Dion v. Wright

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

JAIME DION WRIGHT, Petitioner/Appellant,

v.

BRADLEY EUGENE WRIGHT, Respondent/Appellee.

No. 1 CA-CV 21-0613 FC
FILED 1-10-2023

Appeal from the Superior Court in Maricopa County
No. FC2018-006203
The Honorable Aryeh D. Schwartz, Judge
The Honorable Justin Beresky, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Perkins Coie LLP, Phoenix
By Paul F. Eckstein, Thomas D. Ryerson, Karl J. Worsham
Co-Counsel for Petitioner/Appellant

Franks Cool Houser McVey P.C., Phoenix
By Todd Franks, Robert C. Houser, Jr., Sarah M. Cool, Michael R. McVey
Co-Counsel for Petitioner/Appellant

Papetti Samuels Weiss McKirgan LLP, Scottsdale
By Randall S. Papetti, Jared L. Sutton
Counsel for Defendant/Appellee
 DION v. WRIGHT
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

B R O W N, Judge:

¶1 Jaime Dion Wright (“Wife”) appeals from a dissolution decree
ending her marriage to Bradley Wright (“Husband”). For the following
reasons, we vacate the court’s ruling denying Wife’s spousal maintenance
claims and remand for additional findings. We affirm the remainder of the
decree.

BACKGROUND

¶2 Wife and Husband married in 2001. They share two children
together, who were 16 and 19 when the decree was issued. After the couple
married, Wife withdrew from the graduate program she was attending and
since then she has been a stay-at-home mother. Husband is an attorney and
throughout this proceeding he has been employed as a partner at Squire
Patton Boggs.

¶3 Wife petitioned for dissolution in August 2018. She filed for
temporary spousal maintenance two months later, asking for roughly
$20,000 per month, retroactive to the date of filing. In February 2019, Wife
filed an amended petition for dissolution and an amended motion for
temporary orders. After a hearing, the superior court issued temporary
orders directing Husband to pay Wife temporary spousal maintenance of
$6,750 per month, starting March 1, 2019. The court also granted Wife
exclusive use of the marital home, with financial responsibility for the
mortgage, utilities, and other costs related to the home. Before the
temporary orders were in place, Husband paid for the mortgage and all
utilities related to the marital residence, as well as insurance, from the date
of filing.

¶4 After extensive litigation, including a five-day trial, the court
issued a 53-page dissolution decree in July 2021. As pertinent here, the
court (1) denied Wife’s request for post-decree spousal maintenance; (2)
denied her request for retroactive spousal maintenance for the time
between the filing of the petition and the date the temporary orders were

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filed (“the gap period”); (3) ordered Wife to reimburse Husband for a
portion of the community expenses he paid during the gap period; (4)
declined to re-allocate a custody evaluation expense from Wife to Husband;
and (5) awarded Husband $75,000 in attorneys’ fees based on Wife’s
unreasonable positions. Wife timely appealed and we have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

A. Spousal Maintenance

¶5 We review spousal maintenance rulings for an abuse of
discretion. Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012). When an issue
contains a question of fact and law, we accept the trial court’s factual
findings, unless they are clearly erroneous, and draw our own legal
conclusions. In re Marriage of Cotter, 245 Ariz. 82, 85, ¶ 6 (App. 2018).

¶6 Wife argues the superior court erred as a matter of law when
it found her “ineligible” for a spousal maintenance award. Courts engage
in a two-step process to determine the eligibility and entitlement of a spouse
for a maintenance award. Cotter, 245 Ariz. at 85, ¶ 7. Under A.R.S. § 25-
319(A), a spouse seeking maintenance may be eligible for an award if that
spouse (1) lacks sufficient property to provide for reasonable needs; (2)
lacks the earning ability to be self-sufficient; (3) has a child whose
circumstances make it unnecessary to require employment outside the
home; (4) has made a significant contribution to the other spouse’s
education or career, or has significantly reduced career opportunities to
benefit the other spouse; or (5) has had a marriage of long duration and is
of an age that may preclude obtaining employment adequate to be self-
sufficient.

¶7 If a spouse is eligible for an award, the court must then
analyze, under A.R.S. § 25-319(B), the parties’ circumstances to determine
whether a spouse is entitled to an award, as well as its amount and
duration. Cotter, 245 Ariz. at 85, ¶ 7. Subsection B requires consideration
of 13 factors, including several that overlap with the (A) factors. A.R.S. §
25-319. Thus, although a spouse may meet the eligibility criteria, a court
may still determine he or she is not entitled to a maintenance award. Cotter,
245 Ariz. at 85-86, ¶¶ 7, 10.

¶8 In her proposed findings of fact and conclusions of law, Wife
requested a spousal maintenance award of $9,000 per month for 8 years.
Wife also provided detailed findings addressing the § 25-319 (A) and (B)
factors. In his proposed findings of fact and conclusions of law, Husband

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asserted that Wife should not receive any maintenance based on her
“superior financial resources,” and alternatively, she should be awarded
$2,500 per month for 2 years. He also provided detailed findings
addressing the § 25-319 (A) and (B) factors.

¶9 In the decree, the superior court analyzed the evidence
relevant to each of the five statutory grounds for eligibility under § 25-
319(A). It found that Wife “does not lack sufficient property . . . to provide
for her reasonable needs,” that she is not “unable to be self-sufficient
through appropriate employment,” that the marriage was neither short nor
lengthy, and that Wife is “not of an age that may preclude the possibility of
gaining employment adequate to be self-sufficient.” The court also found
that Wife “elected to assume a traditional role of a stay-at-home mother”
while Husband advanced his career, and that she put her “education and
presumably a career on hold to raise children,” although she could have
reentered the workforce after the youngest child started school. The court
then “weighed the factors” and found that “Wife’s access to substantial
resources, the substantial amount of property she will be receiving, and her
age and ability to gain employment significantly outweigh any factors that
would favor an award of spousal maintenance.” The court determined that
“Wife has not satisfied this threshold inquiry” and was therefore “not
entitled to an award of spousal maintenance.”

¶10 The court’s reference to a “threshold inquiry” suggests it
concluded Wife was not eligible under the (A) factors. But the court then
stated Wife was not “entitled” to an award. To the extent the court intended
to find that Wife was not eligible for spousal maintenance on the (A) factors,
the court erred because it misapplied § 25-319’s two-step test when it
treated the five threshold statutory grounds for eligibility as a balancing-
factors test. Wife needed to meet only one of the statutory grounds to be
eligible. Cotter, 245 Ariz. at 86, ¶ 10. The court found that Wife stayed home
to raise the children while Husband advanced his career, and that she put
her education and career on hold; therefore, the court implicitly found that
she met at least one of the eligibility criteria. See A.R.S. § 25-319(A)(3), (4).
Given that finding, the court needed to analyze the factors listed in § 25-
319(B) to decide whether Wife should be awarded spousal maintenance,
and if so, proceed to determine the amount and duration of an award. See
Cotter, 245 Ariz. at 87, ¶ 13 (stating that if the trial court finds a spouse
eligible for an award, “it must then consider the relevant factors, balance
the equities between the parties, and exercise its discretion as it deems
just.”).

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¶11 If the court intended to find that Wife was not “entitled” to
spousal maintenance, its findings are insufficient. We would typically infer
that the court considered all 13 factors, but Wife timely requested findings
of fact and conclusions of law. See Ariz. R. Fam. Law P. 82(a) (“If requested
before trial, the court must make separate findings of facts and conclusions
of law.”). Although several of the § 25-319 (A) and (B) factors overlap,
without specific findings addressing all the (B) factors we are unable to
discern the factual or legal basis for the court’s decision to deny Wife’s
request for spousal maintenance. For example, the court made findings that
focused on Wife’s circumstances under the (A) factors but did not address
Wife’s and Husband’s situations relative to each other as required by
several of the (B) factors. See A.R.S. § 25-319(B)(4) (ability of spouse from
whom maintenance is sought to meet own needs); (5) (comparative
financial resources of the parties, including earning abilities); (8) (ability of
each spouse to contribute to children’s future educational costs); (11)
(excessive or abnormal expenditures); (12) (health insurance costs); Cotter,
245 Ariz. at 87, ¶ 13.

¶12 Nonetheless, Husband argues the court acted within its
discretion in denying Wife’s request, asserting that § 25-319(A) is a
permissive statute that allows a court to award maintenance but does not
require an award be made. Husband acknowledges the court “appears to
have agreed with Wife that she could have been ‘eligible’ for an award
under certain criteria,” but it still found that she was not entitled to an
award. We acknowledge that a court has broad discretion in deciding
whether to award maintenance even if a spouse meets one of the eligibility
factors; however, the court must properly apply the statute and make all
necessary findings when timely requested by a party under Rule 82. See
Rainwater v. Rainwater, 177 Ariz. 500, 502 (App. 1993). Here, the court erred
in balancing the (A) factors, and the record does not reflect that the court
made specific findings on each of the (B) factors. Thus, we remand to allow
the superior court to make additional findings on Wife’s request for post-
decree spousal maintenance, based on the existing record.

¶13 Wife also argues the court erred in denying her request for
spousal maintenance during the gap period. Husband acknowledges that
“[t]he analysis for gap-period spousal support is largely the same” as the
analysis on post-decree spousal maintenance. Due to the overlapping
considerations, we also remand for further findings (on the existing record)
concerning Wife’s request that her award of temporary spousal
maintenance should have been applied retroactively to cover the gap
period.

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B. Gap-period Reimbursement

¶14 The superior court ordered that Husband was entitled to
reimbursement for half of the expenses he covered during the gap period.
After adjusting for offsets, Husband received a credit for $23,895.54. Wife
contends the award to Husband was improper.

¶15 A spouse may seek reimbursement for paying community
obligations while the petition for dissolution is pending, but there is no gift
presumption once a petition for dissolution is filed. Bobrow v. Bobrow, 241
Ariz. 592, 594, ¶ 1 (App. 2017). Wife argues that Bobrow does not apply
because the parties in that case had a prenuptial agreement under which
the husband “was not obligated to pay the parties’ expenses or provide any
temporary support to Wife after a petition was filed.” Id. at 596, ¶ 15. Wife
reads Bobrow too narrowly. Although the parties there had a prenuptial
agreement, that does not undermine this court’s explicit directive that a
spouse who voluntarily “services community debt and maintains
community assets with separate property should not be penalized” and
that those payments “must be accounted for in an equitable property
distribution.” Id. at ¶ 19. Wife does not dispute that Husband paid
community expenses with separate property after the date of service. Nor
did she present any evidence that Husband intended the payments would
be considered gifts. See id. at ¶ 15.

¶16 Wife also argues the payments were “in the nature of
support” and therefore she should not have to reimburse Husband. In the
decree, the court stated that it was not clear from the record that Husband’s
payments were “in the nature of support” and it never ordered him to make
those payments. Husband voluntarily serviced community debts and
maintained community assets. The court did not abuse its discretion in
including those payments in the equitable property distribution and
ordering Wife to reimburse Husband for a portion of those payments.

C. Allocation of Custody Evaluation Expense

¶17 In contested proceedings involving legal decision-making
and parenting time, a “court may order an investigation and report
concerning . . . the child.” A.R.S. § 25-406(A). The cost must be allocated
based on the “financial circumstances of both parties.” A.R.S. § 25-406(B).

¶18 Wife filed a motion to appoint John Scialli, M.D., to conduct a
comprehensive custody evaluation. The court granted the motion, subject
to Wife paying 100% of the costs; if she chose to proceed with the evaluation
the costs “could be subject to reallocation at a later date.” In her pretrial

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statement, Wife asserted that the entire $39,500 cost (which was exclusive
of Dr. Scialli’s trial expenses) should be reallocated to Husband. In her
proposed findings of fact and conclusions of law, Wife requested
reimbursement for “all sums” she had paid Dr. Scialli, including his
deposition and trial testimony. The court declined to reallocate the
expense, noting that both parties have significant financial resources and
rejecting Wife’s assertion that the evaluation cost had to be allocated “based
on the parties’ comparative financial circumstances.”

¶19 Wife argues the court erred, but nothing in the statutory
language requires allocation based on “comparative” financial resources,
and Wife does not explain how reallocating the entire cost to Husband
comports with her reading of the statute. Wife asserts that Husband “strung
out” the evaluation process by objecting to the evaluation, and by taking up
an excessive amount of time in interviews, but Dr. Scialli testified that
review of Husband’s alleged misconduct was “an expected part of this sort
of evaluation.”

¶20 Wife accepted initial responsibility for paying the evaluation
cost and she has not shown that the court abused its discretion in declining
to reallocate the cost. See Andaloro v. Andaloro, No. 1 CA-CV 19-0839 FC,
2021 WL 476064, at *6-7, ¶¶ 30-31 (Ariz. App. Feb. 9, 2021) (mem. decision)
(noting the superior court’s “broad discretion when apportioning
community property and debts” including under § 25-406).

D. Husband’s Valuation Expert

¶21 In August 2020, Wife filed a motion in limine seeking to
preclude Husband’s expert, Lynton Kotzin, from testifying about the value
of Husband’s law practice because Kotzin failed to answer deposition
questions concerning prior financial appraisals he had done for other
lawyers at the same firm, citing confidentiality concerns. The court denied
the motion, finding it was unreasonable for Wife to file the motion without
first using the formal discovery process to request the prior appraisals from
Kotzin. The court explained that Wife should have attempted to resolve a
“properly established discovery dispute” before seeking court intervention,
and that precluding a witness through a motion in limine was not an
appropriate remedy.

¶22 Wife argues the court erred by denying her motion. We
review a court’s decision on a motion in limine for an abuse of discretion.
Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33 (App. 2008). A
court may rely on various methods of valuing a professional practice, and

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it has discretion to “qualify expert witnesses who testify regarding asset
valuation.” Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 1996). “If an expert fails
to calculate the value of an asset according to standard methodology, that
failure goes to the weight of the expert’s opinion, not the admissibility.” Id.

¶23 Wife argues her ability to cross-examine Kotzin was
improperly restricted because the court permitted him to testify without
producing evidence that went to the validity of his opinions and his
credibility as an expert. Husband counters that Wife did not follow proper
discovery requests and procedures. Citing Kelsey, he argues that any
“alleged non-disclosure went only to the weight of Kotzin’s testimony” and
not its admissibility. See id.

¶24 Wife makes no effort to distinguish Kelsey. See id. Nor does
she explain how the court abused its discretion in finding that she should
have used discovery procedures to try to obtain the prior appraisals.
Instead, she argues she was unable to effectively cross-examine Kotzin
about the validity and credibility of his opinions without those prior
appraisals, but it is undisputed that she did not ask Kotzin any questions
about the prior appraisals at trial, such as why he refused to provide them,
or whether they impacted his methodology in the current case. And in her
proposed findings of fact and conclusions of law, Wife urged the court to
“draw a negative inference against adopting Mr. Kotzin’s opinions” based
on his failure to produce the appraisals but did not suggest the court should
ignore his opinions entirely.

¶25 Wife also fails to offer any analysis on how the court’s denial
of her motion in limine, even if erroneous, would have impacted the court’s
conclusion about Husband’s law practice. See Ariz. R. Fam. Law P. 86
(stating that “unless justice requires otherwise,” an error in admitting
evidence is not grounds to disturb a judgment, and that a “court must
disregard all errors and defects that do not affect any party’s substantial
rights”). On this record, Wife has failed to show the court abused its
discretion in denying her motion in limine.

E. Attorneys’ Fees in the Superior Court

¶26 In his proposed findings of fact and conclusions of law,
Husband requested $750,000 for his reasonable attorneys’ fees. Wife
asserted in her proposed findings of fact and conclusions of law that she
had “been forced to incur considerably more than $1,000,000 in legal fees
and expenses;” she requested a fee award of $445,000.

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¶27 The superior court awarded Husband $75,000 in attorneys’
fees. Wife argues that the award is not supported by the record and that
the court erred in finding that Wife unreasonably expanded the
proceedings and took unreasonable positions. She further asserts the court
failed to consider the relative financial positions of the parties’ and
contends that Husband has considerably greater financial resources
available to him than she does.

¶28 The superior court is in the best position to “observe and
assess the conduct of the parties” and we will not disturb an award of
attorneys’ fees absent an abuse of discretion. MacMillan v. Schwartz, 226
Ariz. 584, 592, ¶¶ 36-38 (App. 2011). In determining whether attorneys’ fees
should be awarded in a divorce proceeding, the court is required to
consider “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); In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 9 (App. 2008).
When considering the financial resources, the court may look to several
factors including the relative financial disparity of the parties and the ability
of the parties to pay attorneys’ fees. Williams, 219 Ariz. at 550, ¶ 15. The
reasonableness of a party’s position is an objective standard. Id. at 549, ¶
12. The parties’ financial resources and the reasonableness of their
positions are separate considerations and “an applicant need not show both
a financial disparity and an unreasonable opponent in order to qualify for
consideration for an award.” Magee v. Magee, 206 Ariz. 589, 591, ¶ 8 n.1
(App. 2004).

¶29 Although the court did not make specific numerical findings
as to the level of financial resources each party had at their disposal, the
court was not obligated to make such a finding, and Wife cites no authority
to the contrary. The court’s duty under the statute was to “consider” the
two factors, and it did so. See A.R.S. § 25-324(A). The court explained that
although their respective incomes are not equal, there is “no material,
substantial disparity of financial resources between the parties” and “[b]oth
parties have significant financial resources.” The court recognized that
Husband has a greater income than Wife, but also noted that Wife would
be receiving property from the dissolution. Wife acknowledged before trial
that both parties “through their own funds or through access to broader
family resources . . . [have] demonstrated the capacity to access tremendous
resources.”

¶30 Wife contends the court erred in finding that she took
unreasonable positions, asserting all she did was “attempt to move the case
along in the face of Husband’s incessant obstructive tactics.” The record

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shows otherwise. For example, when Husband requested a confidentiality
order before signing releases for confidential health records Wife requested,
she refused to acquiesce to a confidentiality order, filed a motion to compel,
and relentlessly pursued production. In its March 2020 ruling, the court
found that Wife’s position on that issue was unreasonable and overly
litigious. The court found “many of Wife’s filings to be in bad faith and/or
in an effort to increase the cost of litigation for Husband.” It also noted that
because Wife’s attorney had billed more than $600,000 in the case, “the
Court believes Wife has considerably more resources available to her than
Husband.” Later, in its ruling on Wife’s motion in limine regarding
Husband’s valuation expert (Kotzin), the court found it was unreasonable
for Wife to file the motion without having first used the formal discovery
process to request the information from Kotzin. In the decree, the court
found that Wife “litigated this case in a manner that unreasonably
expanded the proceeding and included unreasonable positions,” quoting
various examples from Husband’s proposed findings of fact and
conclusions of law.

¶31 Wife argues the court adopted Husband’s proposed findings
without engaging in any independent analysis. A court may adopt the
parties’ proposed findings “if those findings are consistent with the ones
that it reaches independently after properly considering the facts.” Elliott
v. Elliott, 165 Ariz. 128, 134 (App. 1990). Here, although the court included
in the decree various examples of Wife’s unreasonable positions provided
by Husband, the court explained it “now had an opportunity to review the
entire record. Each party litigated this case aggressively. Viewing the
record as a whole, Wife litigated this case in a manner that unreasonably
expanded the proceeding and included unreasonable positions.” Given
that explanation, together with the court’s comprehensive discussion of all
the issues raised by the parties, we have no trouble concluding that the
court engaged in independent analysis. Wife has not shown the court
abused its discretion in awarding Husband $75,000 in attorneys’ fees.

F. Attorneys’ Fees and Costs on Appeal

¶32 Wife summarily requests an award of attorneys’ fees and
costs she has incurred on appeal under § 25-324(A), which authorizes a fee
award after consideration of the parties’ financial resources and the
reasonableness of their positions on appeal. Husband requests an award of
attorneys’ fees and costs under the same authority, asserting that “Wife’s
appeal is yet another example of her unreasonably expanding the
proceedings, solely to inflict as much financial and emotional harm on
Husband as possible.” He also asserts that “[n]early all of Wife’s arguments

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ignore or affirmatively misrepresent the record.” Wife did not respond to
those assertions in her reply brief. Although we are remanding for further
findings on spousal maintenance, we evaluate the parties’ competing
requests for fees and costs in light of the reasonableness of all the arguments
presented on appeal, as well as the parties’ financial resources. See Breitbart-
Napp v. Napp, 216 Ariz. 74, 84, ¶ 39 (App. 2007) (“A.R.S. § 25–324 does not
establish a prevailing party standard for awarding fees and costs.”). In our
discretion, we award Husband a portion of his reasonable attorneys’ fees,
plus taxable costs, upon compliance with ARCAP 21.

CONCLUSION

¶33 We vacate the portion of the superior court’s decree denying
Wife’s requests for post-decree and gap-period spousal maintenance and
remand for additional findings. We affirm the rest of the decree.

AMY M. WOOD • Clerk of the Court
FILED: AA

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