Howard v. Howard

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LISA HOWARD, Petitioner/Appellant,

v.

MARK HOWARD, Respondent/Appellee.

No. 1 CA-CV 24-0538 FC
FILED 03-06-2025

Appeal from the Superior Court in Maricopa County
No. FN2023-090130
The Honorable David E. McDowell, Judge

AFFIRMED

COUNSEL

Tiffany & Bosco, PA, Phoenix
By Kelly Mendoza, Audra Petrolle, Brendyn T. Edwards
Counsel for Petitioner/Appellant

Law Offices of Jodie D. Cuccurullo, Phoenix
By Jodie Cuccurullo
Co-Counsel for Respondent/Appellee

Reardon House Colton, PLC, Scottsdale
By Taylor S. House
Co-Counsel for Respondent/Appellee
 HOWARD v. HOWARD
Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

P A T O N, Judge:

¶1 Lisa Howard (“Wife”) appeals from the superior court’s
dissolution decree and judgment for attorneys’ fees. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Wife and Mark Howard (“Husband”) married in 1997 and
have three adult children together. Wife petitioned for dissolution of
marriage in January 2023, and served Husband with the petition that
month. That same month, Husband began voluntarily paying Wife $5,000
in monthly spousal maintenance and agreed to pay the community
expenses. In February 2024, the superior court entered the parties’
stipulated temporary orders, requiring Husband to continue to pay various
community expenses as well as pay Wife $5,000 in monthly spousal
maintenance. At the dissolution trial in May 2024, the parties disputed, as
relevant here, spousal maintenance, the amount of reimbursement
Husband was entitled to, Husband’s income, Wife’s attributable income,
and attorneys’ fees and costs.

¶3 In its May 2024 dissolution decree, the superior court
awarded Husband reimbursement in the amount of $46,069.39 for
community expenses paid post-petition that, after equalization of all
awards, totaled $3,270.39 in Husband’s favor. The court ordered Husband
to pay Wife $9,500 per month in spousal maintenance for three years. In a
subsequent judgment for attorneys’ fees, the court granted Wife $24,728.48
in fees (of the nearly $80,000 she requested) based on the financial disparity
of the parties, but did not award Wife all of her requested fees after
determining some of her positions were unreasonable.

¶4 Wife timely appealed the dissolution decree and judgment for
attorneys’ fees. We have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) Section 12-2101(A)(1)-(2).

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DISCUSSION

¶5 In substance, Wife argues the superior court erred by: (1)
awarding Husband reimbursement for community expenses he paid after
the petition for dissolution was filed, (2) setting spousal maintenance at
$9,500.00 per month for three years, and (3) only awarding her a portion of
her requested attorneys’ fees and costs.

I. The court did not abuse its discretion in awarding Husband
reimbursement.

¶6 Wife petitioned for dissolution in January 2023 and the court
ordered dissolution in May 2024. Husband paid all of the community
expenses during that sixteen-month period with his separate funds. In his
pretrial statement, Husband requested reimbursement for only ten of those
sixteen months out of “fair[ness]” to Wife who was not working at the time
she filed the petition. He also paid Wife $5,000 per month in spousal
maintenance during that time. This arrangement was formalized in the
February 2024 stipulated temporary orders. The court found Husband was
entitled to a credit of $46,069.39 for those payments towards community
expenses subject to the court’s equalization of all awards. The $46,069.39
amount excluded the $5,000 per month in spousal maintenance, more than
$30,000 Husband gave Wife for her attorneys’ fees, as well as the additional
six months of community expenses for which Husband did not seek
reimbursement. After equalization, Husband’s award totaled $3,270.39.

¶7 Wife argues the court erred in awarding Husband $46,069.39
as reimbursement based on his payment of post-service community
expenses because “Wife would have been unable to share in the community
expenses” otherwise. She contends the court should have retroactively
applied those payments as spousal maintenance. As a result, she also
argues the $3,270.39 equalization award was error.

¶8 Absent an abuse of discretion, we will affirm the superior
court’s division of property. Hammett v. Hammett, 247 Ariz. 556, 559, ¶ 13
(App. 2019). As potentially applicable here, an abuse of discretion occurs
“when the record . . . is devoid of competent evidence to support the
decision.” Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2009) (citations
omitted). We view the facts in the light most favorable to upholding the
superior court’s ruling. Ball v. Ball, 250 Ariz. 273, 275, ¶ 1, n.1 (App. 2020).

¶9 The marital community is deemed to have terminated upon
the service of a petition that results in a decree of dissolution. A.R.S. § 25-
211(A)(2). When a divorcing spouse pays post-petition community

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obligations, the presumption that those payments are a gift does not apply
and the payments “must be accounted for in an equitable property
distribution.” Bobrow v. Bobrow, 241 Ariz. 592, 594, 596, ¶¶ 1, 19 (App. 2017).
The requesting spouse has the burden of proving the amount of the
reimbursement claim. Andrews v. Andrews, 252 Ariz. 415, 419, ¶ 19 (App.
2021). The court “may account for such payments in a variety of ways to
achieve an equitable property division.” Huey v. Huey, 253 Ariz. 560, 565,
¶ 18 (App. 2022).

¶10 Here, Husband paid for post-petition community expenses
and was thus entitled to have those payments accounted for in the court’s
property division. The court determined Husband should be reimbursed
$46,069.39. This amount only accounted for ten of the sixteen months
Husband paid community expenses, and excluded the $5,000 a month in
spousal maintenance he paid Wife during that time, as well as the money
he provided to her to pay for her attorneys’ fees. These determinations
inured to Wife’s benefit, especially given that she requested Husband
receive a greater reimbursement amount in her pretrial statement.
Accordingly, Wife has not shown that the court erred by accounting for
Husband’s payments in the overall property division.

¶11 Wife relies on Barron for her position that the court should not
have reimbursed Husband for community expenses. Barron v. Barron, 246
Ariz. 580, 591, ¶ 43 (App. 2018), vacated in part on other grounds, 246 Ariz.
449, 452, ¶ 21 (2019). The superior court in Barron did not order the wife to
reimburse the husband for the community expenses he had paid post-
service of the petition. Id. at 591, ¶ 40. We affirmed that decision because
the superior court’s finding that “[w]ife would have been unable to share
the expenses at issue absent spousal maintenance” was supported by the
record. Id. at ¶ 43. But in Barron, the court’s analysis turned on the fact that
the wife could not afford to pay the community expenses; here, Husband
was paying Wife $5,000 a month in spousal maintenance in additional to
paying the community expenses.

¶12 Wife does not dispute that Husband paid community
expenses with his separate property after the date of service of the petition
nor did she present any evidence that Husband intended the payments as
a gift. See Bobrow, 241 Ariz. at 596, ¶ 15. Indeed, Wife acknowledged that
Husband was entitled to some amount of reimbursement for his payments
towards community expenses. As such, Wife has not shown that the court
abused its discretion in awarding Husband reimbursement.

¶13 Wife suggests that Husband was precluded from seeking
reimbursement because, in the stipulated temporary orders, he was

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“ordered and agreed to pay” for the community expenses and $5,000 per
month in temporary spousal maintenance. She asserts that “[t]he
agreement to pay the community expenses was in lieu of a higher
temporary spousal maintenance amount.” But her assertion is not
supported by the record. To the contrary, the stipulated temporary orders
stated that:

The parties understand and acknowledge that the agreements
set forth herein are temporary in nature and neither party
shall be prejudiced in terms of taking a different position
regarding the issues addressed herein at the time of trial.

By entering this Stipulated Order, neither party shall be
prohibited from at any time seeking relief from the Court at
the time of trial regarding the issues addressed herein, except
as may otherwise be specifically limited by this Stipulated
Order.

The agreements herein have been stipulated to for settlement
purposes only and it shall not be assumed that any agreement
herein constitutes an admission by a party that the obligations
imposed on or received by either party are warranted.

Nothing in the temporary stipulated orders prohibited Husband from later
seeking reimbursement.

¶14 Wife further argues that the superior court erred by not
offsetting Husband’s post-petition payments towards community expenses
as retroactive spousal maintenance, also referred to as pre-decree spousal
maintenance. But the court found that Wife waived this issue because “she
made no argument at the Trial for pre-decree spousal maintenance.”

¶15 Waiver is a question of fact and the superior court’s finding
of waiver is binding unless we conclude the finding is clearly erroneous.
Minjares v. State, 223 Ariz. 54, 58, ¶ 17 (App. 2009). Wife did not challenge
the superior court’s waiver finding or argue it was clearly erroneous in her
opening brief. The only reference to the issue in her briefing on appeal is in
her reply brief, where she argues the superior court’s waiver finding “is
misplaced.” But a reply brief “must be strictly confined to rebuttal of points
made in the appellee’s answering brief.” ARCAP 13(c). Thus, Wife has
waived any challenge to the superior court’s finding that she waived her
pre-decree spousal maintenance at trial on appeal. See Evans v. Lundgren, 11 Ariz. App. 441, 445 (App. 1970) (“The only legitimate function of a reply
brief is to Reply to matters raised in the appellee’s brief, and not to raise

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entirely new arguments or issues.”); see also Harris v. Cochise Health Sys., 215
Ariz. 344, 349, ¶ 17 (App. 2007) (“Generally, ‘an appellate court will not
consider issues not raised in the trial court.’”).

¶16 Wife also argues in her reply brief that the $46,069.39 was
incorrectly calculated because it included the incorrect ten months by
including expenses from the first six months after service of the petition for
which Husband did not seek reimbursement for. This is an entirely new
argument, first raised in her reply brief on appeal, and is therefore waived.
See Evans, 11 Ariz. App. at 445.

¶17 Because the court did not abuse its discretion in awarding
Husband $46,069.39 in reimbursement, the court also did not err in
including the $46,069.39 in its equalization of all awards. Wife has shown
no error in the court’s award resulting in $3,270.39 in Husband’s favor.

II. The court did not err in its spousal maintenance award.

¶18 Wife argues the court erred in awarding her spousal
maintenance of $9,500.00 per month for three years, alleging that (1) two of
the court’s Section 25-319(A) findings were erroneous, (2) one of the court’s
Section 25-319(B) findings was erroneous, (3) the court’s income
determinations for Husband and Wife were erroneous, and (4) the court’s
finding that Wife was not entitled to indefinite spousal maintenance was
erroneous.

A. The court did not err in its Section 25-319(A) findings.

¶19 The superior court may award spousal maintenance when
any one of the five Section 25-319(A)(1)-(5) grounds are present. See Cullum
v. Cullum, 215 Ariz. 352, 354, ¶ 11 (App. 2007). Here, the court determined
Wife was eligible for maintenance only under Section 25-319(A)(1), finding
that she lacked sufficient property to provide for her reasonable needs.

¶20 Wife argues the court’s determinations on two of the other
Section 25-319(A) grounds were erroneous. She challenges the court’s
finding that there was insufficient evidence that she lacks earning ability in
the labor market to be self-sufficient, referring to Section 25-319(A)(2), and
that she is not of an age that precludes the possibility of gainful
employment adequate to be self-sufficient, referring to Section 25-319(A)(5).

¶21 In reviewing a spousal maintenance award, we review the
record to determine whether evidence supports the superior court’s
determination that a spouse qualifies for maintenance under Section 25-
319(A). 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).

¶22 Substantial evidence supports both of the challenged
findings. First, the record supports the court’s finding that there was
insufficient evidence that Wife lacks earning ability in the labor market to
be self-sufficient. The court found Wife has a college degree, a teaching
certificate, and a real estate license, which supports its finding that Wife has
earning ability in the labor market to be self-sufficient. Second, the record
supports the court’s finding that Wife is not of an age that precludes the
possibility of gainful employment adequate to be self-sufficient. The court
found Wife was 56 years old at the time of the trial and considered Wife’s
own expert’s testimony that “a lot of employers for retail positions like to
hire people who are older. And jobs within the field of education, social
work, social services are age friendly. They don’t have a problem hiring
people of older ages.” This evidence supports the finding that Wife is not
of an age that precludes the possibility of gainful employment adequate to
be self-sufficient. We do not reweigh the evidence on appeal but rather will
affirm the court’s findings if supported by substantial evidence—even if
conflicting evidence also exists. Hurd, 223 Ariz. at 52, ¶ 16.

¶23 Wife asserts the amount and duration of spousal maintenance
was dependent on the court only finding Wife eligible on one Section 25-
319(A) ground. This is incorrect because once the court found any ground
was present, Wife was entitled to an award. She would not have been
entitled to a greater award if additional Section 25-319(A) grounds had been
in her favor because the factors enumerated in Section 25-319(B), not the
grounds enumerated in (A), govern the amount and duration of the award.
See Elliott v. Elliott, 165 Ariz. 128, 136 (App. 1990).

¶24 Because substantial evidence in the record supports the
court’s Section 25-319(A) findings, Wife has shown no error.

B. The court did not err in its Section 25-319(B) finding.

¶25 If the court determines a spouse is entitled to 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 v. Helland, 236 Ariz. 197, 203, ¶ 28 (App.
2014). Here, the court made findings on all thirteen factors and awarded
Wife $9,500 in spousal maintenance per month for three years. Of the
court’s findings on the thirteen factors, Wife only challenges its finding
under Section 25-319(B)(9)—that she will be able to meet her own needs
independently when she obtains employment—because her expenses

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exceed any potential income. “We will uphold the court’s factual findings
unless clearly erroneous or unsupported by any credible evidence.”
Valento, 225 Ariz. at 481, ¶ 11.

¶26 The decree makes clear that the court considered all evidence
relevant to the parties’ reasonable financial needs, methodically addressing
the evidentiary support for each of the thirteen factors set forth in Section
25-319(B)—including, importantly, the one factor Wife challenges. The
superior court determined that Wife has a college degree, a teaching
certificate, and a real estate license. Her present level of education and
certifications supports the court’s finding that she can work towards
financial independence. And the court did not find proof of any permanent
condition that would make it impossible for her to achieve financial
independence. See Huey, 253 Ariz. at 564-65, ¶¶ 15, 17. The court also found
that Wife made no effort to seek employment including the fact that she has
not prepared a resume or applied for any open positions. In reviewing the
award, we will not reweigh the evidence bearing on the reasonableness of
the parties’ living expenses.

¶27 Because the superior court is in the better position to
determine whether the parties can meet their needs independently, and
there is evidence to support its decision as to the challenged Section 25-
319(B) factor, on the record presented, Wife has shown no error.

C. The court did not err in its imputation of income to both
parties.

¶28 Wife argues the court’s findings that Husband’s income is
$600,100 per year and Wife’s imputed income is $20.03 per hour were
erroneous. We consider whether sufficient evidence supports the court’s
conclusions regarding income. See Pearson v. Pearson, 190 Ariz. 231, 235
(App. 1997). “We will uphold the court’s factual findings unless clearly
erroneous or unsupported by any credible evidence.” Valento, 225 Ariz. at
481, ¶ 11. Sufficient evidence supports the court’s challenged income
findings.

¶29 The record supports the court’s finding that Husband earns
$600,100 per year. Husband’s expert prepared a report and testified as to
that amount at trial. Husband’s expert calculated that amount by averaging
Husband’s income for 2019, 2020, and 2023, but excluded 2021 and 2022
because “[t]hose years were extremely abnormal and not representative of
future income.” Wife argues the court’s finding that Husband earns
$600,100 per year was erroneous because that amount excluded income
from 2021 and 2022 and Husband’s income should instead be calculated at

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$734,785.22. Wife’s expert did not prepare a report but took issue with
Husband’s expert because the expert “chose to eliminate [Husband’s] two
best years and then took an average of the other three years[.]” The court
determined Husband’s income to be $600,100 per year. This determination,
arrived upon after considering conflicting evidence, is supported by
sufficient evidence. Hurd, 223 Ariz. at 52, ¶ 16. Even though conflicting
evidence was presented, we do not reweigh the evidence but defer to the
superior court’s determination of witness credibility. Id. Accordingly, Wife
has shown no error in the court’s finding that Husband earns $600,100 per
year.

¶30 The record also supports the court’s decision to impute an
income of $20.03 per hour to Wife. Wife had not sought employment at the
time of the hearing and therefore had no income. Her own expert testified,
however, that she could earn $18.36-$21.70 per hour as a social services
manager. The midpoint of that range is $20.03 per hour—the amount the
court imputed to Wife. It is true that Wife’s expert testified that Wife would
not initially obtain a manager position but instead a position that earns less.
But Husband’s expert testified that Wife could earn $25.00 per hour as a
retail or customer service associate, and that imputing income to her as low
as $17.00 per hour would be unreasonable. Although the court imputed a
higher income to Wife than what Wife’s expert indicated, it also imputed a
lower income than what Husband’s expert indicated. Again, when
conflicting evidence is presented, we do not reweigh that evidence but
defer to the court’s determination of witnesses’ credibility. Hurd, 223 Ariz.
at 52, ¶ 16. Because the court’s imputation of $20.03 per hour to Wife is
supported by evidence in the record, we affirm.

¶31 Because evidence in the record supports the court’s income
findings, Wife has shown no error.

D. The court did not abuse its discretion by not awarding
indefinite spousal maintenance.

¶32 Wife argues she should have been awarded indefinite spousal
maintenance. Wife’s challenges to the findings relevant to spousal
maintenance addressed in Sections II.A-C, supra, were challenges to specific
findings of fact that we review for clear error. Valento, 225 Ariz. at 481, ¶
11. But we review a spousal maintenance award generally for an abuse of
discretion and will affirm if any reasonable evidence supports it. Helland,
236 Ariz. at 202, ¶ 22. Under Section 25-319(B), courts “may award spousal
maintenance pursuant to the guidelines only for a period of time and in an
amount necessary to enable the receiving spouse to become self-sufficient.”
A.R.S. § 25-319(B).

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¶33 Wife claims the Rule of 65 required the court to award her
indefinite spousal maintenance. The Rule of 65 states: “When the age of the
party seeking spousal maintenance combined with the marriage length
exceeds 65 (age + marriage length as of the date of service of process of the
dissolution or legal separation petition), the duration range is within the
court’s discretion.” Arizona Spousal Maintenance Guidelines V(B)(2)(b)
(emphasis added). In other words, when the Rule of 65 applies, a standard
duration range based on the length of the marriage addressed elsewhere in
the Guidelines does not apply. The Rule of 65, however, does not mandate
indefinite maintenance—it merely gives the court discretion to set the
duration when it is applicable.

¶34 Here, the court found “no persuasive evidence justif[ying]
spousal maintenance for an indefinite term.” It found that she “is college
educated, has a teaching certificate, and real estate license,” she does not
suffer “from any physical or mental condition which would preclude her
from being employed,” and she “is still of employable age.” Further, the
court’s Spousal Maintenance Worksheet determined the standard duration
range for spousal maintenance to be 12 to 96 months. There is no showing
that standard duration range was error, and an award of three years (36
months) is within the standard range.

¶35 The court did not abuse its discretion in setting Wife’s award
of spousal maintenance for a duration of three years.

III. The court did not err in awarding attorneys’ fees.

¶36 “[A]fter considering the financial resources of both parties
and the reasonableness of the positions each party has taken throughout the
proceedings,” the superior court may award reasonable attorneys’ fees.
A.R.S. § 25-324(A). Here, the court awarded Wife $24,728.48 in reasonable
attorneys’ fees and costs out of the $79,456.97 she requested. This was in
addition to $30,000 that Wife had previously received from Husband for
fees and costs. The court did not award her all her fees and costs because it
“found some of her positions unreasonable.” The court found that a waste
claim Wife pursued “appears to have consumed at least $10,000.00 in fees
for each party and lasted longer than was reasonable in this matter” before
she voluntarily dismissed the claim. Wife argues the court erred in finding
her positions unreasonable and awarding her only a portion of her
attorneys’ fees and costs incurred.

¶37 We will not disturb a ruling on attorneys’ fees absent an abuse
of discretion. In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8 (App. 2008).
On appeal, we do not reweigh the evidence but defer to the court’s

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determinations of witness credibility and the weight given to conflicting
evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998).

¶38 The court made its reasonableness determination after
weighing the evidence. Wife included a waste claim in her petition. The
court received evidence that “[Husband] failed to disclose his bank
records” that were relevant to Wife’s waste claim. But the court determined
that “the records were provided between May 2023 and July 2023,”
reasoning that Wife’s “July 2023 request for records” did not request any
records relevant to her waste claim. The court apparently found this piece
of evidence credible and gave it more weight than any evidence showing
Husband failed to disclose his bank records until a later date. Yet Wife
continued to pursue her waste claim until April 2024, one month before the
trial, and at least nine months after the court determined she had received
Husband’s relevant bank records. Given the evidence, Wife has not shown
the court abused its discretion in finding Wife took unreasonable positions
in the litigation.

IV. Husband is entitled to his costs on appeal.

¶39 Both parties request their attorneys’ fees and costs on appeal
under Section 25-324(A) and Arizona Rule of Civil Appellate Procedure
(“ARCAP”) 21(a). In our discretion, we decline to award fees. As the
prevailing party, Husband is entitled to his taxable costs on appeal upon
compliance with ARCAP 21(b).

CONCLUSION

¶40 We affirm.

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

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