considering other "relevant circumstances," the court nonetheless concluded "there [was] sufficient evidence of a substantial change of circumstances to modify the original indefinite award of spousal maintenance to a modifiable award of rehabilitative spousal maintenance." It ultimately ordered that Susan's spousal maintenance would be reduced by fifty percent starting July 2019 and would terminate entirely after April 2023. Susan appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(2).
Discussion
¶5 Susan argues the trial court abused its discretion by basing its ruling on "legally impermissible grounds." We review a court's ruling on the modification of a maintenance award for an abuse of discretion. See Schroeder v. Schroeder, 161 Ariz. 316, 323 (1989). "A court abuses its discretion when it commits an error of law in the process of reaching a discretionary conclusion or '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.'" Mahar v. Acuna, 230 Ariz. 530, ¶ 14 (App. 2012) (quoting Hurd v. Hurd, 223 Ariz. 48, ¶ 19 (App. 2009)); see also Scott v. Scott, 121 Ariz. 492, 495 (1979). And although we will accept the court's findings of fact unless they are clearly erroneous, we "draw our own legal conclusions from facts found or implied in the judgment." McNutt v. McNutt, 203 Ariz. 28, ¶ 6 (App. 2002) (quoting Burnette v. Bender, 184 Ariz. 301, 304 (App. 1995)).
¶6 A trial court may modify an award of spousal maintenance "only on a showing of changed circumstances that are substantial and continuing." A.R.S. § 25-327(A). The party seeking the modification bears the burden of proving the changed circumstances. McClendon v. McClendon, 243 Ariz. 399, ¶ 9 (App. 2017). They must show there has been an actual, objective, unanticipated, and continuing change in circumstances since entry of the decree. See Scott, 121 Ariz. at 494 (estimation of future income is "speculative . . . at best" and insufficient to support modification); see also Richards v. Richards, 137 Ariz. 225, 226 (App. 1983) ("The changed circumstances alleged must be proved by a comparison with the circumstances existing at dissolution."); Marquez v. Marquez, 132 Ariz. 593, 595 (App. 1982) ("reasonably foreseeable change of circumstances [at time of decree] cannot, therefore, support a modification of the decree"); Sheeley v. Sheeley, 10 Ariz. App. 318, 321 (1969) (subjective change insufficient to justify modification). Furthermore, "the 'changed circumstances' required by . . . § 25-327(A) clearly refer to 'the economic circumstances that justified the original award.'" Van Dyke v. Steinle, 183 Ariz. 268, 274 (App. 1995) (quoting Smith v. Mangum, 155 Ariz. 448, 451 (App. 1987)).
¶7 The 2012 decree awarded Susan indefinite spousal maintenance. After reviewing the decree itself, as well as Susan's educational and work history, the trial court concluded that at the time of the 2012 decree, "the parties believed that [Susan] would be unlikely to achieve financial independence." Thus, James, as the party seeking the modification, bore the burden of showing that, in 2017, a substantial and continuing change in circumstances existed that would support converting the indefinite award to a rehabilitative award. See McClendon, 243 Ariz. 399, ¶ 9.
¶8 In its ruling, the trial court compared Susan's and James's 2012 and 2017 finances and ultimately concluded that neither had any "substantial" changes to their income or expenses. The court, however, went on to state that "[m]any relevant circumstances have changed since [the 2012 decree]." It found that: (1) Susan "no longer ha[d] three children living at home," (2) "she ha[d] recovered from the emotional distress experienced at the time of the dissolution," (3) "[t]he housing market ha[d] recovered" and Susan could "be financially independent if she made reasonable efforts to use her real estate license," and (4) Susan aspired to run a successful furniture refinishing business and hoped to be self-supporting. Based on these circumstances, the court found there was "sufficient evidence of a substantial change of circumstances to modify the original indefinite award . . . to a . . . rehabilitative spousal maintenance" award.
¶9 On appeal, neither party disputes the trial court's factual findings. Rather, at issue is whether the four factors relied upon by the court are permissible grounds on which to find a substantial and continuing change of circumstances. Susan argues they are "non-economic factors, clearly foreseeable and anticipated events, and speculation about future income and financial independence," and thus cannot support the modification. James, on the other hand, contends these factors were economic, not speculative, and existed at the time of trial. We address each factor in turn.
¶10 First, the trial court stated that Susan "no longer has three children living at home." But this circumstance did not exist even when the decree was entered in 2012 because, at that time, only one of the parties' children was still living at home. See Richards, 137 Ariz. at 226. Further, the only child living in Susan's home in 2012 was seventeen years old. In the absence of any evidence the child would have been incapable of living independently, it was "reasonably foreseeable" that the child would not be residing in the home indefinitely. Marquez, 132 Ariz. at 595. This factor thus cannot support a finding of a substantial and continuing change in circumstances.
¶11 Next, the trial court relied on Susan's recovery from the emotional distress she experienced in 2012. This is neither an economic nor objective factor, and we fail to see how one's eventual recovery from the emotional stress of a divorce would not have been anticipated at the time of the decree. See Van Dyke, 183 Ariz. at 274; see also Sheeley, 10 Ariz. App. at 321; Marquez, 132 Ariz. at 595. Relying on a change that is "primarily subjective in nature," such as a spouse's mental state, is insufficient to support a modification. Sheeley, 10 Ariz. App. at 321. As we have stated, "To open the door to modification of [spousal maintenance] where the circumstances surrounding that modification are not capable of disproof or are subject to the whim of the parties involved would subject the courts and parties to ha[]rassment by unscrupulous ex-spouses." Id.
¶12 The third and fourth factors—Susan's ability to work in real estate because the market had improved or, alternatively, her ambition to one day run a successful furniture refinishing business—are both speculative as to future income. After having found that there had been no substantial change to Susan's or James's income or expenses—a finding supported by their financial affidavits—the trial court's reliance on what Susan perhaps could earn was an improper basis for the modification. See Chaney v. Chaney, 145 Ariz. 23, 26-27 (App. 1985); see also Marquez, 132 Ariz. at 594-95 (modification of indefinite maintenance award required showing of "something other than the fact that [receiving spouse] is able to work").
¶13 After reviewing these factors, the trial court noted that it was "faced with a woman . . . who is intelligent, articulate, and focused" and found "no reason" that "[it] should tell [Susan]" she could not "be successful in her chosen vocation or . . . financially independent." Thus, rather than rely on an objective, substantial, and continuing change in circumstances, the court modified the award "because [it] thought [Susan] was capable of working and ought to work." States v. States, 124 Ariz. 189, 192 (1979) (Struckmeyer, J., concurring). Modifying the parties' spousal maintenance award on this basis was improper. See id.
¶14 Indeed, the trial court stated that it was relying on its own "prediction" that Susan would become self-sufficient and that, if its prediction were "inaccurate," either party could seek a later modification. Although "a prediction of when self-sufficiency will be accomplished" can be a proper basis for determining the duration of a maintenance award in the first instance, it cannot support a later modification. Schroeder, 161 Ariz. at 322; see § 25-327(A); see also Chaney, 145 Ariz. at 26-27. Moreover, as Susan points out, should that prediction not come to pass, she would effectively be prevented from seeking a modification because "she will then be in the same position as she was in" at the time of the court's order and therefore could not show any substantial or continuing change in circumstances. See McClendon, 243 Ariz. 399, ¶ 12 (change of circumstances required for petition to modify compared to previous modifications, not original decree).
¶15 James nevertheless argues, relying on Smith, that these were proper considerations for the trial court because they are enumerated in A.R.S. § 25-319(B). See Smith, 155 Ariz. at 451 ("A reference to 'changed circumstances' required by § 25-327(A) for modification of spousal maintenance is clearly a reference to the economic circumstances that justified the original award, as set forth in § 25-319."). He thus concludes, "[T]he earning ability and the physical and emotional condition of the person seeking maintenance are economic factors which must be considered by the court in deciding a petition to modify a maintenance award." However, as we have noted, the court in Smith specified it was only the "economic" factors in § 25-319 that were to be considered. Id. A party's emotional state is not an economic factor. Further, this argument ignores that the court must first find a "substantial and continuing" change in those economic circumstances. § 25-327(A). As already explained above and found by the court, the economic factors under § 25-319(B) that existed in 2017 had not changed substantially since the 2012 decree.
¶16 "[E]stablishing the present rights of the parties relating to spousal maintenance" should be based on current circumstances, not "long-range expectations [that may] never [be] realized." Chaney, 145 Ariz. at 27. Accordingly, "the proper procedure is for [James] to wait" to petition the trial court for a modification until Susan has begun to financially support herself, or, alternatively, he has experienced some sufficient change in circumstances. Id. Because the court's findings do not reflect a substantial and continuing change of circumstances since the 2012 decree, it abused its discretion by modifying the award. See Schroeder, 161 Ariz. at 323; see also Mahar, 230 Ariz. 530, ¶ 14; McNutt, 203 Ariz. 28, ¶ 6. We therefore vacate the court's order and direct it to enter an order denying James's petition to modify the spousal maintenance award.
Attorney Fees and Costs
¶17 Susan requests an award of her reasonable attorney fees and costs incurred on appeal pursuant to A.R.S. § 25-324(A). In our discretion, we deny her request. See id. She is, however, entitled to recover her taxable costs upon her compliance with Rule 21(b), Ariz. R. Civ. App. P.
Disposition
¶18 For the foregoing reasons, we vacate the trial court's order and remand the case for further proceedings consistent with this decision.