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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

             MIGUEL LUIS CERECERES, Petitioner/Appellant,

                                        v.

                 EMMA CERECERES, Respondent/Appellee.

                           No. 1 CA-CV 15-0225 FC
                             FILED 2-11-2016


           Appeal from the Superior Court in Maricopa County
                          No. FN2013-091374
            The Honorable Bethany G. Hicks, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

The Sobampo Law Firm, PPLC, Phoenix
By F. Javier Sobampo
Counsel for Petitioner/Appellant

Law Office of Fredrick M. Jones, Phoenix
By Fredrick M. Jones
Counsel for Respondent/Appellee
                       CERECERES v. CERECERES
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1            This appeal arises out of a decree of dissolution, which
petitioner/appellant Miguel Cereceres argues inequitably divided
community property and improperly awarded respondent/appellee
Emma Cereceres attorneys’ fees. We disagree with both arguments and
affirm the decree.

                              DISCUSSION

I.    Division of Community Property

      A.     The Real Property

¶2            Miguel first argues the family court improperly classified
Arizona real property—a residence and a rental—as Emma’s separate
property because he did not intend to disclaim his community property
interest. Thus, he argues the family court’s misclassification resulted in an
inequitable division of the Arizona properties when it awarded them and a
promissory note to Emma. See infra ¶¶ 3-4. Even assuming Emma failed to
prove Miguel disclaimed his interest in the Arizona properties, neither he
nor Emma presented the family court with any evidence of their value. Reed
v. Reed, 82 Ariz. 168, 172, 309 P.2d 790, 793 (1957) (when the parties do not
present evidence of the value of the property to be divided, “[t]he sole duty
of the judge [is] to use his best judgment under the circumstances”).
Accordingly, even if the Arizona properties were properly classified as
community property, we cannot say the family court abused its discretion
in awarding them to Emma given the parties’ failure to provide any
evidence of their value and the family court’s decision to award Miguel four
parcels of community real property in Mexico. See Gutierrez v. Gutierrez,
193 Ariz. 343, 346, ¶ 5, 972 P.2d 676, 679 (App. 1998) (“The trial court’s
apportionment of community property will not be disturbed on appeal
absent an abuse of discretion.”).




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       B.     Miguel’s Waste and the Promissory Note

¶3            Miguel next argues the family court abused its discretion in
awarding the promissory note to Emma because it was also community
property, and thus subject to equitable division. Gutierrez, 193 Ariz. at 346,
¶ 5, 972 P.2d at 679. We disagree.

¶4             The family court must divide community property equitably,
which generally means the family court divides it substantially equally.
Ariz. Rev. Stat. (“A.R.S.”) § 25-318(A) (Supp. 2015); Toth v. Toth, 190 Ariz.
218, 221, 946 P.2d 900, 903 (1997). The family court may, however, order an
unequal division of community property if it finds “excessive or abnormal
expenditures, destruction, concealment or fraudulent disposition of
community . . . property . . . .” A.R.S. § 25-318(C) (“waste”). If the family
court finds waste, it “may, when apportioning the community property,
award money or property sufficient to compensate the other spouse for that
waste.” Hrudka v. Hrudka, 186 Ariz. 84, 93, 919 P.2d 179, 188 (App. 1995).
The family court awarded the promissory note to Emma, and based on our
reading of its findings, it did so because Miguel wasted community assets.

¶5            Miguel argues, however, that Emma produced insufficient
evidence for the family court to find he committed waste. The party
asserting waste must make “a prima facie showing” of such expenditures,
but the accused party then “bear[s] the burden of showing that the money
was spent to benefit the community.” Gutierrez, 193 Ariz. at 346-47, ¶ 7, 946
P.2d at 679-80. Viewing “the evidence in the light most favorable to
sustaining the [family] court’s findings” and determining “whether there
was evidence that reasonably supports” those findings, we conclude there
was. Id. at ¶ 5.

¶6            Here, Emma made a prima facie showing of Miguel’s waste
supported by reasonable evidence that he started a new family in Mexico
and supported it with community funds. Miguel admitted he had an
extramarital affair in Mexico that resulted in the births of two children, one
in 2002 and the other in 2008. Emma testified she had “regularly”
transferred money to Miguel during his trips to Mexico, which lasted up to
two months at a time, and the parties’ son testified he saw his father living
with his second family in Mexico. And although Miguel denied supporting
his second family, the family court found his testimony not credible.
Furthermore, Miguel took community vehicles to Mexico and sold them for
about $18,000; failed to provide support for his minor children in Arizona;
and spent $50,000 received from the sale of community property during a




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                          Decision of the Court

trip to Mexico. Thus, Emma presented reasonable evidence for the family
court to find Miguel committed waste.

      C.     Emma’s Waste

¶7           Miguel next argues the family court improperly divided the
community property by not considering Emma’s waste. He argues Emma
committed waste by not sharing with him the proceeds of a second
mortgage and a flood insurance claim from the Arizona residence. The
record shows, however, that the proceeds from both went back to the
community. The second mortgage proceeds helped pay for the Arizona
rental, and the flood insurance claim proceeds paid for repairs to the
Arizona residence. 1 Thus, neither of these acts constituted waste.

¶8            Miguel also argues Emma wasted community assets by
conveying a truck to her nephew. Miguel failed to support this claim with
reasonable evidence. Gutierrez, 193 Ariz. at 346, ¶¶ 9-10, 946 P.2d at 679.
At trial, Miguel testified the truck “ended up in [Emma’s nephew’s] hands”
but he did not know “if she gave it to him or sold it to him,” and Miguel
only produced the truck’s title.

¶9          On this record, the family court did not inequitably divide the
community property. Miguel failed to provide valuation evidence for the
Arizona properties; Emma provided reasonable evidence of Miguel’s
waste; and Miguel failed to rebut Emma’s prima facie showing by proving
he used community assets for the community’s benefit. 2



             1We    assume, arguendo, these properties are community
property as Miguel argues. If Miguel disclaimed both properties, then
Emma still did not commit waste because the proceeds would be her
separate property. Gutierrez, 193 Ariz. at 346, ¶ 6, 972 P.2d at 679 (“The
[family] court is specifically authorized to consider excessive or abnormal
expenditures and the concealment or fraudulent disposition of community
property when apportioning community property.”).

             2Miguel    also argues the family court improperly divided the
community property because it based its division on marital misconduct,
in violation of A.R.S. § 25-318(A). Although the statute prohibits the family
court from considering marital misconduct in dividing community
property and property held in common, the family court did not violate this
statute in dividing the marital property. It based its division on Miguel’s
waste, not on his marital misconduct.


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II.   Attorneys’ Fees

¶10           Finally, Miguel argues the family court abused its discretion
in awarding $2,000 in attorneys’ fees to Emma because it awarded the
promissory note and its income to her. Myrick v. Maloney, 235 Ariz. 491,
494, ¶ 6, 333 P.3d 818, 821 (App. 2014). Under A.R.S. § 25-324(A) (Supp.
2015), the family court may, “after considering the financial resources of
both parties and the reasonableness of the positions each party has taken
throughout the proceedings,” award “a reasonable amount” of attorneys’
fees.

¶11            In awarding fees to Emma, the family court noted Miguel
initially defaulted in the case, and also failed to file proposed findings of
fact and conclusions of law, as specifically ordered by the family court.
Under these circumstances, the family court did not abuse its discretion in
awarding Emma attorneys’ fees.

                              CONCLUSION

¶12           We affirm the family court’s decree of dissolution. Based on
the record before us, we deny Emma’s and Miguel’s separate requests for
attorneys’ fees on appeal. We award Emma her costs on appeal contingent
upon her compliance with Arizona Rule of Civil Appellate Procedure 21.




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