                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                             In re the Marriage of:

                 ALONZO ROBINSON, Petitioner/Appellee,

                                        v.

              SOPHIA J. F. HUTCHINS, Respondent/Appellant.

                             No. 1 CA-CV 13-0502
                               FILED 10-21-2014


           Appeal from the Superior Court in Maricopa County
                          No. FN2011-094309
                The Honorable Teresa A. Sanders, Judge

              AFFIRMED IN PART; REMANDED IN PART


                                   COUNSEL

Alonzo Robinson, Mesa
Petitioner/Appellee

Sophia J. F. Hutchins, Columbus, Ohio
Respondent/Appellant
                       ROBINSON v. HUTCHINS
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge John C. Gemmill and Chief Judge Diane M. Johnsen joined.


W I N T H R O P, Presiding Judge:

¶1           Respondent/appellant, Sophia J. F. Hutchins (“Wife”),
appeals those portions of the family court’s decree of dissolution awarding
her spousal maintenance, dividing the parties’ community property and
debts, and denying her request for an award of attorneys’ fees. For the
following reasons, we affirm in part and remand in part for further
proceedings.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            Petitioner/appellee, Alonzo Robinson (“Husband”), initiated
this action for dissolution. After an evidentiary hearing, the family court
ordered Husband to pay Wife spousal maintenance of $1,000 per month for
three years. In addition, as relevant, the court awarded Wife $300 for her
share of the household property, awarded Wife one-half of Husband’s
401(k) account, and equally divided the parties’ joint credit card debt. The
court denied Wife’s request for an award of attorneys’ fees. Wife timely
appealed.1 We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1) (2014).2

                               ANALYSIS

      I.     Spousal Maintenance

¶3          Wife contends the family court abused its discretion by
awarding her spousal maintenance of $1,000 per month for three years,

1      Wife filed her notice of appeal before the family court entered a
signed order disposing of a time-extending post-trial motion. Accordingly,
on November 13, 2013, this court suspended the appeal and remanded; the
family court entered a signed order on November 20, 2013.

2     We cite the current version of all applicable statutes unless changes
material to our decision have occurred since the relevant date.



                                     2
                         ROBINSON v. HUTCHINS
                           Decision of the Court

arguing she was entitled to a greater monthly amount for the remainder of
her life.3

¶4            In determining the amount and duration of a spousal
maintenance award, the family court must consider all relevant factors,
including, as applicable, the thirteen factors set forth in A.R.S. § 25-319(B).4

3     On appeal, Wife argues the court should have awarded her spousal
maintenance of $2,506 per month. At trial, however, she requested $1,500.

4      The statutory factors listed under A.R.S. § 25-319(B) are as follows:

       1. The standard of living established during the marriage.
       2. The duration of the marriage.
       3. The age, employment history, earning ability and physical and
           emotional condition of the spouse seeking maintenance.
       4. The ability of the spouse from whom maintenance is sought to
           meet that spouse’s needs while meeting those of the spouse
           seeking maintenance.
       5. The comparative financial resources of the spouses, including
           their comparative earning abilities in the labor market.
       6. The contribution of the spouse seeking maintenance to the
           earning ability of the other spouse.
       7. The extent to which the spouse seeking maintenance has reduced
           that spouse’s income or career opportunities for the benefit of the
           other spouse.
       8. The ability of both parties after the dissolution to contribute to
           the future educational costs of their mutual children.
       9. The financial resources of the party seeking maintenance,
           including marital property apportioned to that spouse, and that
           spouse’s ability to meet that spouse’s own needs independently.
       10. The time necessary to acquire sufficient education or training to
           enable the party seeking maintenance to find appropriate
           employment and whether such education or training is readily
           available.
       11. Excessive or abnormal expenditures, destruction, concealment or
           fraudulent disposition of community, joint tenancy and other
           property held in common.
       12. The cost for the spouse who is seeking maintenance to obtain
           health insurance and the reduction in the cost of health insurance
           for the spouse from whom maintenance is sought if the spouse
           from whom maintenance is sought is able to convert family



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                        ROBINSON v. HUTCHINS
                          Decision of the Court

We afford the family court’s decision substantial discretion and will affirm
if any reasonable evidence supports it. Cullum v. Cullum, 215 Ariz. 352, 354,
¶ 9, 160 P.3d 231, 233 (App. 2007); Rainwater v. Rainwater, 177 Ariz. 500, 502,
869 P.2d 176, 178 (App. 1993).

¶5             The family court considered and made findings concerning
each of the factors under A.R.S. § 25-319(B). For example, the court found
(1) Wife is available for full-time employment and has no physical or mental
health conditions that prevent her employment; (2) the parties do not have
substantial assets and Wife is currently unable to independently meet her
financial needs; (3) Wife contributed to Husband’s career by maintaining
the household and caring for the parties’ children during the marriage; and
(4) Husband’s earning ability is greater than Wife’s, and despite his
substantial debts, he is able to contribute some to Wife’s financial needs
while meeting his own obligations.

¶6            Wife contends the spousal maintenance award is insufficient
because she is qualified for few jobs that would pay enough to allow her to
live independently and has physical conditions that preclude her
employment at this time. She also argues the court erred by failing to award
her additional maintenance for housing and education expenses.

¶7             Although Wife claims she has herniated spinal discs that
hinder her ability to search for work, at trial she testified only that those
conditions preclude her from jobs that require heavy lifting. Wife indicated
she had twice been employed full-time within the year before trial and,
since she left her last job, had been actively searching for, and expected to
find, work paying approximately $11 per hour. Moreover, Wife’s Affidavit
of Financial Information was based on her future expected expenses, not
her present expenses, and she admitted her estimates for certain items were
too high. We find no abuse of discretion in the court’s award of spousal
maintenance of $1,000 per month to Wife for a period of three years.5



           health insurance to employee health insurance after the marriage
           is dissolved.
       13. All actual damages and judgments from conduct that results in
           criminal conviction of either spouse in which the other spouse or
           child was the victim.

5      Husband contends Wife is capable of being self-sufficient and asks
this court to end all spousal maintenance. We do not consider this issue



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                         ROBINSON v. HUTCHINS
                           Decision of the Court

¶8             We also reject Wife’s argument that the family court’s failure
to rule on her repeated requests for temporary spousal maintenance during
the pendency of the action caused her irreparable harm. Wife offered no
evidence at trial that the delay caused her any such harm and, ultimately,
the court granted her maintenance for this period, as its award was
retroactive to the first day of the first month after Husband filed the petition
for dissolution.6

       II.    Division of Community Property and Debt

¶9            Wife next challenges the family court’s division of certain
community property and debts. Arizona Revised Statutes § 25–318(A)
governs the division of marital property in a dissolution proceeding and
requires the court to divide community property equitably, although not
necessarily in kind. In determining an equitable division, the family court
retains broad discretion in allocating individual assets and liabilities. In re
Marriage of Flower, 223 Ariz. 531, 535, ¶ 14, 225 P.3d 588, 592 (App. 2010).
We view the evidence in the light most favorable to sustaining the court’s
findings and will not disturb its apportionment of community property
absent an abuse of discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5,
972 P.2d 676, 679 (App. 1998).

              A.     Household Property

¶10           Wife argues the court erred by awarding her only $300 for her
share of the household property. Husband testified at trial that, after Wife
left the marital home, he was unable to maintain the residence and was
forced to move to a small apartment that would not accommodate all of the
parties’ personal property. Husband claimed he gave Wife notice of the


because Husband did not cross-appeal from the decree. See Maricopa Cnty.
v. Corp. Comm'n of Ariz., 79 Ariz. 307, 310, 289 P.2d 183, 185 (1955) (stating
that an appellee who desires to attack the judgment to either enlarge his
rights or lessen the rights of his adversary must cross-appeal).

6      Similarly, we reject Wife’s argument that the court erred by failing
to rule on her claim that Husband removed Wife from his medical
insurance in violation of the court’s standard injunction prohibiting such
actions. Wife did not present any evidence at trial that she had obtained
health insurance at a higher cost or otherwise suffered any harm from the
loss of the insurance. Moreover, the evidence showed Husband was not
able to contact Wife to obtain the information necessary to continue the
coverage and Wife failed to take any action to reinstate coverage.


                                       5
                        ROBINSON v. HUTCHINS
                          Decision of the Court

move and allowed her to retrieve any belongings she desired, and he sold
the remaining items for less than $600. Wife disputed this testimony,
alleging the marital home contained personal property worth
approximately $100,000, and Husband did not give her adequate time to
remove her belongings. We defer to the family court’s determination of the
witnesses’ credibility and the weight to give this conflicting evidence, id. at
347, ¶ 13, 972 P.2d at 680, and find no abuse of discretion.

              B.     Husband’s 401(k) Account

¶11          Wife challenges the court’s ruling awarding her one-half of
the approximate $1,500 value of Husband’s 401(k) account, arguing the
court erred by rejecting her claim that Husband withdrew almost $80,000
from the account to spend on gambling. The family court may consider
excessive or abnormal expenditures when apportioning community
property. A.R.S. § 25-318(C); Gutierrez, 193 Ariz. at 346, ¶ 6, 972 P.2d at
679. However, Wife’s allegations that Husband wasted community funds
withdrawn from his 401(k) account on gambling activities were
contradicted by the account statements, which showed the account’s value
had not exceeded $1,500 in the preceding six years.7 Accordingly, we find
no abuse of discretion in the family court’s rejection of Wife’s waste
argument and determination that she was entitled to one-half of the current
value of Husband’s 401(k) account. See Gutierrez, 193 Ariz. at 346, ¶ 5, 972
P.2d at 679.

              C.     Refund from Bankruptcy Proceedings

¶12           Husband testified that, during pendency of this action, he
received a $9,431.65 refund of monies he paid to the bankruptcy trustee
while his bankruptcy action was pending. He claimed he spent the money
to purchase a new vehicle, to move from the marital residence, and to pay
other bills. Wife argues the family court erred by not ruling on her claim
that she was entitled to one-half of the refund amount.

¶13           The court did not mention the refund in the decree or
otherwise indicate that it intended to reject Wife’s claim. Generally, when
neither party has requested findings of fact and conclusions of law, we
assume the family court found every fact necessary to support its judgment,
as long as any reasonable construction of the evidence justifies the decision.


7     The evidence also does not support Wife’s claim that Husband
withdrew $5,997 from the account in July 2012, as the value of the account
on June 30, 2012, was only $1,441.32.


                                      6
                        ROBINSON v. HUTCHINS
                          Decision of the Court

Stevenson v. Stevenson, 132 Ariz. 44, 46, 643 P.2d 1014, 1016 (1982). In this
case, however, the evidence does not support a decision to deny Wife an
interest in the refunded monies, as it was undisputed the funds were
community property paid from Husband’s earnings during the marriage
and later refunded to him. Accordingly, we remand to allow the family
court to consider whether Wife was entitled to some portion of the $9,431.65
refund as part of an equitable division of the parties’ assets.

              D.     Division of Credit Card Debt

¶14           Wife maintains the court abused its discretion by equally
dividing the debt from several of Husband’s credit card accounts because
Husband held the accounts in his name only and used the cards to obtain
cash for gambling. All debt incurred by either spouse during marriage is
presumed to be a community obligation. Hrudka v. Hrudka, 186 Ariz. 84, 91-
92, 919 P.2d 179, 186-87 (App. 1995), superseded in part by statute on other
grounds as recognized in Myrick v. Maloney, ___ Ariz. ___, 333 P.3d 818 (App.
2014). To overcome that presumption, Wife was required to offer clear and
convincing evidence the debt was Husband’s separate obligation. See id.

¶15          Husband testified that, even though the relevant accounts
were held in his name, Wife incurred the majority of the charges.8 He
admitted both he and Wife visited casinos to gamble but claimed the debt
was also the result of the parties’ unsustainable standard of living during
the marriage. Wife denied she gambled or charged to the credit card
accounts.

¶16            We defer to the family court’s determination of the witnesses’
credibility and the weight to give this conflicting evidence. See Gutierrez,
193 Ariz. at 347, ¶ 13, 972 P.2d at 680. Accordingly, we find no abuse of
discretion in the court’s classification of the credit card debt as a community
obligation. See Hrudka, 186 Ariz. at 91-92, 919 P.2d at 186-87.




8       Wife objects that Husband did not offer current statements for the
relevant accounts. However, she waived this objection by failing to raise it
at trial. See Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6, 981 P.2d 1087, 1089
(App. 1999). Moreover, Husband testified the statements were the most
recent ones available, and no payments had been made on those accounts
because of his bankruptcy proceeding.


                                      7
                        ROBINSON v. HUTCHINS
                          Decision of the Court

       III.   Attorneys’ Fees

¶17           Finally, Wife argues the court erred by denying her request
for an award of attorneys’ fees because it found she is unable to meet her
financial needs independently.

¶18            In a dissolution case, the court may award fees “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.” A.R.S.
§ 25-324(A). “Although the intent of A.R.S. § 25–324 is to assure a remedy
for the party least able to pay, the trial court may also consider whether a
party has adopted unreasonable positions.” MacMillan v. Schwartz, 226
Ariz. 584, 592, ¶ 37, 250 P.3d 1213, 1221 (App. 2011). The family court stated
it considered the parties’ financial resources and the reasonableness of their
positions throughout the litigation in accordance with A.R.S. § 25-324. We
will not disturb its decision absent an abuse of discretion. Gutierrez, 193
Ariz. at 351, ¶ 32, 972 P.2d at 684.

¶19            The evidence supports a determination that Wife acted
unreasonably during pendency of the dissolution. Husband testified he
made several attempts to reach a settlement of the disputed issues with
Wife, but she refused to negotiate and insisted on proceeding to trial. Wife
also maintained at trial that the parties had substantial assets, despite
contrary evidence, and the court ultimately rejected her claims. Because the
family court was in the best position to observe and assess the conduct of
the parties before it, we cannot say the court abused its discretion when it
denied Wife’s request for an award of attorneys’ fees. See MacMillan, 226
Ariz. at 592, ¶ 38, 250 P.3d at 1221.9




9      We reject Wife’s argument that Husband should pay her attorneys’
fees because he caused the dissolution. Cf. Marce v. Bailey, 130 Ariz. 443,
445, 636 P.2d 1225, 1227 (App. 1979) (stating that a major purpose of the
adoption of Arizona’s current dissolution statutes was to eliminate
questions of the parties’ fault and prior conduct from the court’s
consideration of whether the marriage should be dissolved and how the
property should be divided).


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                      ROBINSON v. HUTCHINS
                        Decision of the Court

                            CONCLUSION

¶20           For the foregoing reasons, we affirm in part and remand in
part for further proceedings consistent with this decision.




                               :gsh




                                      9
