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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    EDITH GUISLAN, Petitioner/Appellee,

                                        v.

                 IRWIN A. HELMUS, Respondent/Appellant.

                           No. 1 CA-CV 14-0233 FC
                                FILED 10-20-2015


             Appeal from the Superior Court in Yuma County
                        No. S1400DO201200325
                 The Honorable John Paul Plante, Judge

    AFFIRMED IN PART; VACATED IN PART AND REMANDED


                                   COUNSEL

Law Office of Terri L. Capozzi, Yuma
By Terri L. Capozzi
Counsel for Petitioner/Appellee

Law Offices of Jose De La Luz Martinez, P.L.L.C., Phoenix
By Jose De La Luz Martinez
Counsel for Respondent/Appellant
                          GUISLAN v. HELMUS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Irwin A. Helmus (“Husband”) appeals the family court’s
entry of judgment in favor of Edith Guislan (“Wife”) for $100,000 plus
$5,000 in attorneys’ fees. For the reasons set forth below, we affirm the
judgment, but vacate the award of attorneys’ fees and remand for the family
court to consider the statutory factors applicable to attorneys’ fees under
Arizona Revised Statutes (“A.R.S.”) section 25-324(A) (Supp. 2015).

           FACTUAL AND PROCEDURAL BACKGROUND

¶2              Husband and Wife lived together until February 2012. In
March 2012, Wife petitioned for dissolution of their marriage. In her
petition, Wife sought to recover as her separate property a “safe deposit box
with $90,000.00, gold coins, and gold jewelry” she claimed Husband took
after she left the marital residence. Husband denied any knowledge of the
safe deposit box or its contents.

¶3           At the start of trial, the parties reached agreement on a
community property distribution. See Ariz. R. Fam. Law P. 69(A). They
also agreed that, if the safe deposit box existed, the box and its contents
were Wife’s sole and separate property. Husband continued to deny,
however, that the safe deposit box existed.

¶4             During trial, Husband sought to offer testimony from Kelly
Ruiz. Husband claimed Ruiz would testify that Wife paid her to provide
false testimony about the existence of the box. Ruiz did not appear on the
original trial date, and the family court granted Husband a continuance to
secure her attendance. Husband could not secure Ruiz’s attendance on the
continued date, however, and moved for a second continuance. The family
court denied the motion.

¶5           At the close of trial, having heard testimony from Husband
and Wife, but not Ruiz, the family court found Husband had taken and kept
the safe deposit box and its contents. As part of the dissolution decree, the
court entered judgment against Husband for $100,000, representing the


                                     2
                           GUISLAN v. HELMUS
                            Decision of the Court

value of the box’s contents. See Ariz. R. Fam. Law P. 81(A). The court also
awarded Wife $5,000 in attorneys’ fees. We have jurisdiction over
Husband’s timely appeal pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2015).

                                 ANALYSIS

       I.     The Family Court’s Entry of Judgment for the Value of Wife’s Sole
              and Separate Property was Authorized by A.R.S. § 25-318.

¶6             Before addressing Husband’s challenges to the judgment, we
turn to a statutory interpretation issue the parties do not address. Division
of property in a dissolution proceeding is governed by A.R.S. § 25–318
(Supp. 2015), which limits the court’s authority over sole and separate
property to assigning to each spouse his or her separate property and
impressing a lien where appropriate. Weaver v. Weaver, 131 Ariz. 586, 587,
643 P.2d 499, 500 (1982). As previously noted, the parties stipulated that, if
it existed, the safe deposit box and its contents were Wife’s sole and
separate property. We therefore must determine whether the family court
exceeded its statutory authority by granting Wife a money judgment for the
value of her sole and separate property. See Thomas v. Thomas, 220 Ariz. 290,
292, ¶ 8, 205 P.3d 1137, 1139 (App. 2009) (“In a dissolution proceeding, the
superior court is vested only with jurisdiction provided by law.” (citations
omitted)).

¶7              Our supreme court has previously addressed this issue. In
Proffit v. Proffit, a wife took possession of savings bonds that belonged to
her husband, then redeemed them. 105 Ariz. 222, 223, 462 P.2d 391, 392
(1969). As part of its dissolution decree, the trial court entered judgment
against the wife in the amount she received for the bonds. Id. Our supreme
court affirmed this part of the decree, holding that § 25-318 authorized the
court to grant a money judgment representing the value of the husband’s
bonds. Id. at 224, 462 P.2d at 393. Later, in Weaver, our supreme court held
that a trial court cannot grant a money judgment when one spouse damages
the other’s sole and separate property. 131 Ariz. at 587, 643 P.2d at 500. The
Weaver court expressly distinguished Proffit, stating that Proffit “was
premised upon the defendant’s actual possession of the other spouse’s
separate property which happened to be in the form of money.” Id.

¶8             The present case is analogous to Proffit, not Weaver, because it
hinges on actual possession of separate property. The family court found
Husband “took” and “kept” Wife’s sole and separate property, which was
largely in the form of cash. Moreover, Wife did not allege Husband damaged
the box or its contents. Therefore, the family court was authorized to grant



                                      3
                            GUISLAN v. HELMUS
                             Decision of the Court

a money judgment for the value of Wife’s missing sole and separate
property. See Proffit, 105 Ariz. at 225, 462 P.2d at 394 (“The divorce decree
directing defendant to pay a sum of money to plaintiff . . . should be treated
like any other judgment . . . .”); see also In re Marriage of Thorn, 235 Ariz. 216,
221, ¶ 21, 330 P.3d 973, 978 (App. 2014) (holding that the family court can
order a spouse to return sole and separate property, even if the property
has declined in value or changed form).

       II.     Substantial Evidence Supports the Family Court’s Judgment.

¶9             Turning to Husband’s challenges to the judgment, we defer
to the family court’s factual findings and will overturn those findings only
if they are clearly erroneous. Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13, 36
P.3d 749, 754 (App. 2001).

¶10           Husband argues that “at no time did Wife present any
witnesses who presented testimony that this alleged safety deposit box . . .
actually existed.” This is incorrect. Wife testified as to the box’s existence
and the value of its contents, and was entitled to do so. See King v. O’Rielly
Motor Co., 16 Ariz. App. 518, 522, 494 P.2d 718, 722 (1972) (“It is well-
established that an owner may generally estimate the value of his real or
personal property and this is true whether he qualifies as an expert or not.”
(citations omitted)). There was also circumstantial evidence admitted
concerning the existence of the box, in the form of Wife’s contemporaneous
statements to the police, documenting its disappearance from the marital
home. The family court was in the best position to evaluate the credibility
of this evidence.

¶11           Husband also argues Wife contradicted herself in explaining
how she obtained the cash she claimed was in the box. Even assuming
Husband is correct, we defer to the family court’s credibility determinations
where the evidence conflicts. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13,
972 P.2d 676, 680 (App. 1998).

¶12           Husband next claims Wife may have removed the box from
the house during a return visit. Husband’s counsel explored this issue in
cross-examination, but the family court found Wife’s testimony credible.
We generally will not overturn that court’s credibility determinations. See
Reynolds v. United Producers & Consumers Coop., 17 Ariz. App. 145, 147, 495
P.2d 1352, 1354 (1972).

¶13           Finally, Husband argues Wife’s withdrawals of significant
amounts of cash from the bank in March 2012 undermine her claim that she
had a significant amount of cash in the safe deposit box. The family court


                                        4
                          GUISLAN v. HELMUS
                           Decision of the Court

was in the best position to evaluate the testimony regarding these
withdrawals. We see no clear error in the court’s determination. See id.

       III.   The Family Court Did Not Abuse Its Discretion in Denying
              Husband’s Motion for a Second Continuance.

¶14           Husband also argues the family court erred in denying him a
second continuance to secure Ruiz’s testimony. Once a matter is set for trial,
no continuances may be granted “except upon written motion setting forth
sufficient grounds and good cause, or as otherwise ordered by the court.”
Ariz. R. Fam. Law P. 77(C)(1). We will not disturb the family court’s
decision on a motion to continue trial absent an abuse of discretion.
Dykeman v. Ashton, 8 Ariz. App. 327, 330, 446 P.2d 26, 29 (1968). Because
Husband sought a continuance due to an unavailable witness, he was
obligated to show Ruiz’s testimony would be material and that he exercised
due diligence to procure her attendance. See id.

¶15          The family court granted Husband the first requested
continuance based, at least in part, on Husband’s representation that he
could secure Ruiz’s attendance, but she did not appear on the continued
trial date. The family court considered both the materiality of Ruiz’s
purported testimony and Husband’s due diligence before the court denied
Husband’s request for a second continuance. On this record, we cannot say
the family court abused its discretion.

       IV.    The Family Court’s Award of Attorneys’ Fees to Wife Must be
              Vacated and the Matter Remanded.

¶16            Subsection (A) of A.R.S. § 25-324 authorizes the family court
to award a reasonable amount of attorneys’ fees “for the costs and expenses
of maintaining or defending any proceeding under this chapter,” but only
“after considering the financial resources of both parties and the
reasonableness of the [parties’] positions.” We review for an abuse of
discretion an award of attorneys’ fees under § 25–324. Rinegar v. Rinegar,
231 Ariz. 85, 90, ¶ 22, 290 P.3d 1208, 1213 (App. 2012).

¶17          Here, the family court awarded Wife $5,000 in attorneys’ fees
because Wife prevailed and because of the length of the trial:

       THE COURT: . . . It is ordered assessing attorney’s fees in the
       amount of $5000 against [Husband]. You were both here for
       a long enough period of time that, unless [Husband’s counsel]




                                      5
                           GUISLAN v. HELMUS
                            Decision of the Court

       insists, I’m not going to insist on a China Doll affidavit.[1] I
       mean, it couldn’t have been less than that, given between the
       two lawyers and, you know, that would seem to be a
       minimum amount that it could be.

              Do you wish to have a China Doll affidavit? I just can’t
       see that it could be less.

       [HUSBAND’S COUNSEL]: 5000 is –

       THE COURT: A pretty small amount.

       [HUSBAND’S COUNSEL]: -- is reasonable.

Although the family court did not have to make express findings of fact in
support of its fee award, see MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 39,
250 P.3d 1213, 1221 (App. 2011), the court cannot award fees without
considering the statutory factors. See Mangan v. Mangan, 227 Ariz. 346, 352-
53, ¶ 27, 258 P.3d 164, 170-71 (App. 2011). Moreover, “§ 25-324 does not
establish a prevailing party standard for awarding fees.” Breitbart-Napp v.
Napp, 216 Ariz. 74, 84, ¶ 39, 163 P.3d 1024, 1034 (App. 2007) (citation
omitted). Because the record does not indicate the family court considered
the statutory factors, the attorneys’ fees award to Wife was an abuse of
discretion. Accordingly, we vacate the award of attorneys’ fees to Wife and
remand for the family court to consider attorneys’ fees in light of the
statutory factors enumerated in A.R.S. § 25-324(A).

       V.     Wife’s Request for Attorneys’ Fees on Appeal is Denied.

¶18             Wife requests attorneys’ fees on appeal pursuant to § 25-
324(A). The record does not reflect any significant current financial
disparity as between the parties, and Husband’s arguments on appeal were
not unreasonable. We therefore decline to award fees. See Leathers v.
Leathers, 216 Ariz. 374, 379, ¶ 22, 166 P.3d 929, 934 (App. 2007) (recognizing
this court must examine the parties’ financial resources and the
reasonableness of their positions before awarding fees under § 25-324);
Magee v. Magee, 206 Ariz. 589, 593, ¶ 18, 81 P.3d 1048, 1052 (App. 2004)
(“[R]elative financial disparity between the parties is the benchmark for
eligibility.”). We grant Wife her taxable costs on appeal, however, upon her
compliance with Rule 21, ARCAP.


1     See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 189, 673 P.2d 927,
933 (App. 1983).


                                       6
                          GUISLAN v. HELMUS
                           Decision of the Court

                             CONCLUSION

¶19            We affirm the judgment of the family court, except for the
award of attorneys’ fees to Wife, which we vacate. We remand for the
family court to consider the statutory factors relevant to the consideration
of attorneys’ fees under A.R.S. § 25-324(A).




                               :ama




                                      7
