                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                              In re the Marriage of:

                 WILLIAM W. CUTTER, Petitioner/Appellant,

                                          v.

             CAMILLA MARIE CUTTER, Respondent/Appellee.

                              No. 1 CA-CV 12-0686
                               FILED 2-27-2014


           Appeal from the Superior Court in Maricopa County
                          No. FC 2008-001945
            The Honorable Michael R. McVey, Judge (Retired)

 AFFIRMED IN PART; VACATED IN PART; REMANDED IN PART


                                    COUNSEL

Ryan Rapp & Underwood, P.L.C., Phoenix
By Christopher T. Rapp, Polly S. Rapp
Co-Counsel for Petitioner/Appellant

Warner, Angle, Hallam, Jackson & Formanek, P.L.C., Phoenix
By Charles R. Hallam, Tracey Ann Van Wickler
Co-Counsel for Petitioner/Appellant

Cavanagh Law Firm, Phoenix
By Philip C. Gerard, William F. Begley
Counsel for Respondent/Appellee
                           CUTTER v. CUTTER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.


D O W N I E, Judge:

¶1           William W. Cutter (“Husband”) challenges certain orders of
the superior court in this dissolution proceeding. For the following
reasons, we affirm in part, vacate in part, and remand in part.

                FACTS AND PROCEDURAL HISTORY

¶2            Husband and Camilla Marie Cutter (“Wife”) were married
in 1988. Husband filed for divorce in 2008. After a multi-day bench trial,
the court issued an unsigned minute entry ruling dissolving the parties’
marriage and resolving various contested issues. The court ordered
Husband to lodge a decree consistent with the ruling, which he did
(“Original Decree”).

¶3            Before the Original Decree was signed, Wife filed a motion
to amend or clarify the court’s ruling. Husband filed a Motion to Amend
Findings and Motion for New Trial, asserting, inter alia, that the court had
issued inadequate findings of fact and conclusions of law. Wife
responded in opposition and noted that although “neither party made a
formal request for findings pursuant to Rule 82(A),” both had “submitted
proposed findings, and amended those findings before the final
argument.” See Ariz. R. Fam. L.P. 82(A). Wife asked the court to make
additional findings, which she set forth in her response.

¶4            The court denied Husband’s motion and Wife’s request for
additional findings and signed the Original Decree. Husband thereafter
filed a Motion to Amend Decree and Motion for New Trial. He explained
that he had submitted proposed findings of fact and conclusions of law
before trial and had later submitted amended proposals based on the
court’s oral instructions during trial. Wife responded in opposition and
contemporaneously lodged an Amended Decree that largely mirrored the
Original Decree, though it corrected certain errors that the court had since
corrected.




                                     2
                           CUTTER v. CUTTER
                           Decision of the Court

¶5            The court denied Husband’s motion and signed the
Amended Decree. The court later ordered Husband to pay Wife’s
attorneys’ fees in the sum of $115,802.01, plus interest.

¶6          Husband timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1) and (A)(5)(a).

                               DISCUSSION

¶7           Husband challenges: (1) the characterization of certain
Cutter Holding Company (“CHC”) 1 stock as community property; (2)
valuation of the CHC stock and the corresponding effect on a court-
ordered equalization payment; (3) the spousal maintenance award; and (4)
the attorneys’ fees award in favor of Wife. More globally, Husband also
contends that the court failed to render adequate findings of fact and
conclusions of law.

I.     Applicability of Rule 82

¶8             A threshold question is whether the parties triggered the
superior court’s duty to issue findings of fact and conclusions of law.
Arizona Rule of Family Law Procedure (“Rule”) 82(A) states that the
court, “if requested before trial, shall find the facts specially and state
separately its conclusions of law thereon.”

¶9              On April 17, 2009, the court issued a “Trial Setting Order,”
stating, inter alia, that “any party filing a request for findings of fact and
conclusions of law pursuant to Rule 82, Arizona Rules of Family Law
Procedure, shall submit proposed findings of fact and conclusions of law
to this Division no later than 20 days prior to trial.” Thirteen days before
trial, Wife filed her proposed findings of fact and conclusions of law. Ten
days before trial, Husband submitted his own proposed findings and
conclusions “pursuant to the Court’s Minute Entry dated April 17, 2009.”
During trial, counsel and the court discussed the fact that both parties had
submitted proposed findings of fact and conclusions of law prior to trial.
The court directed counsel to “take what you’ve already filed [and] amend
them to what you think conforms to the evidence.” Both parties complied
by filing amended proposed findings of fact and conclusions of law.


1     Cutter Flying Services became Cutter Holding Company in 1997.
For consistency’s sake, we refer to the entity throughout this decision as
“CHC.”



                                      3
                           CUTTER v. CUTTER
                           Decision of the Court

¶10            The parties’ filings were sufficient to trigger the superior
court’s duty to “find the facts specially and state separately its conclusions
of law thereon.” Ariz. R. Fam. L.P. 82(A). We recognize that neither party
filed a stand-alone request for findings of fact and conclusions of law and
that they filed their initial proposed findings a few days after the deadline
stated in the trial-setting order. The submissions were, however, filed
within the timeframe set by Rule 82. The court’s comments during trial
gave no hint that the pretrial filings would later be deemed insufficient.
And Husband clearly satisfied his duty to alert the court to perceived
deficiencies in its findings and conclusions before appealing. See Elliott v.
Elliott, 165 Ariz. 128, 134, 796 P.2d 930, 936 (App. 1990) (parties must
object to inadequate findings and conclusions before appealing to afford
the trial court a cure opportunity).

¶11           Wife essentially conceded that the court’s minute entry
ruling was insufficient and asked the superior court to resolve Husband’s
objections by adopting additional findings of fact that she set forth in her
response. Additionally, before the Amended Decree was entered, Wife
filed a “Motion for Additional Findings of Fact, Conclusions of Law, and
Amended Decree.” She referenced her earlier request that the court “add
additional findings in support of its ruling,” and sought specific
additional findings and conclusions, stating:

       Though this Court’s June 7, 2010 ruling and orders made
       numerous ultimate findings, the additional findings
       previously requested by Wife should be added to the Decree
       in order to bring this lengthy and [contentious] litigation to
       an end after Husband’s promised appeal. Certainly this
       Court understands that the ultimate findings are in fact
       supported by the additional findings of fact requested by
       Wife, and the ability to point to those findings by the trial
       court, as opposed to referencing various portions of the trial
       transcript, will facilitate the Court of Appeals’ review of the
       trial court’s resolution of the issues.

¶12           Having determined that the superior court was required to
issue findings of fact and conclusions of law, we discuss certain
deficiencies in that regard infra. When a request for findings of fact and
conclusions of law has been made, an appellate court will not examine the
evidence of record and “infer that the trial court has made the additional
findings necessary to sustain its judgment.” Elliott, 165 Ariz. at 135, 796




                                      4
                            CUTTER v. CUTTER
                            Decision of the Court

P.2d at 937 (analyzing the analogous Rule 52 of the Arizona Rules of Civil
Procedure). 2 In considering the adequacy of the findings, we are guided
by the principle that they “must encompass all of the ‘ultimate’ facts—that
is, those necessary to resolve the disputed issues in the case.” Id. at 132,
796 P.2d at 934. As our supreme court has explained:

       An appellate court must be able to discern more than a
       permissible interpretation of the trial court’s analysis. The
       reviewing court needs a sufficient factual basis that explains
       how the trial court actually arrived at its conclusion. Without
       this explanation, “an appellate court cannot effectively
       review the decision-making process of the trial court.”

Miller v. Bd. of Supervisors, 175 Ariz. 296, 299, 855 P.2d 1357, 1360 (1993)
(citations omitted). Elliott is even more specific in addressing the need for
findings of fact in support of monetary awards that are stated as
mathematical figures:

       When the issue of child support or spousal maintenance is
       resolved, the result is a mathematical figure that represents
       the amount of the award. As we explained in Reed v. Reed,
       154 Ariz. 101, 740 P.2d 963 (App.1987), such a figure does
       not inform an appellate court of the basis for the trial court’s
       decision. Consequently, it does not enable an appellate
       court to conduct the type of review that Rule 52(a) requires.

165 Ariz. at 132, 796 P.2d at 934.

II.    Characterization of CHC Stock

¶13           The court ruled that Husband owned 108 shares of CHC
stock prior to marriage and that he received an additional 29 shares
during the marriage as a gift from his father. The court awarded those
shares to Husband as his sole and separate property, and they are not at
issue on appeal. The court also concluded that 156.9 shares of CHC stock
were community property. It awarded those shares to Husband, with an
offsetting equalization payment to Wife. Husband contends that 30.59 of



2      Rule 82 of the Rules of Family Law Procedure is based on Rule 52
of the Arizona Rules of Civil Procedure, see Rule 82 cmt., so cases arising
under Rule 52 are instructive.



                                      5
                           CUTTER v. CUTTER
                           Decision of the Court

the shares deemed community property were in fact his sole and separate
property because they were purchased with his sole and separate funds.

¶14            “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, 118 P.3d 43, 45-46 (App. 2005). Clear and convincing
evidence “indicates that ‘the thing to be proved is highly probable or
reasonably certain’” and “places a heavier burden upon one party to
prove its case to a reasonable certainty.” Kent K. v. Bobby M., 210 Ariz. 279,
284-85, ¶ 25, 110 P.3d 1013, 1018-19 (2005).

¶15           The 30.59 shares at issue are part of an April 30, 2002
transaction whereby Husband purchased 35.75 shares of CHC stock from
his father (“2002 Shares”). Husband signed a promissory note (“2002
Note”) that consolidated the purchase price for the 2002 Shares
($493,430.34) with a pre-existing promissory note owing to his father in
the sum of $333,767.90.

¶16           Husband retained Gary Freed of Clifton Gunderson, LLP,
(“CG”) to trace the funding sources for the 2002 Shares. Freed opined that
community funds purchased between 3.76 and 5.16 of the 2002 Shares and
that the remaining 2002 Shares (30.59) were purchased with Husband’s
sole and separate funds. According to Freed, the Bank of America 1365,
Charles Schwab 3156, and JP Morgan 8931 accounts were Husband’s sole
and separate property when the relevant payments were made from those
accounts.

¶17           Freed’s opinions were challenged on cross-examination.
Freed conceded that his conclusions were affected by Husband’s
characterization of the accounts as “separate.” Freed also admitted that
his calculations regarding the distribution of “community” and
“[sole and] separate” portions were based on the full amount of the 2002
Note, which combined the purchase price of the 2002 Shares with a pre-
existing note. Freed conceded that reconstructing the flow of assets over
20 years was “very difficult.” CG obtained only 14.9% of the documents it
deemed necessary to definitively accomplish this task. The following
colloquy at trial suggests that the superior court was concerned about
inadequate financial documentation and potential comingling:




                                      6
                            CUTTER v. CUTTER
                            Decision of the Court

       THE COURT: . . . you would agree with me that if there
       were missing statements then you couldn’t eliminate the
       possibility of co-mingling?

       [FREED]: I -- I guess -- I’m not sure, because there are times
       that you can look at an account and know what’s in the
       account at the end of a period, see how those assets have
       been invested perennially, and then have a space, and then
       come back six months later and, say, go back to the internet
       and see how those assets would have -- you know, what
       kind of rate of return they would have earned, and you may
       be able to get there. And we’ve had to do that frequently.

       THE COURT: Okay.

       [FREED]: It’s -- you know, unfortunately, it’s not a perfect
       year, and a 20-year span is -- is very difficult.

¶18           We disagree with Husband’s contention that no
presumption of community property attached to the Schwab and JP
Morgan accounts because “Wife offered no specific evidence that the . . .
accounts contained anything other than Husband’s sole and separate
property.” Freed did not testify that these accounts were established
before the parties’ marriage (as he did regarding other accounts), and the
records he relied on for the Schwab and JP Morgan accounts were all
generated during the marriage. As such, those accounts are entitled to the
presumption of community property. Brebaugh, 211 Ariz. at 97-98, ¶ 6, 118
P.3d at 45-46. Roden v. Roden, 190 Ariz. 407, 949 P.2d 67 (App. 1997), upon
which Husband relies, is distinguishable. The comingling issue in Roden
related to a franchise that the husband owned prior to marriage. Id. at
410, 949 P.2d at 70.

¶19            The superior court stated without elaboration that 156.9
shares of CHC stock (which included the 30.59 shares in dispute) were
community property. It made no findings of fact in support of this
conclusory statement. The court may have concluded that Husband failed
to rebut the presumption of community property that attached to the
accounts used to purchase the 2002 Stock. But as noted supra, “[a]n
appellate court must be able to discern more than a permissible
interpretation of the trial court’s analysis. The reviewing court needs a
sufficient factual basis that explains how the trial court actually arrived at
its conclusion.” Miller, 175 Ariz. at 299, 855 P.2d at 1360 (citation omitted).




                                      7
                           CUTTER v. CUTTER
                           Decision of the Court

¶20           Because the superior court did not make adequate findings
of fact in support of its conclusion that the community owned 156.9 shares
of CHC stock, we vacate that determination and remand for additional
findings of fact and, if appropriate, conclusions of law. See id. at 300, 855
P.2d at 1361 (“Where possible, when a trial court in a non-jury case fails to
make or makes insufficient findings of fact and conclusions of law, a
reviewing court should remand the case to the trial court for further
findings.”).

III.   Valuation of CHC Stock

¶21           Before the parties’ marriage, Husband, Kay Cutter
(Husband’s sister), and other family members owned stock in CHC. In
2007, Kay Cutter sold her 39% interest (229.15 shares) for $9 million to two
non-family members (“Minority Shareholders”).                The Minority
Shareholders and Husband had differing visions for the company. In
2008, CHC agreed to redeem the Minority Shareholders’ shares for $11
million, or $48,003.49 per share. The redemption transaction closed on
October 1, 2008.

¶22          Husband asked CG to determine the fair market value of
one share of CHC stock on a non-marketable, minority interest basis, as of
August 31, 2009. CG set that value at $24,304.49. Wife’s expert reviewed
CG’s report and disagreed with certain findings and calculations. Wife’s
expert opined that the value of one share of CHC stock as of August 31,
2009, was $52,229.83.

¶23             The superior court stated simply that it “value[d] this stock
at $48,003.29 per share.” The court did not explain the basis for its
finding, which did not coincide with either expert’s view. We might
presume that the court believed the redemption sale in 2008 was the most
reliable indicator of fair market value. But as noted supra, when findings
of fact are requested, “it is not enough that the appellate court is able to
derive bases on which the trial court could have permissibly reached the
decision it did from the record. It must be clear how the court actually did
arrive at its conclusions.” Elliott, 165 Ariz. at 135, 796 P.2d at 937.

¶24           The need for findings of fact is particularly acute here, where
the selected valuation date has critical implications. Evidence of record
discloses changes in CHC’s financial status after the 2008 redemption
transaction, as well as a global economic downturn of considerable
magnitude. Although a trial court has “wide discretion” in choosing a
valuation date, Sample v. Sample, 152 Ariz. 239, 242-43, 731 P.2d 604, 607-08



                                     8
                            CUTTER v. CUTTER
                            Decision of the Court

(App. 1986), where findings of fact and conclusions of law are required, an
appellate court must be able to discern how and why the trial court chose
a particular valuation figure, which includes selection of an appropriate
valuation date. Cf. Murphy v. Murphy, 46 A.3d 1093, 1097-98 (D.C. 2012)
(finding error in trial court’s failure to consider current valuation of
marital home following housing slump); McDiarmid v. McDiarmid, 649
A.2d 810, 812-13 (D.C. 1994) (finding abuse of discretion in trial court’s
refusal to revalue marital assets after specific proffer that passage of time
resulted in substantial fluctuations in value); Sutliff v. Sutliff, 543 A.2d 534,
537 (Pa. 1988) (affirming a remand order because trial court used the date
of the parties’ separation as valuation date and did not consider
fluctuations occurring between that date and date marital assets were
distributed).

¶25          Because we cannot ascertain the basis for the superior
court’s $48,003.29 per share figure, we vacate that determination and
remand for entry of findings of fact that permit meaningful appellate
review.

IV.    Equalization Payment

¶26           Having vacated the findings regarding the community share
of CHC stock, as well as the valuation of that stock, we must also vacate
the amount of the court-ordered equalization payment to Wife. In large
part, that payment was based on Wife’s share of the community’s interest
in the CHC stock at the stated value.

V.     Spousal Maintenance

¶27           The Amended Decree awards spousal maintenance to Wife
as follows:

       IT IS ORDERED that commencing January 1, 2010,
       Husband shall pay spousal maintenance to Wife in the
       amount of $15,000 per month. . . . However, at such time as
       Husband makes each of his property equalization payments
       in the amount of $542,287, Husband’s spousal maintenance
       obligation shall be reduced by $2,000 per month,
       commencing on the first day of the month following each
       such payment.




                                       9
                           CUTTER v. CUTTER
                           Decision of the Court

¶28           Husband contests Wife’s eligibility for spousal maintenance.
He also challenges the amount and duration of the award and, once again,
contends the superior court’s findings of fact are inadequate.

¶29            As Husband’s counsel essentially conceded at oral argument
before this Court, the contention that Wife is ineligible for an award of
spousal maintenance has been waived. In his written closing argument in
the superior court, Husband did not argue that Wife was ineligible for
spousal maintenance; he instead asked the court to award her $2000 per
month for four years.         Husband’s motion for new trial similarly
challenged only the amount of the spousal maintenance award and did not
assert that Wife was ineligible in the first instance. See Cullum v. Cullum,
215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (As a general
rule, a party cannot argue on appeal legal issues not preserved below.).

¶30           In explaining the amount of the spousal maintenance award,
the superior court addressed several of the statutory factors set forth in
A.R.S. § 25-319(B), stating:

      This was a marriage of almost 20 years before the Petition
      for Dissolution of Marriage was filed. These parties enjoyed
      an exceptionally high standard of living. Husband is 52
      years old. He is the president of Cutter Aviation Company.
      Wife is a 45 year old homemaker. Each party enjoys good
      health.

      Husband’s Affidavit of Financial Information reveals that
      from tax year 2006 through tax year 2008, his gross income
      averaged $2,774,837 per year. In his Supplemental Affidavit
      of Financial Information filed in March 2010, Husband
      claimed that his gross annual income for 2009 was $323,983.
      This is a drastic drop in his gross income. This claimed drop
      was not supported by a federal income tax return, although
      in fairness to husband, the income tax return was not due for
      another month at the time he filed his Supplemental
      Affidavit of Financial Information.

      As noted above, Wife has not worked outside the family
      home since the parties started a family in 1992. At most,
      Wife is capable of earning $24,000 per year. At present, Wife
      has reasonable monthly living expenses of at least $11,000
      per month. This excludes amounts necessary to support the
      parties’ minor children.



                                     10
                           CUTTER v. CUTTER
                           Decision of the Court


According to Husband, the court made inadequate (and incorrect)
findings of fact about the parties’ respective incomes, awarded an amount
of maintenance unsupported by the record or the findings, and erred by
making the award indefinite.

       A.     Husband’s Income

¶31           Husband contends that the court should have set his annual
income at $323,983. He also challenges the use of one income figure for
spousal maintenance ($2,774,837) and a different figure ($323,983) for
child support purposes.

¶32            The court’s findings reveal skepticism about the “drastic
drop” in gross income that Husband was asserting. The court was
entitled to (and apparently did) discredit the notion that $323,983 was an
accurate income figure for Husband. But in light of the request for
findings of fact, the court was required to offer some explanation for
choosing the $2,774,837 figure. See Elliott, 165 Ariz. at 132, 796 P.2d at 934
(A mathematical figure “does not inform an appellate court of the basis
for the trial court’s decision.”). This is particularly so given Husband’s
evidence that he received sizeable distributions from CHC for the sole
purpose of paying taxes attributable to the company.

¶33            We also cannot discern the basis for the court’s use of two
significantly different income figures for Husband when setting spousal
maintenance versus calculating child support. Wife offers plausible
explanations, but we have no way of knowing whether her suppositions
are correct. When a request for findings of fact has been made, the court
must “address all of the factors with respect to which the parties
presented evidence” and “set forth the mathematical basis of the spousal
maintenance award.” Elliott, 165 Ariz. at 132, 796 P.2d at 934. The court
failed to do so here.

¶34         We vacate the superior court’s determination of Husband’s
income and remand for additional findings of fact relevant to that issue.

       B.     Wife’s Income

¶35            The findings of fact regarding Wife’s earning capacity
comport with the opinion of a career consultant hired by Husband, who
testified that Wife could obtain employment paying between $19,000 and
$25,000 per year. However, the court did not discuss the income Wife
receives from her sole and separate interest in Beechwood Manor, LLC,


                                     11
                           CUTTER v. CUTTER
                           Decision of the Court

and Beechwood, Inc. (collectively, “Beechwood”). Tax statements reflect
distributions to Wife from Beechwood averaging $1187 per month from
2005 to 2007. According to Wife, those figures are incorrect. Her affidavit
of financial information states that she receives an average of $334 per
month from these entities. And Wife testified at trial that “going
forward,” she may receive $8000 to $10,000 per year from Beechwood.
The superior court did not mention Wife’s income from Beechwood. Even
if it accepted her trial testimony as true, those amounts must be part of the
income calculus.

¶36            The court also failed to address whether Wife will receive
income from community property apportioned to her in the dissolution
proceedings. See A.R.S. § 25-319(B)(9) (directing courts to consider marital
property apportioned to a spouse in setting spousal maintenance); see also
Elliott, 165 Ariz. at 132, 796 P.2d at 934 (remanding because court failed to
address all relevant factors under 25-319(B) or to “set forth the
mathematical basis of the spousal maintenance award”); Reed v. Reed, 154
Ariz. 101, 106, 740 P.2d 963, 968 (App. 1987) (holding that trial court’s
“limited, generalized determinations” of financial matters were
inadequate and noting that it “failed to set forth even the most
rudimentary arithmetic basis for the particular monthly increase it
ordered petitioner to pay”).

¶37         Because the findings regarding Wife’s income are
inadequate, we vacate the superior court’s determination of her income
and remand for additional findings of fact.

      C.     Amount and Duration of Award

¶38           The superior court found that Wife “has reasonable monthly
living expenses of at least $11,000 per month. This excludes amounts
necessary to support the parties’ minor children.” Without further
explanation, it awarded her spousal maintenance of $15,000 per month
and ordered Husband to pay child support, 100% of the children’s private
school tuition, and one-half of their extracurricular activities.

¶39        We cannot discern why the court ordered $4000 per month
more than Wife’s living expenses, while at the same time ordering
Husband to pay significant sums for the children’s support. Additional




                                     12
                            CUTTER v. CUTTER
                            Decision of the Court

factual findings are necessary to support the amount of the spousal
maintenance award. 3

¶40          Husband also contends that the court erred by making the
award indefinite. Unlike other provisions of the Amended Decree, the
superior court made findings of fact relevant to the duration issue, stating:

       This was a marriage of almost 20 years before the Petition
       for Dissolution of Marriage was filed. These parties enjoyed
       an exceptionally high standard of living. Husband is 52
       years old. He is the president of Cutter Aviation Company.
       Wife is a 45 year old homemaker. Each party enjoys good
       health.

The court also discussed Wife’s limited employment prospects and
fashioned the award such that Husband’s obligation decreases over time if
he makes the court-ordered equalization payments.

¶41              We find no substantial deficiencies in these findings of fact.
If we were not vacating significant underpinnings of the spousal
maintenance award (e.g., determination of the parties’ incomes), we
would leave the court-ordered duration intact. On remand, though,
findings about the parties’ respective financial positions may affect
findings relevant to the duration of the award. For that reason, we vacate
the indefinite award of spousal maintenance, without prejudice to the
court’s ability to reinstate it if the findings of fact on remand support it. 4

VI.     Attorneys’ Fees

¶42           In the Amended Decree, the court awarded Wife 40% of the
fees she had incurred through completion of trial on April 8, 2010, but
stated that “Husband shall be credited with any amounts previously paid

3    The court also failed to make findings regarding Husband’s ability to
meet his own financial needs while meeting Wife’s financial needs. See
A.R.S. § 25-319(B)(4).
4     Our remand order is primarily aimed at obtaining adequate findings
of fact regarding the substantive issues discussed supra. But the superior
court, in its discretion, may also conduct further hearings or direct the
parties to submit proposed findings or additional memoranda on remand.




                                      13
                           CUTTER v. CUTTER
                           Decision of the Court

toward Wife’s attorney’s fees.” The court denied Wife’s request for an
award of expert witness fees.

¶43           Wife ultimately sought 40% of $289,505.03, or $115,802.01.5
Husband filed a rather cursory objection, stating that Wife had “already
used as much as $240,000 of community funds” for fees and requesting an
evidentiary hearing. He did not ask the court to “make specific findings
concerning the portions of any award of fees and expenses that are based
on consideration of . . . reasonableness of positions.” See A.R.S. § 25-
324(A). The court declined to set a hearing and ordered Husband to pay
$115,802.01 of Wife’s fees.

¶44          On appeal, Husband argues that Wife’s fee request was
“barred by laches” and that the superior court abused its discretion by
awarding fees without holding a hearing.

¶45            We decline to consider Husband’s laches argument. He did
not make such a claim in the superior court and has therefore waived it
for purposes of appeal. See Cullum, 215 Ariz. at 355 n.5, ¶ 14, 160 P.3d at
234 n.5 (rejecting legal arguments raised for the first time on appeal).

¶46           Nor was the court required to set an evidentiary hearing.
Rule 78(D)(3) addresses claims for attorneys’ fees in family court
proceedings and states that “a hearing may be granted in the discretion of
the court.” (Emphasis added.) Based on the substance of Husband’s
objection, the superior court did not abuse its discretion by declining to set
a hearing. Husband did not state the purpose of the proposed evidentiary
hearing. He voiced no objection to any specific time entries or dollar
amounts and made only generalized claims that Wife had already used
community funds for fees and had “taken unreasonable positions
throughout this proceeding.”

¶47           We affirm the attorneys’ fees award in favor of Wife.

                              CONCLUSION

¶48        For the foregoing reasons, we affirm in part, vacate in part,
and remand to the superior court for further proceedings. Both parties

5       The $289,505.03 amount included:
    -   Wife’s original attorneys’ fees request ($163,447.03);
    -   Fees detailed in the supplemental application ($58,212.50);
    -   Fees incurred from February 28 through April 8, 2010 ($67,845.50).



                                     14
                           CUTTER v. CUTTER
                           Decision of the Court

have requested an award of attorneys’ fees incurred on appeal pursuant to
A.R.S. § 25-324. In the exercise of our discretion, we decline both requests.
We also decline to award appellate costs to either party. Each was
partially successful on appeal, and no party has clearly prevailed.




                                   :mjt




                                     15
