Opinion
No. 1 CA-CV 16-0471 FC
06-29-2017
In re the Marriage of: JEFF WASSERMAN, Petitioner/Appellee, v. CRYSTAL MOYA, Respondent/Appellant.
COUNSEL Owens & Perkins PC, Scottsdale By Max Nicholas Hanson Counsel for Petitioner/Appellee Law Office of Stone & Davis PC, Scottsdale By Kiilu Davis Co-counsel for Respondent/Appellant Berkshire Law Office PLLC, Phoenix By Keith Berkshire, Maxwell Mahoney, Erica L. Gadberry Co-counsel for Respondent/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FN2011-092048
The Honorable James D. Smith, Judge
AFFIRMED
COUNSEL Owens & Perkins PC, Scottsdale
By Max Nicholas Hanson
Counsel for Petitioner/Appellee Law Office of Stone & Davis PC, Scottsdale
By Kiilu Davis
Co-counsel for Respondent/Appellant Berkshire Law Office PLLC, Phoenix
By Keith Berkshire, Maxwell Mahoney, Erica L. Gadberry
Co-counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. THOMPSON, Judge:
¶1 Crystal Moya (wife) appeals from the superior court's orders extending her spousal maintenance and awarding her attorneys' fees. Wife argues that the superior court should have increased the spousal maintenance award and extended it indefinitely, and that the attorneys' fees award was too low. Finding no abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Wife and Jeff Wasserman (husband) were married in 2008. Husband petitioned to dissolve their marriage in 2011, and the decree was entered in 2012. They have no children together.
¶3 During the dissolution proceedings, wife asked for indefinite spousal maintenance of $2,500.00 to $3,500.00 per month asserting that she suffered from "multiple health issues," arising from a 2006 car accident that prevented her "from being able to provide for her own needs and/or be self-sufficient." Following trial, the superior court awarded wife spousal maintenance of $500.00 per month for fifteen months. Wife appealed from the decree, and this court affirmed the award (the First Appeal). Wasserman v. Moya, 1 CA-CV 12-0509, 2013 WL 3893322 (Ariz. App. July 25, 2013) (mem. decision).
In the First Appeal, wife also challenged the division of community assets, the reimbursement of husband for expenses paid pursuant to temporary orders, and the denial of her request for attorneys' fees. See Wasserman v. Moya, 1 CA-CV 12-0509, 2013 WL 3893322 (Ariz. App. July 25, 2013) (mem. decision).
¶4 While the First Appeal was pending, wife filed a petition to modify/extend spousal maintenance, asserting that since entry of the decree "circumstances have actually worsened for wife such that spousal maintenance should be extended." In this petition, wife sought an award of indefinite spousal maintenance between $1,000.00 and $1,500.00 per month.
After filing her petition in superior court, wife asked this court to stay the First Appeal and revest jurisdiction in the superior court so that it could consider her petition to modify/extend spousal maintenance. We denied wife's motion explaining that after issuance of a mandate in the First Appeal, the superior court would have jurisdiction to consider wife's petition.
¶5 After issuance of the mandate in the First Appeal, the superior court held an evidentiary hearing on wife's petition. The court determined there were "changed circumstances" based on a determination by the Social Security Administration (SSA) that wife is disabled. After the hearing, the court extended the spousal maintenance payments for an additional ten months. Thereafter, the court awarded wife $4,500.00 in attorneys' fees and $1,970.31 in costs.
¶6 Wife appealed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A) (2016).
Absent changes material to this decision, we cite to a statute's current version.
DISCUSSION
I. Spousal Maintenance
¶7 Wife first argues the superior court misapplied "the legal standard for indefinite spousal maintenance" and erred in "determining the amount of spousal maintenance." This court reviews an award of spousal maintenance for an abuse of discretion. See In re Marriage of Berger, 140 Ariz. 156, 167, 680 P.2d 1217, 1228 (App. 1983). We will affirm the award if there is any reasonable evidence to support it. See Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14, 972 P.2d 676, 681 (App. 1998).
A. Changed Circumstances
¶8 The superior court may modify spousal maintenance only upon "a showing of changed circumstances that are substantial and continuing." A.R.S. § 25-327(A) (2017). The decision of whether changed circumstances exist lies "within the sound discretion of the trial court." Cummings v. Cummings, 182 Ariz. 383, 387, 897 P.2d 685, 689 (App. 1994).
¶9 Before entry of the decree, the SSA had denied wife's claim for disability status. Thereafter, the SSA reversed its earlier decision and determined that Mother was disabled. Wife currently receives social security benefits of $1,524.00 per month. The superior court concluded that the SSA's determination of disability constituted a substantial and continuing change in wife's circumstances justifying the modification of spousal maintenance. The record supports that finding.
Husband argues that the SSA issued its decision finding wife disabled after wife filed her petition to modify/extend spousal maintenance; therefore, there were no changed circumstances at the time of the petition, and wife did not amend her pleadings to establish changed circumstances. We decline to address this argument. If husband sought to vacate the superior court's award of spousal maintenance for a lack of "changed circumstances," he needed to cross-appeal. See ARCAP 13(b)(2) ("An appellate court . . . may modify a judgment to enlarge the rights of the appellee or reduce the rights of the appellant only if the appellee has filed a notice of cross-appeal.").
B. Amount and Duration of Maintenance
¶10 The superior court has substantial discretion to determine the duration and amount of spousal maintenance. See Rainwater v. Rainwater, 177 Ariz. 500, 502, 869 P.2d 176, 178 (App. 1993). Section 25-319 (2017) establishes a framework for that discretion. See id. According to this statute, the court must balance all relevant factors, including those listed in § 25-319(B). See id. On appeal, we determine whether the court properly considered the section 25-319(B) factors. See Thomas v. Thomas, 142 Ariz. 386, 390, 690 P.2d 105, 109 (App. 1984).
The section 25-319(B) factors include:
1. The standard of living established during the marriage.
2. The duration of the marriage.
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 comparative financial resources of the spouses, including their comparative earning abilities in the labor market.
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 ability of both parties after the dissolution to contribute to the future educational costs of their mutual children.
9. The financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse's ability to meet that spouse's own needs independently.
¶11 Two doctors presented conflicting opinions of wife's medical conditions. As our supreme court has acknowledged, "much weight should be given to the findings of fact made by the [superior] court because of the better opportunities of that court to weigh the testimony." Nace v. Nace, 107 Ariz. 411, 413, 489 P.2d 48, 50 (1971).
¶12 Here, the superior court properly considered the evidence as it applied to the section 25-319(B) factors. On one hand, the court found that (1) "Wife's medical conditions, whatever their cause (organic or non-organic), prevent her from returning to work permanently," (2) "Wife is dependent on disability payments," (3) "Wife's parents soon will not be able to assist her financially," and (4) "Wife's anticipated expenses exceed her income." See A.R.S. § 25-319(B)(3), (9). On the other hand, the court found that (1) the parties had "a short marriage," (2) wife did not contribute to husband's education or earning ability, and (3) wife did not forgo advancing her career to assist husband. See A.R.S. § 25-319(B)(2), (6), (7). Based on these findings, the superior court extended spousal maintenance by ten months. We will not set aside the court's findings of fact unless they are clearly erroneous. See Berger, 140 Ariz. at 161, 680 P.2d at 1222; Ariz. R. Fam. L.P. 82(A). We do not so find.
Husband does not appear to dispute that wife established her need for spousal maintenance under section 25-319(A).
¶13 Wife argues that the superior court's award of spousal maintenance is "contrary to the standard set forth in Schroeder and Rainwater." We disagree. In Schroeder v. Schroeder, the superior court originally awarded wife four years of spousal maintenance but later extended the award "until death, remarriage, or further order of the court" after wife was diagnosed with cancer. 161 Ariz. 316, 317, 778 P.2d 1212, 1213 (1989). The case involved a twenty-eight-year marriage in which the wife had "concentrated her efforts on raising [the parties'] five children." Id. at 323, 778 P.2d at 1219.
¶14 In Rainwater, this court affirmed an award of indefinite spousal maintenance explaining:
[T]he parties had a marriage of long duration, to which wife contributed financially and by assuming the role of primary caretaker for the family home and children. She contributed to husband's support as he worked toward an engineering degree, and she contributed socially and emotionally to his professional advancement once his formal education was complete. The parties had achieved a relatively high standard of living by the last years of their marriage, which the trial court properly regarded as a product of their sustained common efforts for 23 years.177 Ariz. at 504, 869 P.2d at 180 (emphasis in original). The court in Rainwater, however, clearly stated that "[w]e do not suggest that at the end of every marriage, the party of lesser earning capacity is entitled to enough support to maintain the standard of living achieved during the marriage." Id. Rather, the court advised that there will be a "case-to-case variance in the degree to which the marital standard of living may be seen as a product of the marriage," which focuses on "such factors as length of the marriage, the receiving spouse's contributions to the education and earning capacity of the paying spouse, and the receiving spouse's reduction in income or career opportunities for the benefit of the family home and children." Id. (citing A.R.S. § 25-319(B)(2), (6), & (7)).
¶15 Here, the parties were married less than three years before husband petitioned for dissolution. Wife did not contribute to husband's education or earning capacity nor did she reduce her income or career opportunities for his benefit. The parties had no children together. We see little similarity between this case and either Schroeder or Rainwater and find no abuse of discretion in the superior court's denial of wife's request for indefinite maintenance.
¶16 Both the record and the law support the superior court's decision to extend spousal maintenance for an additional ten months only. Accordingly, we affirm.
II. Attorneys' Fees
¶17 Wife next argues that the superior court's "limited award of attorney fees and costs was arbitrary and contrary to law." She asserts the court "erred by not awarding sufficient fees despite finding a significant disparity of resources."
¶18 Pursuant to A.R.S. section 25-324 (2017),
The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any proceeding under this chapter or chapter 4, article 1 of this titleA.R.S. § 25-324(A) (emphasis added). As the statutory language indicates, the superior court has "discretion to deny a fee request even after considering" both the financial resources of the parties and the reasonableness of their positions. See Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 9, 333 P.3d 818, 821 (App. 2014). In addition, under section 25-324, the court may only award a "reasonable amount" in fees and costs. See A.R.S. § 25-324.
¶19 Here, wife asked the superior court to award her $57,457.50 in attorneys' fees and $1,970.31 in costs for work performed on her petition to modify/extend spousal maintenance. The court awarded her $4,500.00 in fees and $1,970.31 in costs explaining:
In her Application and Affidavit of Attorney Fees and Costs, wife's lawyer indicated that he performed 81.10 hours of legal work worth $375.00 per hour, for a total of $30,412.50. His firm contributed 180.30 hours of support staff time at $150.00 per hour, for a total of $27,045.00. Although the services were provided on a bro bono basis, that fact is not determinative for purposes of an attorneys' fees award. See Keefer v. Keefer, 225 Ariz. 437, 441 n. 4, ¶ 16, 239 P.3d 756, 760 n.4 (App. 2010). --------
The Court is familiar with the nature of the issues presented, the length of time required for the evidentiary presentation,
and the complexity/simplicity of the issues. The evidentiary hearing in this matter related only to modifying spousal maintenance. As explained in the Under Advisement Ruling . . . the Court found that Wife established that one material fact had changed since the original spousal maintenance award . . . . [T]he Court noted that Wife had requested relief that far exceeded what the Court awarded.(Emphasis in original.)
¶20 "It is well established in Arizona that the amount of attorney fees in a dissolution action is a matter left to the sound discretion of the trial court." Baum v. Baum, 120 Ariz. 140, 146, 584 P.2d 604, 610 (App. 1978) (citation omitted). We review an award of fees made pursuant to A.R.S. § 25-324 for an abuse of discretion. See Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 35, 163 P.3d 1024, 1033 (App. 2007).
¶21 The superior court properly considered both the relative financial positions of the parties and the reasonableness of their respective positions in determining whether to award fees under section 25-324. It also properly considered what a "reasonable amount" of fees should be in this case. On this record, the superior court did not abuse its discretion in limiting wife's fees award to $4,500.00.
CONCLUSION
¶22 For the foregoing reasons, we affirm the superior court's awards of spousal maintenance and attorneys' fees. Wife and husband both request fees on appeal. In the exercise of our discretion, we deny their requests. We award costs to husband upon compliance with Arizona Rule of Civil Appellate Procedure 21.