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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              MARCIA ANN BONAFEDE, Petitioner/Appellant,

                                         v.

              GARY W. GIANNANGELO, Respondent/Appellee.

                            No. 1 CA-CV 14-0103 FC
                               FILED 3-26-2015


            Appeal from the Superior Court in Maricopa County
                           No. FN2004-003773
                The Honorable Thomas L. LeClaire, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                    COUNSEL

Gust Rosenfeld PLC, Phoenix
By Charles W. Wirken
Counsel for Petitioner/Appellant

The Counters Firm, PC, Phoenix
By Lisa J. Counters
Counsel for Respondent/Appellee
                     BONAFEDE v. GIANNANGELO
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley joined and Judge Jon W. Thompson
dissented.


G O U L D, Judge:

¶1            Petitioner/Appellant Marcia Ann Bonafede (“Wife”) appeals
the family court’s judgment granting Respondent/Appellee Gary W.
Giannangelo’s (“Husband”) petition to modify spousal maintenance. We
affirm the family court’s determination that Husband established changed
circumstances warranting a modification hearing, but we vacate the court’s
determination regarding the amount of maintenance and remand for a new
hearing.

                    Factual and Procedural Background

¶2             Wife and Husband divorced in 2005 after more than twenty-
five years of marriage. The consent decree provided that Husband would
pay Wife $1800 per month in spousal maintenance. The decree further
provided that the award of spousal maintenance was modifiable “upon a
showing of a substantial and continuing change of circumstances” in
accordance with Arizona Revised Statutes (“A.R.S.”) section 25-327 (2015).1
Specifically, the decree provided:

       Both parties acknowledge that HUSBAND’s eventual
       retirement and commencement of Social Security retirement
       benefits, upon attaining age 65, may constitute a substantial
       and continuing change of circumstances as contemplated by
       A.R.S. § 25-327. HUSBAND’s retirement and commencement
       of Social Security benefits shall be considered prima facie
       reason for HUSBAND to petition the Court for a modification
       under A.R.S. § 25-327.




1      Absent material revisions after the relevant dates, we cite the current
version of a statute unless otherwise indicated.



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                      BONAFEDE v. GIANNANGELO
                          Decision of the Court


¶3            In 2012, Husband filed a petition to terminate or modify
spousal maintenance, claiming as changed circumstances:              (1) his
retirement to care for his elderly mother; and (2) his mother’s passing.

¶4             Prior to the modification hearing, Wife requested the family
court enter findings of fact and conclusions of law pursuant to Rule 52(a).
After the hearing, the family court determined there was a substantial and
continuing change in circumstances warranting modification and reduced
the amount of spousal maintenance to $700 per month. Wife filed a motion
for new trial, which was denied. Wife timely appealed.

                                 Discussion

¶5           Wife argues that the family court erred in determining there
was a substantial and continuing change in circumstances warranting
modification of spousal maintenance. In addition, Wife contends that in
reducing Husband’s spousal maintenance obligation, the family court
relied upon erroneous factual findings concerning Husband’s income and
expenses.

¶6            We review the family court’s decision regarding the existence
of changed circumstances and its award of spousal maintenance for an
abuse of discretion. Van Dyke v. Steinle, 183 Ariz. 268, 273 (App. 1995)
(applying an abuse of discretion standard to a finding of changed
circumstances); In re Marriage of Berger, 140 Ariz. 156, 167 (App. 1983)
(establishing that maintenance awards will not be disturbed absent an
abuse of discretion). We will not set aside the family court’s findings of fact
unless they are clearly erroneous. Ariz. R. Civ. Proc. 52(a); In re Marriage of
Berger, 140 Ariz. at 161.

I. Substantial and Continuing Change in Circumstances

¶7             A decree awarding spousal maintenance may be modified or
terminated only upon “a showing of changed circumstances that are
substantial and continuing.” A.R.S. § 25-327(A). “Changed circumstances”
are established by comparing the circumstances at the time of the petition
with the circumstances existing at the time of the decree. Richards v.
Richards, 137 Ariz. 225, 226 (App. 1983). “The decision as to whether there
has been a sufficient change in circumstances to justify a modification . . .
lies with the sound discretion of the trial court.” Nace v. Nace, 107 Ariz. 411,
413 (1971).




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                     BONAFEDE v. GIANNANGELO
                         Decision of the Court

¶8            At the time of the 2005 consent decree, Husband was working
part-time. In 2006, Husband worked briefly, but later decided to assume
full-time care of his mother. In exchange for becoming her caretaker,
Husband’s mother agreed to assume Husband’s monthly spousal
maintenance payment.

¶9           In 2008, Husband began collecting $1300 per month in social
security. Husband used his social security income to pay a portion of Wife’s
spousal maintenance, and his mother paid the remaining $500 balance. In
2012, Husband assumed full responsibility for Wife’s spousal maintenance
when his mother passed away. Husband inherited the majority of his
mother’s estate.

¶10            Based on the record, the family court correctly determined
that Husband’s retirement and the death of Husband’s mother constituted
a substantial and continuing change in circumstances. Accordingly, we
find no error.

II. The Amount of Spousal Maintenance

¶11           A spouse seeking an award of maintenance is required to
satisfy one or more of the statutory requirements set forth in A.R.S. § 25-
319(A). Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 15 (App. 1998). If one or
more of those requirements is met, a court must consider the factors set
forth in A.R.S. § 25-319(B) in determining the amount of the award. Id.

¶12           Here, the parties dispute whether the family court made
proper factual findings in reducing the amount of Wife’s award.
Specifically, Wife contends that in considering “the financial needs and
abilities of the spouse petitioning for maintenance and the financial
resources and abilities of the spouse who is to provide maintenance”
pursuant to A.R.S. § 25-319(B)(4), the family court relied on outdated and
inaccurate financial information for Husband. Reeves v. Reeves, 146 Ariz.
471, 472 (App. 1985).

¶13            Findings of fact shall be set aside only if they are clearly
erroneous. Ariz. R. Civ. P. 52(a). Findings are “clearly erroneous” if the
reviewing court is “left with the definite and firm conviction that a mistake
has been committed.” Merryweather v. Pendleton, 91 Ariz. 334, 338 (1962).
We have a duty to set aside erroneous findings of fact. Brand v. Elledge, 101
Ariz. 352, 358 (1966); see In re B.S., 205 Ariz. 611, 614, ¶ 5 (App. 2003) (“A
finding is clearly erroneous if no reasonable evidence supports it.”).




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                     BONAFEDE v. GIANNANGELO
                         Decision of the Court

¶14           In making its determination to reduce Wife’s award, the
family court expressly held:

      The Court has considered the expenses asserted by
      [Husband]. See Exhibit 2. The Court finds that [Husband] has
      expenses of $3,628.00 per month. Despite the seemingly
      imbalance of $3,600.00 of expenses as against $1,432.00 of
      income, the Court notes that [Husband] has been able to meet
      his obligations on an ongoing basis for a significant period of
      time.

¶15           On appeal, Husband concedes that the income and expense
figures relied upon by the family court in making its decision were
erroneous. Exhibit 2, upon which the family court relied, was Husband’s
Affidavit of Financial Information (“AFI”) dated September 2004, the
month Wife filed for divorce. Husband filed two updated AFIs since 2004,
one with his Petition in September 2012 and another just prior to trial in
April 2013. At trial, Husband testified consistent with his April 2013 AFI,
stating that his monthly income was $2,067.00 and his expenses were
$2,329.00.

¶16           Accordingly, because the family court’s determination was
based, in part, on erroneous financial information for Husband, we vacate
the award and remand to the family court for further proceedings
consistent with this decision.

III. Attorneys’ Fees

¶17           Wife argues the family court abused its discretion in denying
her request for attorneys’ fees pursuant to A.R.S. § 25-324(A). Specifically,
Wife contends the family court should have granted her request for fees
based on the disparity of financial resources between her and Husband.

¶18           Based on the record before us, we are unable to conclude the
family court erred. The family court determined the parties’ “disparity of
income is not so great as to warrant an award of fees under A.R.S. § 25-324.”
Although the family court erred in determining the amount of Husband’s
income and expenses, the record reflects the fact that both parties live on
fixed incomes and are no longer of an age where they can obtain
employment. To the extent Wife asserts Husband’s inheritance creates a
financial disparity, we note (1) that issue is one which appears to have been
litigated extensively in the family court, and (2) the record on appeal is
extremely limited. Accordingly, we find no error. For the same reason, in



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                    BONAFEDE v. GIANNANGELO
                        Decision of the Court

the exercise of our discretion, we deny Mother’s request for attorneys’ fees
on appeal pursuant to A.R.S. § 25-324(A). 2

                               Conclusion

¶19           For the reasons discussed above, we affirm the trial court’s
determination there were changed circumstances justifying a reassessment
of Wife’s spousal maintenance award. However, we vacate the family
court’s determination reducing the amount of Wife’s award, and remand
for further proceedings consistent with this decision.




T H O M P S O N, J., dissenting.

¶20          The trial court acknowledged and considered that Husband
had income from an inheritance in addition to social security income: “The
Court determines that Respondent is sixty-seven (67) years old and retired
and receives regular income through Social Security in the amount of
$1,432.00. Respondent receives, or will receive, some income from the
inheritance he received as a result of the passing of his mother in 2012.”
However, the Judge determined: “Notwithstanding that inheritance and
the income derived therefrom, the current spousal maintenance award in
the amount of $1,800.00 is beyond the reach of Respondent . . . .” In my
view, the record supports the trial court’s determination, and I would
affirm.




                                   :ama




2      Based on our decision in this case, in our discretion, we do not find
it necessary to reach Wife’s remaining claims regarding the family court’s
factual findings.


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