Opinion
1 CA-CV 12-0057
02-19-2013
In Re the Marriage of: CHRISTOPHER TAVARES, Petitioner/Appellant, v. BRIDGITTE TAVARES, Respondent/Appellee.
Leavell & Rivera, P.L.C. By Londa T. Rivera Attorneys for Petitioner/Appellant Robert D. Wermager Attorney for Respondent/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 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(Not for Publication -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. FC2011-003512
The Honorable James T. Blomo, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
Leavell & Rivera, P.L.C.
By Londa T. Rivera
Attorneys for Petitioner/Appellant
Phoenix Robert D. Wermager
Attorney for Respondent/Appellee
Tempe JOHNSEN, Judge ¶1 Christopher Tavares ("Father") appeals from the superior court's decree of dissolution and order denying his motion for new trial. Father argues the court erred by limiting the time allotted for trial and, inter alia, by permitting Bridgitte Tavares ("Mother") to relocate their infant child to Florida. For the following reasons, we vacate and remand the decree insofar as it resolved disputed issues. Otherwise, we affirm the decree.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were married on August 10, 2009, in Jamaica. They lived together in Florida until Father moved to Arizona in July 2010 to accept employment in Phoenix. Their child was born in Florida on January 5, 2011, and Mother moved to Arizona with the child in early February 2011. On or about May 13, 2011, Mother returned to Florida with the child, allegedly without Father's prior knowledge or consent. On May 20, Father filed a petition for dissolution and an Emergency Petition for Immediate Return of Minor Child to Arizona and Motion for Temporary Orders Regarding Child Custody. The court entered an order directing Mother to return the child to Arizona, and she complied on June 19, 2011. After a hearing on Father's emergency petition, the court on July 1, 2011, issued an order finding that Mother had failed to meet her burden of proving that relocating the child to Florida at that time was in the child's best interest and that such a move while the trial was pending would prevent Father from bonding with the child. ¶3 In its July 1 order, the court also set a two-hour trial for August 31, allotting each party one hour "to present all direct, cross, redirect examination and any argument." The order stated that the time would not be extended absent a motion filed at least 30 days before trial. The court further ordered the parties to exchange all disclosure statements and other discovery required by Arizona Rules of Family Law Procedure 49 and 50 no later than 45 days before trial, and ordered that all discovery was to be completed and any motions regarding discovery were to be filed 30 days before trial. ¶4 On August 19, Father filed a motion to extend the allotted trial time from two hours to a full day. Father argued that more than two hours would be required for trial because the parties had been unable to reach agreement about relocation of the child, child custody, parenting time, child support, division of debts and assets, and spousal maintenance. Apparently anticipating that the court's calendar would not allow a full-day trial on August 31, Father urged the court to reset the trial for a later date. He stated that the parties had agreed to extend the discovery deadline by two weeks to August 15, but said that discovery had continued past that date. Father asserted he had yet to receive from Mother certain bank statements and documents "regarding bank accounts, income taxes and tax debt, credit card debt, [Mother's] current Affidavit of Financial Information, a copy of [Mother's] current lease agreement along with the application, etc." He argued that Mother had disclosed three bank accounts of which he had not been aware, but had declined to provide statements for the accounts. Father therefore argued the August 24 deadline could not be met because discovery was not complete. ¶5 Although Father's motion stated that his counsel did not recall agreeing to a two-hour trial, Mother's response asserted that the parties discussed and agreed to the two-hour trial setting during the June hearing on the motion to relocate. Mother did not dispute Father's list of the many issues remaining for trial, however. In fact, Mother agreed that the two hours allotted for trial was "very tight" and acknowledged that she might not be able to present all the testimony she desired. She argued, however, that she would be prejudiced financially if the trial were continued. She argued that while Father was making "at least $10,000 each month," she made only $2,000 a month, and had not sought temporary child support orders because she thought the case would be tried on August 31. ¶6 Father filed a combined reply in support of his motion for more time and a motion to compel discovery. In support of his request for more trial time, he argued Mother had access to sufficient funds such that she would not be prejudiced by a trial continuance. He also said he had learned for the first time at a deposition on August 10 that Mother was going to request reimbursement of a number of premarital debts and division of community debt arising from credit cards in her name. As for discovery, he denied Mother's representation that only "follow-up" disclosure issues remained for trial. Father argued the issue was not "follow-up" discovery, but Mother's various failures to make minimum disclosures required by Rule 49(E)(2) with respect to bank account documents. Asserting that Mother had control of the parties' finances but had failed to make the disclosures required by Rule 49(E)(2) and sought by his requests for production of documents, Father asked the court to compel Mother to produce statements for seven newly discovered bank accounts. On August 26, 2011, the court denied both of Father's motions without explanation. ¶7 In the joint pretrial statement, filed August 26, the parties identified the following issues for trial: (1) Mother's proposed relocation of the child to Florida; (2) legal and physical custody of the child (Father sought sole custody; Mother proposed joint legal custody with herself having primary physical custody); (3) parenting time; (4) child support; (5) division of community assets, including a retirement plan, a profit-sharing plan and a 401(k) plan, six credit card accounts as well as several bank accounts; (6) spousal maintenance; (7) reimbursement for fees and other non-community assets. ¶8 Father argued in the joint pretrial statement that Mother had failed to fully respond to discovery propounded on July 6. Repeating contentions made in his motion to compel, Father asserted Mother failed to provide information about several accounts into which and out of which transfers of funds were shown during the relevant time. Mother did not deny Father's assertion, but contended she had made "reasonable efforts to timely comply with all requests." In the section of the joint pretrial statement labeled "Estimated Hearing Time," Father said the estimated length "is one day." For her part, Mother asserted that the parties had agreed to a two-hour trial, but did not cite the record for such agreement. ¶9 During the two-hour trial on August 31, Father called one witness, a family friend, and himself. Mother called only herself. The court entered a 27-page decree of dissolution on October 3, 2011. Pursuant to Arizona Revised Statutes ("A.R.S.") sections 25-403 (West 2013) and -408 (West 2013), the court awarded the parties joint legal custody of the child, but designated Mother as primary residential parent and allowed her to move to Florida with the child, finding relocation was in the child's best interest. The court entered alternative orders regarding parenting time depending on whether Father chose to move to Florida or remain in Arizona, with Father solely responsible for travel costs if he chose to remain in Arizona. The court made findings with respect to four bank accounts, 401(k) accounts and credit cards, and directed Father to pay a portion of Mother's reasonable attorney's fees and costs. ¶10 After Father moved for a new trial, the court denied the motion, but modified the decree to award the parties their separate vehicles and real property. This court has jurisdiction of Father's timely appeal pursuant to A.R.S. § 12-2101(A)(1) (West 2013).
The transcript of the June hearing reveals that the parties agreed on the August 31 trial date, but there is no reference to a two-hour time limit in the transcript.
Although theses statutes were amended after the relevant date, the revisions are immaterial to the disposition of this appeal. Thus, we cite to the current version of the statute.
DISCUSSION
A. The Superior Court Erred by Failing to Grant Father's Motion for More Trial Time.
¶11 Father argues the superior court abused its discretion in failing to grant his motion to extend the trial time from two hours to a full court day. He argues that given the outstanding discovery disputes, Mother's failure to make required disclosures, and the many significant issues that remained for trial, he was prejudiced because he did not have time within the hour allotted to him to put on the evidence and cross-examine Mother. We review a court's enforcement of time limits for an abuse of discretion and will not reverse unless a party can demonstrate that it suffered prejudice because of the time limits. Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 90-91, ¶¶ 29-30, 977 P.2d 807, 812-13 (App. 1998). An abuse of discretion is "an exercise of discretion [that] is manifestly unreasonable, exercised on untenable grounds or for untenable reasons." State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App. 1992). ¶12 Arizona Rule of Family Law Procedure ("A.R.F.L.P.") 22(1) provides that "[t]he court may impose reasonable time limits on all proceedings or portions thereof and limit the time to the scheduled time." While the court has considerable discretion to impose reasonable time limits on proceedings, "rigid time limits are disfavored" and "trial time limits should be sufficiently flexible to allow [for] adjustment[s] during trial." Brown, 194 Ariz. at 90-91, ¶ 29, 977 P.2d at 812-13 (interpreting Arizona Rule of Civil Procedure 16(h)). ¶13 According to the record, the court imposed the two-hour trial time limit barely 40 days after filing of the dissolution petition and before any meaningful disclosure by the parties. The court did not abuse its discretion by setting the trial for only two hours. Many dissolution proceedings appropriately can be tried in two hours. When a marriage is of short duration or when the parties have minimal assets or have resolved most of the issues before trial, a two-hour trial setting may allow adequate time to present the evidence. ¶14 In this case, however, the two-hour setting was ordered before the parties had engaged in substantial discovery and long before they sensibly could know what discovery disputes, if any, would arise and before they could assess what issues would need to be tried. Given the circumstances, Father acted promptly in alerting the court to the discovery issues that had arisen and of the many substantial issues that would need to be tried. Under the circumstances his motion described (and not disputed by Mother), the court abused its discretion in failing to expand the time allotted for trial. ¶15 Among the significant issues to be tried was Mother's request to relocate with the child. Pursuant to A.R.S. § 25-403(A) and -408(H), the court must consider the various enumerated factors when determining the best interest of the child relative to custody and proposed relocation. In custody matters, the court has a duty "to hear all competent evidence which may be offered." Hays v. Gama, 205 Ariz. 99, 103, ¶ 21, 67 P.3d 695, 699 (2003) (quotation omitted). While this does not mean the court must hear all evidence a party seeks to offer, the time provided must not be facially unreasonable given the number and complexity of the issues. ¶16 In this case, as Father points out, the court's time limit prevented him from presenting significant relevant evidence regarding the best interest of the child, which prejudiced him at trial. Father asserts that with additional time, he would have presented evidence of Mother's asserted harassing character and controlling personality, evidence of his own character to rebut Mother's testimony, evidence of his involvement in the child's medical appointments and Mother's "absolute unwillingness to cooperate" with him regarding the child's safety and his concerns about her care of the child. ¶17 The two-hour time limit not only prevented Father from fully presenting his testimony, but also prevented him from conducting a thorough cross-examination of Mother on issues relating to relocation and the parties' finances and assets. After his own examination and after briefly examining his one other witness, Father had time to ask only two questions of Mother on cross-examination. Father contends that with additional time, he would have been able to illustrate inconsistencies in Mother's testimony, Mother's allegedly inappropriate behavior towards Father and his relatives, Mother's alleged hiding of assets and evidence that Mother's relocation request primarily benefitted herself. Under the circumstances, including the extremely short time and the many issues to be tried, we do not accept Mother's contention on appeal that had Father been more prudent in putting on his own case, he would have had sufficient time for cross-examination. ¶18 Accordingly, because the court abused its discretion by failing to grant Father additional trial time, we vacate the decree insofar as it resolved any contested issues and remand for further proceedings consistent with this decision. We address certain issues below that may arise on remand.
In passing, without citing supporting authority, Father contends that the time limitations violated his due process rights. We do not address this argument. Father made no "due process" argument in the superior court and therefore has waived it. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000). In addition, we do not consider arguments unsupported by any authority. Ness v. W. Sec. Life Ins. Co. , 174 Ariz. 497, 503, 851 P.2d 122, 128 (App. 1992).
B. The Superior Court Abused Its Discretion By Not Requiring Mother to Disclose Information Regarding the Bank Accounts.
¶19 Pursuant to A.R.F.L.P. 49(E)(2), without request, a party to a dissolution proceeding is required to disclose
copies of all monthly or periodic bank, checking, savings, brokerage and security account statements and all electronically stored information concerning such accounts in which any party has or had an interest for the period commencing six (6) months prior to the filing of the petition and through the date of the disclosure.Further, upon a discovery request, a party may be compelled to disclose additional information and documents "regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action." A.R.F.L.P. 51(B)(1). We review a decision regarding discovery violations for an abuse of discretion. Brown v. Superior Court In & For Maricopa County, 137 Ariz. 327, 331, 670 P.2d 725, 729 (1983). ¶20 Father argues the superior court erred both in denying his motion to compel Mother to produce bank statements for accounts that she had not disclosed and in not addressing these undisclosed accounts in its division of the parties' property. Father's motion was triggered by Mother's disclosure of bank statements showing that she had transferred funds to and from accounts previously unknown to Father. In response to Father's motion, Mother responded that she only was "required to disclose documents in her possession or readily available." When Mother was asked on direct examination about bank accounts in general, she testified only that she paid the mortgages and bills and that they had no money left over; she did not address the undisclosed accounts and, given the limited trial time, Father did not cross-examine her on the matter. The court's decree did not mention the previously undisclosed accounts. ¶21 We agree with Father that the court should have required Mother to disclose statements for the previously undisclosed accounts and should have addressed those accounts in its decree. Although Mother's failure to explain the accounts precludes us from assessing their nature and ultimate importance to the issues at trial, the record shows funds were transferred with some frequency from known accounts into the undisclosed accounts and from the undisclosed accounts into known accounts. ¶22 Mother may not argue that she does not happen to have copies of the bank statements on hand. A.R.F.L.P. 49(E)(2) requires her to obtain and produce statements from all accounts in which she had any interest during the six months prior to filing of the petition. As noted, Mother offered no explanation of the accounts and does not contend on appeal that they fall outside the scope of Rule 49's requirements. While Mother is correct that Father's motion to compel was not made until August 24, after the stipulated deadline of August 15, the record shows that it was not until August 10 that Father received documents from Mother revealing the existence of the new accounts. The record further shows that Father was in contact with Mother's counsel on August 15, 16, and 17, with respect to other asserted failures to disclose information before contacting Mother's counsel about the bank accounts on August 18. ¶23 Although Father did not file a certificate with his motion to compel recounting a good-faith effort to resolve the dispute, see A.R.F.L.P. 51(E), he advised the court of his interaction with Mother's counsel on the matter and attached the email stream between counsel regarding the dispute. Under these circumstances, the court was adequately advised of the parties' efforts to attempt to resolve the dispute. ¶24 On remand, the court shall order Mother to disclose the information and documents relating to accounts '42371778, '78644789, '0288185134, '0243103818, '2053382156, '295647649 and Complete Advantage 8646, as required by A.R.F.L.P. 49(E)(2) and fairly sought by Father's discovery requests. Following such additional proceedings as the court in its discretion shall allow, the court shall determine the nature of the assets in the accounts and direct their proper distribution. In doing so, and to the extent required by the evidence, the court may reconsider and modify the distribution of the parties' other assets previously awarded in the original decree of dissolution.
We also note that, in Father's Motion to Extend Time filed August 19, Father advised the court that Mother just that morning had provided Father with "hundreds of pages of discovery." We take from that that Mother herself had not complied with the August 15 stipulated discovery deadline.
C. The Superior Court Must Make Specific Findings as Required By A.R.S. § 25-408 in Determining Relocation.
¶25 We review a court's decision regarding relocation of a child for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). The primary factor in deciding whether to allow a parent to relocate a child is whether the relocation is in the child's best interest, considering the factors enumerated in A.R.S. § 25-408(H). A.R.S. § 25-408(F); Owen, 206 Ariz. at 420-21, ¶ 8, 79 P.3d at 669-70. The factors are to be weighed collectively, with no single factor controlling to the exclusion of others. Pollock v. Pollock, 181 Ariz. 275, 278, 889 P.2d 633, 636 (App. 1995); see also Owen, 206 Ariz. at 421, ¶ 12, 79 P.3d at 670. The court must make specific findings on the record regarding each of the statutory factors and state its reasons for concluding that its decision is in the child's best interest. Owen, 206 Ariz. at 421, ¶¶ 8-9, 79 P.3d at 670. The burden of proving that relocation is in the child's best interest is on the party pursuing relocation. A.R.S. § 25-408(F) . ¶26 Father argues the superior court erred by failing to make specific findings in support of its decision to allow relocation of the child. In its ruling, the superior court listed each of the factors to be considered and, for each, set out Mother's testimony and Father's testimony related to that factor. After recounting the evidence on each of the factors in that manner, the court then simply stated that Mother had met her burden of showing that the relocation was in the child's best interest "[g]iven all the factors noted above." The court's order offered no insight into its reasoning and did not indicate which factors the court found in favor of which parent, how the court weighed any of the factors in relation to any others, what evidence the court accepted or rejected, or how the court assessed the credibility of the witnesses. ¶27 The parties' testimony sometimes contrasted sharply. In such a situation, merely laying out the conflicting testimony of each party and stating a conclusion does not satisfy the requirement that the court explain the reasons for its decision. See Owen, 206 Ariz. at 421-22, ¶ 12, 79 P.3d at 670-71 (superior court abused its discretion by making detailed findings for only some of the factors contained in A.R.S. § 25-408(H) when deciding a mother's relocation request). Accordingly, when the court rules on Mother's relocation request on remand, it must make the specific findings required by statute.
D. Costs of Visitation.
¶28 In allocating travel expenses associated with parenting time, "the court shall consider the means of the parents and may consider how their conduct (such as a change of residence) has affected the costs of parenting time." Cook v. Losnegard, 228 Ariz. 202, 204, ¶ 9, 265 P.3d 384, 386 (App. 2011) (quoting Child Support Guidelines 18 (Supp. 2011) ("Guidelines")). Whether an allocation is equitable depends on the facts of each case. Id. ¶29 Without explanation, the decree stated, "Father is solely responsible for the costs associated with visitation of the child." Father argues the superior court erred in imposing on him all costs related to his visitation of the child. ¶30 The issue of reimbursement for the transportation costs Father will incur in exercising his visitation rights only came about as a result of Mother's election to move. Moreover, the existing record does not support Mother's argument that the disparity in the parties' incomes justifies Father bearing the entire cost. While the fact that Father earns twice as much as Mother earns might support allocating to Father a proportionately higher share of the expense, it does not justify imposing the entire obligation on him, as Mother is not without resources, earning $5,000 per month. Further, Mother testified that she was willing to split the transportation costs and the travel with Father. ¶31 We understand that the court may accept additional evidence on this issue on remand. On the record before it after the August 2011 trial, however, the court abused its discretion in allocating to Father all of the expenses of visitation.
A guide for parents published by the Arizona Supreme Court states with regard to expenses for long-distance parenting:
In the case where the move is necessary, the costs usually are divided in proportion to the parents' incomes. However, if the move is voluntary, the moving parent usually pays a greater percentage of all travel costs.Planning for Parenting Time, Arizona's Guide for Parents Living Apart, www. azcourts.gov/Portals/31/ParentingTime/PPWguidelines.pdf.
E. Imputing Income to Mother.
¶32 In calculating child support, the superior court imputed income to Mother of $5,000 per month, or $60,000 per year. On appeal, Father argues Mother historically earned approximately $94,000 annually, and asserts that since she voluntarily reduced her work hours from full time to part time in March 2011, the higher historical income should be attributed to her. ¶33 The Child Support Guidelines note, "when a parent is unemployed or working below his or her full earning potential, a trial court calculating the appropriate child support payment may impute income to that parent, up to full earning capacity, if the parent's earnings are reduced voluntarily and not for reasonable cause." Little v. Little, 193 Ariz. 518, 521, ¶ 6, 975 P.2d 108, 111 (1999) (citing Guidelines 5(E)). If the reduction in income is voluntary but reasonable, the court balances the parent's decision and the benefits from that decision against the impact the reduction of child support has on the child's best interest. Id. In determining whether the reduction in income is reasonable, the court considers a number of factors including, but not limited to, whether the change places the child in peril, whether the parent's current educational level and physical capacity provide him or her with the ability to find suitable work in the marketplace and whether the child ultimately will benefit from the reduction in income. Id. at 522, ¶ 13, 975 P.2d at 112. ¶34 Mother testified that she gave up her full-time job in Florida to take care of the child and to follow Father to Arizona. She further testified Father had told her she could stay at home with the child until they returned to Florida and that she decided to work part-time earning $2,000 per month to help with the budget, working remotely with the same company she had worked with in Florida. She went on to say that she had attempted to find employment in Arizona, naming several companies to which she had applied, with no success. She testified that she had a job offer in Florida for $60,000 per year working seven hours a day with flexible hours that would allow her to stay close to home and care for the child. She also testified that when she earned $94,000 per year, she had worked sixty to seventy hours per week. See Guidelines, 5(A) ("The court should generally not attribute additional income to a parent if that would require an extraordinary work regimen."). ¶35 We have vacated the decree insofar as it addressed child support and all other contested issues. The court may hear additional evidence on this issue on remand. Based solely on the evidence offered at the August 2011 trial, however, the court did not abuse its discretion in imputing income of $60,000 to Mother.
F. The Court's Order Regarding the Couple's Retirement Funds Requires Clarification.
¶36 Father argues the superior court erred in ordering the preparation of a QDRO with respect to the couple's retirement accounts because Mother's account no longer exists, having previously been liquidated. Father testified that he had a 401(k) retirement plan into which he had contributed $17,917.58 during the couple's marriage and which had a vested balance of $24,862.05 as of May 9, 2011. Mother testified that she liquidated her retirement account on May 19, 2011, but spent all of the proceeds after the court ordered her to return with the child from Florida the following month. Her account statement covering the period of April 1, 2011, to June 30, 2011, showed a final balance before liquidation of $18,370.93, including a loan of $2,781.53 that she testified went toward the couple's primary residence in Boca Raton. She asked for $5,000 from Father's retirement account as an offset. ¶37 In its dissolution order the court stated:
Mother contends both parties have 401K accounts. Mother testified that she cashed out a portion of her 401K for the benefit of the community. Father contends both have 401K accounts but that Mother liquidated her account back in May of 2011.¶38 Given Mother's testimony that she liquidated her 401(k) account, which is not disputed by Father, the court's finding that there were two remaining retirement accounts is not supported by the record. Perhaps the court's reference to 401(k) accounts in the plural means that it concluded, as Father argued, that some or all of the amount that Mother withdrew from her account should be treated as a community asset. Alternatively, the order mentions but does not address the fact that Mother testified she put the proceeds of her 401(k) toward community expenses. For these reasons, on remand the superior court should clarify its findings and order on this point.
THE COURT FINDS that both parties have retirement accounts.
IT IS ORDERED that in equitably dividing the property, the parties shall arrange to have any necessary Qualified Domestic Relations Orders (QDRO) prepared. The parties shall share the cost to have any QDROs prepared.
Father, stating that Mother received $15,463 in cashing out her retirement account, appears to agree on appeal that the $2,781.53 that Mother testified was a loan for Father's property should not be included in determining the amount that Mother withdrew.
G. The American Express Debt.
¶39 Father argues the superior court erred in characterizing two credit card obligations as community debt. We review the superior court's allocation of debt for an abuse of discretion. In re Marriage of Inboden, 223 Ariz. 542, 544, ¶ 7, 225 P.3d 599, 601 (App. 2010). We review the court's decision that a debt is a community obligation to determine if it is clearly erroneous. Hrudka v. Hrudka, 186 Ariz. 84, 91, 919 P.2d 179, 186 (App. 1995). A finding is not clearly erroneous if substantial evidence supports it. In re Estate of Pouser, 193 Ariz. 574, 580, ¶ 18, 975 P.2d 704, 710 (1999). ¶40 Generally, debt incurred by one spouse during the marriage is community debt if it is incurred for the benefit of the community. Johnson v. Johnson, 131 Ariz. 38, 44-46, 638 P.2d 705, 711-13 (1981); A.R.S. § 25-214(C) (West 2013). A separate debt incurred by a spouse prior to marriage generally is not community debt. See generally A.R.S. § 25-215(B) (West 2013) (providing that a creditor may seek recovery for a spouse's premarital separate debt only up to the value of that spouse's contribution to the community). ¶41 Both parties testified that before the marriage, Mother had an American Express credit card. Father became a co-user of the card in May 2009, before the parties married. On July 23, 2009, the balance of the account was $3.85, which rose prior to the August 10, 2009, marriage to $16,169.61. At the time of dissolution the balance was $15,648.80. ¶42 Father argued that because the balance existed prior to the marriage, the entire amount should be assigned to Mother. Mother testified, however, that both parties charged wedding expenses on the card and intended to pay the debt with Father's tax refund, which did not materialize. She also testified that the couple continued to use the card throughout the marriage. She did not agree with Father's counsel's suggestion that she and Father had an agreement that Father would pay for the wedding rings and Mother would pay for the wedding. Mother instead testified that Father purchased an engagement ring as a gift and that Father's wedding band was charged to the card. The court found that the American Express debt was for the benefit of the community and divided it equally. ¶43 The record contains evidence supporting the superior court's conclusion that the charges were not Mother's separate premarital debts even though they were placed on a credit card in Mother's name. The credit card statements show Father made charges on the card as of July 16, 2009, and running through March 20, 2011, with a significant portion of the charges incurred for the couple's wedding. Additionally, even if charges to an account are deemed one spouse's separate obligations, a spouse who has expended separate property in payment of community expenses is entitled to reimbursement if there is an agreement to that effect. Baum v. Baum, 120 Ariz. 140, 146, 584 P.2d 604, 610 (1978). ¶44 Understanding that the court may receive additional evidence on this issue on remand, based on the evidence before it at the August 2011 trial, the court did not err in allocating the American Express debt equally between the parties.
H. Mother's Citibank Credit Card.
¶45 Father also objects to the court's characterization of the entire balance of Mother's Citibank credit card '5857 as a community debt. Both Mother and Father stated in their joint pretrial statement that the balance on that card included more than $4,000 of Mother's sole and separate debt, leaving approximately $15,000 on the card as community debt. At trial, Mother testified that about $4,000 of that debt was hers from before the marriage. The court, without elaboration, found that Mother's Citibank credit card was community debt, and divided the obligation equally between the parties. ¶46 Based on the record of the August 2011 trial, the court had before it no evidence that the approximately $4,000 owed on the account was community debt. Accordingly, based on the record before it, the court erred in deciding that the entire balance on Mother's Citibank credit card is community debt and by dividing the balance owed equally between the parties.
I. Attorney's Fees.
¶47 Father contends that the superior court erred in awarding attorney's fees to Mother without conducting a hearing to permit him to present evidence regarding the parties' financial resources and the unreasonableness of Mother's positions during the litigation. The superior court may enter an award of reasonable attorney's fees in a dissolution proceeding "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." A.R.S. § 25-324(A) (West 2013). Relative financial disparity is the benchmark for eligibility for an award of fees, without regard to which party has prevailed. Breitbart-Napp v. Napp, 216 Ariz. 74, 84, ¶¶ 37-38, 163 P.3d 1024, 1034 (App. 2007). The objective is to provide a remedy to the party least able to pay. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524, ¶ 13, 169 P.3d 111, 114 (App. 2007) (quotation omitted). We will not disturb an award of attorney's fees under A.R.S. § 25-324 absent an abuse of discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36, 250 P.3d 1213, 1221 (App. 2011). ¶48 At the August 2011 trial, the court advised the parties it would permit them to address attorney's fees in writing after trial. In the decree, the court found that "neither party acted unreasonably in the litigation" and that Father had considerably more resources than Mother, and on that basis granted Mother's request "for a portion of attorney fees and costs." The court thereupon directed Mother to file an application for fees and support, and allowed Father to "file any written objection." Mother sought $25,796 in fees; the court awarded her $10,000. ¶49 Responding to Mother's fee application, Father accused Mother of misleading the court about the state of her financial resources and implied that Mother had secreted funds in the undisclosed bank accounts and had voluntarily kept herself underemployed, making an imputation of a higher income appropriate. Father also disputed the court's finding that Mother had not acted unreasonably, contending that to make such a finding without allowing him to present evidence of Mother's unreasonableness was fundamentally unfair. ¶50 Given our decision to vacate the decree in part, we also vacate and remand the court's ruling on attorney's fees so that it may reconsider the award at the conclusion of the litigation.
J. Father's Motion for New Trial.
¶51 Father lastly argues that the superior court erred in denying his motion for new trial. In support, however, Father raises no argument not already addressed above.
CONCLUSION
¶52 For the reasons stated above, we affirm the decree of dissolution insofar as it addressed uncontested issues, but vacate the decree insofar as it resolved contested issues, and remand for further proceedings consistent with this decision. Both parties seek attorney's fees on appeal pursuant to A.R.S. § 25-324. We decline to award fees to either party at this time, but at the conclusion of the proceedings on remand, the parties may ask the superior court to award them fees incurred in this appeal. We award Father his costs of appeal, contingent on compliance with Arizona Rule of Civil Procedure 21.
____________________
DIANE M. JOHNSEN,
Acting Presiding Judge
CONCURRING:
_________________________
JON W. THOMPSON, Judge
_________________________
Pursuant to Article VI, Section 3 of the Arizona Constitution, the Arizona Supreme Court designated the Honorable Kenton D. Jones, Judge of the Arizona Superior Court, to sit in this matter.
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