Bekele v. Abreha

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GENENE BEKELE, Petitioner/Appellee,

v.

FREWYNE ABREHA, Respondent/Appellant.

No. 1 CA-CV 19-0440 FC
FILED 4-23-2020

Appeal from the Superior Court in Maricopa County
No. FC2018-001746
The Honorable Bradley Astrowsky, Judge

AFFIRMED

COUNSEL

Bishop Law Office, P.C., Phoenix
By Daniel P. Beeks
Counsel for Respondent/Appellant

Keist Thurston O’Brien, Glendale
By R. Kevin O’Brien II
Counsel for Petitioner/Appellee

BEKELE v. ABREHA
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent. E. Cattani
joined.

M c M U R D I E, Judge:

¶1 Frewyne Abreha (“Wife”) appeals from the child support and
spousal maintenance orders entered in the decree dissolving her marriage
with Genene Bekele (“Husband”). For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In April 2018, Husband petitioned for the dissolution of the
parties’ twenty-four-year marriage. Throughout the marriage, the couple
owned and managed an endocrinology medical practice. Husband worked
as the physician, with a dual specialty in endocrinology and internal
medicine, and Wife managed the office. Their daughter, the only minor
child at the time of trial, was diagnosed with a mild form of Down’s
Syndrome and an intellectual disability. Wife was the primary caretaker
and decision-maker regarding the child’s medical and educational needs.

¶3 Husband and Wife owned a marital residence, and the office
condominium where the medical practice was located. When Husband
filed the petition, he was no longer working, and the office condominium
was at risk of foreclosure due to various debts and liens associated with the
property. The couple’s house, which they used as collateral to pay for office
renovations, was also at risk. After filing, Husband asked the court to
appoint a special commissioner to sell the office condominium and marital
residence. Husband claimed that the parties were unable to continue to
make payments on the office condominium and, therefore, would lose both
properties. Wife opposed the motion claiming that the medical practice was
her only opportunity for employment because she took care of their
daughter and would often bring her to the office. She maintained that even
though Husband was not working, he was able to work and anticipated he
would continue to work as he had recently renewed his board certification.

¶4 The same day that Husband moved to have the court appoint
a special commissioner, the court transferred the case to Conciliation Court,

2

BEKELE v. ABREHA
Decision of the Court

which stayed the court proceedings, and the motion went unaddressed
until November 2018. By then, Husband found a third-party investor to pay
the office’s existing liabilities, saving the office from foreclosure and
allowing the parties time to sell it for the fair market value. During a
November 2018 hearing, the parties agreed that they would attempt to
proceed in that fashion. Husband arranged the loan with the investor and
had the documents prepared, but Wife refused to sign them. The lender
foreclosed on the office condominium on December 4, 2018. Three days
after the foreclosure, Wife’s attorney moved to withdraw, stating that
continuing to represent Wife would result in a violation of the ethical rules.
The court granted Wife’s attorney’s motion, and Wife represented herself
at the trial.

¶5 At the trial, the court heard testimony from both Husband
and Wife. Husband’s position was that the practice’s demise was prompted
by “Wife’s refusal to complete the renewal of medical contracts, including
her refusal to accept Medicare assignments nearly 7 years [earlier],
replacing it with Medicare non-assignment, which has had a cascading
negative impact on which providers could be accepted by the practice in
recent years.” Wife testified that she did not want the couple to divorce and
believed that the parties could reconcile if given time. Her “position
concerning her refusal to agree to the sale of the marital residence [was] that
she believe[ed] her husband should continue to work and support her, their
family, the marital home, all while they remain an intact family.”

¶6 The court struggled to keep both parties focused and
responsive throughout the trial. During Husband’s direct examination, the
court instructed Wife not to interrupt when she disagreed with Husband’s
answer, explaining the difference between a legal objection and
disagreement multiple times, and assuring Wife she would have an
opportunity to respond. When Wife was cross-examining Husband, the
court reminded her numerous times that she could only ask questions
rather than testifying, the parties could not argue with each other, and she
needed to stop interrupting Husband while he testified. Eventually, the
court intervened and began rephrasing Wife’s long statements as questions
and limiting Husband to responsive answers. During Wife’s presentation
of evidence, the court asked her open-ended questions, allowed her to
explain her answers, and asked if there was anything else she would like to
add “about this topic.”

¶7 The court awarded the parents joint legal-decision making of
their daughter, with Wife being the primary residential parent. At the time
of trial, Husband’s only income was “just over $1000 per month” from his

3

BEKELE v. ABREHA
Decision of the Court

social security benefits. But the court found that nothing prevented him
from obtaining employment and attributed an annual salary of $120,000 to
Husband to determine child support. The court calculated Husband’s
monthly obligations per the guidelines as $1062 per month. Husband
testified that their minor child was eligible to receive $980 per month from
his benefits, but Wife refused to apply on her behalf. Because Wife “failed
to take action to obtain the benefits,” the court credited Husband $980 and
deviated slightly from the guidelines by ordering Husband to pay $100 per
month.

¶8 Wife requested $5000 per month for spousal maintenance for
an indefinite term. After considering the factors in Arizona Revised Statutes
(“A.R.S.”) section 25-319(A), the court found that Wife “established a
statutory basis for entitlement to an award of spousal maintenance,” but,
upon considering the factors in A.R.S. § 25-319(B), declined to award any
spousal maintenance. Wife appealed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(1) and Arizona Rule of Family Law Procedure 78(c).

DISCUSSION

¶9 On appeal, Wife argues that the superior court erred by:
(1) failing to award spousal maintenance after determining that she was
eligible under A.R.S. § 25-319(A); (2) miscalculating child support
payments; and (3) violating her due-process rights by refusing to allow her
to finish cross-examining Husband.

A. Finding a Spouse is Eligible for an Award of Spousal Maintenance
Does Not Obligate the Court to Award Spousal Maintenance.

¶10 Wife argues that the court erred by declining to award
spousal maintenance after finding she was statutorily eligible because the
court determined Wife’s poor business decisions constituted marital waste.
She argues that a court is not able to refuse to make an award after finding
the seeking spouse is eligible, and that poor business decisions cannot
constitute marital waste. We review the court’s award of spousal
maintenance for an abuse of discretion and view the evidence in the light
most favorable to affirming the court’s judgment. Gutierrez v. Gutierrez, 193
Ariz. 343, 348, ¶ 14 (App. 1998).

¶11 As the requesting party, it was Wife’s burden to prove her
necessity for spousal maintenance. See Buttram v. Buttram, 122 Ariz. 581, 582
(App. 1979) (“[Spousal maintenance] should not be awarded if it is not
necessary for the spouse’s support and maintenance.”). In a dissolution
proceeding, “the court may grant a maintenance order for either spouse”

4

BEKELE v. ABREHA
Decision of the Court

after finding that the spouse is statutorily eligible for spousal maintenance.
A.R.S. § 25-319(A) (emphasis added). The superior court employs a
two-step analysis in determining whether an award of spousal maintenance
is appropriate. Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984). First, the
court must find that the spouse seeking maintenance is eligible for support
for any of the reasons enumerated in A.R.S. § 25-319(A). “In making an
eligibility determination, the court considers only the circumstances of the
requesting spouse.” In re Marriage of Cotter & Podhorez, 245 Ariz. 82, 85, ¶ 7
(App. 2018).

¶12 Only after determining the “threshold matter” does the court
“consider[] the relevant circumstances of both parties to determine whether
to actually grant an award and, if so, the amount and duration.” Cotter, 245
Ariz. at 85, ¶ 7 (citing A.R.S. § 25-319(B)). The relevant factors under step
two include: “[t]he ability of the spouse from whom maintenance is sought
to meet that spouse’s needs while meeting those of the spouse seeking
maintenance,” A.R.S. § 25-319(B)(4); “[t]he contribution of the spouse
seeking maintenance to the earning ability of the other spouse,” A.R.S.
§ 25-319(B)(6); and “[e]xcessive or abnormal expenditures, destruction,
concealment or fraudulent disposition of community, joint tenancy and
other property held in common,” A.R.S. § 25-319(B)(11) (“marital waste”).

¶13 Wife requested spousal maintenance of “$5,000.00 per month
for an Indefinite Term.” The court found that Wife was eligible for an
award, but declined to award spousal maintenance, in part, because it
found under A.R.S. § 25-319(B)(11): “[Wife] is directly responsible for the
lion’s share of waste as it concerns the decline of [Husband]’s medical
practice and she is 100% responsible for the waste concerning the office
condo and the marital home.” The court also considered Wife’s share of the
community and noted that “[Wife] failed to file an Affidavit of Financial
Information and presented no evidence of her expenses. Therefore, from
the evidence presented, it appears [Wife] does not lack sufficient property
to meet her needs.”

¶14 Wife argues that the court erred by considering her poor
business decisions as marital waste under A.R.S. § 25-319(B)(11) and using
it as a basis to deny spousal maintenance. Assuming without deciding that
a poor business decision cannot be the premise for a marital waste finding
under A.R.S. § 25-319(B)(11), there is still ample evidence to support the
court’s judgment.

¶15 Even if good-faith business decisions cannot constitute
marital waste, the award of spousal maintenance is discretionary, unlike

5

BEKELE v. ABREHA
Decision of the Court

under A.R.S. § 25-318, where the court must make an equitable division of
the parties’ community property. Compare A.R.S. § 25-318(A) (the court
“shall . . . divide the community, joint tenancy and other property held in
common equitably, though not necessarily in kind, without regard to
marital misconduct” (emphasis added)), and A.R.S. § 25-318(C) (“This
section does not prevent the court from considering . . . excessive or
abnormal expenditures, destruction, concealment or fraudulent disposition
of community, joint tenancy and other property held in common.”), with
A.R.S. § 25-319(A) (“[T]he court may grant a maintenance order for either
spouse . . . .” (emphasis added)), and A.R.S. § 25-319(B) (providing a
non-exhaustive list of considerations for an award of spousal maintenance
including marital waste). After the court “consider[s] the relevant factors,
[and] balance[s] the equities between the parties, [it may] exercise its
discretion as it deems just.” Cotter, 245 Ariz. at 87, ¶ 13. In deciding whether
to award spousal maintenance, it was within the court’s discretion to
consider Wife’s business decisions, which it found “diminished
[Husband]’s ability to pay spousal maintenance.”

¶16 Moreover, the court’s decision was based on more than Wife’s
business decisions, it found—

In addition her unreasonable failures to cooperate with
[Husband] were equal to multiple years of the spousal
maintenance payments she requests. The result of her waste
more than offsets any spousal maintenance award the Court
might have provided to her.

Although the court largely attributed the failure of Husband’s medical
practice to Wife’s poor business decisions, the court’s finding of waste was
premised on Wife’s refusal to cooperate in selling the office condominium
and the parties’ marital residence before they both went into foreclosure.

¶17 Concerning the office, the court found that after paying off the
loan associated with the property there—

remains an excess of $165,812.48, the community share of
which, $82,906.24, is over $100,000 less than what the parties
would have received had [Wife] been reasonable and agreed
to the sale of the condo and/or signed the loan documents
(and later sold the office condo). [Wife] testified that she
refused to sign the document because she wanted [Husband]
to continue to work to support their family. Even at trial,
which was held after the actual foreclosure of the office

6

BEKELE v. ABREHA
Decision of the Court

condo, [Wife]demonstrated an inability to accept reality. She
insisted that the parties shouldn’t get divorced, [Husband]
should work, she will work with him, and life will move on
as if nothing ever occurred. [Wife], therefore, is directly
responsible for [Husband]’s loss of $103,250 of unrealized
profit from the sale of the office condo. Despite this,
[Husband] agrees to waive his waste claim and distribute the
proceeds from the foreclosure sale equally with [Wife].
Regardless, [Wife]’s actions prevented her from realizing a
profit of $186,156.24, which is equal to just over thirty-seven
(37) months of spousal maintenance payments of $5,000.

And concerning the marital residence—

The fair market value of the home is $539,364 based upon the
evidence presented by [Husband]—[Wife]did not present any
evidence concerning the value of the home. If the parties sold
the home for market value, they could have realized a profit
of $303,372.16, less fees and costs. This would have meant an
extra $151,686.08 in [Wife]’s pocket, or just over 30 months of
spousal maintenance payments of $5,000. However, as
[Wife]refused to agree to list the home for sale, the home is
scheduled to be foreclosed upon in the next few weeks.

¶18 The court further found that at the time of trial, Husband’s
income was “just over $1000 per month” and that, although he was living
rent-free, he would soon have to find a place to live. Wife additionally
contests the court’s calculations and apportionment of fault for the failed
business; however, it is not the amount of maintenance that is being
reviewed; it is the denial of spousal maintenance altogether. After
considering the relevant circumstances and balancing the equities, the court
declined to award spousal maintenance, and reasonable evidence supports
that conclusion.

B. The Court Did Not Miscalculate Husband’s Child Support
Obligation.

¶19 Wife argues that the court miscalculated the amount of child
support by not adding Husband’s social security payment to the amount
that it attributed to him in income. “[A]n award of child support rests
within the sound discretion of the trial court and, absent an abuse of that
discretion, will not be disturbed on appeal.” Little v. Little, 193 Ariz. 518,
520, ¶ 5 (1999). “An abuse of discretion exists when the record, viewed in

7

BEKELE v. ABREHA
Decision of the Court

the light most favorable to upholding the trial court’s decision, is ‘devoid
of competent evidence to support’ the decision.” Id. (quoting Fought v.
Fought, 94 Ariz. 187, 188 (1963)).

¶20 Here, although the court found that Husband’s income was
“just over $1000 per month,” it attributed $120,000 to him based on his
income history. After calculating Husband’s obligation as $1062 per month
per the guidelines, the court determined “[a]pplication of the child support
guidelines in this case is inappropriate or unjust” because—

[t]he child is eligible to receive $980.00 per month from his
social security benefits, as of November, 2018. [Husband]
desires [Wife] to [receive] this full benefit on behalf of the
parties’ minor child. [Wife], however, not
uncharacteristically, failed to take action to obtain the
benefits. When considering a downward deviation from the
child support calculation, the Court took into account this
benefit that [Wife]should receive to help provide for the child.
Therefore, the Court found that a downward deviation was
warranted.

¶21 Wife contends the court erred by not including Husband’s
social security income when calculating his child support payment. She
claims that according to the Arizona Child Support Guidelines, A.R.S.
§ 25-320(5)(A), the court is required to consider gross income from any
source, including social security. However, she provides no authority to
support the proposition that the court was required to consider both
Husband’s actual income and his hypothetical income. Accordingly, the
court did not abuse its discretion by choosing to calculate Husband’s child
support obligation based on the higher income the court attributed to him
rather than the lesser social security benefit.

¶22 Likewise, Wife argues that the court could not credit
Husband’s child support payment with amounts from the child’s social
security when those payments had not yet been received. The court is not
required to wait for Wife to act before reducing Husband’s child support
obligation. This is particularly true in a situation where Wife has failed to
take action to mitigate any of the parties’ losses throughout the dissolution
proceeding. The court found that the child was eligible to receive benefits
as of November 2018, and Wife failed to apply on the child’s behalf.

8

BEKELE v. ABREHA
Decision of the Court

C. The Court Did Not Violate Wife’s Due-Process Rights.

¶23 Finally, Wife claims that the court violated Wife’s due-process
rights when it interrupted her cross-examination of Husband and did not
allow her to testify on her behalf. Wife maintains that we must vacate the
entire decree and remand for a new trial. “The trial court has discretion to
control the courtroom and trial proceedings.” Christy A. v. ADES, 217 Ariz.
299, 308, ¶ 31 (App. 2007). “We will not interfere in matters within [the
court’s] discretion unless we are persuaded that the exercise of such
discretion resulted in a miscarriage of justice or deprived one of the litigants
of a fair trial.” O’Rielly Motor Co. v. Rich, 3 Ariz. App. 21, 27 (1966).

¶24 After informing Wife five times that she could not interrupt
Husband’s direct examination, the court threatened Wife with criminal
contempt if it happened again. Nevertheless, the court guided Wife through
more than a dozen additional disruptions before terminating her
cross-examination. The court did not err.

¶25 The court is not required to “indulge inefficient use of time by
parties or their counsel.” Volk v. Brame, 235 Ariz. 462, 469, ¶ 22 (App. 2014).
In its judgment, the court noted Wife’s “difficulty in being able to focus on
an issue and be responsive to questions. [She] repeatedly provided
non-responsive answers to questions posed to her at trial and simply
repeated herself.” And the record reflects as much. Before terminating
Wife’s questioning, the court attempted to facilitate the examination by
eliciting questions out of her lengthy monologues and limiting Husband to
responsive answers. Even with Wife’s obstruction, the court continued
assisting her by asking her in-depth, focused questions so it could make
appropriate findings. It patiently rephrased questions—sometimes several
times—before receiving a responsive answer. And it allowed Wife to
explain her answers fully. The court additionally asked Wife on several
occasions if there was anything else she wanted to add.

¶26 Wife claims that “[b]ecause the trial involved issues of legal
decision-making and parenting time of the Child, this type of sanction
against [Wife] was improper. Precluding a party from presenting evidence
at trial unnecessarily interfered with the trial court’s duty to consider the
Child’s best interests in ruling on custody issues.” However, Wife makes
no argument about the judgment concerning decision-making or parenting
time. Moreover, the court asked Wife what kind of arrangement she would
want with Husband, and she responded that she would like their child to
live with her but have visitation with her father regularly. The court’s
parenting order is consistent with Wife’s wishes.

9

BEKELE v. ABREHA
Decision of the Court

CONCLUSION

¶27 We affirm the superior court’s judgment. Both parties request
an award of attorney’s fees and costs. In our discretion, we decline to award
attorney’s fees; however, as the prevailing party, Husband is entitled to
costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.

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

10