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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                NOREEN ANN COHEN, Petitioner/Appellant,

                                         v.

             HAROLD MARVIN COHEN, Respondent/Appellee.

                            No. 1 CA-CV 18-0185 FC
                              FILED 6-18-2019


            Appeal from the Superior Court in Maricopa County
                           No. FN2016-053152
                 The Honorable Adam D. Driggs, Judge

                                   AFFIRMED


                                    COUNSEL

Horne Slaton, PLLC, Scottsdale
By Sandra Slaton, Matthew J. Monaco
Counsel for Petitioner/Appellant

Law Office of Scott E. Boehm, P.C., Phoenix
By Scott E. Boehm
Counsel for Respondent/Appellee

Jensen Schmidt McElwee & Gordon, PLLC, Phoenix
By Paul G. Schmidt
Counsel for Respondent/Appellee
                            COHEN v. COHEN
                            Decision of the Court


                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Michael J. Brown joined.


P E R K I N S, Judge:

¶1            Noreen Cohen (“Wife”) appeals the denial of her motion for
new trial after entry of the decree in her dissolution action against Harold
Cohen (“Husband”). For the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            We view the evidence in the light most favorable to
upholding the trial court’s orders and will affirm those orders if there is any
reasonable evidence to support them. Mitchell v. Mitchell, 152 Ariz. 317, 323
(1987); Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9 (App. 2012). Wife and
Husband married in March 1988 and share no minor children. Wife filed
for dissolution in October 2016. The parties later settled a number of
property division issues by agreement pursuant to Arizona Rule of Family
Law Procedure (“ARFLP”) 69 (2018). To resolve their remaining issues, the
parties stipulated to the appointment of Joseph Zarzynski as mediator,
pursuant to ARFLP 67, and, if necessary, as family law master, pursuant to
ARFLP 72.

¶3             After the trial court appointed Zarzynski pursuant to the
stipulation, Wife retained new counsel and moved for clarification
regarding Zarzynski’s role. In August 2017, the trial court held a status
conference at which Wife renewed her request for clarification and
suggested the court appoint one person as mediator under ARFLP 67 and
a different person as family law master under ARFLP 72. Husband objected,
and the court, noting that it had already signed a stipulated order
appointing Zarzynski to serve in both roles, as necessary, declined to vacate
its order.

¶4            After mediation failed, Zarzynski held a three-day hearing,
then issued his report on December 8, ordering the disposition of property
and a limited award of spousal maintenance, and declining to award either
party attorneys’ fees.

¶5          Wife requested an award of $44,000 per month in spousal
maintenance for an indefinite period. Relevant to her request, Zarzynski


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found that “the parties enjoyed a high standard of living” during their
marriage and that “[a]ny limitations on their spending were self-imposed.”
Zarzynski further found that the parties had a marriage of long duration,
spanning over 28 years, that Wife stopped working outside the home to
care for the parties’ common child, and that neither Wife, age 67 at the time
of the report, nor Husband, age 80 at the time of the report, should be
required to continue working. Zarzynski found that Husband and Wife
each possess “substantial wealth.” As Zarzynski found, Husband’s estate is
worth approximately $18 to $20 million and, excluding her half of the
proceeds from the anticipated sale of the marital home, Wife has
approximately $2.9 million in investment and retirement accounts. Wife’s
Affidavit of Financial Information (“AFI”) listed her reasonable monthly
expenses at $12,832.00 per month. Zarzynski additionally found that Wife
had full medical insurance and that her AFI included “house maintenance.”

¶6            Zarzynski concluded that Wife qualified for spousal
maintenance under Arizona Revised Statutes (“A.R.S.”) § 25-319(A) and
ordered Husband to pay $3,5000 per month in maintenance until the former
marital home, in which Wife continued to live, could be sold. Zarzynski
ordered that proceeds of the sale of the home be divided equally between
the parties. The unencumbered home was then listed for $3.8 million.
Zarzynski estimated that Wife’s share of the sale proceeds would be $1.5
million. Finally, in declining to award attorneys’ fees, Zarzynski found that
Wife had been unreasonable by interfering with the sale of the home and in
asking for $44,000 per month in spousal maintenance.

¶7             Neither party timely objected to Zarzynski’s report. ARFLP
72(f)(1) (parties must object no later than 15 days after report is mailed). On
February 3, 2018, well after the time to file an objection had passed, Wife
filed an objection to Zarzynski’s report and a motion for new hearing before
the trial court. The court approved and adopted the report two days later.
On February 20, Wife filed a motion for new trial. The court denied the
motion for a new hearing and granted Husband’s motion to dismiss Wife’s
motion for a new trial. Wife now appeals.

                               DISCUSSION

¶8            At issue on appeal is whether the trial court abused its
discretion in denying Wife’s motion for a new trial. See Kent v. Carter-Kent,
235 Ariz. 309, 312, ¶ 13 (App. 2014) (motion for new trial reviewed for an
abuse of discretion). When reviewing for abuse of discretion, we will
generally affirm “absent a clear abuse or legal error and resulting
prejudice.” Davis v. Davis, 246 Ariz. 63, 65, ¶ 6 (App. 2018) (citation


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omitted). The trial court has considerable discretion in granting or denying
motions for a new trial. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009).
We review legal issues, including the interpretation of statutes, de novo.
Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012).

¶9            Initially, Wife contends that the trial court dealt improperly
with her February 20th motion for new trial by “dismissing” it. Specifically,
Wife contends that by “dismissing” rather than “denying” her motion for a
new trial, the court failed to consider the motion on the merits and acted
without authority. In its order dismissing Wife’s motion for a new trial, the
court noted that it had previously denied Wife’s February 3rd motion for a
new hearing, filed in a consolidated brief that also contained Wife’s
untimely objections to Zarzynski’s report.

¶10            Wife’s earlier motion for a new hearing was substantially
similar to her motion for a new trial and requested the same relief: To retry
those issues Zarynski had decided against her. By granting Husband’s
motion and “dismissing” Wife’s motion, the court effectively denied Wife’s
request for a new trial. The court’s use of the term “dismissed” rather than
“denied” does not compel a different result. See Associated Aviation
Underwriters v. Wood, 209 Ariz. 137, 179, ¶ 147 (App. 2004) (quoting Guinn
v. Schweitzer, 190 Ariz. 116, 119 (App. 1997)) (we “disfavor hypertechnical
arguments” and “prefer to dispose of cases on their merits”).

¶11            In Wife’s motion for new trial, she argued: (1) that Zarzynski
could not serve as both mediator and family law master; (2) the lack of a
transcript prejudiced her; (3) the spousal maintenance award was contrary
to law; (4) Zarzynski erred in declining to award attorneys’ fees; and (5) the
court should order a hearing pursuant to Sharp v. Sharp on the parties’ 2016
agreement. 179 Ariz. 205 (App. 1994); ARFLP 69. As further explained
below, the trial court did not abuse its discretion in denying the motion for
new trial.

I.     Propriety of the Family Law Master Proceedings

¶12          Wife argues the confidentiality requirements of mediation
under ARFLP 67 necessarily preclude a mediator from also serving as a
family law master under ARFLP 72. Specifically, ARFLP 67 precludes a
mediator from conducting “any other form of dispute resolution process in
the same case, unless agreed to by the parties and approved by the court.”
ARFLP 67(A) (emphasis added). Here, the record reflects, and Wife
concedes, that the parties agreed to have Zarzynski serve as both mediator
and family law master, and the court approved their agreement. That Wife



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later thought better of that arrangement is not a valid ground to abrogate
an order to which the parties stipulated. Thus, the trial court did not abuse
its discretion in upholding the initial stipulated order in the absence of a
subsequent joint stipulation.

¶13           Wife next contends the lack of a hearing transcript of the
proceedings before the family law master deprived her of due process of
law. As Wife concedes, ARFLP 72 provides that “[w]hen a party requests,
the master shall cause a record to be made of the evidence offered and
excluded . . . .” ARFLP 72 (emphasis added). Neither party requested a
record, and Zarzynski was not required to make a record absent a request.
Having failed to ask the family law master to make a record, Wife cannot
complain about its absence.

¶14            Lastly, Wife argues the trial court erred as matter of law in
adopting Zarzynski’s report because the report did not comply with ARFLP
72(E). As relevant here, ARFLP 72(E) requires a family law master to submit
a report along with “any transcript of the proceedings prepared and with
the evidence and original exhibits presented.” ARFLP 72(E) (2018). Wife
argues Zarzynski failed to include the transcript and hearing exhibits with
his report, but does not explain how this prejudiced her case. See Davis, 246
Ariz. at 65, ¶ 6. Thus, the court did not err in declining to grant a new trial
based on the alleged non-compliance with ARFLP 72(E).

II.    Spousal Maintenance Determination

¶15           Wife contends the trial court abused its discretion in refusing
to overturn the family law master’s decision “awarding spousal
maintenance in an amount of zero.” Wife argues the ruling disregarded this
Court’s direction in Gutierrez v. Gutierrez by effectively requiring her to
exhaust her retirement funds for daily living. 193 Ariz. 343, 348, ¶ 18 (App.
1998). Wife further argues the master abused his discretion by failing to
award spousal maintenance because § 25-319(B)’s statutory factors weigh
in favor of an award of spousal maintenance.

¶16           Wife’s AFI listed her reasonable expenses at $12,832 per
month. Wife has an estate of approximately $2.9 million and will receive, in
addition, one half of the proceeds from the sale of the former family home,
which Zarzynski estimated would bring her $1.5 million. In deciding that
spousal maintenance would terminate once the home sold, Zarzynski
found that Wife, then 68, could maintain herself financially by drawing on
those assets for the duration of her life.




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¶17            In Gutierrez, we held that “a court need not require a spouse
to exhaust a retirement account” to support herself. 193 Ariz. at 348, ¶ 18.
This statement, however, must be considered in context. The wife in
Gutierrez was 49 at the time of dissolution and had only $124,000 in liquid
assets, mostly in the form of a retirement account. Id. at ¶¶ 17–18. Here,
Wife has approximately $2.9 million in assets, is 68, and will receive some
$1.5 million in additional cash from the sale of the former marital home.
Under these circumstances, a court does not err by considering a retirement
account when it decides whether to award support. The master reasonably
concluded Wife reached an age at which she would draw upon retirement
assets regardless of the dissolution. See 42 U.S.C. § 416(l)(2) (defining “early
retirement age” as 62). Thus, the court did not abuse its discretion in
declining to apply Gutierrez given the factual distinctions here.

¶18           Similarly, the court did not abuse its discretion in declining to
adopt Wife’s arguments concerning the factors listed in § 25-319(B).
Although several of the factors weigh in favor of some award of spousal
maintenance, as the family law master found, Wife has substantial assets of
her own. Viewed from that perspective, we cannot say the order awarding
Wife $3,500 per month until the former marital residence is sold was an
abuse of discretion. Section 25-319(B) requires spousal maintenance “in an
amount and for a period of time as the court deems just . . . after considering
all relevant factors.” A.R.S. § 25-319(B). In making his ruling, Zarzynski
exhaustively detailed each of the statutory factors. His findings support his
conclusion, and the trial court did not abuse its discretion in declining to
overturn that conclusion.

III.   Attorneys’ Fees

¶19             Wife argues the trial court erred in declining to overturn the
master’s order rejecting her request for attorneys’ fees, asserting Husband
has superior financial resources and that she took reasonable positions at
trial. In a dissolution matter, the court may award attorneys’ fees and costs
“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).

¶20             As we have previously noted, Wife requested an award of
spousal maintenance in the amount of $44,000 per month, for the rest of her
life, despite filing an AFI that listed her reasonable expenses at only $12,832
per month. In addition, Zarzynski found Wife interfered with the sale of the
former marital home by making numerous unreasonable demands. To be
sure, Husband has significantly greater financial resources than Wife.


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                            Decision of the Court

However, Wife also enjoys substantial financial resources and nothing in
the record indicates she lacked “the proper means to litigate the action.” See
Countryman v. Countryman, 135 Ariz. 110, 111 (App. 1983) (discussing the
purpose of an award of attorneys’ fees in dissolution proceedings).
Accordingly, the trial court did not abuse its discretion in declining to
overturn Zarzynski’s order that the parties would bear their own costs and
fees.

IV.      2016 ARFLP 69 Agreement

¶21           Wife argues the court was required to order a hearing
pursuant to Sharp v. Sharp in order to independently determine the
propriety of the parties’ 2016 agreement. Sharp has been superseded by
ARFLP 69, which creates a presumption that agreements pursuant to
ARFLP 69 are fair. Hutki v. Hutki, 244 Ariz. 39, 43, ¶ 18 (App. 2018); see also
Sharp, 179 Ariz. at 210. Moreover, the trial court is not required to hold a
hearing to independently determine the fairness of an ARFLP 69 agreement
under A.R.S. § 25-317(B) or Sharp. Hutki, 244 Ariz. at 40, ¶ 1. Thus, the trial
court did not abuse its discretion in declining to hold a hearing on the
agreement.

                               CONCLUSION

¶22           We affirm the trial court’s denial of Wife’s motion for new
trial.




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




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