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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       ALISA JOST, Petitioner/Appellant,

                                         v.

                     CHARLES JOST, Respondent/Appellee.

                         CARDIOJOST, INC., Appellee

                            No. 1 CA-CV 17-0788 FC
                                FILED 7-23-2019


            Appeal from the Superior Court in Maricopa County
                           No. FC 2013-094487
                The Honorable Joseph C. Kreamer, Judge

                                   AFFIRMED


                                    COUNSEL

Horne Slaton PLLC, Scottsdale
By Thomas C. Horne, Kristin M. Roebuck Bethell
Counsel for Petitioner/Appellant

Jeffrey G. Pollitt PC, Phoenix
By Jeffrey G. Pollitt, Jennika N. McKusick, Lindsay D. Cohen
Co-Counsel for Respondent/Appellee, Charles Jost
Mandel Young PLC, Phoenix
By Taylor C. Young
Co-Counsel for Respondent/Appellee, Charles Jost, and for CardioJost Inc.

Wallin Hester PLC, Gilbert
By Chad A. Hester
Co-Counsel for Appellee, CardioJost Inc.




                       MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.


C A M P B E L L, Judge:

¶1           The superior court has broad discretion in reaching
determinations in a family law matter. See, e.g., Burkhardt v. Burkhardt, 109
Ariz. 419, 420 (1973). Wife appeals from the decree of dissolution of
marriage, arguing that the court erred in several of its findings, including
its award of child support, spousal maintenance, and valuation of the
community business. For the following reasons, we affirm.

                              BACKGROUND

¶2            Alisa Jost (“Wife”) petitioned for dissolution of her 18-year
marriage to Charles Jost (“Husband”). The parties have four children, one
of whom is a minor. During the marriage, the parties maintained a high
standard of living, both working at their community-owned business,
Southwest Cardiovascular Associates, known as CardioJost. Wife managed
the business and Husband provided cardiology services.

¶3            The parties agreed Wife would have sole legal decision-
making authority over the minor, who would attend a boarding school in
Israel on a scholarship. The superior court decided the remaining issues
following a trial. The court awarded Wife $1,000 per month in child support
and also awarded retroactive child support beginning June 1, 2014. After
considering all relevant factors under Arizona Revised Statutes (“A.R.S.”)
section 25-319(B), the court ordered spousal maintenance of $16,000 per
month for 36 months, followed by $8,000 per month for 24 months. The
parties “hotly disputed” the fair market value of CardioJost. Ultimately, the


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court adopted the valuation report prepared by Husband’s expert, finding
that the medical practice was worth $230,000. Both parties requested an
award of attorney fees and costs, which the court denied. Wife filed a
motion for new trial or amended judgment, in relevant part asking the court
to amend findings related to domestic violence, retroactive child support,
business valuation, various community expenditures, and spousal
maintenance, which the court denied.

                               DISCUSSION

¶4             Wife appeals the court’s findings and awards regarding
valuation of the community business, child support, community expenses,
spousal maintenance, domestic violence, tax liability, attorney fees, and
discovery sanctions. We review these issues for an abuse of discretion.1
Schickner v. Schickner, 237 Ariz. 194, 197, ¶ 13 (App. 2015); Seidman v.
Seidman, 222 Ariz. 408, 411, ¶ 18 (App. 2009); Gutierrez v. Gutierrez, 193 Ariz.
343, 348, 351, ¶¶ 14, 32 (App. 1998); In re Marriage of Berger, 140 Ariz. 156,
167 (App. 1983). Viewing the evidence in the light most favorable to
upholding the judgment, we will affirm if reasonable evidence supports the
court’s findings. Cullum v. Cullum, 215 Ariz. 352, 354, ¶ 9 (App. 2007).

I.     Value of the Community Business

¶5            The trial court has wide discretion to determine the method
of valuing a community business. Kelsey v. Kelsey, 186 Ariz. 49, 51 (App.
1996); see Mitchell v. Mitchell, 152 Ariz. 317, 323 (1987) (upholding business
valuation that was supported by expert testimony despite the existence of
an alternate method proposed by a different expert).

¶6             At trial, both parties presented expert reports and testimony
on the fair market value of CardioJost. Husband’s expert initially valued
the business at $230,000. After trial, Wife’s expert concluded that CardioJost
was worth $1.015 million, whereas Husband provided an ultimate value of
less than $230,000. The court explained that it “[found] faults with both
experts’ ultimate valuation opinion,” but “[would] not venture into a
recalculation of either opinion.” The court then adopted Husband’s expert’s
initial valuation of $230,000 as the “most sound” and supported by the
weight of the evidence.

¶7            The evidence as to the accuracy of both experts’ valuation
opinions is disputed. Therefore, we defer to the trier of fact’s determination

1 Although Wife included the superior court’s denial of her motion for new
trial in her notice of appeal, she does not argue that the denial was error.


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of the weight to give this conflicting testimony and evidence. See Gutierrez,
193 Ariz. at 347, ¶13. Even if the court found both experts’ final valuation
opinions faulty, the court was free to adopt the original business valuation
of Husband’s expert. We therefore find no abuse of discretion.

II.    Child support

       A.     Deviation from Child Support Guidelines

¶8            The superior court made a downward deviation from the
Arizona child support guideline calculation of $1,269.60 per month to
$1,000 per month. Wife argues that the downward deviation was in error.
Both Wife and child live in Israel, and Wife asserts that the child visits home
frequently, requiring her to maintain space and provide living essentials in
the house. She additionally argues that an upward deviation was supported
in the record as evidenced by the large disparity between Husband’s
income and her more modest means.

¶9            Under A.R.S. § 25-320(D), the supreme court must establish
guidelines for determining the amount of child support. The superior court
must order as child support the amount resulting from applying the
guidelines unless the superior court makes a written finding that
“application of the guidelines would be inappropriate or unjust in a
particular case.” A.R.S. § 25-320(D). In deviating from the child support
guidelines, the superior court must consider all relevant factors in
determining an award of child support, including “[t]he standard of living
the child would have enjoyed if the child lived in an intact home” and “[t]he
duration of parenting time and related expenses.” A.R.S. § 25-320(D)(3), (8).

¶10            Here, the superior court found that a downward deviation
was appropriate because the child “is spending a substantial amount of
time at [boarding] school instead of with Wife.” While Husband’s income
is high, and the child may be accustomed to a high standard of living, it was
within the court’s discretion to deviate from the guidelines after weighing
all relevant factors set forth in A.R.S. § 25-320(D). Because the record
contains reasonable evidence to justify the deviation, we detect no error.

       B.     Retroactive Child Support

¶11            Wife argues that the court erred by not ordering retroactive
child support from the date she filed her petition for divorce, October 18,
2013. “[I]f the court deems child support appropriate, the court shall direct,
using a retroactive application of the child support guidelines to the date of
filing a dissolution of marriage . . . the amount that the parents shall pay for


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the past support of the child.” A.R.S. § 25-320(B). Retroactive child support
is mandatory from the filing of the petition, even if a party does not request
it, and requires the court to “apply the guidelines to the factual
circumstances as they existed in the previous months for which the court is
ordering child support.” Simpson v. Simpson, 224 Ariz. 224, 226, ¶¶ 9-10
(App. 2010). In calculating retroactive child support, the court may take into
account temporary or voluntary child support that has been paid. A.R.S.
§ 25-320(B).

¶12           The court awarded retroactive child support based on income
disclosures that showed Husband’s income between June 1, 2014 and June
23, 2017. The court awarded retroactive child support for those dates only.
Wife argues that the court should have also awarded retroactive child
support between October 18, 2013—the date of the petition for
dissolution—and June 1, 2014. But evidence in the record indicates that the
couple lived in the same house during that time period. Thus, while the best
practice would have been for the court to explain on the record why it
declined to award child support during that period, evidence supports the
court’s award of $0. We thus discern no error in the court declining to award
retroactive child support between October 18, 2013, and May 31, 2014.

       C.     Tax Deductions for Minor Child

¶13            The superior court ordered that Husband claim the child as
dependent on taxes for three years, then Wife for one year, with the cycle
repeating every four years. With no citation to authority, Wife argues that
because she cares for the child full-time, Husband and Wife should share
the benefit of tax deductions equally. We disagree. Considering the
disparity in income between the parents, it was within the court’s discretion
to allocate tax deductions accordingly. See A.R.S. § 25-320 app. § 27 (“All
the federal and state tax exemptions applicable to the minor children shall
be allocated between the parents . . . in a manner that allows each parent to
claim allowable federal dependency exemptions proportionate to adjusted
gross income . . . .”). There is ample evidence in this record to support the
superior court’s division of the income tax deduction.

III.   Wife’s Individual Expenditures for Community Responsibilities

¶14            Wife asserts that “community responsibility” expenses
(school tuition, home repairs, mortgage payments, and various medical
costs for the children) were properly disclosed and that the superior court’s
failure to order reimbursement of the expenditures was in error. Arizona
Rule of Family Law Procedure (“ARFLP”) 76.1(f)(6) requires that a party



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include “detailed and concise statements of contested issues of fact and
law” in the pretrial statement.2 Unless the court orders otherwise for good
cause, a party cannot present a witness or offer an exhibit other than those
listed on the pretrial statement. ARFLP 76.1(h).

¶15           Wife asserts she disclosed these expenditures in bank
statements and a spreadsheet attached to a supplemental disclosure before
trial. Regardless, these expenses were not addressed in either party’s
pretrial statement. Because “the pretrial statement controls the subsequent
course of the litigation,” the court did not err in denying to award
reimbursement for the Wife’s untimely claims. See Leathers v. Leathers, 216
Ariz. 374, 378, ¶ 19 (App. 2007) (citation omitted) (holding that listing a
community asset “in earlier papers” without including it in the pretrial
statement did not place the issue properly before the court).

IV.   Spousal Maintenance

¶16           Husband and Wife agree that Wife is entitled to spousal
maintenance but disagree about how much and how long maintenance
should be awarded. Once the superior court finds that spousal maintenance
is appropriate, the court must then determine a fair amount and duration
for the award, considering all relevant factors under A.R.S. § 25-319(B).
Gutierrez, 193 Ariz. at 348, ¶ 15.

¶17          Wife challenges the court’s findings about her career
opportunities, excessive or abnormal expenditures, ability to meet her
needs, and Husband’s ability to pay spousal maintenance. The court made
extensive findings to support its award, illustrating its consideration of
each required factor. A.R.S. § 25-319(B). The court’s spousal maintenance
award was within its sound discretion and is fully supported by the record.
We affirm the award of spousal maintenance.

V.    Domestic Violence Findings

¶18           Wife asks this court to vacate the trial court’s finding that
there was no history of domestic violence, arguing that the issue was not
litigated. Wife asserts that “the disputed issue had been resolved by
settlement,” pointing to a Notice of Settlement in the record. The cited
Notice only mentions settlement regarding payment for private school

2The Rules of Family Law Procedure were amended during the pendency
of this appeal. No material changes affect the outcome of this case and
therefore, unless noted, we cite to the current rules. Compare ARFLP
76(C)(1)(i) (2017) with ARFLP 76.1(f)(6) (2019).


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                           Decision of the Court

tuition and does not appear relevant to the issue of any history of domestic
violence within the family. Wife did not present evidence of abuse at trial,
so the court was free to find that there was no history of domestic violence
or child abuse. See A.R.S. § 25-403.03(C).

VI.    Tax Liability

¶19             Wife objects to the portion of the decree equally splitting a
$24,738 tax liability from 2012 to 2013. Wife presented tax forms at trial
showing income and cash distributions from CardioJost for the years 2013
and 2014. The first tax form, showing Wife’s shareholder income for 2013,
attributes income and a cash distribution to Wife. The following year, the
form reported that Wife received income from CardioJost, but did not show
any cash distribution. CardioJost’s CPA testified that the second tax form
reporting income and cash to Wife was a mistake, and would be amended
to “show[] zero.” The superior court attributed to Husband all tax liabilities
derived from the erroneous reporting, including fees and interest, and split
tax liability for 2012-2013 equally.

¶20          The court was free to rely on testimony indicating that the
mistake would be corrected. The court split the remaining tax liability
incurred during the marriage equally and placed all responsibility for the
erroneously reported income and distributions on Husband. We detect no
error. The court’s allocation of tax liability is supported by reasonable
evidence.

VII.   Attorney Fees

¶21           Wife argues that the superior court erred by denying her
request for attorney fees. Under A.R.S. § 25-324, the superior court may
order one party to pay attorney fees and costs after considering “the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.” MacMillan v. Schwartz,
226 Ariz. 584, 592, ¶ 36 (App. 2011).

¶22            The court found the substantial disparity of income between
the parties was “equally balanced” by Wife’s unreasonable actions in
litigation. Specifically, the court highlighted Wife’s position seeking a
lifetime award of spousal maintenance “without making any reasonable
effort to obtain employment.” The superior court properly considered the
financial resources and reasonableness of positions of both parties. Awards
of attorney fees are well within the superior court’s discretion and we thus
detect no error.



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VIII. Denial of Motion to Compel and Award of Attorney Fees to
      CardioJost

¶23           Wife moved to compel disclosure of documents related to the
value of CardioJost from the business itself. She now appeals the superior
court’s award of attorney fees to the business in connection with its denial
of Wife’s motion to compel under Rule 65 of the Arizona Rules of Family
Law Procedure. Wife also disputes the need for CardioJost to hire an
attorney because Husband had assumed control of the business, and his
attorney could have represented both Husband and CardioJost. She claims
that the business retaining separate counsel needlessly added expenses.

¶24              A party can file a motion to compel disclosure and request for
sanctions under Rule 65(a)(2)(A) if a party fails to disclose required
information. If the motion is denied, the court may award the party or
person who opposed the motion reasonable expenses and attorney fees
incurred to oppose the motion. ARFLP 65(a)(4)(B). CardioJost is not a party
to the dissolution of marriage. Wife was not entitled to compel a non-party
to disclose documents. ARFLP 65(a)(2)(A). Because Wife’s motion was
unsupported and correctly denied, the court did not err in awarding
reasonable attorney fees to CardioJost. It was within the court’s discretion
to award attorney fees to CardioJost’s separate counsel and we detect no
error. See also Pipkins v. Helm, 132 Ariz. 237, 239 (App. 1982) (“Due process
of law, as it is expressed through the right-to-counsel provisions of the state
and federal constitutions, comprehends a right to appear and defend with
retained counsel of one’s own choice.”).

                               CONCLUSION

¶25           For the foregoing reasons, we affirm the superior court.

¶26         Wife asks for attorney fees on appeal under A.R.S. § 25-324.
Husband asks for attorney fees and costs under A.R.S. § 25-324, Rules 31
and 65, and ARCAP 21. We decline to award Husband attorney fees, but
because Husband is the prevailing party, he is entitled to costs on appeal
upon compliance with ARCAP 21.




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

                                         8
