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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  SANDY DOWNHAM, Petitioner/Appellant,

                                         v.

                RONALD DOWNHAM, Respondent/Appellee.

                            No. 1 CA-CV 16-0164 FC
                              FILED 7-25-2017


            Appeal from the Superior Court in Maricopa County
                           No. FN2015-003178
               The Honorable Stephen M. Hopkins, Judge

                       REVERSED AND REMANDED


                                    COUNSEL

Bert L. Roos PC, Phoenix
By Bert L. Roos
Counsel for Petitioner/Appellant

Ronald Downham, Gilbert
Respondent/Appellee
                       DOWNHAM v. DOWNHAM
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.


W I N T H R O P, Judge:

¶1            Sandy Downham (“Wife”) appeals from the decree dissolving
her marriage to Ronald Downham (“Husband”). She argues the superior
court abused its discretion by failing to award her spousal maintenance,
military survivor benefits, and attorneys’ fees. For the following reasons,
we reverse and remand to the superior court.

                FACTS AND PROCEDURAL HISTORY

¶2            The parties were married for twenty-four years and have no
minor children. At the time of dissolution, Wife was unemployed and
attending college. Husband worked part-time as a college instructor. He
also received military retirement pay of $3,315 per month.

¶3            Wife requested spousal maintenance of $1,800 per month for
seven years, which she estimated was the time needed to complete her
education and become a physical therapist. She also requested the superior
court direct Husband to designate her as a former spouse beneficiary under
the Armed Services Survivor Benefit Plan (“SBP”). Lastly, she requested
attorneys’ fees pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-
324 (2017).1

¶4           Following trial, the superior court entered a decree dissolving
the parties’ marriage. The court denied Wife’s request for spousal
maintenance explaining that “in lieu of spousal maintenance,” it was
allocating a greater amount of community debt to Husband without
requiring equalization from Wife. The court denied Wife’s request for SBP
coverage reasoning that “Husband’s undisputed testimony is that Wife




1     We cite the current version of all applicable statutes unless revisions
material to this decision have occurred since the events in question.



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                          Decision of the Court

may not remain on this policy after the divorced is finalized.” 2 The court
denied both parties’ request for attorneys’ fees.

¶5            Wife timely appealed from the decree, and we have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (2016).3

                                  ANALYSIS

       I.     Spousal Maintenance

¶6            Wife first argues the superior court erred by not awarding her
spousal maintenance. We review the court’s ruling on spousal maintenance
for an abuse of discretion. See In re Marriage of Berger, 140 Ariz. 156, 167, 680
P.2d 1217, 1228 (App. 1983). In doing so, we view the evidence in the light
most favorable to sustaining the ruling. See Thomas v. Thomas, 142 Ariz. 386,
390, 690 P.2d 105, 109 (App. 1984).

¶7              “[P]roperty division and spousal maintenance are two
separate and distinct considerations at dissolution.” Koelsch v. Koelsch, 148
Ariz. 176, 182, 713 P.2d 1234, 1240 (1986) (citing In re Marriage of Foster, 125
Ariz. 208, 608 P.2d 785 (App. 1980)). Property division is governed by
A.R.S. § 25-318 (2017), which requires “a substantially equal distribution of
community assets in the absence of a compelling reason to the contrary.”
Kelly v. Kelly, 198 Ariz. 307, 309, ¶ 7, 9 P.3d 1046, 1048 (2000). Spousal
maintenance is governed by A.R.S. § 25-319 (2017), which requires a two-
step analysis. See Thomas, 142 Ariz. at 390, 690 P.2d at 109. The superior
court first must determine whether the evidence supports that the
requesting spouse:


2      In contrast to the decree, the Qualified Domestic Relations Order
(“QDRO”), entered six months after the decree, states that if Husband
predeceases Wife, “the survivor benefit already elected will commence”
and prohibits Husband from revoking the “survivor benefit already
elected.”

3      Wife filed a motion to set aside/reconsider the decree, which the
superior court denied. Wife did not timely appeal from that order.
Accordingly, this court lacks jurisdiction to review any issues arising from
Wife’s post-judgment motion. See In re Marriage of Thorn, 235 Ariz. 216, 219,
¶ 10, 330 P.3d 973, 976 (App. 2014) (holding this court lacked jurisdiction to
review issues set forth in an untimely amended notice of appeal).




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                         Decision of the Court

      1.    Lacks sufficient property, including property
      apportioned to the spouse, to provide for that spouse’s
      reasonable needs[;]

      2.    Is unable to be self-sufficient through appropriate
      employment . . . or lacks earning ability in the labor market
      adequate to be self-sufficient[;]

      3.     Contributed to the educational opportunities of the
      other spouse[;] or

      4.    Had a marriage of long duration and is of an age that
      may preclude the possibility of gaining employment
      adequate to be self-sufficient.4

A.R.S. § 25-319(A). If the court finds evidence to support one of those four
requirements, it must then consider the factors set forth in § 25-319(B) to
determine the amount and duration of the award. See Helland v. Helland,
236 Ariz. 197, 203, ¶ 28, 337 P.3d 562, 568 (App. 2014).

¶8             “Increased spousal maintenance cannot justify depriving a
spouse of his or her property right.” Koelsch, 148 Ariz. at 182, 713 P.2d at
1240 (citation omitted). Similarly, an unequal award of community
property cannot be made in lieu of spousal maintenance. See Foster, 125
Ariz. at 211, 608 P.2d at 788. In Foster, this court explained that an “award
of a greater share of community property as a substitute for [spousal]
maintenance is tantamount to a fixed award” because “[i]t ignores the
respective spouses’ needs and ability to pay, and deprives the trial court of
any flexibility to respond to the parties’ changing economic circumstances.”
Id. Likewise, this court has held that the amount of spousal maintenance
cannot be adjusted to account for a community debt that was not
appropriately allocated in a property settlement. See Elliott v. Elliott, 165
Ariz. 128, 137, 796 P.2d 930, 939 (App. 1990) (“Property settlements, spousal
maintenance awards, and child support awards involve distinct
considerations.”).


4      Wife argues the superior court “erred in finding that a marriage of
24 years was one of ‘intermediate duration.’” Even if the court had found
the parties had a marriage of “long duration,” § 25-319(A)(4) still would not
apply because Wife was not of an age that would “preclude the possibility
of gaining employment adequate to be self-sufficient.” A.R.S. § 25-
319(A)(4).


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                         Decision of the Court

¶9           Here, the decree intertwines the issues of property division
and spousal maintenance. The superior court justified its denial of spousal
maintenance by making the following unequal division of community
property and debt:

       THE COURT FINDS that the above allocation of the real and
       personal property, when considered with the division of debt,
       is not fair and equitable under the circumstances and that
       further adjustments are necessary. . . . Wife has received
       $4,000 more than Husband when considering the retirement
       cash value of life insurance. Wife is responsible for $22,986
       less in community debt than Husband. However, the Court
       finds that if it were to order an equalization payment from
       Wife to Husband it would then be appropriate to award
       spousal maintenance since at that point Wife would be unable
       to meet her reasonable needs. In other words, in lieu of
       spousal maintenance the Court declines to require Wife to
       make an equalization payment to Husband.5

¶10            The court’s order in this regard did not comply with Arizona
law. Instead, the superior court should determine spousal maintenance
based on the evidence as applied to the law as written in § 25-319. By
awarding Wife a greater share of the community property (or a lesser share
of debt) as a substitute for spousal maintenance, the court erred. See Foster,
125 Ariz. at 211, 608 P.2d at 788. Accordingly, we reverse and remand for
the court to separately decide the issues of property division and spousal
maintenance by application of the relevant statutes.

       II.    Survivor Benefit Plan

¶11            Wife next argues the superior court erred in finding she was
not entitled to a survivor benefit under Husband’s SBP. This court reviews
issues of law de novo. See In re Marriage of Pownall, 197 Ariz. 577, 580, ¶ 7, 5
P.3d 911, 914 (App. 2000).

¶12          When Husband retired from the Navy in 2005, he named Wife
as his SBP beneficiary. At trial, she asked the court to direct Husband to



5      In his supplemental brief on appeal, Husband asserts that “the
disparity in responsibility for community debts” is only $12,535 because a
portion of the debt allocated to both Husband and Wife related to specific
property awarded to them separately.


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                       DOWNHAM v. DOWNHAM
                         Decision of the Court

designate her as a former spouse beneficiary under the SBP. Husband
testified regarding SBP as follows:

       Husband: Since it’s a survivor benefit, it should go to my
       survivor. And at the end of these proceedings, once the
       divorce is finalized, she will . . . no longer be my survivor.

       Husband’s counsel: And who . . . would be your survivor?

       Husband: I would not have a survivor. Under this -- the way
       these are written, it can only go to my spouse as my survivor.
       That’s the only one that I can designate. So I cannot designate
       anyone to be a survivor other than my spouse.6

¶13          The superior court denied Wife’s request for SBP coverage
based on “Husband’s undisputed testimony . . . that Wife may not remain
on this policy after the divorce is finalized.” The court concluded that
Wife’s request was “not possible, even if this Court were to make such an
order.” Six months later, however, the superior court signed a QDRO,
acknowledging Wife’s entitlement to the survivor benefit and prohibiting
Husband from revoking “the survivor benefit already elected.”

¶14           Under federal law, a former spouse may receive a survivor
benefit following the death of a service member. See 10 U.S.C. §§ 1447(9),
1448(b), (d). Moreover, a state family court may require a service member
to elect SBP coverage for a former spouse as part of a dissolution
proceeding. See 10 U.S.C. § 1450(f)(4); see also Richards v. Richards, 137 Ariz.
225, 227, 669 P.2d 1002, 1004 (App. 1983) (directing the superior court to
require husband to change the beneficiary designation for the SBP from his
current wife to his former wife).

¶15         Accordingly, the superior court erred in relying on Husband’s
testimony and finding that, as a matter of law, Wife’s claim for SBP




6      In a supplemental brief on appeal, Husband clarified his position,
acknowledging that a service member “may elect to provide a survivor
benefit for a former spouse” and that a court “has the authority to order the
plan participant to elect such a benefit, but it is not mandatory.”




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                       DOWNHAM v. DOWNHAM
                         Decision of the Court

coverage was not possible. We reverse the court’s ruling on SBP coverage
and remand to the superior court to consider Wife’s request.7

      III.   Attorneys’ Fees

¶16           Wife argues the superior court erred in denying her request
for attorneys’ fees and costs. She argues that she was entitled to an award
based on the “disparate amount of income between the parties.”8 We
review the superior court’s ruling on attorneys’ fees for an abuse of
discretion. See Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6, 333 P.3d 818, 821
(App. 2014) (citation omitted).

¶17           Pursuant to A.R.S. § 25-324(A), the superior court may award
attorneys’ fees in a dissolution proceeding “after considering the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings[.]” Disparity in financial resources
alone “does not mandate an award of fees.” Myrick, 235 Ariz. at 494, ¶ 9,
333 P.3d at 821.

¶18            In this case, we acknowledge both an apparent disparity in
the parties’ incomes and the superior court’s discretion as to any award of
attorneys’ fees. Given that we are remanding the issues of spousal
maintenance and survivor benefits, however, the superior court may also
on remand reconsider the issue of attorneys’ fees.

                               CONCLUSION

¶19           For the foregoing reasons, we reverse and remand to the
superior court for reallocation of the community property and debt for a
separate determination of spousal maintenance based on § 25-319. We
vacate the court’s finding that Wife is not eligible for SBP coverage and
direct the court to consider her request. In doing so, we do not suggest a
particular outcome nor do we direct additional evidentiary proceedings

7      If, on remand, the court requires Husband to elect SBP coverage for
Wife, then its order should address payment of SBP premiums.

8      Wife has income of approximately $911 per month, which is her
share of the military retirement. Husband’s income is less clear. His share
of the military retirement is $2,400 per month. He also has income from his
job as a college instructor. His Affidavit of Financial Information reflects
wages of approximately $1,500 per month. However, his pay stub reflects
year to date income of $29,844 as of December 2015, which equates to wages
of $2,487 per month.


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                       DOWNHAM v. DOWNHAM
                         Decision of the Court

unless the superior court determines they are necessary. See Hart v. Hart,
220 Ariz. 183, 187, ¶ 14, 204 P.3d 441, 445 (App. 2009).

¶20          Wife requests her reasonable attorneys’ fees on appeal
pursuant to A.R.S. § 25-324. In the exercise of our discretion, we grant that
request, as well as her costs incurred on appeal, subject to compliance with
Arizona Rule of Civil Appellate Procedure 21.




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




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