Barnum v. Barnum

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PETER T. BARNUM, Petitioner/Appellant,

v.

STEPHANIE JEANETTE BARNUM, Respondent/Appellee.

No. 1 CA-CV 24-0281 FC
FILED 10-14-2025

Appeal from the Superior Court in Navajo County
No. S0900D0202200237
The Honorable Melinda K. Hardy, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Coronado Law Firm, PLLC, Lakeside
By Eduardo H. Coronado
Counsel for Petitioner/Appellant

White Mountain Law Group, PLC, Show Low
By Michael R. Ellsworth
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge Brian Y. Furuya joined.

P A T O N, Judge:

¶1 Peter Barnum (“Husband”) appeals from the superior court’s
dissolution decree. For the following reasons, we affirm in part, vacate in
part, and remand for recalculation of the spousal maintenance award.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Stephanie Barnum (“Wife”) married in 1993.
Husband petitioned for dissolution of marriage in July 2022, indicating
neither party was entitled to spousal maintenance. In her response, Wife
countered that she was entitled to spousal maintenance. The court
appointed Wife a guardian ad litem due to concerns of Wife’s diminished
capacity resulting from her declining health. In her pretrial statement, Wife
requested spousal maintenance in the amount of $4,500 per month for an
indefinite period.

¶3 The superior court held a dissolution trial and issued a
dissolution decree in February 2024. Husband moved to alter or amend the
judgment on several grounds, including challenging the spousal
maintenance award. The court denied the motion except to correct an error
irrelevant here, which resulted in an amended decree. The July 2024
amended decree ordered Husband to pay Wife $4,500 per month in spousal
maintenance for an indefinite term.

¶4 Husband timely appealed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) Section 12-2101(A)(1).

DISCUSSION

I. Financial Accounts

¶5 Husband argues the superior court erred when it categorized
the PNC Bank Money Market Trust and BBVA Money Market accounts
(“trust accounts”) as community property rather than as Husband’s sole
and separate property. Wife concedes this was error but argues it was

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harmless because the court awarded Husband the entirety of both accounts;
they were not equitably divided.

¶6 In a dissolution proceeding, the superior court must assign
each spouse his or her sole and separate property and must equitably divide
the community property. A.R.S. § 25-318(A). We review the superior
court’s characterization of property de novo. Helland v. Helland, 236 Ariz.
197, 199, ¶ 8 (App. 2014).

¶7 Here, the court found that the trust accounts were community
property. But the court awarded the entirety of both accounts to Husband.
Although the characterization of both accounts as community property was
error, as Wife concedes, the error is harmless. Husband was not prejudiced
by the errors because Wife did not receive any amount from either account.
See Walsh v. Walsh, 230 Ariz. 486, 494, ¶ 24 (App. 2012) (“We will reverse
only if the complaining party suffers prejudice as a result of the error.
Prejudice must appear affirmatively from the record.” (citation omitted));
ARFLP 86 (“Unless justice requires otherwise . . . any [] error by the court
or a party . . . is not grounds . . . for vacating, modifying, or otherwise
disturbing a judgment or order. At every stage of the proceeding, the court
must disregard all errors and defects that do not affect any party’s
substantial rights.”). And the court did not award Wife other community
property substantially equal to the value of the accounts to offset the award
of these accounts to Husband. The only community property Wife received
was a bank account containing $459—a nominal amount compared to the
$1.8 million held in the trust accounts.

¶8 Accordingly, the court’s erroneous characterization of these
two financial accounts as community property is harmless and does not
require us to vacate or modify the dissolution decree.

II. Spousal Maintenance

¶9 Husband argues the superior court erred in awarding Wife
spousal maintenance because: (1) the court considered Husband’s Social
Security income, trust property, and inheritance; (2) the award is contrary
to the evidence and unsupported by findings of fact; and (3) the court
erroneously found that Husband has good earning ability in the labor
market. We review the superior court’s award of spousal maintenance for
an abuse of discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14 (App.
1998).

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A. The court did not err by considering Husband’s Social
Security benefits, trust property, or inheritance in its
spousal maintenance award.

¶10 Husband argues the court erred by considering his Social
Security benefits and the trust accounts, his sole and separate property, to
award Wife spousal maintenance. He contends that considering either
source is impermissible and functionally converts his sole and separate
property into community property.

¶11 Generally, community property includes all assets acquired
during marriage except by gift, devise, or descent. A.R.S. § 25-211(A)(1). In
a dissolution proceeding, the superior court must assign each spouse his or
her sole and separate property and equitably divide the community
property. A.R.S. § 25-318(A). Social Security benefits cannot be divided as
community property under federal law. 42 U.S.C. § 407(a); Kohler v. Kohler, 211 Ariz. 106, 108, ¶ 10 (App. 2005); Kelly v. Kelly, 198 Ariz. 307, 308, ¶ 5
(2000).

¶12 But spousal maintenance is a separate consideration from the
assignment of sole and separate property and the equitable division of
community property under Section 25-318. The marital community
terminates upon the service of a petition that results in a dissolution decree.
A.R.S. § 25-211(A)(2). Thus, all property that a spouse acquires post-
petition is that spouse’s sole and separate property. It then follows that a
spouse paying spousal maintenance necessarily pays the award out of his
or her sole and separate property. Husband does not indicate what source
of income would be acceptable for the court to consider in awarding
spousal maintenance if a spouse’s sole and separate property cannot be
considered.

¶13 Further, under the Spousal Maintenance Guidelines
(“Guidelines”), a spouse’s “actual income,” used to calculate the
maintenance award, includes trust income and Social Security benefits.
Ariz. Spousal Maintenance Guidelines § III.A.1.b1. The Guidelines only
apply to dissolution petitions filed on or after September 24, 2022. Ariz.
Spousal Maintenance Guidelines § I.C.1. Although the Guidelines were not
yet in effect in July 2022 when Husband’s petition was filed, there was no
statutory authority or caselaw before the Guidelines were implemented

1 See Ariz. Sup. Ct., Arizona Spousal Maintenance Guidelines (2023),
https://azcourts.gov/familylaw/Child-Support-Family-
LawInformation/Spousal-Maintenance-Guidelines.

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that prohibited the superior court from considering a spouse’s trust income
and Social Security benefits to determine a spousal maintenance award, and
Husband has cited none in his brief. Prior to the Guidelines, we approved
an award of spousal maintenance for one half of the value of any Social
Security benefits that one spouse received. Leathers v. Leathers, 216 Ariz.
374, 378, ¶¶ 15-16 (App. 2007) (holding that such an “award does not violate
either 42 U.S.C. § 407 or the Kohler and Kelly line of cases” because the court
did not attach the husband’s Social Security itself).

¶14 Husband cites Kohler and Kelly, as well as numerous out-of-
state cases, for the proposition that the court cannot divide Social Security
benefits as community property. Husband’s position is meritless. The
court here did not improperly characterize Husband’s Social Security
benefits as community property or equitably divide them as such.
Husband’s assertion to the contrary is unavailing.

¶15 The court did not attach or divide Husband’s Social Security
benefits, nor did it make a specific award of any portion of the value of
Husband’s Social Security or trust accounts to Wife. Although the court
erroneously characterized the trust accounts as community property, the
accounts were not divided and Husband received the full amounts in each,
so this was not prejudicial error as discussed supra ¶ 7. The court merely
considered Husband’s financial resources and ability to pay spousal
maintenance as Section 25-319 directs it to do. See A.R.S. § 25-319(B)(4), (5).
Husband has shown no error.

B. Although sufficient evidence supports Wife’s eligibility for
spousal maintenance, the court’s award determination
included its erroneous finding that Husband has “good
earning abilities” in the labor market.

¶16 Husband argues “[t]here is no evidence or findings of fact to
support the award of spousal maintenance.” The superior court may award
spousal maintenance when any one of the five Section 25-319(A) grounds
are present. See Cullum v. Cullum, 215 Ariz. 352, 354, ¶ 11 (App. 2007). If
the court determines a spouse is eligible for an award of spousal
maintenance under Section 25-319(A), it must then consider the thirteen
factors set forth in Section 25-319(B) to determine the amount and duration
of the award. Helland, 236 Ariz. at 202-03, ¶¶ 24, 28.

¶17 In reviewing a spousal maintenance award, we review the
record to determine whether evidence supports the superior court’s
findings. Boyle v. Boyle, 231 Ariz. 63, 66, ¶ 11 (App. 2012). “We will uphold

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the court’s factual findings unless clearly erroneous or unsupported by any
credible evidence.” Valento v. Valento, 225 Ariz. 477, 481, ¶ 11 (App. 2010).

¶18 Husband did not provide a transcript of the February 2024
dissolution trial or any admitted exhibits. Absent transcripts or relevant
exhibits, we presume the evidence supports the superior court’s findings.
Blair v. Burgener, 226 Ariz. 213, 217, ¶ 9 (App. 2010); ARCAP 11(c)(1)(B) (“If
the appellant will contend on appeal that a judgment, finding or conclusion,
is unsupported by the evidence or is contrary to the evidence, the appellant
must include in the record transcripts of all proceedings containing
evidence relevant to that judgment, finding or conclusion.”).

¶19 Regardless, the superior court’s findings of fact support
Wife’s eligibility for spousal maintenance. Husband concedes that Wife is
eligible for spousal maintenance under either subsections (A)(1) or (5). The
court determined Wife was eligible for spousal maintenance under Section
25-319(A)(1), (2), and (5), making detailed findings that she lacked sufficient
property to provide for her reasonable needs, she lacked adequate earning
ability to be self-sufficient, and had a marriage of long duration and is of an
age that may preclude the possibility of gaining employment adequate to
be self-sufficient. Sufficient evidence supports the court’s findings as to
Wife’s eligibility for a spousal maintenance award.

¶20 Husband further contends the court erred by finding he has
good earning ability in the labor market as part of its spousal maintenance
analysis. After the court determines a spouse is entitled to an award of
spousal maintenance, it sets the amount and duration of the award by
considering the thirteen factors set forth in Section 25-319(B). Helland, 236
Ariz. at 203, ¶ 28. “To strike the proper balance, the [superior] court need
not apply every factor listed in 25-319(B).” Rainwater v. Rainwater, 177 Ariz.
500, 502 (App. 1993).

¶21 Here, when considering Section 25-319(B)(5), the court found
Husband “has good earning abilities in the labor market.” “We will uphold
the court’s factual findings unless clearly erroneous or unsupported by any
credible evidence.” Valento, 225 Ariz. at 481, ¶ 11. As previously
mentioned, Husband did not submit a transcript of the dissolution trial or
any admitted exhibits. Absent relevant transcripts or exhibits, we presume
the evidence presented supported the superior court’s findings. Blair, 226
Ariz. at 217, ¶ 9; ARCAP 11(c)(1)(B).

¶22 Wife, however, concedes this was error because Husband’s
earning capacity was not at issue at trial, and neither party presented

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evidence regarding it. But Wife argues it was harmless, considering her
“need for spousal maintenance” and Husband’s “substantial financial
resources.” We disagree that the error was harmless because the court
expressly noted Husband’s earning ability when balancing the Section 25-
319(B) factors. Although the court’s other Section 25-319(B) findings are
supported by sufficient evidence, we cannot determine whether or how the
erroneous finding impacted its award because we do not reweigh the
evidence on appeal. See Henderson v. Henderson, 241 Ariz. 580, 587, ¶ 18
(App. 2017). We therefore vacate the court’s spousal maintenance award
and remand solely for the court to weigh the remaining factors in
calculating its amount and duration.

¶23 Wife requests her attorneys’ fees and costs on appeal under
Section 25-324. Having considered the parties’ financial resources and the
reasonableness of their positions on appeal, we award Wife her reasonable
attorneys’ fees. As the prevailing party, Wife is also entitled to her taxable
costs on appeal upon compliance with ARCAP 21(b).

CONCLUSION

¶24 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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