Carter v. Carter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CYNTHIA CARTER, Petitioner/Appellee,

v.

JAMES CARTER, Respondent/Appellant.

No. 1 CA-CV 18-0718 FC
FILED 9-24-2019

Appeal from the Superior Court in Yuma County
No. S1400DO201601684
The Honorable Stephen J. Rouff, Judge Pro Tempore

AFFIRMED

COUNSEL

S. Alan Cook, P.C., Phoenix
Counsel for Respondent/Appellant

Owens & Perkins, P.C., Scottsdale
By Lisa Whalen Bleich
Co-Counsel for Petitioner/Appellee

Cantor Law Group PLLC, Phoenix
By Michael A. Alvarez
Co-Counsel for Petitioner/Appellee

CARTER v. CARTER
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 James Carter ("Husband") appeals from the provisions in a
decree of dissolution regarding spousal maintenance and the division of
community debt. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Cynthia Carter ("Wife") were married in 1985.
In December 2016, Wife filed a petition for legal separation of marriage
without minor children. Husband responded and counter petitioned for
dissolution of marriage. Following trial, the superior court entered a decree
of dissolution of marriage. As relevant to this appeal, the decree: (1)
ordered Husband to pay Wife spousal maintenance in the amount of $2,500
per month until she dies or remarries; and (2) ordered Husband to pay the
community's 2016 income tax debt.

¶3 Husband timely appealed from the decree. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Spousal Maintenance

¶4 The superior court has substantial discretion to establish the
amount and duration of spousal maintenance, although it must do so
within the framework of A.R.S. § 25-319. Rainwater v. Rainwater, 177 Ariz.
500, 502 (App. 1993). This court reviews an award of spousal maintenance
for an abuse of discretion and will affirm if there is reasonable evidence to
support it. Helland v. Helland, 236 Ariz. 197, 202, ¶ 22 (App. 2014).

¶5 On appeal, Husband argues the $2,500 monthly spousal
maintenance obligation is error because it will require him to pay more than
50% of his normal weekly take-home pay and work many hours of overtime
in order to make the payments. He further argues that the superior court

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CARTER v. CARTER
Decision of the Court

was "required to consider the 13 factors set out in A.R.S. § 25-319(B)" and
"did not even address" seven of the factors.

¶6 Husband's second claim is without merit. The superior court
must consider the A.R.S. § 25-319(B) factors before awarding spousal
maintenance, but not every factor is relevant in every case and the court is
not required to make written findings as to each factor unless requested by
the parties. Elliot v. Elliot, 165 Ariz. 128, 131 n.1 (App. 1990); see also Ariz. R.
Fam. Law. P. 82(A). Neither party requested written findings. Although
the order making the maintenance award only explicitly addressed six of
the thirteen factors in A.R.S. 25-319(B), the court's written order expressly
cited to the statute, highlighted the factors it considered "key" in
determining the amount of spousal maintenance, and stated that the
omitted factors did not have "significant relevance" in the case. On this
record, Husband has not shown the superior court failed to consider the
required factors in determining the amount of spousal maintenance.

¶7 As to Husband's challenge to the amount of the award, this
court must "affirm the judgment if there is any reasonable evidence to
support it." Helland, 236 Ariz. at 202, ¶ 22. The relevant factors cited in the
order are the duration of the marriage, the standard of living during the
marriage, and the substantial superiority of the earning ability of Husband.
A.R.S. § 25-319(B)(1)-(3). Husband argues that the superior court abused its
discretion by unreasonably, and thus improperly, applying the evidence to
these factors. We disagree.

¶8 Ample evidence supports each of the factors considered by
the superior court – the parties, were married for thirty years, Wife's health
insurance and healthcare expenses will drastically increase on termination
of the marriage, and Husband had greater earning ability. Evidence was
presented that Wife will lose the health insurance provided by Husband's
employer, and new insurance premiums and uncovered medical expenses
will be more than $3,000 per month ($761 per week) for 18-36 months, and
$2,500 per month afterwards. The record also supports the substantial
disparity in earning ability. Wife's annual income was $23,813 in 2015, and
$38,130 in 2017. Husband's annual earnings were $124,000 in 2015, $126,000
in 2016 and $132,000 in 2017. Moreover, the superior court recognized that
Wife has a terminal illness that will compromise her earning ability (and
her ability to work at all) in the near future. It found that Wife's "ability is
grim to continue earning" at her current level and "her inability to work at
all in the near future is a reasonable assumption." On this record, the
superior court considered the appropriate factors and reasonable evidence
supports the court's factual findings.

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CARTER v. CARTER
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¶9 Husband further argues that the superior court's spousal
maintenance award should be reversed because it requires him to work
"enormous overtime" hours. Husband claims the Arizona Child Support
Guidelines support his position regarding overtime and "should be
instructive" in calculating spousal maintenance. However, "'[c]hild support
and [spousal] maintenance are considered under different laws,' and
awards for both 'involve distinct considerations.'" Brinstihl v. Brinstihl, 243
Ariz. 588, 593, ¶ 18 n.2 (App. 2018) (alteration in original) (quoting Sherman
v. Sherman, 241 Ariz. 110, 115, ¶ 18 n.1 (App. 2016) and Elliott, 165 Ariz. at
137). The superior court considered the statutory factors for spousal
maintenance, found that Husband consistently earned substantial
overtime, and found it would be "unreasonable" to omit overtime
compensation from his income. This finding is supported by the payroll
evidence presented at trial. The superior court did not abuse its discretion.

II. 2016 Income Taxes

¶10 The trial court has broad discretion in apportioning
community property and debt between parties at dissolution, and we will
not disturb its allocation absent an abuse discretion. Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007). In reviewing the superior court's
division of property at dissolution, we consider the evidence in the light
most favorable to upholding the trial court's ruling and will sustain the
ruling if it is reasonably supported by the evidence. Boyle v. Boyle, 231 Ariz.
63, 65, ¶ 8 (App. 2012).

¶11 Following trial, as a part of the division of property, the
superior court ordered Husband to pay the entirety of the parties’ 2016
federal income tax debt. On appeal, Husband argues that the superior court
erred by improperly basing its order on Husband's greater ability to pay.
Husband also argues the decision is inequitable because it attributes a
community debt entirely to him.

¶12 Husband's first argument is without merit. In determining an
equitable division, the court has broad discretion in the specific allocation
of individual assets and liabilities. Flower v. Flower, 223 Ariz. 531, 535, ¶14
(App. 2010). In addition to the statutorily enumerated factors under A.R.S.
§ 25-318(B), a court has the authority to consider any equitable factors that
bear upon the outcome of an equitable division. See Toth v. Toth, 190 Ariz.
218, 222 (1997); see also Inboden v. Inboden, 223 Ariz. 542, 546, ¶ 14 (App. 2010)
("But a court is not limited to considering these statutory factors; instead,
any other factors that bear on the equities of a case may properly be
considered.").

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CARTER v. CARTER
Decision of the Court

¶13 A party's ability to pay a debt bears upon an equitable
division of that debt. See Neal v. Neal, 116 Ariz. 590, 594 (1977) (approving
consideration of "future earning ability" in the apportionment of
community obligations). The superior court found that Husband
accounted for approximately 60% of the parties' combined monthly gross
income. Reasonable evidence, supra ¶ 8, supported that decision, meaning
the court did not abuse its discretion.

¶14 Husband's claim that the order is inequitable is similarly
without merit. When dividing community property at dissolution, the trial
court must divide the property and debts "equitably, though not necessarily
in kind." A.R.S. § 25-318(A). An equitable distribution of property need not
be exactly equal "but must result in substantial equality." Miller v. Miller, 140 Ariz. 520, 522 (App. 1984). Here, the parties do not dispute that the
court made an equal distribution of the parties’ proceeds from the sale of
their community firearms, the 401(k) plan, the employee pension, and the
Pacific Coast retirement asset. Therefore, taken as a whole, the division
remains substantially equitable between the parties and the superior court
did not abuse its discretion in ordering Husband to pay the 2016 federal tax
debt.

III. Attorney's Fees

¶15 Both parties have requested attorney's fees and costs on
appeal. After consideration of the parties' positions and economic
resources, we deny the Husband's request and grant Wife's request
pursuant to A.R.S. § 25-324 in an amount to be determined upon
compliance with Arizona Rules of Civil Appellate Procedure 21. Wife also
is awarded her taxable costs on appeal upon compliance with Arizona
Rules of Civil Appellate Procedure 21.

CONCLUSION

¶16 For the foregoing reasons, we affirm the superior court's
ruling and grant Wife's request for attorney's fees.

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

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