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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        ANTHONY DEFRANCESCO,
                            Petitioner/Appellee,

                                        v.

                         ADRIENE DEFRANCESCO,
                           Respondent/Appellant.

                           No. 1 CA-CV 19-0055 FC
                                FILED 12-5-2019


           Appeal from the Superior Court in Maricopa County
                          No. FC2011-091013
                              FN2017-092333
              The Honorable Katherine M. Cooper, Judge

                                  AFFIRMED


                                   COUNSEL

The Murray Law Offices, PC, Scottsdale
By Stanley D. Murray
Counsel for Petitioner/Appellee

Dickinson, Wright, PLLC, Phoenix
By Steven D. Wolfson, Michael R. Scheurich
Counsel for Respondent/Appellant
                   DeFRANCESCO v. DeFRANCESCO
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


J O H N S E N, Judge:

¶1             Anthony DeFrancesco ("Husband") and Adriene DeFrancesco
("Wife") married in 1988 and legally separated in 2012. Husband filed for
dissolution in 2017, and the superior court dissolved the marriage after a
contested hearing. After the court entered its decree of dissolution, Wife
timely appealed the ruling. We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
("A.R.S.") sections 12-120(A)(1) (2019) and -2101(A)(1) (2019).1 Wife appeals
from several of the rulings the superior court made in dissolving the
marriage. For the reasons set forth below and in a separate opinion, see
Ariz. R. Civ. App. P. 28(c); Ariz. R. Sup. Ct. 111(b), we affirm.

                               DISCUSSION

A.     Spousal Maintenance.

¶2             As applied here, the purpose of a spousal maintenance award
"is to achieve independence for both parties and to require an effort toward
independence by the party requesting" the award. Schroeder v. Schroeder,
161 Ariz. 316, 321 (1989). We review the superior court's ruling on spousal
maintenance for an abuse of discretion, and will affirm as long as there is
evidence to support the court's decision. See Cooper v. Cooper, 130 Ariz. 257,
261 (1981). We review questions of law de novo. See Nicaise v. Sundaram, 245
Ariz. 566, 567, ¶ 6 (2019).

¶3           At the time of trial, Wife, a dental hygienist, was 57. It was
not disputed that she qualified for spousal maintenance; the issue was the
amount of the award. Husband proposed $2,000 a month; Wife asked for
$4,500 a month. Wife's gross monthly income was $2,555. She was working
one to two days a week with one dentist and one to two days a week with
another. She also worked three days a week in retail. She was paid $38 an


1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                    DeFRANCESCO v. DeFRANCESCO
                         Decision of the Court

hour as a hygienist and $10.71 an hour in her retail position. In awarding
Wife support of $2,500 a month for five years, the superior court found she
could work as a hygienist up to 32 hours a week while continuing to work
eight hours a week in retail.

¶4              Wife argues the court erred because there were no facts in the
record to support the proposition that "the dental hygienist job market
offered Wife 32 hours per week." At trial, Wife described her efforts to find
another hygienist position in 2018, saying she had dropped off resumes and
applied for jobs on Craigslist. Husband's counsel cross-examined her about
her job search, asserting that an internet search had revealed 71 hygienist
openings in Phoenix. Wife points out the court sustained her objection to
the results of that search, and argues that the court must have relied on facts
outside the record for its conclusion that she could find 32 hours of work a
week as a hygienist.

¶5             The court did not abuse its discretion in attributing 32 hours
of hygienist's pay to Wife. As Husband argues, by Wife's own account, at
the time of trial, she was working between two and four days a week as a
hygienist. Thus, the record supports the conclusion that Wife already
worked four days as a hygienist during some weeks. The court did not
abuse its discretion by concluding Wife could find another position if
needed. One of the dentists who now employs Wife testified she has
excellent hygienist skills. Although Wife argues she has tried but failed to
find an additional hygienist position, when asked on cross-examination
whether she had applied for work at 14 specific dental offices in the Valley,
she admitted she had not applied at six of them and could not say whether
she had contacted four others. We defer to the superior court's
determination of witnesses' credibility and the weight to give conflicting
evidence. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998).

B.     Spousal Maintenance Arrearage.

¶6            Wife asked to be awarded the family home, and the court
granted her request. In its decree, entered October 4, 2018, the court found
the value of the home, net of an encumbrance of $96,000, was $301,839, and
ordered Wife to make an equalization payment of $150,919.50 to Husband
for his one-half equity interest in the home. The court then ruled as follows:

       IT IS ORDERED:

       1. Awarding the residence to Wife.




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                         Decision of the Court

       2. Wife shall pay Husband an equalization payment as set
       forth in this Decree no later than December 31, 2018.

       3. Wife shall re-finance or pay off the [debt] no later than
       December 5, 2018.

       4. If Wife fails to pay the equalization payment timely or fails
       to re-finance/pay off the [debt] timely, then the house shall
       be placed for sale immediately. . . . The net proceeds from the
       sale shall be divided equally, except that Wife will be
       responsible for her allocated share of the [debt] as set forth
       below.

¶7             After the dissolution trial but before the court entered its
decree, Wife filed a petition to hold Husband in contempt. She argued
Husband had failed to comply with an order issued in March 2018
requiring him to pay her temporary spousal maintenance of $5,500 a month.
After a hearing, the court ruled Husband had failed to pay $4,600 in
maintenance due between the March 2018 order and entry of the decree. In
its order, however, the court tied Husband's obligation to pay the arrearage
to Wife's obligation under the decree to make the family-home equalization
payment no later than December 31, 2018. The court ruled as follows:

              Husband shall pay Wife via offset against the
       equalization payment owed by Wife to Husband for his
       equity share of the marital residence. Accordingly, Wife shall
       pay Husband the equalization payment ordered in the
       Decree, less $4600.

              If Wife fails to pay the equalization payment timely,
       Husband's obligation to pay the $4,600 is moot and Wife shall
       not seek further action for payment by Husband.

¶8            On appeal, Wife argues the court erred by miscalculating the
arrearage due (she contends the arrearage amounted to $10,732). Our
record, however, does not allow us to review the amount of the arrearage
ordered by the superior court. As noted, the court ruled after hearing
evidence on the matter, and we have been provided no transcript of that
hearing. See Kohler v. Kohler, 211 Ariz. 106, 108, ¶ 8, n.1 (App. 2005) ("In the
absence of a transcript, an appellate court will presume that the record
supports the trial court's rulings.").




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                   DeFRANCESCO v. DeFRANCESCO
                        Decision of the Court

¶9          Wife also argues the court had no legal basis for conditioning
Husband's obligation to pay the arrearage on her compliance with the
December 31 equalization deadline. We disagree.

¶10           Wife argues installments of spousal maintenance are vested
when they become due and contends the support obligations that gave rise
to the arrearage order preexisted the order requiring Wife to make the
equalization payment. See Jarvis v. Jarvis, 27 Ariz. App. 266, 267-68 (1976).
Wife also points out that the decree provided that if she did not refinance
the debt that encumbered the home in time to make the equalization
payment by December 31, she must sell the home, and that in that event,
she would satisfy her equalization obligation by paying Husband his half
of the net proceeds of the sale (after payment of the debt and taking into
account other offsets). Thus, she argues, on its face, the decree did not
establish December 31 as an absolute deadline to make the equalization
payment but allowed her to wait to make that payment until after the home
sold.

¶11           Husband argues in response that the legal authorities Wife
cites do not apply to the arrearage at issue here because it arose from a
temporary order, not from a final decree. Husband correctly argues that a
temporary support order issued under A.R.S. § 25-315(E) (2019) is subject
to modification thereafter. See Maximov v. Maximov, 220 Ariz. 299, 301, ¶ 7
(App. 2009) ("court retains its authority to modify temporary support nunc
pro tunc"). Wife argues Maximov is distinguishable because the order at
issue there expressly provided it was subject to change. But our holding in
that case was not based on the language of the order but, instead, on § 25-
315(E). See Maximov, 220 Ariz. at 301, ¶¶ 7-8. Wife replies that the arrearage
arose from obligations under the Separation Decree, which was entered in
2012, not under the court's March 2018 temporary orders. As Husband
points out, however, Wife's contempt petition, which gave rise to the
arrearage order, cited the March 2018 temporary orders rather than the
Separation Decree. And when the court ruled on Wife's petition for
contempt, it cited the temporary orders, which became effective in March
2018, not before.

¶12           Finally, Wife argues that the court denied her due process
when it ruled that the arrearage obligation would be effectively canceled if
she did not make the equalization payment by December 31. As noted, the
court ruled on her petition for contempt, effectively amending the decree,
after hearing evidence at a contested hearing. Because we lack a transcript
of that hearing, we have no basis for reviewing her due-process argument.



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                    DeFRANCESCO v. DeFRANCESCO
                         Decision of the Court

C.     Denial of Wife's Request for Attorney's Fees.

¶13           Under A.R.S. § 25-324(A) (2019), the court may order fees
"after considering the financial resources of both parties and the
reasonableness of the positions each party has taken throughout the
proceedings." We review the superior court's ruling on fees under § 25-
324(A) for an abuse of discretion. Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6
(App. 2014).

¶14           In the decree, applying § 25-324(A), the superior court found
"no substantial disparity of financial resources between the parties" and
also that both "acted unreasonably and contributed to the cost of this
litigation." The court concluded that the sole basis for an award of fees to
Wife was Husband's failure, before issuance of temporary orders in March
2018, to comply with an agreement made during the legal separation to
deposit monies into a joint account. The court therefore ruled it would
award Wife a portion of the fees she incurred in litigating that issue before
issuance of the temporary orders in March 2018.

¶15            After Wife submitted a fee affidavit, however, the court sua
sponte reconsidered its prior order and denied fees, citing two reasons. The
court first found that Wife's request for more than $19,000 in fees and costs
"far exceed[ed]" the scope of its prior order. The court also reconsidered the
legal grounds on which it had made the prior award and concluded that
Husband had not acted unreasonably in interpreting his obligation to
deposit monies into the joint account. The court pointed out that, at first, it
had agreed with Husband's contention that he need not continue to deposit
his paycheck, only to ultimately conclude a prior agreement by the parties
required him to continue to do so: "If the Court was confused about
Husband's obligation, how can the Court find that Husband acted
unreasonably under A.R.S. § 25-324? It cannot."

¶16            On appeal, Wife first argues the court abused its discretion by
failing at the outset to award her more of her fees. Wife argues the court
erred both by finding no substantial disparity between the parties'
respective resources and that she acted unreasonably in the course of the
litigation.

¶17           To begin with, Wife argues the court misconstrued the
applicable legal test when it referred to the absence of a "'substantial'
disparity" in the parties' respective resources. Citing Magee v. Magee, 206
Ariz. 589, 591, ¶ 8, n.1 (App. 2004), Wife argues that under § 25-324(A), the
court must consider whether an award of fees is appropriate whenever it



                                      6
                    DeFRANCESCO v. DeFRANCESCO
                         Decision of the Court

finds a "relative financial disparity." As for reasonableness, Wife also
challenges the court's finding that she could have increased her own
earnings post-petition but voluntarily did not, and argues that Husband's
earnings far outpaced her own.

¶18            Regardless of whether the court improperly based its decision
on the absence of a "substantial disparity" (rather than a "relative disparity")
in resources, the court did not abuse its discretion in finding that the parties'
respective financial positions did not require that Wife be awarded all of
her fees. As the court found, an agreement the parties entered in 2012 in
connection with their legal separation allowed Wife the benefit of
significant resources before the dissolution, and spousal maintenance
ordered in the decree gave her substantial support for five years thereafter.
Wife contends the court erred by concluding that she could have increased
her income by finding additional work as a dental hygienist both before
and after the decree. For the reasons explained supra ¶¶ 4-5, we disagree.

¶19          As for reasonableness of the positions taken, Wife also argues
the court abused its discretion by finding she was partly to blame for the
parties' inability to reach a prehearing compromise on spousal
maintenance. But, again, the basis for this finding by the court was its
conclusion that Wife had the ability to increase her earnings as a hygienist.

¶20           In the decree, as noted, the court ruled that it would award
Wife "a portion of her fees related to" her (1) efforts before December 29,
2017, to resolve a dispute over Husband's obligations to deposit monies for
her use pursuant to the separation agreement and (2) "preparation for and
attendance" at the January 2018 hearing on temporary orders.

¶21           When Wife submitted her detailed statement of fees,
however, she sought fees beyond those she incurred in connection with the
two occasions the court had specified. As she acknowledges, her
application included fees incurred in preparing her petition for contempt,
filed in September 2018, some eight months after the hearing on temporary
orders, and in preparing for and participating in an evidentiary hearing on
that contempt petition in November 2018. On appeal, Wife cites no support
for her contention that her fee statement conformed to that ordered by the
court. Contrary to her contention, the decree's fee provision was very
specific and did not grant fees for any task her counsel undertook to enforce
payments due under the separation agreement.

¶22          Finally, the court also did not abuse its discretion in
reconsidering the premise for its original fee award, which was that



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                    DeFRANCESCO v. DeFRANCESCO
                         Decision of the Court

Husband had unreasonably defended his position concerning payments
due under the separation agreement. If, as the court observed, that
agreement was a challenge for the court to interpret, Husband could not be
said to have unreasonably argued it should have been interpreted in his
favor.

                               CONCLUSION

¶23           For the reasons stated above and in our separate opinion, we
affirm the decree and the superior court's post-decree rulings at issue in this
appeal. Both parties ask for their fees under A.R.S. § 25-324(A). In our
discretion, we deny both requests. Husband is entitled to his costs on
appeal contingent on compliance with Arizona Rule of Civil Appellate
Procedure 21.




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




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