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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    CATHY SUE LANE, Petitioner/Appellee,

                                         v.

               BYRL RAYMOND LANE, Respondent/Appellant.


                            No. 1 CA-CV 18-0165 FC
                                 FILED 3-12-2020


            Appeal from the Superior Court in Maricopa County
                           No. FN2016-006249
                The Honorable Howard D. Sukenic, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of John E. Herrick, Peoria
By John E. Herrick
Counsel for Petitioner/Appellee

Fromm Smith & Gadow PC, Phoenix
By Stephen Roy Smith, Jared Sandler

Clair William Lane Ltd., Tempe
By Clair W. Lane
Co-Counsel for Respondent/Appellant
                             LANE v. LANE
                           Decision of the Court



                      MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.


S W A N N, Chief Judge:

¶1           In this dissolution action, Byrl Raymond Lane (“Husband”)
appeals from the spousal maintenance awarded to Cathy Sue Lane
(“Wife”). For the reasons stated below, we affirm.

                FACTS AND PRODECURAL HISTORY

¶2           During the parties’ 37 year marriage, Husband worked as an
attorney, and Wife did not work outside the home. Wife filed for divorce
on December 8, 2016. At the time of trial, Husband was 65, and Wife was
61. The parties settled all issues except for spousal maintenance and
attorney’s fees and costs. Pursuant to the settlement, Wife received
approximately $426,000 in retirement accounts, one-half of the sale
proceeds from the marital residence (anticipated to be $200,000), and other
cash payments of $95,000. Wife intended to use the cash and sale proceeds
to purchase a home and pay off her vehicle.

¶3            Wife sought indefinite spousal maintenance of $4,000 per
month. Husband argued Wife was not entitled to spousal maintenance
because she received sufficient property to support herself. At trial, Wife
called Michael Hooper, a certified public accountant, as her expert witness.
Hooper testified that Wife could begin collecting Social Security benefits at
62 years old but he recommended delaying benefits until she was 66 years
and two months old to increase the benefit amount. Hooper also
recommended that Wife not withdraw funds from her retirement accounts
until age 70.5, when federal law requires minimum distributions.
According to Hooper, Wife’s retirement accounts would likely generate five
percent interest income.

¶4           The superior court concluded that Wife qualified for spousal
maintenance and awarded her $2,500 per month for five years and $1,000
per month for four years thereafter. Husband appeals.




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                            Decision of the Court

                               DISCUSSION

¶5            We review the superior court’s spousal maintenance award
for abuse of discretion. Cullum v. Cullum, 215 Ariz. 352, 354, ¶ 9 (App. 2007).
We will affirm the superior court’s award of spousal maintenance if there
is any reasonable evidence to support it. Helland v. Helland, 236 Ariz. 197,
202, ¶ 22 (App. 2014).

¶6             When considering a request for spousal maintenance, the
court first determines whether the requesting spouse is eligible under
A.R.S. § 25-319(A). Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 15 (App.
1998). If the court finds the spouse is eligible, it then considers the amount
and duration based on the factors in § 25-319(B). Id.

I.     WIFE IS ELIGIBLE FOR SPOUSAL MAINTENANCE BECAUSE
       ONLY ONE REASON IS NEEDED UNDER A.R.S. § 25-319(A) FOR
       ELIGIBILITY.

¶7            Section 25-319(A) provides that a court may grant a
maintenance order if it finds that the spouse seeking maintenance qualifies
under one of several factors. The superior court found Wife eligible for
spousal maintenance because, under A.R.S. § 25-319(A)(2) and (A)(4), she
lacked sufficient property to provide for her reasonable needs and had a
marriage of long duration, preventing her from gaining employment
adequate to become self-sufficient.

¶8            Husband argues the court abused its discretion when it failed
to consider the interest income that Wife’s retirement account would
generate. Husband did not dispute the lengthy marriage or that Wife could
not become self-sufficient through employment because of her work
history. Nevertheless, Husband argues, Wife may achieve self-sufficiency
with a minimum-wage job if the court also considers the interest income
her retirement account would generate. Husband contends that Deatherage
v. Deatherage, 140 Ariz. 317 (App. 1984), supports his contention that, in
determining eligibility, the court must consider the interest income from
Wife’s retirement account when considering Wife’s ability to achieve self-
sufficiency under any § 25-319(A) factor.

¶9             We recently rejected this argument in In re Marriage of Cotter,
245 Ariz. 82, 86, ¶ 10 (App. 2018). When Deatherage was decided, § 25-
319(A) required the court to find that the spouse seeking support lacked
sufficient property to provide for his or her reasonable needs and was
unable to achieve self-sufficiency. See Deatherage, 140 Ariz. at 319. “By
contrast, the current statute only requires a court to find one circumstance


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                           Decision of the Court

before determining a spouse eligible. . . . Thus, although a spouse might be
able to be self-sufficient through appropriate employment, he or she may
nevertheless remain eligible for an award solely on the basis of insufficient
property.” Cotter, 245 Ariz. at 86, ¶ 10.

¶10           Grounds for eligibility under § 25-319(A)(2) and (A)(4) focus
on the spouse’s earning ability, whereas (A)(1) focuses on the property
available to the spouse. Requiring the court to consider whether that
spouse’s property would provide for his or her needs would impose the
requirement of § 25-319(A)(1) on all other factors. This is contrary to the
accepted interpretation of § 25-319(A). See Cotter, 245 Ariz. at 86, ¶ 10; see
also Gutierrez, 193 Ariz. at 348, ¶ 17. Although the financial resources
available to a spouse may be considered in determining the amount of
maintenance, see A.R.S. § 25-319(B)(9), those resources do not necessarily
preclude a finding of eligibility for maintenance. Accordingly, the superior
court did not err in concluding that Wife qualified for spousal maintenance
under § 25-319(A)(4).

II.    THE SUPERIOR COURT CONSIDERED THE INTEREST INCOME
       THAT WIFE’S RETIREMENT ACCOUNT WOULD GENERATE
       AND PROPERLY AWARDED WIFE SPOUSAL MAINTENANCE.

¶11          Husband contends that the superior court abused its
discretion when it failed to consider the interest income that Wife’s
retirement account will generate as required by A.R.S. § 25-319(B)(9) and
Deatherage.1

¶12          In its analysis of the amount and duration of spousal
maintenance under A.R.S. § 25-319(B), the court found that Wife could earn
only minimum wage based on her age and work history. The court also
found that Wife would receive approximately $300,000 in liquid assets,
including an anticipated $200,000 from the sale of the marital residence.
Wife intended to purchase a modest home and pay off her vehicle with
those funds. Although Wife received $426,000 in retirement accounts, the
court concluded that “it would be unreasonable for Wife to access the
retirement funds until the age of 70.5 years.” The nine-year spousal


1      In its analysis of A.R.S. § 25-319(B)(9), the court did not explicitly
state whether it considered the interest income from Wife’s retirement
account when it made its findings. We previously suspended the appeal to
allow the superior court to consider and determine whether it included
interest from the retirement account in its analysis of Wife’s spousal
maintenance, which it did. See ARCAP 3(b).


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                            Decision of the Court

maintenance award corresponds to the date Wife reaches age 70.5, the age
at which Wife’s expert recommended she begin withdrawing from her
retirement account.

¶13            In determining the appropriate amount and duration of
spousal maintenance, the court need not require Wife to use the principal in
her retirement account to support herself before reaching retirement age.
See Gutierrez, 193 Ariz. at 348, ¶ 18. The court must, however, consider “all
property capable of providing for the reasonable need of the spouse seeking
maintenance.” Deatherage, 140 Ariz. at 320.2

¶14            Although Wife’s expert testified that Wife could expect to
earn approximately five percent interest on the retirement account
(approximately $1,750 per month), the superior court concluded that there
was no guarantee on this rate of return. And although Wife, at age 61, can
take the interest earned on her retirement account without depleting the
principal or facing tax penalties, see 26 U.S.C. § 72(t), the superior court took
this evidence of interest income into consideration in reaching its findings.
And its findings resulted in a significant reduction in the amount and
duration of spousal maintenance requested by Wife.                      In these
circumstances, the superior court did not abuse its discretion in awarding
Wife spousal maintenance.

                               CONCLUSION

¶15           We affirm the superior court’s award of spousal maintenance.
As the prevailing party on appeal, Wife is entitled to an award of costs upon
compliance with ARCAP 21.




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



2      Although Deatherage interpreted A.R.S. § 25-319(A) and the property
of the spouse seeking support, we will apply the same definition of
property to subsection 25-319(B). See State ex rel. Larson v. Farley, 106 Ariz.
119, 122 (1970) (noting courts construe statutes relating to the same subject
together and seek to achieve consistency).


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