Fanene v. Velasquez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KING SIUFAGA FANENE, Petitioner/Appellee,

v.

EVA MARIE VELASQUEZ, Respondent/Appellant.

No. 1 CA-CV 25-0972 FC
FILED 8-11-2026

Appeal from the Superior Court in Maricopa County
No. FN2024-001499
The Honorable Laura Johnson Giaquinto, Judge

VACATED AND REMANDED

COUNSEL

Bellah Law PLLC, Glendale
By Shasta Nolte
Counsel for Petitioner/Appellee

Genesis Legal Group, Gilbert
By Debora Levine
Counsel for Respondent/Appellant

FANENE v. VELASQUEZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge D. Andrew Gaona joined.

P E R K I N S, Judge:

¶1 Eva Velasquez (“Wife”) appeals the superior court’s
dissolution decree. For the following reasons, we vacate the decree’s
division of community property, denial of spousal maintenance, and denial
of attorney fees. We remand for proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 Wife and King Fanene (“Husband”) were in a long-term
relationship before marrying in July 2021. The couple had no children, but
Wife had adult children from a prior relationship that lived with the couple.

¶3 Shortly before the marriage, Husband sold his separate
property in Buckeye. Six months after the couple married, Husband used
those funds to purchase the marital residence. Wife disclaimed any interest
in the marital residence.

¶4 Husband petitioned for dissolution in April 2024. In August
2024, the parties entered into a temporary agreement, under which Wife
would pay for any damage caused to the home from August 2024 onward.
At trial in August 2025, Husband testified that he worked for PepsiCo and
made a base salary of about $60,000 per year, but because he worked
substantial overtime to support Wife and her children, his income in 2023
was about $76,000. Wife requested spousal maintenance, arguing she could
not meet her reasonable needs without it. She testified that she worked as a
contract paraprofessional during the school year to provide services to
special needs students and made about $24,500 per year.

¶5 Husband testified that Wife and her adult children caused
considerable damage to the marital residence by allowing dogs inside the
home in violation of the parties’ temporary agreement. He also submitted
evidence that Wife opened several credit cards in his name and without his
knowledge or consent, resulting in around $10,000 of credit card debt. He
testified that he took out a loan on his PepsiCo retirement account during
the dissolution litigation for around $9,000, which he used for the benefit of

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the community, and that the loan exceeded the community’s contributions
to the retirement account. Wife testified that she used the credit cards for
purchases like food, bills, gym memberships, and poison control. The
parties also testified to a promissory note they signed during the marriage.
Husband loaned Wife $2,100 to repair her 2001 Honda Accord, using the
car as collateral. Wife testified that she had paid Husband back $800.

¶6 After the dissolution hearing, the court denied Wife’s request
for spousal maintenance, finding her ineligible under any of the statutory
grounds. The court also found that “this case does present a unique set of
facts or circumstances. Therefore, an equal division of community property
is inappropriate to achieve equity.” The court awarded the marital
residence to Husband as his sole and separate property. The court found
that the damage to the separate property home exceeded Wife’s half of the
community’s lien on the home (the “Drahos lien”), and thus awarded
Husband the Drahos lien without offset. See Drahos v. Rens, 149 Ariz. 248,
249–50 (App. 1985) (the community is entitled to an equitable lien on one
spouse’s separate property when the community contributed capital to that
property). The court also awarded Husband 100% of his retirement
accounts and 100% of the parties’ joint bank accounts.

¶7 The court awarded Wife her 2001 Honda Accord, a bank
account with a balance of $103.38, an Arizona State Retirement System
(“ASRS”) retirement account, and her personal property. The court also
ordered Wife to pay the credit card debt because she fraudulently opened
the accounts, and ordered her to pay Husband back the $1,300 remaining
on the promissory note. The court found no substantial financial disparity
between the parties and declined to award attorney fees. Wife now appeals,
and we have jurisdiction. A.R.S. § 12-120.21(A)(1).

DISCUSSION

¶8 Wife contends that the superior court abused its discretion by
(1) finding her ineligible for spousal maintenance; (2) inequitably dividing
the community; and (3) finding there was no substantial financial disparity
between her and Husband.

I. We cannot determine whether the court applied the correct test
in denying Wife’s request for spousal maintenance.

¶9 Wife first argues the superior court erred by finding her
ineligible for spousal maintenance. We will affirm the court’s denial of
spousal maintenance if reasonable evidence supports it. In re Marriage of
Cotter and Podhorez, 245 Ariz. 82, 85, ¶ 6 (App. 2018). But “when an issue

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presents a mixed question of fact and law, we will accept the [superior]
court’s findings of fact unless clearly erroneous and draw our own legal
conclusions based on those facts.” Id. (cleaned up).

¶10 When deciding whether to grant an award of spousal
maintenance, a superior court must first consider whether the spouse
seeking maintenance is eligible under one of five grounds in Section
25-319(A). The court need only find the requesting spouse meets one of the
grounds to be eligible for maintenance. See A.R.S. § 25-319(A); see also
Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 17 (App. 1998).

¶11 The spouse’s eligibility is based solely on that spouse’s
circumstances. Cotter, 245 Ariz. at 85, ¶ 7. Only if the court finds the
requesting spouse eligible may it then consider, among other things, the
circumstances of both spouses to determine whether it should award
maintenance and, if so, how much. See id.; see also A.R.S. § 25-319(B).

¶12 The court found Wife ineligible under all five grounds, but
Wife challenges only the court’s ineligibility finding on the first ground:
that Wife “lacked sufficient property, including property apportioned to
[her], to provide for [her] reasonable needs.” A.R.S. § 25-319(A)(1). She
argues that no reasonable evidence existed in the record to support that
finding.

¶13 The test for eligibility based on insufficient property is a low
bar. For example, a requesting spouse may be ineligible for maintenance
under Section 25-319(A)(2) because she earns enough income to be
self-sufficient, yet still be eligible under Section 25-319(A)(1) because she
lacks sufficient property. See Cotter, 245 Ariz. at 86, ¶ 10. But the spousal
maintenance determination does not end with eligibility. Even if a
requesting spouse is eligible for maintenance under Section 25-319(A)(1),
the superior court still has substantial discretion under Section 25-319(B) in
determining whether to award maintenance at all, and, if so, in what
amount. The court may consider many factors, including the circumstances
of the paying spouse, as well as all other sources of income or potential
income available to the requesting spouse. A.R.S. § 25-319(B).

¶14 In Cotter, a wife seeking maintenance was awarded $36,000 in
cash and marital assets. 245 Ariz. at 86–87, ¶ 11. The superior court made
no express finding whether, under Section 25-319(A), such property was
sufficient to meet her reasonable needs, the value of the property she had
been awarded, or how long that property could sustain her. Id. at 87, ¶ 12.
Although we recognized that the superior court did not have to make such

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findings on the record, we could not determine whether the court applied
the proper test for sufficiency under the statute. Id. We therefore remanded
the matter to the superior court to determine whether the wife’s property
“could provide for her reasonable needs without being exhausted.” Id. We
said that a spouse has “sufficient” property under Section 25-319(A)(1) if
the property, “standing alone” and “without supplement,” “can provide
for [the] spouse’s reasonable needs during his or her lifetime.” Id. at 86–87,
¶¶ 8, 10. The superior court could not consider the wife’s ability to earn
through labor in evaluating whether her awarded property could support
her. See id. at 87, ¶¶ 10–11. The court had to evaluate the sufficiency of that
property alone when making the threshold determination of eligibility.

¶15 As in Cotter, the court here did not expressly find that Wife
had been awarded property sufficient to provide for her reasonable needs
during her life without supplement. And, also as in Cotter, because neither
party asked the court to make findings of fact or conclusions of law, it was
not required to do so. Higgins v. Higgins, 154 Ariz. 87, 88 (App. 1987); see
also Ariz. R. Fam. Law P. 82(a)(1) (court must make express findings of fact
and conclusions of law “[i]f requested before trial”). But when such findings
and conclusions are not required, the record on appeal must still contain
reasonable evidence to support the court’s ineligibility findings under
Section 25-319(A). See Cotter, 245 Ariz. at 87, ¶ 12.

¶16 The court did not state what evidence it relied on to find Wife
ineligible under Section 25-319(A)(1), but the record shows that Wife’s
property consists of her personal property, her 2001 Honda Accord, and a
bank account with a balance of $103. Wife’s monthly expenses, as reflected
in her testimony and affidavits of financial information, are roughly $4,600.
Husband did not substantially dispute this evidence. Although it seems
unlikely that the identified property awarded to Wife “standing alone” and
“without supplement” would be “capable of independently providing for
[Wife’s] reasonable needs during . . . her life,” we cannot make that factual
determination in the first instance on appeal. See Cotter, 245 Ariz. at 86–87,
¶¶ 11, 12 (we remand to the superior court if the record lacks reasonable
evidence to support finding of ineligibility under Section 25-319(A)). We
therefore vacate the court’s eligibility conclusion and remand for the
superior court to make a determination under Section 25-319(A)(1)
consistent with Cotter and this decision.

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II. The court erred in awarding a substantially unequal division
of property without identifying a “sound reason.”

¶17 Wife asserts the court erred by (1) summarily concluding that
an unequal division was justified without explanation; and (2) finding that
this was a rare case in which an equal division would be inequitable. We
agree.

¶18 “We review the [superior] court’s division of property for an
abuse of discretion.” In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15 (App.
2000). A court abuses its discretion when: (1) the record lacks competent
evidence to support its decision, Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App.
2009), or (2) “it misapplies the law or predicates its decision on incorrect
legal principles,” Hammett v. Hammett, 247 Ariz. 556, 559, ¶ 13 (App. 2019)
(cleaned up). We construe the evidence in the light most favorable to
affirming the division and we will not reweigh the evidence. See Castro v.
Ballesteros-Suarez, 222 Ariz. 48, 51, ¶ 11 (App. 2009).

¶19 A superior court must divide community property equitably.
A.R.S. § 25-318(A). Generally, community property “should be divided
substantially equally unless sound reason exists to divide the property
otherwise.” Toth v. Toth, 190 Ariz. 218, 221 (1997). In “rare exceptions,” the
court may order a “substantially unequal division of property” to reach
equity. In re Marriage of Flower, 223 Ariz. 531, 539, ¶ 35 (App. 2010).

¶20 The court here found only that the “facts and circumstances”
of this case merited an unequal division of property. The court then
awarded Husband almost all the community’s assets, including the joint
bank accounts, Wife’s half of the Drahos lien, and any interest the
community had in Husband’s retirement accounts. Based on the record, it
appears Wife received only three assets: her personal property, a bank
account with a balance of $103, and her nearly 25-year-old vehicle. Though
the court also awarded Wife an ASRS retirement account, there is no
evidence of this account in the record. Wife is not currently a state
employee. Wife testified that she does not have any retirement or
investment accounts. And Husband introduced no evidence of the
account’s existence.

¶21 Beyond the unequal division of the community’s assets, Wife
was also ordered to pay almost all the community debts, such as the
estimated $10,000 of credit card debt. The court awarded this debt against
Wife because she opened the cards in Husband’s name without his
knowledge or consent. The court did not consider whether the charges

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constituted waste. This was an impermissible consideration of marital
misconduct.

¶22 “The spouses have equal management, control and
disposition rights over their community property and have equal power to
bind the community.” A.R.S. § 25-214(B). “[A]ll debt incurred by either
spouse during marriage is presumed a community obligation.” Flower, 223
Ariz. at 535, ¶ 12 (cleaned up).

¶23 The superior court must divide property without regard to
marital misconduct. A.R.S. § 25-318(A). But the court may consider marital
waste that devalues the community, such as “excessive or abnormal
expenditures, destruction, concealment or fraudulent disposition” of
community assets. A.R.S. § 25-318(C); see also Meister v. Meister, 252 Ariz.
391, 399, ¶ 26 (App. 2021).

¶24 Husband argues that Wife’s actions are definitionally a
“fraudulent disposition” of property, but criminal fraud is not waste if the
debt benefitted the community. See A.R.S. § 25-318(C). Even if one spouse
commits criminal fraud, the community is still liable for the debt if it
benefitted from the fraud. Cadwell v. Cadwell, 126 Ariz. 460, 463 (App. 1980).
See also Brucklier v. Brucklier, 253 Ariz. 579, 585, ¶ 27 (App. 2022) (one
spouse’s knowledge and consent to a debt are “irrelevant”).

¶25 Husband does not dispute Wife incurred the debt during the
marriage, meaning it is presumed to be a community debt. The court did
not make a finding that Wife committed waste. It instead allocated the
credit card debt to Wife based only on her misbehavior. This was an abuse
of discretion.

¶26 Though the court was not required to make findings, see
Higgins, 154 Ariz. at 88, we cannot determine from this record that a “sound
reason” existed to justify such a substantially unequal division.

¶27 Nor can we determine whether the court correctly held the
promissory note against Wife. The court did not consider whether Wife’s
car was community or separate property or whether the loan was made
from Husband’s separate funds or community funds, and it is unclear from
the record. See In re Marriage of Berger, 140 Ariz. 156, 166 (App. 1983) (loans
made from one spouse’s separate funds to benefit the other spouse’s
separate property are enforceable upon dissolution); Valento v. Valento, 225
Ariz. 477, 481, ¶ 12 (App. 2010) (“When the community contributes capital
to separate property, it acquires an equitable lien against that property.”).

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¶28 We therefore vacate the decree and remand for the court to
re-divide the community between Husband and Wife.

¶29 To aid the court’s review on remand, we also address the
offset of the Drahos lien. The court awarded Wife’s half of the Drahos lien to
Husband because it found that Wife, her children, and her dogs caused
damage to Husband’s property that exceeded her interest in the home. Wife
argues this was an impermissible money judgment. Indeed, the superior
court does not have jurisdiction to award money damages in a divorce
decree for damage to a spouse’s separate property. Weaver v. Weaver, 131
Ariz. 586, 587 (1982). Thus, the court may lack jurisdiction to award
Husband the offset based on Wife’s fault.

¶30 But the court does have jurisdiction to enforce a valid
agreement under Arizona Rule of Family Law Procedure (“Rule”) 69.
Before trial, the parties entered into a temporary Rule 69 agreement in
which Wife agreed to pay for any damage to Husband’s home caused from
the date of the agreement onward. The court had jurisdiction to hold Wife
to her agreement in the decree without running afoul of Weaver. But the
court attributed the damage to Wife because she was at fault, not because
she agreed to pay it.

¶31 On remand, the court should consider the existence of the
agreement and its scope before offsetting the Drahos lien. The court should
also consider whether the credit card charges benefitted the community, as
well as the character of the promissory note and Wife’s car. We need not
address Wife’s remaining arguments regarding the division of Husband’s
retirement account and the parties’ joint banking accounts, and express no
position on how those assets should be divided.

III. On remand, the court should reconsider attorney fees under
Section 25-324.

¶32 Under Section 25-324, the court may order one spouse to pay
the other spouse’s attorney fees after considering the reasonableness of the
parties’ positions and the financial positions of each spouse.
A.R.S. § 25-324(A). We review a court’s attorney fee award under Section
25-324 for abuse of discretion. Lehn v. Al-Thanayyan, 246 Ariz. 277, 286, ¶ 29
(App. 2019).

¶33 The court denied Wife’s request for attorney fees because it
found there was no financial disparity between the parties. But the record
shows that Husband made three times Wife’s income. And the court had

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awarded Husband almost all the marital assets while allocating to Wife
most of the community debt.

¶34 Though it is unclear why the court found no substantial
financial disparity existed, it appears from the record the court may have
considered Husband’s testimony that Wife worked as a legal
paraprofessional with the potential to earn $60,000 a year, and balanced
Wife’s estimated earning capacity in that role against Husband’s base salary
of roughly $60,000 a year. This was factually incorrect. Wife does not work
as a legal paraprofessional; she works during the school year as a contract
paraprofessional providing services to special needs students. To the extent
the court relied on Husband’s estimation that Wife could earn up to $60,000
a year as a legal paraprofessional, or considered the non-existent ASRS
account, that reliance was error.

¶35 Because we are remanding for the court to equitably divide
the community, we also remand for the court to reconsider attorney fees
under Section 25-324. We express no position on whether Wife should be
awarded her fees. On remand, the court should consider Wife’s salary as a
paraprofessional working in special education, Husband’s salary at
PepsiCo, and any new divisions of property consistent with this decision to
determine whether a substantial financial disparity exists between
Husband and Wife.

¶36 As the successful party, we award Wife her taxable costs upon
her compliance with ARCAP 21. A.R.S. § 12-341.

CONCLUSION

¶37 We vacate and remand for the court to determine (1) if Wife
possesses sufficient property to meet her reasonable needs under the proper
legal test; (2) to equitably divide the community; and (3) to reconsider
attorney fees under Section 25-324 in light of the above.

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

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