Evans v. Evans

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARY JANE PEARSON EVANS, Petitioner/Appellee,

v.

ANDREW J. EVANS, II, Respondent/Appellant.

No. 1 CA-CV 24-0784 FC
FILED 05-20-2025

Appeal from the Superior Court in Maricopa County
No. FN2021-000138
The Honorable Glenn A. Allen, Judge

VACATED AND REMANDED IN PART

COUNSEL

Zanon Law Offices, Phoenix
By Daniel A. Zanon
Co-Counsel for Petitioner/Appellee

Al Arpad, Phoenix
By Alexander R. Arpad
Co-Counsel for Petitioner/Appellee

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Vice Chief Judge Randall M. Howe
joined.

J A C O B S, Judge:

¶1 Andrew J. Evans, II (“Husband”) appeals the superior court’s
May 2024 Decree of Dissolution of Marriage (“the Decree”) and the
September 2024 minute entry (“September 2024 Order”) denying
Husband’s Motion to Alter or Amend the Decree. Because the Decree did
not make findings sufficient to satisfy A.R.S. § 25-319, we vacate the Decree
and the September 2024 Order to the extent they deny Husband spousal
maintenance and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

A. Wife Petitions for Dissolution in 2021, and Husband Seeks
Spousal Maintenance.

¶2 Husband and Wife married in June 1976. In January 2021,
Wife petitioned to dissolve the marriage. Husband requested findings of
fact and conclusions of law under Arizona Rule of Family Law Procedure
(“Rule”) 82(a)(1). Husband also requested spousal maintenance “because
Wife continue[d] to receive significant income from trust funds which
create[d] a gross disparity of income between Husband and Wife.” After
the parties settled some of their differences in a partial agreement under
Rule 69, the court held a trial on the remaining issues in March 2024.

B. The Court Decides Husband Is Not Entitled to
Maintenance.

¶3 On May 21, 2024, the court entered a Decree of Dissolution of
Marriage and denied Husband’s request for $61,000 per month in spousal
maintenance. In its spousal maintenance analysis, the court evaluated each
factor identified in the 2018 version of A.R.S. § 25-319(A), rather than the
then-current version of the statute.

¶4 With respect to whether Husband “[h]ad a marriage of long
duration and [was] of an age that may preclude the possibility of gaining

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employment adequate to be self-sufficient[,]” the court found “[t]he parties
were married approximately 47 years, which is certainly a marriage of long
duration.” The court further found that “[d]ue to the age of the parties,
neither is able to meaningfully rejoin the workforce and earn significant
income.”

¶5 The court made a series of other findings that cut against
Husband’s eligibility for maintenance. With respect to whether Husband
“lack[ed] sufficient property” to provide for his reasonable needs, the court
found that “Husband is not without significant assets . . . [including]
millions of dollars in free and clear real estate, along with the proceeds of
various other properties and accounts.” With respect to whether Husband
could “be self-sufficient through appropriate employment” or lacked
earning ability, the court found Husband had assets sufficient to live
comfortably for the rest of his life. The court found no evidence Husband
either contributed significantly “to [Wife’s] education, training, vocational
skills, career or earning ability[,]” or reduced his income or career
opportunities for Wife’s benefit.

¶6 The court denied Husband’s request for spousal maintenance,
framing the “threshold question” as “entitlement, which is controlled by
subsection (A)” of A.R.S. § 25-319. The court concluded “that in accordance
with subsection (A) . . . [Husband was] not entitled to an award of spousal
maintenance[.]” The court did not analyze the A.R.S. § 25-319(B) factors.

C. The Court Denies Husband’s Motion to Alter or Amend the
Decree.

¶7 On June 14, 2024, Husband moved to alter or amend the
decree, arguing the court did not make specific findings of fact Rule 82(a)
required here. Husband argued that given his Rule 82(a) request, and
because “Husband unquestionably met, at minimum, one of the A.R.S. §
25-319(A) factors[,]” the court was required to separately analyze the A.R.S.
§ 25-319(B) factors and address in its decision each factor the parties placed
at issue.

¶8 Husband also argued the court was required to make, but did
not make, specific findings under Rule 82 as to a variety of matters,
including: (1) the dollar amount of Husband’s reasonable needs under
A.R.S. § 25-319(A); (2) the dollar value of the resources available for
Husband to live off of; (3) the amount of Husband’s income; (4) the amount
of Wife’s income; (5) whether the court’s analysis included Husband being

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forced to sell his house to live off the proceeds; and (6) why fees were not
awarded despite the parties’ supposed disparity in resources.

¶9 The court denied Husband’s motion because “the [c]ourt
made written findings based on the testimony and evidence presented[,]”
finding “an insufficient basis presented for the [c]ourt to alter or amend its
previous findings.” The court also noted that neither counsel mentioned
the Rule 82 request at trial or in post-trial filings or submitted “any
requested findings along with their pretrial statements.”

¶10 Husband timely appealed the Decree’s denial of spousal
maintenance and the September 2024 Order denying his motion to amend.
We have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), -
2101(A)(1).

DISCUSSION

¶11 When reviewing the denial of spousal maintenance, this court
accepts “the trial court's findings of fact unless clearly erroneous and
draw[s] our own legal conclusions based on those facts.” In re Marriage of
Cotter, 245 Ariz. 82, 85 ¶ 6 (App. 2018) (quoting Muchesko v. Muchesko, 191
Ariz. 265, 271-72 (App. 1997)).

I. The Court Erred by Not Analyzing Whether Husband Was
Entitled to Maintenance Under A.R.S. § 25-319(B) Once Its
Findings Under A.R.S. § 25-319(A) Showed He Was Eligible for
Maintenance.

A. Arizona’s Two-Part Framework for Spousal Maintenance

¶12 Arizona’s spousal maintenance statute, A.R.S. § 25-319,
requires courts to apply a two-part framework when resolving requests for
maintenance. See Gutierrez v. Gutierrez, 193 Ariz. 343, 348 ¶ 15 (App. 1998).

¶13 First, the court must find the requesting spouse is eligible for
an award by analyzing the factors set out in A.R.S. § 25-319(A). In re Cotter,
245 Ariz. at 85 ¶¶ 7-8 (“Before granting a maintenance order, the trial court
must, as a threshold matter, determine whether the requesting spouse is
eligible for an award.”). A spouse is eligible for maintenance if they satisfy
any one of the eligibility factors in A.R.S. § 25-319(A). Id. at 86 ¶ 10.

¶14 Second, if the court finds the spouse is eligible by satisfying
any of the factors in A.R.S. § 25-319(A), the court must then consider
whether the spouse is entitled to an award under A.R.S. § 25-319(B). See id.

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at 85 ¶ 7; Wright v. Wright, 1 CA-CV 21-0613 FC, 2023 WL 140428, at *2 ¶ 7
(Ariz. App. Jan. 10, 2023) (mem. decision). In doing so, the court balances
the thirteen factors enumerated in A.R.S. § 25-319(B). See Rainwater v.
Rainwater, 177 Ariz. 500, 502 (App. 1993). To the extent Wife suggested at
oral argument that even if one of the factors in A.R.S. § 25-319(A) is present,
the court was nonetheless free to determine Husband lacked eligibility, our
law is to the contrary. In re Cotter, 245 Ariz. at 86 ¶ 10.

B. The Court’s Findings Showed Husband Fulfilled At Least
One A.R.S. § 25-319(A) Factor, Requiring the Court to
Conduct a Separate A.R.S. § 25-319(B) Analysis.

¶15 The court made findings showing Husband is eligible under
one A.R.S. § 25-319(A) factor. Specifically, the court found “[t]he parties
were married approximately 47 years, which is certainly a marriage of long
duration[,]” and that “[d]ue to the age of the parties, neither [was] able to
meaningfully rejoin the workforce and earn significant income.”

¶16 The parties dispute whether the 2018 or 2022 version of A.R.S.
§ 25-319 applies in this case. But there is no question that both versions of
A.R.S. § 25-319(A) ask whether the parties “[h]ad a marriage of long
duration and [are] of an age that may preclude the possibility of gaining
employment adequate to be self-sufficient.” Compare A.R.S. § 25-319(A)(4)
(2018) (effective Aug. 3, 2018 to Sept. 23, 2022), with A.R.S. § 25-319(A)(5)
(effective Sept. 24, 2022). The superior court’s findings show Husband is
eligible for maintenance under that A.R.S. § 25-319(A) factor.

¶17 Once the court’s findings showed Husband was eligible for a
spousal maintenance award under A.R.S. § 25-319(A), the court was then
required to analyze whether Husband was entitled to maintenance under
A.R.S. § 25-319(B). See In re Cotter, 245 Ariz. at 85 ¶ 7; Wright, 1 CA-CV 21-
0613 FC, at *2 ¶ 7. The court instead conflated eligibility with entitlement,
stating, “[t]he threshold question is entitlement, which is controlled by
subsection (A) of the statute” and “in accordance with subsection (A) above,
[Husband] is not entitled to an award of spousal maintenance[.]” This was
error. To the extent Wife maintained at oral argument that we should
affirm the superior court on the basis that Husband lacked an entitlement
to maintenance under A.R.S. § 25-319(B), it is not our role to decide in the
first instance matters that have not yet been resolved by the superior court.
City of Flagstaff v. Ariz. Dep’t of Admin., 255 Ariz. 7, 14 ¶ 26 (App. 2023) (“[A]
court of appeals sits as a court of review, not of first view.” (quoting
Montano v. Texas, 867 F.3d 540, 546 (5th Cir. 2017))).

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¶18 We thus vacate the court’s denial of spousal maintenance and
of Husband’s request to alter or amend the Decree, and remand for the
court to consider whether Husband is entitled to maintenance under A.R.S.
§ 25-319(B). When analyzing the A.R.S. § 25-319 factors on remand, the
court must make specific findings, given Husband’s Rule 82(a) request. See
Elliott v. Elliott, 165 Ariz. 128, 132-33, 137 (App. 1990) (reversing spousal
support award that did not provide mathematical basis for the award and
did not address all A.R.S. § 25-319 factors on which the parties presented
evidence, where spouse requested findings of fact and conclusions of law
under Ariz. R. Civ. P. 52(a)); Stein v. Stein, 238 Ariz. 548, 551 ¶ 12 (App.
2015) (If a party makes a Rule 82(a) request, “[i]t must be clear from the
family court’s findings how the court arrived at its mathematical figure.”
(citation omitted)); Hughes v. Hughes, 177 Ariz. 522, 525 (App. 1993) (“Had
either party requested findings of fact or conclusions of law in this case, the
trial court would have been obliged to specifically address each section 25–
319(B) factor that the parties placed at issue.” (citations omitted)).

II. Wife’s Constitutional Arguments Are Not Properly Before Us.

¶19 Wife argues that if the court below awards spousal
maintenance to Husband, that could be an unconstitutional taking of her
separately inherited property. But the court has not awarded any spousal
maintenance. That issue is thus not properly before us. Valler v. Lee, 190
Ariz. 391, 395 (App. 1997) (“We need not address and resolve such
hypothetical issues . . . which are neither ripe for decision nor squarely
before us.”).

III. Attorneys’ Fees

¶20 In the Decree, the superior court denied Husband’s request
for attorneys’ fees and costs after finding Wife had more financial resources
than Husband but neither party acted unreasonably. Because we reverse
and remand, we likewise vacate the court’s fee ruling to allow it to consider
fee requests after it performs an A.R.S. § 25-319(B) analysis.

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CONCLUSION

¶21 For these reasons, we vacate the Decree’s denial of spousal
maintenance and attorneys’ fees to Husband and the September 2024 Order
denying Husband’s request to alter or amend the Decree, and we remand
for further proceedings consistent with this decision. In our discretion, we
grant Husband’s request for fees and costs on appeal under A.R.S. § 25-324,
subject to his compliance with ARCAP 21.

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

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