Hurtado v. Hurtado

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARLOS A. HURTADO,
Petitioner/Appellee,

v.

MELISSA SUE HURTADO,
Respondent/Appellant.

No. 1 CA-CV 21-0711 FC
FILED 10-18-2022

Appeal from the Superior Court in Maricopa County
No. FN2020-097818
The Honorable David E. McDowell, Judge

VACATED IN PART AND REMANDED

COUNSEL

Law Offices of John R. Zarzynski, Phoenix
By John R. Zarzynski
Counsel for Respondent/Appellant

Terry J. Fong Law Group, Gilbert
By Terry J. Fong
Counsel for Petitioner/Appellee
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MEMORANDUM DECISION

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

M O R S E, Judge:

¶1 Melissa Hurtado ("Wife") appeals from a dissolution decree
ending her marriage to Carlos Hurtado ("Husband"). For the following
reasons, we vacate the decree in part and remand to the superior court for
further consideration.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife were married on April 14, 2008. On
February 15, 2020, Husband vacated the marital home and the parties
separated. For the first year of separation, Wife occupied the marital home
while Husband paid the expenses related to the property. Husband filed
for dissolution on December 18, 2020.

¶3 In February 2021, following an evidentiary hearing, the court
issued temporary orders awarding spousal maintenance to Wife and
granting Husband exclusive use of the marital home beginning April 4,
2021. The court also set trial for September 8, 2021.

¶4 Less than one month prior to the scheduled trial, Wife moved
for a continuance to allow further discovery. The court denied her motion
but offered to reconsider if she could establish a reasonable basis for
continuance at trial.

¶5 After trial, the court issued its dissolution decree. In its
decree, the court awarded Husband the marital home if he could buy out
Wife's share of the equity. The court also found that Wife was not entitled
to spousal maintenance and had failed to establish a reasonable basis for
additional discovery and a continuance. Wife appealed and we have
jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 Wife argues that the superior court abused its discretion by
denying her request for spousal maintenance and refusing to consider

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Husband's book of business when dividing marital assets.1 She also
requests attorney fees on appeal.

I. Spousal Maintenance.

¶7 The award of spousal maintenance is left to the sound
discretion of the trial judge and will not be overruled absent a clear showing
of abuse. McCarthy v. McCarthy, 146 Ariz. 207, 208 (App. 1985). We will
accept the trial court's findings of fact unless clearly erroneous. In re
Marriage of Cotter, 245 Ariz. 82, 85, ¶ 6 (App. 2018).

¶8 In evaluating a request for spousal maintenance, the trial
court engages in a two-step analysis. Cotter, 245 Ariz. at 85, ¶ 7. First, "the
trial court must, as a threshold matter, determine whether the requesting
spouse is eligible for an award." Id. A spouse is eligible for maintenance if
she meets any one of the five statutory grounds contained in A.R.S.
§ 25-319(A). Id. at 86, ¶ 10. Second, if the requesting spouse demonstrates
eligibility, the court then "considers the relevant circumstances of both
parties to determine whether to actually grant an award . . . ." Id. at 85, ¶ 7.
Under this scheme, Wife may be eligible for an award if she meets the
requirements for any one of the grounds for maintenance, id. at 86, ¶ 10, but
she is not entitled to an award until the court has considered the relevant
case-specific facts and granted her request for spousal maintenance, id. at
85, ¶ 7.

¶9 While the parties agree that they argued both prongs of the
statute below, it is not clear from the record whether the court rested its
decision on eligibility or entitlement. In the dissolution decree, the court
stated that Wife was "not entitled to an award of spousal maintenance," but
it did so because she "fail[ed] to meet any of the statutory grounds for an
award." If wife is eligible under the statute, the trial court must address the
§ 25-319(B) factors and provide additional reasoning justifying its decision.

¶10 In the dissolution decree, the court weighed the evidence and
found Wife ineligible for maintenance under the last four grounds provided

1 Wife initially challenged the court's division of marital home
expenses, but conceded at oral argument that the issue is moot. Therefore,
we will not consider the issue on appeal. See Gerow v. Covill, 192 Ariz. 9, 13,
¶ 15 n.2 (App. 1998) (enforcing a concession made during oral argument);
see also Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, 578, ¶ 7 (App. 2017)
(stating that appellate courts "should not attempt to analyze and decide
arguments that have been abandoned and waived").

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in A.R.S. § 25-319(A)(2)-(5). None of these findings in the dissolution decree
are clearly erroneous. See Cotter, 245 Ariz. at 85, ¶ 6 (stating that we will
not overturn a finding of fact unless clearly erroneous). Accordingly, we
affirm the court's eligibility ruling as to those grounds.

¶11 However, we cannot affirm the court's eligibility finding
under A.R.S. § 25-319(A)(1), which provides that a spouse is eligible for
maintenance if she "[l]acks sufficient property . . . to provide for [her]
reasonable needs." "[S]ufficient property is of such value that the spouse
would be unlikely to exhaust it in his or her lifetime." Cotter, 245 Ariz. at
85-86, ¶ 9. Wife argues that the court erred because there is "simply no
possibility" that the property awarded to her could provide enough income
to cover her reasonable needs. We agree.

¶12 The court found that Wife had no significant assets outside of
those granted in the dissolution. The record thus established that her assets
totaled less than $300,000. Even assuming that all of these assets could be
converted to an income-producing state, see Deatherage v. Deatherage, 140
Ariz. 317, 320 (App. 1984) (noting sufficient property "include[s] property
presently producing income as well as property capable of producing
income"), it is not obvious how such a small amount could provide for
Wife's reasonable needs for the remainder of her life, Cotter, 245 Ariz. at 85-
86, ¶ 9. Rather than answering that question, the court found that Wife's
assets were sufficient because she "received an equal distribution of
property from this marriage" and "may receive more liquid assets than
Husband . . . ." These facts are not relevant at the eligibility stage.

¶13 The court erred to the extent that it found wife ineligible for
spousal maintenance under A.R.S. § 25-319(A)(1). Accordingly, we remand
to the superior court for consideration and clarification regarding Wife's
entitlement to spousal maintenance.

II. Book of Business.

¶14 Wife next claims that no reasonable evidence supports the
court's finding that Husband had no business or book of business for the
court to distribute equitably. In her statement of issues, Wife posits that the
court should have continued the case to allow for additional discovery. But
the argument section of her brief focuses on whether the court erred in
finding that no book of business existed. We consider both arguments in
turn.

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A. Discovery.

¶15 The trial court has broad discretion in ruling on matters of
disclosure and discovery, and this court will not disturb an evidentiary
ruling absent a clear abuse of discretion and resulting prejudice. Johnson v.
Provoyeur, 245 Ariz. 239, 241-42, ¶ 8 (App. 2018).

¶16 The risk that the opposing party will be prejudiced by the
inclusion of new evidence grows when trial is imminent. Zimmerman v.
Shakman, 204 Ariz. 231, 236, ¶ 16 (App. 2003). In order to protect the parties,
the court is entitled to enforce reasonable discovery deadlines. See Johnson,
245 Ariz. at 245, ¶ 21 (upholding a trial court's exclusion of evidence
received after the disclosure deadline). A court may limit discovery "if it
determines that the discovery sought . . . seeks information that the party
has had an ample opportunity to obtain . . . ." Ariz. R. Fam. L. P. 51(b)(1)(B).

¶17 The court set the deadline for discovery on August 8, 2021.
Wife had several months to seek discovery or an extension before August
8, but she did not request more time until five days after that deadline had
passed. The court denied the motion but offered to reconsider if Wife
provided reasonable grounds for delay at trial. At trial, Wife provided no
evidence beyond that already included in her motion.

¶18 Wife had ample opportunity to obtain the discovery sought
in the months leading up to the trial, Ariz. R. Fam. L. P. 51(b)(1)(B), and the
court was entitled to enforce its discovery deadline, Johnson, 245 Ariz. at
245, ¶ 21. The court did not abuse its discretion in denying Wife's request
to allow additional discovery on the issue.

B. Equitable Distribution.

¶19 A trial court's equitable division of community property is
reviewed for an abuse of discretion. Roden v. Roden, 190 Ariz. 407, 411 (App.
1997). We view the evidence in the light most favorable to sustaining the
trial court's determination, and we will affirm unless there is "clear and
convincing evidence that the trial court abused its discretion." Bender v.
Bender, 123 Ariz. 90, 92 (App. 1979). The appellate court will not reweigh
conflicting evidence on appeal and will always give due regard to the trial
court's opportunity to judge the credibility of the witnesses. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).

¶20 Wife complains that the only evidence available to the trial
court was the testimony of the parties. But, if a party is dissatisfied with
the state of the record at trial, it is her duty to further enlighten the court.

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Reed v. Reed, 82 Ariz. 168, 172 (1957). Wife had the opportunity at the trial
level to supplement her testimony with additional evidence. She chose not
to subpoena Husband's employer or his alleged business partner. By
neglecting to develop the record, she bore the risk that the court would
accept Husband's testimony over her own. See id. ("We are not impressed
by a complaint that the trial judge was compelled to guess in order to arrive
at a decision when his sole duty after both parties rested was to exercise his
best judgment under the circumstances.").

¶21 She claims that the court abused its discretion by accepting
Husband's "contradictory, evasive, and confusing" testimony over her own,
which she describes as "clear, concise, and unequivocal." Appellate courts
have long recognized that the finder of fact is in the best position to weigh
the credibility of competing testimony. Hurd, 223 Ariz. at 52, ¶ 16. We will
not reweigh conflicting evidence on appeal. Id.

III. Attorney Fees.

¶22 The court has the discretion to award attorney fees "after
considering 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). Even a great disparity in financial resources is not an
automatic basis for an award of fees. Myrick v. Maloney, 235 Ariz. 491, 494,
¶ 9 (App. 2014). But it may justify an award when neither party has acted
unreasonably. Magee v. Magee, 206 Ariz. 589, 592, ¶ 12 (App. 2004).

¶23 Wife requests an award of attorney fees based on the disparity
in financial resources of the parties. Husband requests an award of attorney
fees based on Wife's unreasonable conduct throughout the dissolution
proceedings.

¶24 Husband has far greater financial resources than Wife.
Although Wife has taken unreasonable positions throughout the
dissolution proceedings, her positions have not been so unreasonable as to
preclude completely an award of her appellate fees. Accordingly, we
award Wife a portion of her attorney fees upon compliance with ARCAP
21.

CONCLUSION

¶25 For the above stated reasons, we vacate the portion of the
superior court's order finding Wife ineligible for spousal maintenance
under A.R.S. § 25-319(A)(1) and remand for further consideration consistent

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with this decision. In exercise of our discretion, we award Wife a portion
of her attorney fees on appeal.

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

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