Bovaird v. Bovaird

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANGELINA E. BOVAIRD, Petitioner/Appellee,

v.

BRIAN J. BOVAIRD, Respondent/Appellant.

No. 1 CA-CV 21-0698 FC
FILED 6-16-2022

Appeal from the Superior Court in Maricopa County
No. FN2016-005844
The Honorable Ronda R. Fisk, Judge

AFFIRMED

COUNSEL

Bishop, Del Vecchio & Beeks Law Office, P.C., Phoenix
By Daniel P. Beeks
Counsel for Petitioner/Appellee

Modern Law, Mesa
By Katherine V. Stapleton
Counsel for Respondent/Appellant

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.
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Decision of the Court

B A I L E Y, Judge:

¶1 Brian J. Bovaird (“Husband”) appeals the superior court’s
order denying his motion to terminate his spousal maintenance obligation
to Angelina E. Bovaird (“Wife”). Finding no legal error or abuse of
discretion, we affirm the order.

FACTS AND PROCEDURAL HISTORY

¶2 Under the terms of the parties’ 2017 consent decree, Husband
agreed to pay Wife $1,850 per month in spousal maintenance beginning
February 2017 for 22 years. They also agreed the spousal maintenance
obligation was nonmodifiable and would terminate only after all payments
had been made or upon Wife’s remarriage or death.

¶3 Wife had been living with her significant other, Edward
Turpin, in California since 2015. In 2020, Wife petitioned for an ex parte
income withholding order, alleging Husband was behind on the spousal
maintenance payments. In response, Husband petitioned to terminate
spousal maintenance because it appeared Wife had married Turpin in
August 2018. Husband cited evidence that Wife and Turpin participated in
what looked like a wedding ceremony at a chapel in Las Vegas, Nevada.
Although he did not locate a marriage license, Husband argued the court
could infer a legal marriage from the circumstances under Arizona Revised
Statutes (“A.R.S.”) section 12-2265.

¶4 The superior court held an evidentiary hearing, and after
Husband testified, Wife moved for judgment as a matter of law on the
ground that he failed to prove Wife had legally remarried. The court denied
the motion.1 According to Wife, she and Turpin live together and
celebrated a commitment ceremony with friends and family in Las Vegas
in 2018. She denied, however, that they were legally married.

¶5 The superior court concluded that under Arizona law, a de
facto marriage or cohabitation relationship does not constitute a legal
marriage that would terminate Husband’s obligation to pay spousal
maintenance under the parties’ decree. The court agreed that Wife’s
conduct reasonably led Husband to believe she and Turpin had married.
But the court found that Wife knew her spousal maintenance would stop if
she remarried and intentionally did not legally marry Turpin. The court

1 The court dismissed Husband’s claim that Wife obtained the consent
decree by fraud and its terms were unfair. Husband does not challenge that
ruling on appeal.
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denied Husband’s petition to terminate spousal maintenance and ordered
Wife to pay her own attorneys’ fees.

¶6 Husband timely appealed, and we have jurisdiction under
A.R.S. § 12-2101(A)(2).

DISCUSSION

¶7 Husband argues the superior court erred by failing to apply
A.R.S. § 12-2265, which allows courts to infer the existence of a legal
marriage under some circumstances. We review questions of statutory
construction de novo. Wilmot v. Wilmot, 203 Ariz. 565, 569, ¶ 10 (2002).

¶8 Section 12-2265 states:

A certificate of marriage executed in accordance with
the laws of this state or a foreign state or country, or the record
thereof, or a certified copy of such record shall be prima facie
evidence of the facts therein stated in any proceeding, civil or
criminal, in which the matter is in question. When the marriage
is to be proved, evidence of the admission of such fact by the adverse
party, or evidence of general repute, or evidence of cohabitation as
married persons, or other evidence from which the fact may be
inferred, is competent.

(Emphasis added.) The parties agree that this statute does not eliminate the
marriage license requirement for a valid marriage, however. Indeed,
common-law marriages are not recognized in Arizona, California, or
Nevada unless the parties entered a common-law marriage in a state where
it is valid. See Vandever v. Indus. Comm’n, 148 Ariz. 373, 376 (App. 1985)
(citing In re Estate of Trigg, 102 Ariz. 140 (1967); Grant v. Superior Ct., 27 Ariz.
App. 427 (1976)); A.R.S. § 25-111 (requiring a ceremony and marriage
license for a valid marriage in Arizona); see also Knight v. Superior Ct., 26 Cal.
Rptr. 3d 687, 690-91 (Cal. Ct. App. 2005); Cal. Fam. Code §§ 300(a), 308; Nev.
Rev. Stat. §§ 122.010(1) (providing that a common-law marriage is not
valid), 122.040(1) (requiring a marriage license for a valid marriage).

¶9 Arizona law does not provide for termination of spousal
maintenance upon a spouse’s romantic cohabitation unless the parties
agree otherwise. See Van Dyke v. Steinle, 183 Ariz. 268, 274 (App. 1995). To
the contrary, Arizona law holds “that the existence of a cohabitation
arrangement or ‘de facto marriage’ between a spouse receiving maintenance
and a cohabitant is not a sufficient basis, in itself, for termination or

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reduction of spousal maintenance.” Id. (quoting Smith v. Mangum, 155 Ariz.
448, 450 (App. 1987)).

¶10 Husband argues that A.R.S. § 12-2265 required the superior
court to infer Wife’s marriage based on the evidence he offered. Section 12-
2265 is a procedural statute that allows courts to infer a legal marriage exists
when the physical marriage license is unavailable or the parties admit to
the marriage. It does not, however, require the superior court to infer the
existence of a valid marriage license on the facts here.

¶11 The events described in the superior court suggest Wife and
Turpin participated in a ceremony in Las Vegas. The documentary
evidence shows it was a non-legal “commitment ceremony,” not a legally
binding marriage ceremony. Thus, the ceremony did not result in a valid
marriage license and explains why Husband could not locate a marriage
license in the Clark County records. As Husband acknowledged, a
marriage ceremony would have had to occur in California, not Nevada, for
Wife to obtain a confidential marriage license in California. See Cal. Fam.
Code § 501(a). There was no evidence of a ceremony in California. This
explains why Husband could not locate a marriage license in the California
counties he searched. Thus, the ceremony and surrounding circumstances
did not require the court to find that Wife legally married Turpin. The court
found that Wife was very much aware a legal marriage would end her right
to spousal maintenance and had done everything but legally marry Turpin
to avoid that result. This does not contravene the terms of the consent
decree.

¶12 Husband contends the superior court abused its discretion
when it accepted Wife’s testimony that she intentionally avoided a legal
marriage to keep receiving spousal maintenance from Husband. According
to Husband, this conflicts with the court’s other findings that much of
Wife’s testimony was not credible, that she engaged in “substantial
gamesmanship,” and that she “gave cagey, evasive answers to direct
questions about her intentions and the nature of her relationship with Mr.
Turpin.” To be sure, Wife claimed she was not ready to marry Turpin, yet
she participated in the commitment ceremony, lived with him, and
exchanged “promise rings.” But she consistently stated she intentionally
avoided a legal marriage to Turpin.

¶13 The superior court is in the best position to determine witness
credibility and resolve conflicts in the evidence, and we generally defer to
its findings. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). Husband
asks this court to weigh Wife’s testimony differently, but “[w]e must give
due regard to the [superior] court’s opportunity to judge the credibility of
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the witnesses” and do not reweigh conflicting evidence on appeal. Id. The
record supports the superior court’s conclusions that Wife was not
concealing a legal marriage and that she intentionally did not marry Turpin.

¶14 We reject Husband’s contention that the superior court failed
to consider whether § 12-2265 applied. The parties addressed this statute
at the evidentiary hearing. Although the court did not mention § 12-2265
in its final ruling, neither party requested findings of fact and conclusions
of law under Arizona Rule of Family Law Procedure 82(a). Thus, the court
did not have to set forth a detailed explanation of its reasoning. We
presume the court considered and rejected this argument. See Stevenson v.
Stevenson, 132 Ariz. 44, 46 (1982) (stating that, on appeal, the appellate court
presumes the superior court found every fact necessary and will affirm if
any reasonable construction of the evidence supports the decision).

¶15 Finally, Husband argues the superior court abused its
discretion in denying his request for attorneys’ fees. We find no abuse of
discretion. Husband has greater financial resources and Wife’s position
was not unreasonable. See Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App.
2014) (reviewing a superior court’s ruling on a request for attorneys’ fees
under § 25-324 for an abuse of discretion).

ATTORNEYS’ FEES AND COSTS ON APPEAL

¶16 In the exercise of our discretion and after considering the
reasonableness of the parties’ positions and financial resources, we order
each party to pay their own attorneys’ fees on appeal. See A.R.S. § 25-324.
Wife is entitled to her taxable costs on appeal upon compliance with
Arizona Rule of Civil Appellate Procedure 21. See A.R.S. § 12-342.

CONCLUSION

¶17 We affirm the superior court’s order denying Husband’s
petition to terminate his spousal maintenance obligation.

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

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