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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   LELAND SNOOK, Petitioner/Appellee,

                                        v.

              MADALENA AGUILAR, Respondent/Appellant.


                           No. 1 CA-CV 17-0159 FC
                                FILED 12-26-2017


           Appeal from the Superior Court in Maricopa County
                          No. FN2016-051451
             The Honorable Jennifer C. Ryan-Touhill, Judge

               AFFIRMED IN PART; VACATED IN PART


                                   COUNSEL

Schmillen Law Firm, PLLC, Scottsdale
By James Robert Schmillen
Counsel for Petitioner/Appellee

Hawkins & Hawkins, PLLC, Mesa
By Mark W. Hawkins
Counsel for Respondent/Appellant
                            SNOOK v. AGUILAR
                            Decision of the Court



                       MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.


M O R S E, Judge:

¶1           Madalena Aguilar ("Wife") appeals from the decree
dissolving her marriage to Leland Snook ("Husband"). For the following
reasons, we vacate the orders directing Wife to reimburse Husband for
certain separate and community expenses, but we affirm in all other
respects.

                 FACTS AND PROCEDURAL HISTORY

¶2             The parties were married in January 1991. In February 2016,
Husband filed a petition for dissolution. To avoid incurring attorneys' fees
litigating a temporary spousal maintenance order, see Ariz. Rev. Stat.
(A.R.S.) § 25-315; Ariz. R. Fam. Law P. 47, the parties agreed that Husband
would pay all expenses incurred during the dissolution—both community
and separate. After a one-day trial in January 2017, the family court entered
a decree of dissolution, dividing the community property and debt,
awarding Wife spousal maintenance of $5,000 per month for 10 years, and
denying Wife's request for attorneys' fees "beyond what she has already
received."

¶3            Wife timely appealed.        We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).

                               DISCUSSION1

¶4             We view the facts in the light most favorable to upholding the
decree. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5 (App. 1998). Because
the family court "is in the best position to judge the credibility of witnesses
and resolve conflicting evidence," we defer to its factual findings. Vincent
v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015); see Gutierrez, 193 Ariz. at 347,
¶ 13. We assume the court resolved every issue of fact in a way that

1 We address only those issues Wife presents in the statement of issues,
including "every subsidiary issue fairly comprised within the statement."
See Ariz. R. Civ. App. P. 13(a)(6).


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supports its judgment. Murren v. Murren, 191 Ariz. 335, 337, ¶ 8 (App. 1998)
(quoting Crye v. Edwards, 178 Ariz. 327, 328 (App. 1993)).

I.     Biscuit and Charlie

¶5            Wife argues the dogs, Biscuit and Charlie, are her separate
property and, therefore, the family court erred by awarding them to
Husband. "The characterization of property as separate or community is a
question of law we review de novo." Schickner v. Schickner, 237 Ariz. 194,
199, ¶ 22 (App. 2015).

¶6             "Property acquired by either spouse during marriage is
presumed to be community property, and the spouse seeking to overcome
the presumption has the burden of establishing a separate character of the
property by clear and convincing evidence." Brebaugh v. Deane, 211 Ariz.
95, 97–98, ¶ 6 (App. 2005) (quoting Thomas v. Thomas, 142 Ariz. 386, 392
(App. 1984)); see A.R.S. § 25-211(A). Although Wife testified on redirect
examination that the dogs were a gift to her from her nephews, she did not
identify the dogs as separate property in her pretrial statement or otherwise
satisfy her burden to raise the property status of the dogs as a contested
issue for the family court. Leathers v. Leathers, 216 Ariz. 374, 378, ¶ 19 (App.
2007).

¶7             In this litigation posture, the family court did not err when it
rejected the uncontradicted testimony of an interested party. See Dumes v.
Harold Laz Advert. Co., 2 Ariz. App. 387, 388 (1965); Graham v. Vegetable Oil
Prods. Co., 1 Ariz. App. 237, 241 (1965). Because Wife did not demonstrate
"the thing to be proved is highly probable or reasonably certain," see Kent K.
v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005) (defining clear and convincing
evidence), she failed to overcome the community property presumption.
See In re Marriage of Foster, 240 Ariz. 99, 101-02, ¶¶ 10-12 (App. 2016)
(concluding the family court did not err in rejecting evidence offered by
Husband that he inherited guns from his brother).

II.    Division of Property

¶8             In a dissolution proceeding, the family court "has broad
discretion to achieve an equitable division" of the community property.
Boncoskey v. Boncoskey, 216 Ariz. 448, 451 ¶ 13 (App. 2007); see Toth v. Toth,
190 Ariz. 218, 221 (1997); see also A.R.S. § 25-318(A). Again, we view the
evidence in the light most favorable to sustaining the court's ruling, and we
will affirm if it is reasonably supported by the evidence. Boncoskey, 216
Ariz. at 451, ¶ 13. We presume the court found all facts necessary to support



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the property division "if the evidence on any reasonable construction
justified it." Neal v. Neal, 116 Ariz. 590, 592 (1977).

       A.     Reimbursement

¶9            Wife argues the family court erred by ordering her to
reimburse Husband for (1) $10,000 in separate expenses she incurred
during the dissolution and (2) half of the amounts paid to the attorney who
prepared a Qualified Domestic Relations Order ("QDRO"), the mediator,
and half the cost for an appraisal of the Greer property.2 We agree.

¶10             The parties agreed that, in lieu of paying Wife spousal
maintenance, Husband would pay all separate and community expenses
pending the dissolution. At trial, though, he requested reimbursement for
some of these expenses, suggesting that Wife spent excessively and wasted
community assets. But because there was no spousal maintenance order,
Wife was not given a "fixed amount" each month from which to pay her
expenses. And the family court expressly rejected Husband's accountings
of the parties' expenses as separate or community, finding "no basis for how
expenses are itemized other than Husband's own personal opinion."3
Accordingly, because the record does not support the court's ruling, see
Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012) (stating that the superior
court abuses its discretion by making a discretionary ruling the record does
not support), we vacate the orders directing Wife to reimburse Husband for
$10,000 in separate expenses she incurred during the dissolution, half of the
amounts paid to the mediator and QDRO attorney, and half the cost for the
Greer property appraisal.

¶11            Wife also argues the family court erred by ordering her to pay
half of the 2016 tax liability. However, the order explaining how the parties
should handle the 2016 taxes was entered on March 2, 2017, almost a month
after Wife filed the notice of appeal that opened this appeal. Because the
family court had no jurisdiction to issue this ruling, we vacate the order.
See City of Phx. v. Leroy's Liquors, Inc., 177 Ariz. 375, 380-81 (App. 1993).


2 Per Wife's calculation, the family court improperly ordered her to pay
$3,535 = 50% of $4,270 (QDRO attorney) + $2,000 (mediator) + $800
(appraisal).

3The family court relied on one such "list" (Exhibit 6) to support its finding
that "Wife outspent Husband by almost $10,000.00."




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       B.     Waste

¶12         Wife argues the family court abused its discretion by not
awarding her $21,602, which she claimed was her share of post-tax
community assets that Husband liquidated while the dissolution was
pending because he spent his separate income "on his girlfriend and
alcohol."4

¶13           The family court is authorized to "adjust the value of the
property assigned to each spouse so that neither spouse profits by misuse
or concealment of the commonly-held property." Martin, 156 Ariz. at 456;
see A.R.S. § 25–318(A), (C) (authorizing the family court to make an
equitable division of community property after considering "excessive or
abnormal expenditures, [or the] destruction, concealment or fraudulent
disposition" of community property); see also A.R.S. § 25-319(B)(11). "[T]he
spouse alleging abnormal or excessive expenditures by the other spouse has
the burden of making a prima facie showing of waste." Gutierrez, 193 Ariz.
at 346, ¶ 7.

¶14            Wife did not carry her burden of proof on this issue. The
family court found that "neither party acted like they were getting a divorce
and instead spent money freely, without limitation, and without any
practical restrictions. That is, both parties arguably squandered their 2015-
2016 income on many things beyond the necessities of life." (Emphasis in
original). "In balancing such equities, courts might reach different
conclusions in similar cases without abusing their discretion." In re
Marriage of Flower, 223 Ariz. 531, 535, ¶ 14 (App. 2010). On this record, we
find no error.




4Wife suggests this issue "goes to the division of property, not waste." As
she obliquely recognized in her pretrial statement, though, we use the term
"waste" to describe excessive or abnormal expenditures from community
property that must be accounted for when making an equitable
distribution. See, e.g., Gutierrez, 193 Ariz. at 346, ¶ 6 (citing A.R.S. § 25–
318(A) (recodified as A.R.S. § 25–318(C)), Martin v. Martin, 156 Ariz. 452,
458 (1988), and Hrudka v. Hrudka, 186 Ariz. 84, 93 (App. 1995), superseded in
part by statute on other grounds as recognized in Myrick v. Maloney, 235 Ariz.
491, 494, ¶ 8 (App. 2014)).




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III.      Attorneys' Fees

¶15           Wife argues the family court erred by denying her request for
attorneys' fees.5 The court may award reasonable attorney's 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). We review an attorneys' fees award for an abuse of discretion.
MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011).

¶16            Wife suggests an "extraordinary disparity of income"
mandates that she be awarded attorneys' fees. Wife is incorrect. See Myrick,
235 Ariz. at 494, ¶ 9. The family court may award fees, but it is not required
to do so. Alley v. Stevens, 209 Ariz. 426, 429, ¶ 12 (App. 2004). Here, after
considering the statutory factors, the court denied Wife's request beyond
the fees Husband had already paid. We find no error. See Myrick, 235 Ariz.
at 494, ¶ 9 (explaining that the family court has discretion to deny a fee
request after considering a financial disparity between the parties and the
reasonableness of the parties' positions taken throughout the proceedings,
though no factor controls).

¶17           Wife also suggests the family court should have required the
parties to submit China Doll affidavits before ruling on the issue of attorneys'
fees.6 Wife cites no legal authority for this suggestion, nor have we found
any. A China Doll application allows the court to assess the reasonableness
of the fees requested. Schweiger, 138 Ariz. at 187-88; Orfaly v. Tucson
Symphony Soc'y, 209 Ariz. 260, 266, ¶ 23 (App. 2004). It does not assist the
court in determining whether a party is entitled to fees under § 25-324. Cf.
Nolan v. Starlight Pines Homeowners Ass'n, 216 Ariz. 482, 490, ¶ 34 (App.
2007) (explaining that we review a trial court's application of § 12-341.01 de
novo, but we review the amount awarded for an abuse of discretion); see id.
at 490-91, ¶ 38 ("Once a party establishes its entitlement to fees and meets
the minimum requirements in its application and affidavit for fees, the
burden shifts to the party opposing the fee award to demonstrate the
impropriety or unreasonableness of the requested fees.").



5 Wife does not appeal the family court's award of $7,500 in attorneys' fees
to Husband based on her "unreasonable actions in refusing to make good
faith efforts to settle the case . . . and pursuance of claims of waste without
merit."

6   Schweiger v. China Doll Rest., Inc., 138 Ariz. 183 (App. 1983).



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                          Decision of the Court

                              CONCLUSION

¶18           For the foregoing reasons, we vacate the orders directing Wife
to reimburse Husband for $10,000 in separate expenses she incurred during
the dissolution, half of the amounts paid to the QDRO attorney and the
mediator, and half the cost for the Greer property appraisal. In all other
respects, we affirm.

¶19           Both parties request attorneys' fees on appeal pursuant to
A.R.S. § 25-324. In our discretion, we deny their requests. We award costs
to Husband as the successful party, upon compliance with Arizona Rule of
Civil Appellate Procedure 21.




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




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