Opinion
No. 2 CA-CV 2014-0076
10-30-2014
IN RE THE MARRIAGE OF: MICHAEL S. VOHLAND, Petitioner/Appellant, and SANDRA VOHLAND, Respondent/Appellee.
COUNSEL Law Office of Sandra Tedlock, Tucson By Sandra Tedlock Counsel for Petitioner/Appellant Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson By Corey B. Larson 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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. D20123858
The Honorable Dean Christoffel, Judge Pro Tempore
AFFIRMED
COUNSEL Law Office of Sandra Tedlock, Tucson
By Sandra Tedlock
Counsel for Petitioner/Appellant
Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson
By Corey B. Larson
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 In this domestic-relations case, Michael Vohland appeals from the trial court's decree dissolving his marriage to Sandra Vohland. He argues the court erred by awarding Sandra a portion of the increased value of his separate property business. He also argues the court erred by awarding Sandra spousal maintenance and attorney fees. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the trial court's rulings. See In re Marriage of Thorn, 235 Ariz. 216, ¶ 2, 330 P.3d 973, 974 (App. 2014). Michael and Sandra married in 2003. At that time, Michael owned a sixty-five percent interest in Veggies, Inc., a company specializing in the distribution of agricultural produce.
¶3 During the marriage, Veggies expanded operations to include production packaging, private labeling, and value-added merchandise, as well as cross-docking services for other distributors. In turn, the gross revenue of Veggies rose from approximately $3.6 million in 2003 to $9.2 million in 2012. Michael received over $1.3 million in compensation during this time. And, as a reward and to encourage retention, he gave a fourteen-percent interest in the company to two of his employees.
Michael's original partner also transferred a one-percent interest to the employees, but that transfer is not material to this appeal.
¶4 In October 2012, Michael filed a petition for dissolution. Michael's attorney characterized the "major issue" at trial as "the evaluation of the community interest, if any," in the increased value of Veggies. Michael's expert witness, Marc Fleischman, calculated the company's increased value by using an income-based approach, which estimated what an investor might pay for the company after considering the venture's risk and its potential for future earnings. In his analysis, Fleischman "normalized" the company's earnings by adjusting for unusual expenses, such as Michael's salary, which Fleischman estimated was twice as high as a reasonable compensation for an officer in Michael's position. After calculating the company's worth in 2003 and 2012, Fleischman concluded Michael's interest in the company—now only fifty-one percent—had increased in value by $244,000.
¶5 Sandra's expert, Kevin Yeanoplos, used a similar methodology to calculate the value of Michael's interest in Veggies. However, Yeanoplos normalized the company's earnings by using a higher salary replacement, concluding Michael had been overcompensated by just over $150,000. Yeanoplos also testified that the stock Michael had given to his employees held little economic value. Therefore, he rejected Fleischman's approach of calculating Michael's interest as fifty-one percent of the company's increased value in 2012.
¶6 In its under-advisement ruling, the trial court first considered whether the community received its share of the company's profits during the marriage. It found that the experts had failed to provide "certainty in calculating reasonable compensation or [Michael's] excess earnings." Nevertheless, the court agreed that the company had overcompensated Michael and that "the community [wa]s not entitled to any additional share of the profits."
¶7 The trial court then evaluated whether the community had any interest in the company's value. It adopted Fleischman's conclusion that the total value of Veggies had increased by $750,600. However, the court agreed with Yeanoplos that the transferred stock had little value and, accordingly, attributed sixty-five percent of the total increase, or $487,890, to Michael. The court also found the community's labor accounted for sixty percent of that increase, worth $292,734. In turn, "[f]or her one-half interest" in the value owed to the community, Sandra was entitled "to a payment from Michael of $146,367."
¶8 The trial court also granted Sandra an award of spousal maintenance for four years in the amount of $1,350 per month, or $3,150 per month once she no longer lived at the marital residence. And, the court awarded Sandra $27,500 in attorney fees, in addition to the $5,000 Michael had paid at the start of the proceedings.
¶9 The trial court issued its decree of dissolution in February 2014, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).
Community Property Division
¶10 Michael argues the trial court erred by awarding Sandra an interest in the increased value of the company. We generally review a trial court's division of community property for an abuse of discretion. Danielson v. Evans, 201 Ariz. 401, ¶ 13, 36 P.3d 749, 754 (App. 2001). Although the characterization of property as separate or community is an issue of law, which we review de novo, In re Marriage of Pownall, 197 Ariz. 577, ¶ 15, 5 P.3d 911, 915 (App. 2000), "'[t]he valuation of assets is a factual determination that must be based on the facts and circumstances of each case,'" Walsh v. Walsh, 230 Ariz. 486, ¶ 9, 286 P.3d 1095, 1099 (App. 2012), quoting Kelsey v. Kelsey, 186 Ariz. 49, 51, 918 P.2d 1067, 1069 (App. 1996). We will not disturb those factual findings unless they are clearly erroneous. In re Marriage of Yuro, 192 Ariz. 568, ¶ 3, 968 P.2d 1053, 1055 (App. 1998).
¶11 Section 25-213(A), A.R.S., provides: "A spouse's real and personal property that is owned by that spouse before marriage . . . , and the increase, rents, issues and profits of that property, [are] the separate property of that spouse." But, if the property's value grew during the marriage, the spouse who maintains "that the increase is also separate property" has the burden "to prove that the increase is the result of the inherent value of the property itself and is not the product of the work effort of the community." Cockrill v. Cockrill, 124 Ariz. 50, 52, 601 P.2d 1334, 1336 (App. 1979); see also A.R.S. § 25-211(A) (property acquired during marriage is community property). The trial court may find the increase is a "hybrid" of both, in which case, it must divide only that portion of the increase attributable to the community. Cockrill, 124 Ariz. at 53-54, 601 P.2d at 1337-38 (rejecting "all or none" rule). "[T]he purpose of apportioning the profits or increase [i]s to achieve 'substantial justice between the parties.'" Rueschenberg v. Rueschenberg, 219 Ariz. 249, ¶ 14, 196 P.3d 852, 856 (App. 2008), quoting Cockrill, 124 Ariz. at 54, 601 P.2d at 1338.
¶12 Michael argues the trial court erred when it (1) attributed sixty-five percent of the company's value in 2012 to him; (2) found that the community's interest of that increased value was sixty percent and that the remaining forty percent represented a reasonable rate of return on Michael's separate property; and (3) declined to reduce the community's interest in the increased value by the amount Michael was overcompensated by the company during the marriage. We address each issue in turn.
Michael's Ownership Interest
¶13 Michael argues the trial court erred by attributing sixty-five percent of the company's value to him, despite the fact that he owned fifty-one percent of the company's stock after the transfer of stock to his two employees.
¶14 According to the shareholder's agreement between Michael, his original partner, and the two employees, the stock transferred to the employees was non-transferable and did not expressly include a right to distributed profits. The agreement further provided that the "shares, due to their minority nature, and illiquidity, are of little to no value and are gifted in consideration of past performance for the [company]." According to the agreement, the employees were entitled to compensation for their shares in two instances: If the employees died or left the company, Michael would buy back the stock at book value. Sandra's expert described this arrangement as a "severe penalty for anybody leaving the company."
The agreement set the price by "subtracting the then book value of liabilities . . . from the then book value of the assets . . . divided by the number of issued and outstanding shares of stock."
¶15 The trial court found that, "[b]ecause of the restrictions on the transfer of stock," the employees' interest had "significantly less value" than Michael's. And, the court concluded it could not calculate that value because "[n]either party presented any evidence of the value of the shares of stock." Thus, the court implicitly adopted Yeanoplos's opinion that using a fifty-one-percent ownership interest would "provide[] a very misleading number."
¶16 On appeal, Michael argues the trial court erred when it did not assign a value to the stock because he "has the right to re-purchase their shares . . . at book value" and, if the company was ever sold, "they had a right to be paid for their percentage of the sale amount." There is evidence in the record to estimate what the employees might have received if they had left the company, or the company had been sold, on the day Michael filed his petition for dissolution. And, we acknowledge that applying a "straight percentage" to calculate the stock values, as if they had been sold, was possible because Fleischman estimated the company's sale price to a potential investor. But, as the court implicitly found, employing such a calculation fails to account for other factors.
In its under-advisement ruling, the trial court found "Michael d[id] not argue that the shares of stock owned by [the employees] ha[d] the same value as the stock owned by Michael." As a result, Sandra argues on appeal that he has forfeited the issue. We disagree. In his response to Sandra's trial memorandum, Michael argued that, "if the business is sold, the employees will be paid their share of the value of the company and [he] will receive only his 51% interest." We therefore address the argument.
¶17 It was Michael's burden to establish the actual value of his separate property. See Cockrill, 124 Ariz. at 52, 601 P.2d at 1336. And, his expert testified that in forming his opinion, he had not considered the redemption option, which "ha[d]n't been calculated." In fact, nothing in the record suggests that a sale of the company or an employee's resignation was imminent. Thus, estimating what the employees could have received under either hypothetical does not assist in calculating the value of Michael's ownership interest at the time of the parties' dissolution. As the trial court suggested, attributing only fifty-one percent of the value to Michael would not account for the inherent value of his majority control over Veggies, including the right to set compensation, or the redemption option. Therefore, the court did not abuse its discretion when it attributed sixty-five percent of the company's 2012 value to Michael. See Walsh, 230 Ariz. 486, ¶ 9, 286 P.3d at 1099.
Community's Portion of the Increase
¶18 Michael next argues the trial court erred when it attributed sixty percent of the increased value to the community because "any increase in value was due to factors other than [his] work efforts."
¶19 In resolving this issue, we look to "the nature, or source, of the profit from or increase of the separate property business." Rueschenberg, 219 Ariz. 249, ¶ 12, 196 P.3d at 855. "The rule is that if the profits and/or increase result from the 'inherent qualities of the business,' the profits and increase are separate property; if the profits and/or increase result from the 'individual toil and application of the spouse,' they are community property." Id., quoting Rundle v. Winters, 38 Ariz. 239, 245, 298 P. 929, 931 (1931). "There is a strong presumption" that increased value and profits are the result of the community's labor, which "is overcome only by a showing of clear and convincing evidence to the contrary." Id. ¶ 34.
¶20 In this case, the trial court noted "there was a substantial separate property component to the business at the time of the marriage." Nevertheless, the court found that Michael's labor during the marriage, including "his business acumen, insights, personality and drive," caused much of the company's success. It thus concluded that this labor accounted for sixty percent of the company's increased value.
¶21 On appeal, Michael argues that the expansion of Veggies's business and his employees' "work efforts together contributed to the increase in business value." He also argues that "[m]uch of the value" in the company and his own "expertise and experience in the brokerage business w[ere] established prior to the parties' marriage." However, the trial court considered these same factors and determined the expansion and increase in value during the marriage were attributable to Michael's expertise and experience. Thus, Michael's arguments essentially ask us to reinterpret and reweigh the evidence, which this court will not do. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13, 972 P.2d 676, 680 (App. 1998).
¶22 Moreover, the record supports the trial court's findings. Marriage of Yuro, 192 Ariz. 568, ¶ 3, 968 P.2d at 1055. Michael first worked in produce distribution as the president of his father's company. That company failed, leaving $1.2 million in debt. To avoid any regulatory fallout, Michael borrowed $10,000 from his mother to start Veggies and began paying back the creditors. At trial, Fleischman explained that Veggies was "a very, very small business" operating in "a relatively volatile" industry and, therefore, a risky endeavor. But under Michael's management, the company significantly expanded the scope of its operations, and its gross revenues grew by approximately $5.5 million over the course of the marriage.
¶23 Relying on Cockrill, Michael also argues that the forty percent of the increased value attributed to him individually, valued at $195,156, did not result in a reasonable rate of return on his separate property, which was worth $645,000 in 2003. He suggests that a division of property that results in an unreasonable rate of return could never "achieve substantial justice." In Cockrill, the court suggested several methods to determine a community's interest: A trial court could give the owner an award for the rental value of the separate property, "a reasonable rate of return on the original capital investment," or the balance of the property's value after compensating the community for "the reasonable value of [its] services." 124 Ariz. at 54, 601 P.2d at 1338. But the court made clear that "'no precise criterion or fixed standard'" was at play and that "[a]ll of these approaches have merit, with different circumstances, requiring the application of a different method of apportionment." Id., quoting Beam v. Bank of Am., 490 P.2d 257, 261 (Cal. 1971). In other words, "'the trial court is not bound by any one method, [and] may select whichever will achieve substantial justice between the parties.'" Rueschenberg, 219 Ariz. 249, ¶ 25, 196 P.3d at 858, quoting Cockrill, 124 Ariz. at 54, 601 P.2d at 1338 (emphasis added in Rueschenberg).
¶24 Here, the trial court explained that it had "reviewed the fair rate of return, not so much to determine the appropriate allocation between the community and separate property, but rather as a fairness back-up test to determine whether its decision in its totality represents substantial justice to both parties." Therefore, even if we assume Michael had received less than "a reasonable rate of return on the original capital investment," Cockrill, 124 Ariz. at 54, 601 P.2d at 1338, the court's conclusion that the community's labor caused sixty percent of the company's increased value, as discussed above, would be sufficient to support its ruling, cf. Neely v. Neely, 115 Ariz. 47, 49, 563 P.2d 302, 304 (App. 1977) ("The touchstone of proper apportionment is whether a directed distribution is equitable in nature.").
Dividing the Community Interest
¶25 Michael argues the trial court should not have awarded Sandra any interest relating to Veggies because his compensation during the marriage "was more than the reasonable compensation owed to [him] and as a result, the community was more than adequately compensated during the marriage by the business."
¶26 Michael relies on Rueschenberg, in which we reviewed a similar apportionment of a business's increased value. 219 Ariz. 249, ¶ 36, 196 P.3d at 861. In that case, the community had received "virtually 100% of net distributable earnings during the marriage." Id. ¶ 37. This court noted:
If, as a result of its receipt of [distributable earnings], the community already had received more than its proportionate share of the total profits and increase in [the business], and the trial court used the reasonable rate of return method to award the community additional monies, that may violate the fundamental rule from Cockrill to apportion the increase equitably.Id. Nevertheless, we declined to find the court had erred in attributing "additional monies" to the community because there was "no factual basis on which to assert error." Id. ¶¶ 37, 40. Specifically, "no request was made of the trial court to determine the amount of the net distributable earnings paid to the community" or to determine whether the ratio of apportionment used for the company's increased value also applied to the company's earnings. Id. ¶ 37.
Michael also relies on Roden v. Roden, 190 Ariz. 407, 411, 949 P.2d 67, 71 (App. 1997), which states, "[I]f the community is paid a fair return for its labor, the increase or profits from the separate property remain separate. Only if such return has not been paid, or was not reasonable, would the community have a claim to the growth in value of [the spouse's] separate property." But, notwithstanding this language in Roden, this court previously has rejected the argument that "receipt of a fair salary [necessarily] deprives the community of an interest in value and/or profits in a separate business." Rueschenberg, 219 Ariz. 249, ¶ 32, 196 P.3d at 860. And Michael does not argue that compelling reasons justify a departure from our reasoning in Rueschenberg. See Wells v. Fell, 231 Ariz. 525, ¶ 11, 297 P.3d 931, 934 (App. 2013) ("'Respect for precedent demands that we not lightly overrule precedent and we do so only for compelling reasons.'"), quoting State v. Hickman, 205 Ariz. 192, ¶ 37, 68 P.3d 418, 426 (2003); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) (appellant's failure to develop and support argument waives issue on appeal). Thus, to the extent Michael asks this court to apply Roden as an absolute rule, we decline to do so.
¶27 Similarly, here, the trial court acknowledged that Michael had been overcompensated during the marriage but found that it could not pinpoint a "reasonable compensation or [the] excess earnings." And, neither party requested findings of fact as to what portion of the compensation the court had attributed to the community. Instead, the court provided the following reasoning:
Michael did submit proposed findings of fact that included details regarding the value of his excess earnings. The trial court did not adopt his proposed findings, however, and Michael did not request that the court clarify the issue when it issued its own findings of fact.
In testing for substantial justice between the parties, the court would also have toMichael has not suggested how the court's analysis is inconsistent with Arizona law. Cf. Cooper v. Cooper, 130 Ariz. 257, 259, 635 P.2d 850, 852 (1981) (commingled property presumed to be community property); Baum v. Baum, 120 Ariz. 140, 146, 584 P.2d 604, 610 (App. 1978) (refusing to reimburse spouse for separate property spent on community expenses). Because the record lacks a "factual basis on which to assert error," Rueschenberg, 219 Ariz. 249, ¶ 40, 196 P.3d at 862, we must affirm the court's conclusion, see Marriage of Yuro, 192 Ariz. 568, ¶ 3, 968 P.2d at 1055.
take into consideration that portion of the profits paid out which exceeded a reasonable compensation rate determined by the court. This payout was [in] part a return on the separate property investment in Veggies, Inc. That is to say, if there had not been monies previously paid out for the benefit of Michael which were in the nature of his separate property, those monies would remain in the corporation to be retained by him. Since those monies have been spent, they still need to be placed in his separate property benefit column. Michael's decision to give his separate property monies to the community, to the children of Sandra, or to purchase items for himself, cannot now be altered or calculated.
For the same reason, we decline to address Michael's argument that the trial court erred when it found monies spent to expand the company's operations normally would have been distributed and "these held back funds justify a decision to not require any reimbursement for claimed overcompensation [to the community]."
Spousal Maintenance
¶28 Michael argues the trial court erred in awarding spousal maintenance to Sandra for four years. This court will not disturb an award of spousal maintenance absent a clear abuse of discretion. McCarthy v. McCarthy, 146 Ariz. 207, 208, 704 P.2d 1352, 1353 (App. 1985). We view the evidence in the light most favorable to sustaining the award and "will affirm if there is any reasonable evidence to support it." Leathers v. Leathers, 216 Ariz. 374, ¶ 9, 166 P.3d 929, 931 (App. 2007).
¶29 Pursuant to A.R.S. § 25-319(A), a trial court may award spousal maintenance if a spouse is unable to provide for his or her own needs because of a lack of property or appropriate employment, has contributed to the other's educational opportunities, or has had a long marriage and is of an age that may preclude appropriate employment. The amount and duration of the award are determined by considering thirteen factors enumerated in § 25-319(B). Some factors may not be relevant in a particular case, and the court need not apply them. Rainwater v. Rainwater, 177 Ariz. 500, 502, 869 P.2d 176, 178 (App. 1993). But the court may abuse its discretion by neglecting a factor that does apply. Id.
The § 25-319(B) factors include: (1) the standard of living during the marriage; (2) the marriage duration; (3) the "age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance"; (4) the "ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance"; (5) the spouses' "comparative financial resources"; (6) the "contribution of the spouse seeking maintenance to the earning ability of the other spouse"; (7) the "extent to which the spouse seeking maintenance has reduced that spouse's income or career opportunities for the benefit of the other spouse"; (8) the spouses' abilities to "contribute to the future educational costs of their mutual children"; (9) the "financial resources of the party seeking maintenance"; (10) the "time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment"; (11) "[e]xcessive or abnormal expenditures, destruction, concealment or fraudulent disposition" of common property; (12) the cost of health insurance for both spouses; and (13) "[a]ll actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim."
¶30 In this case, the parties agreed that Sandra was entitled to spousal maintenance, leaving the trial court to determine the amount and duration. The court awarded her spousal maintenance for four years. Michael was ordered to pay Sandra $1,350 per month while she lived in the marital residence in Nogales, as well as the mortgage, utilities, and other maintenance for the property, up to $3,500 per month. Once they sold the home or Sandra moved out, the award to Sandra would increase to $3,150 per month.
¶31 Reasonable evidence supports the trial court's ruling. See Leathers, 216 Ariz. 374, ¶ 9, 166 P.3d at 931. At the time of trial, Sandra was fifty-one years old, held an associate degree, and had never established consistent, full-time employment. See § 25-319(B)(3). She had worked for the first three years of the marriage as an administrative assistant and produce broker. But in 2006, Sandra agreed with Michael to stop working full time in order to "take care of [their] kids, take care of the home, and take care of [her] husband" while he focused on the company. See § 25-319(B)(3), (7).
¶32 By 2013, Michael's monthly earnings had reached $11,300. See § 25-319(B)(4). In contrast, a vocational expert testified at trial that Sandra was only qualified to work as a "cashier, receptionist, order clerk, office clerk or secretary" and would likely earn $19,000 yearly if she started immediately. See § 25-319(B)(5). And although the vocational expert and Sandra had discussed the prospect of her pursuing an education in respiratory therapy, the expert testified that she would likely earn "about $35,000.00 annually" in that field.
Michael asserts that "[h]is total expenses exceed $10,000 per month," suggesting that he lacks the ability to meet both his and Sandra's needs. See § 25-319(B)(4). He also notes, however, that $4,300 of those expenses are for the maintenance of the marital residence; the trial court's award accounted for these expenses until the residence is sold.
¶33 Michael nonetheless argues that an award of maintenance for four years "is too long in light of [Sandra]'s ability to be employed, her past employment and the length of the marriage." Relying on Hughes v. Hughes, 177 Ariz. 522, 869 P.2d 198 (App. 1993), he suggests that the four-year award "does not promote independence and self-sufficiency." We disagree. To pursue her education, Sandra testified she would need to complete "about a semester and a half" of prerequisite courses and then move to Pima County in order to study full-time for another two years. See § 25-319(B)(10). Forcing Sandra to forgo this education would stifle her opportunity to develop self-sufficiency and to regain the high standard of living set during the nine-year marriage. See § 25-319(B)(1), (2); Hughes, 177 Ariz. at 523-24, 869 P.2d at 199-200 (balancing self-sufficiency with probability of reaching previous standard of living). Thus, the court did not abuse its discretion by awarding spousal maintenance for four years. See McCarthy, 146 Ariz. at 208, 704 P.2d at 1353.
The vocational expert testified that a nine-month program was available in Pima County, but that it is several times more expensive than the two-year program.
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Attorney Fees
¶34 Michael lastly argues the trial court erred by awarding Sandra $27,500 in attorney fees because it "did not adequately consider the award of spousal maintenance or the property awarded" to Sandra. We review an award of attorney fees for an abuse of discretion. In re Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 20, 35 P.3d 89, 96 (App. 2001).
¶35 Section 25-324(A), A.R.S., provides that a trial court may award attorney fees "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." "The purpose of the statute is to provide a remedy for the party least able to pay." In re Marriage of Zale, 193 Ariz. 246, ¶ 20, 972 P.2d 230, 235 (1999). "[A]n applicant's inability to pay his or her own attorneys' fees is not a prerequisite to consideration for an award." Magee v. Magee, 206 Ariz. 589, ¶ 18, 81 P.3d 1048, 1052 (App. 2004). "[A]ll a spouse need show is that a relative financial disparity in income and/or assets exists between the spouses." Id. ¶ 1.
¶36 The record supports the trial court's award. There is a significant disparity in Michael's yearly income of $173,000 and Sandra's current potential income of $19,000, even after accounting for the spousal maintenance that Michael is obligated to pay. And although Sandra was awarded $146,367 for her share of the company's increased value along with other personal property, Michael will maintain his ownership interest in Veggies, which was worth $889,000 in 2012. Thus, we cannot say the court abused its discretion in granting an award of fees. See Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 20, 35 P.3d at 96.
Disposition
¶37 For the foregoing reasons, we affirm the dissolution decree. Sandra has requested attorney fees and costs on appeal pursuant to § 25-324(A). We have considered the financial resources of the parties and the reasonableness of their positions. Sandra has prevailed on appeal, and, as discussed above, the record establishes that Michael's income is significantly higher than Sandra's potential earning capacity. Accordingly, we award Sandra her reasonable attorney fees and costs upon compliance with Rule 21, Ariz. R. Civ. App. P.