Opinion
No. 2 CA-CV 2017-0105
01-26-2018
LYNETTE R. WELLS, FKA LYNETTE R. CRUCE, Appellant, v. LARRY E. CRUCE, Appellee.
COUNSEL Aboud & Aboud, P.C., Tucson By John Eli Aboud and Michael J. Aboud Counsel for Appellant RPM Law PLLC, Tucson By Matthew Randle and Andrew Meshel Counsel for 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NOT FOR PUBLICATION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. D110978
The Honorable Deborah Bernini, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL Aboud & Aboud, P.C., Tucson
By John Eli Aboud and Michael J. Aboud
Counsel for Appellant RPM Law PLLC, Tucson
By Matthew Randle and Andrew Meshel
Counsel for Appellee
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Lynette Wells, formerly known as Lynette Cruce, appeals from the trial court's order dismissing her "Petition for Order to Appear re: Post Decree Matters, Contempt, and Attorney Fees," and the order awarding attorney fees to appellee Larry Cruce. For the following reasons, we affirm the trial court's order dismissing Wells's petition, but we vacate the award of attorney fees.
Factual and Procedural Background
¶2 "On appeal from a motion to dismiss, we consider the facts alleged in the complaint to be true, and we view them in a light most favorable to the plaintiff to determine whether the complaint states a valid claim for relief." First-Citizens Bank & Trust Co. v. Morari, 242 Ariz. 562, ¶ 2 (App. 2017), quoting Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 552 (App. 1995). The parties divorced in 1997 and their marital assets were disposed of in a property settlement agreement (PSA), which was, in relevant part, incorporated into the decree of dissolution. In the PSA, Wells was "awarded fifty (50%) percent of the community property portion of [Cruce]'s civil service and military retirement." The PSA included a formula for determining what percentage of Cruce's retirement would be considered property of the community.
¶3 Cruce retired in May 2016 and began receiving retirement pay in June. At some point after that, Cruce waived his retirement pay in favor of disability benefits. Wells did not receive any money from Cruce for her share of his retirement pay and filed a petition seeking an order awarding her a 34.4 percent interest in his "military retirement and disability benefits," finding him in contempt for failure to pay, and ordering him to pay arrearages. Cruce filed a motion to dismiss, asserting that the parties were in the process of preparing a Domestic Relations Order (DRO) to be submitted to Defense Finance and Accounting Services (DFAS) and that "further proceedings . . . [were] not necessary." Cruce also argued that the court could not award Wells a 34.4 percent share of his disability payments because DFAS was "the appropriate authority to make such a determination."
Although Wells did not expressly include this fact in her petition, she requested that the court award her "a 34.4% interest in [Cruce]'s military retirement and disability benefits," and she recites this as a fact in her opening brief.
¶4 The trial court granted Cruce's motion to dismiss, stating that it believed "[Cruce's counsel]'s legal assessment of the situation is correct." The court granted Cruce his attorney fees pursuant to A.R.S. § 25-324. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Division of Benefits
¶5 Wells claims the trial court erred in refusing to award her share of Cruce's retirement benefits. She argues that state courts, not federal agencies, have the authority to divide military and federal civil service retirement benefits pursuant to state community property laws. Wells is correct that military and federal civil service retirement benefits are subject to the jurisdiction of state courts, see Kelly v. Kelly, 198 Ariz. 307, ¶¶ 1, 6 (2000); see also Edsall v. Superior Court, 143 Ariz. 240, 242 (1984). However, as Cruce notes, state courts have no authority "to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans' disability benefits." Mansell v. Mansell, 490 U.S. 581, 594-95 (1989). Indeed, "federal law completely pre-empts the States from treating waived military retirement pay as divisible community property." Howell v. Howell, ___ U.S. ___, ___, 137 S. Ct. 1400, 1405 (2017). The trial court, therefore, did not err in determining that it had no authority to award Wells any interest in Cruce's disability benefits.
Wells attempts to distinguish Mansell and Howell on the basis that Cruce's disability is not connected to his service. Wells has cited no authority supporting such a distinction, which is cause to find this argument waived. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009). Moreover, this argument was not raised until the reply brief, which is too late. See Cathemer v. Hunter, 27 Ariz. App. 780, 785 (1976).
Attorney Fees
¶6 Wells next claims that the trial court erred in awarding Cruce his attorney fees, asserting the award was procedurally inappropriate because Cruce did not file a financial affidavit in accordance with Pima Cty. Super. Ct. Loc. R. P. 8.5(A)(1) and Rule 91(S), Ariz. R. Fam. Law P. Both of these rules require a party seeking an award of attorney fees to file a financial affidavit. Pima Cty. Super. Ct. Loc. R. P. 8.5(A)(1); Ariz. R. Fam. Law P. 91(S). We review a trial court's award of attorney fees for an abuse of discretion. See In re Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 20 (App. 2001).
¶7 The award of attorney fees to Cruce was made pursuant to A.R.S. § 25-324. Under that statute, a court is only authorized to award attorney fees "after considering the financial resources of both parties." A.R.S. § 25-324(A); see Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, ¶ 13 (App. 2007) (court must consider financial resources of both parties when determining whether to award attorney fees). Because Cruce did not file a financial affidavit as required by Rule 8.5 and Rule 91(S), the court had no opportunity to consider his financial resources, nor compare them to Wells's. We therefore conclude the trial court abused its discretion in granting his attorney fees and vacate the award. We otherwise affirm the judgment of the trial court.
Cruce's request for fees below did not explicitly state whether it was pursuant to A.R.S. § 25-324(A) or (B). Although Cruce's arguments suggested that he was requesting fees under subsection (B), in her opening brief, Wells has characterized the request as one made pursuant to subsection (A), a characterization Cruce has implicitly adopted in his answering brief by addressing the reasonableness of Wells's positions and disparity of income. Because the basis for Cruce's request was not explicitly stated below, and because he has implicitly conceded that the request was pursuant to A.R.S. § 25-324(A), cf. Chalpin v. Snyder, 220 Ariz. 413, n.7 (App. 2008), we consider the request as one pursuant to that subsection.
Cruce argues that we should uphold the award because Wells also failed to file such an affidavit, citing Dellaripa v. Holding, No. 1 CA-SA 17-0119 (Ariz. App. May 16, 2017) (mem. decision). In that case, however, the award of fees was pursuant to A.R.S. § 25-414, which does not require a court to consider the financial resources of the parties. Dellaripa, No. 1 CA-SA 17-0119, ¶ 18. --------