                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 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:

                     CYNTHIA JEAN VAN LEEUWEN,
                          Petitioner/Appellant,

                                        v.

                    RICHARD ALLEN VAN LEEUWEN,
                          Respondent/Appellee.

                             No. 1 CA-CV 13-0498
                               FILED 12-02-2014


           Appeal from the Superior Court in Maricopa County
                          No. FC2011-092970
                The Honorable Paul J. McMurdie, Judge

       AFFIRMED IN PART; VACATED IN PART; REMANDED


                                   COUNSEL

Katz & Bloom, PLC, Phoenix
By Norman M. Katz
Counsel for Petitioner/Appellant

Richard Allen Van Leeuwen, Gilbert
Respondent/Appellee
                   VAN LEEUWEN v. VAN LEEUWEN
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1             Pursuant to a Decree of Dissolution, the family court divided
community bank accounts, ordered shares of stock be sold and the proceeds
divided and allocated the income tax exemptions of Cynthia Jean Van
Leeuwen (Mother) and Richard Allen Van Leeuwen (Father). Mother filed
a motion to amend three property orders in the Decree and appeals from
the denial of that motion. For the reasons that follow, we affirm the family
court’s allocation of the tax exemptions, but otherwise vacate the property
division as it relates to the community bank accounts and stock sale
proceeds, and remand this case for further proceedings consistent with this
decision.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The parties entered into an Arizona Rule of Family Law
Procedure 69 agreement (Agreement) resolving custody and parenting time
issues for their two minor children, E. and H., and dividing the parties’ real
and personal property, associated debts, and vehicles. The Agreement
provides that Mother will receive a $15,000 equalization payment, which
was to be paid from Father’s share of the community bank accounts. The
family court approved the Agreement and conducted a one-day trial to
resolve the remaining issues.

¶3            In the Decree, the family court found that the community
savings account had an approximate value of $42,000 and the checking
account had an approximate value of $5,000 when the community ended.
Although the Agreement requires a $15,000 equalization payment to
Mother from Father upon the family court’s division of the community
bank accounts, the court nevertheless divided these accounts equally
because “[a]t the trial, the parties agreed that Mother received her $15,000
from the proceeds from the sale of the marital residence. Therefore, no
additional offset is required [in] settling these accounts.”




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                   VAN LEEUWEN v. VAN LEEUWEN
                         Decision of the Court

¶4            The Decree also provided that Father could claim E. as an
eligible dependent for income tax purposes. Additionally, Father could
claim H. as a dependent in even-numbered years and Mother could claim
H. as an eligible dependent in odd-numbered years.

¶5           The Decree also directs the parties to “sell all of the stock and
equally divide the proceeds”, including the parties’ Thrivent stock. Finally,
the Decree noted that Mother is entitled to attorneys’ fees in accordance
with Arizona Revised Statutes (A.R.S.) section 25-324(A) (West 2014)1

¶6            Mother filed a motion to alter, amend and correct the Decree’s
findings pursuant to Rules 84 and 85. She argued that, pursuant to the
Agreement, the family court should have ordered Father to pay Mother the
previously agreed to equalization payment of $15,000 from Father’s one-
half share of the savings account. Furthermore, she contended the family
court erroneously attributed a $5,000 balance to the community checking
account when in fact the checking account had an approximate value of
$20,700 at the time the community ended. Mother also argued that Father
sold some of the parties’ stock without sharing the proceeds. Finally,
Mother argued that because Father had already claimed H. as a tax
exemption for 2011, he should not be allowed this exemption again in 2012.

¶7         The family court denied Mother’s motion and she timely
appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).

                               DISCUSSION

I.     The Savings Account

¶8            Mother contends that the family court erred in equally
dividing the community checking and savings accounts without
accounting for the $15,000 equalization payment she was owed. This court
will affirm an order denying a motion to modify a decree of dissolution
“unless the record on appeal demonstrates a clear abuse of discretion.” De
Gryse v. De Gryse, 135 Ariz. 335, 336, 661 P.2d 185, 186 (1983) (applying
Arizona Rule of Civil Procedure Rule 60(c), a rule analogous to Arizona
Rule of Family Law of Procedure 85.C.). A court abuses its discretion when
it commits a legal error in reaching a discretionary conclusion, makes a
conclusion without considering the evidence, commits another substantial
legal error, or makes findings lacking substantial evidentiary support.

1       We cite the current version of a statute when no revisions material
to this decision have since occurred.



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                   VAN LEEUWEN v. VAN LEEUWEN
                         Decision of the Court

Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d
1149, 1155 (App. 2007). “We view the evidence in the light most favorable
to sustaining the trial court’s findings and will uphold them unless they are
clearly erroneous or unsupported by the evidence.” In re Marriage of Yuro,
192 Ariz. 568, 570, ¶ 3, 968 P.2d 1053, 1055 (App. 1998). We review the
court’s interpretation of statutes and procedural rules de novo. Melgar v.
Campo, 215 Ariz. 605, 606, ¶ 6, 161 P.3d 1269, 1270 (App. 2007); Felipe v.
Theme Tech Corp., 235 Ariz. 520, 524, ¶ 10, 334 P.3d 210, 214 (App. 2014).

¶9            Community property must be divided “equitably, though not
necessarily in kind.” A.R.S. § 25-318(A). It is undisputed that the
community savings account contained approximately $42,000 on the date
of service. The parties’ Agreement provided that Mother would receive the
equalization payment: “[t]he Parties agree that the $15,000 will be awarded
[to] Mother from Father’s half of balances . . . in the former marital bank
accounts numbered 0713 and 6901 at the time of the calculation of the final
settlement payment. These funds are currently in Mother’s possession.”

¶10           Despite the parties’ Agreement, the court did not incorporate
the $15,000 equalization payment when dividing the community bank
accounts. Instead, the court found that “[a]t the trial, the parties agreed that
Mother received her $15,000 from the proceeds from the sale of the marital
residence. Therefore, no additional offset is required” in settling the
checking and savings accounts.

¶11           Mother disputes the court’s characterization of the trial
testimony. Father’s brief concedes that Mother is still due $15,000 as an
equalization payment from Father’s share of the savings account. In view
of Father’s concession, we vacate the family court’s division of the funds in
the savings account and, on remand, direct the family court to order Father
to pay Mother $15,000 from his share of the funds in the savings account.

II.    Checking Account

¶12            Mother also contests the family court’s finding that the
community checking account contained $5,000 on the date of service.
During trial, the family court stated it did not know the balance of the
checking account on the date of service. The only testimony the family
court received about the funds in that account came from Mother, who
testified that the account balance was $12,300 as of September 15, 2011.
Before trial, Mother filed an Objection to Final Consent Decree stating that
the checking account balance was $18,351.02 on June 14. The Decree,




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                   VAN LEEUWEN v. VAN LEEUWEN
                         Decision of the Court

however, listed the value of the checking account as approximately $5,000
and ordered that it be divided equally.

¶13           In her motion to amend, Mother produced the summary page
from her June 2011 checking account statement showing the June 30, 2011
balance as $20,736.65. In response, Father filed a complete copy of the same
June 2011 bank statement that listed a June 24, 2011 balance of $18,351.02.
He likewise asserts on appeal that “the correct amount is $18,351.02.”

¶14            The family court denied Mother’s motion to amend. There
was no exhibit or trial testimony to support the $5,000 balance. Because
there is no pre-trial or trial evidence to support this finding, and the family
court received evidence of the account balance as part of the briefing on
amending the Decree, the court abused its discretion by not amending the
Decree to divide $18,351.02 instead of $5,000. See Armer v. Armer, 105 Ariz.
284, 291 463 P.2d 818, 825 (1970) (rejecting family court’s findings of fact
relating to its characterization of property and the parties’ interests). On
remand, the family court shall amend the Decree to equally divide the
$18,351.02 from the checking account between the parties.

¶15            On appeal, Father argues that the checking account should be
divided as of September 15, 2011. We will not consider his argument
because Father never filed a cross-appeal challenging the court’s valuation
date. See A M Leasing Ltd. v. Baker, 163 Ariz. 194, 195-96, 786 P.2d 1045, 1046-
47 (App. 1989) (refusing to consider argument concerning the existence or
priority of an asserted lien because the appellee was seeking to recover a
greater amount for parts and labor without having filed a cross-appeal); see
generally ARCAP 13(b)(3); I-A Arizona Appellate Handbook § 3.3.3.2.1, at
3-33 (Philip Hall & Pamela B. Petersen, eds., 5th ed. 2010) (an appellate court
“can only alter the judgment in a manner favorable to the appellee if a cross-
appeal is filed”). Moreover, Father waived his argument by not raising it
in his response to Mother’s motion to amend. See Romero v. Sw. Ambulance,
211 Ariz. 200, 204, ¶ 7, 119 P.3d 467, 471 (App. 2005) (finding waiver because
party failed to present arguments to the superior court).

¶16           Father also argues that Mother is not entitled to additional
“offsets” because she had control of the checkbook, did not deposit her
paychecks into the account, and wrote all but two of the checks between
June and September 2011. Because Father failed to file a cross-appeal, we
will not consider this argument. See A M Leasing, 163 Ariz. at 195-96, 786
P.2d at 1046-47.




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                   VAN LEEUWEN v. VAN LEEUWEN
                         Decision of the Court

III.   Stock Proceeds

¶17           Mother also argues that Father must pay her half the proceeds
from the sale of the Thrivent stock along with half the proceeds from the
sale of any other community stocks. We agree.

¶18           Father testified that he sold the Thrivent stock before trial
without disclosing the sale or compensating Mother. Because the Decree
directed Father to pay Mother for her share of the Thrivent stock and Father
concedes that he owes Mother $941.57 from the Thrivent proceeds, the
family court on remand shall order Father to pay $941.57 to Mother.

¶19            Father also contends that the Thrivent stock is the only “true
community stock.” Although he argues that the Modine stock is Mother’s
separate property and the Bob Evan’s Farm stock is his separate property,
he did not file a cross-appeal and we will not address the issue. See id.2

IV.    Allocation of Tax Exemptions

¶20           Mother also contends that the family court erroneously failed
to amend its allocation of tax exemptions for the parties’ minor children.
She claims that because Father claimed H. in 2011, an odd-numbered year
the Decree allotted to Mother, the court should modify its allocation of the
tax exemptions or order Father to file an amended return for 2011. We
disagree.

¶21            Before the Agreement, the parties entered a consent decree on
September 15, 2011, which was subsequently vacated by the family court
on February 6, 2012. The consent decree provided that each party would
file separate income tax returns starting in 2011. Also, a child support order
entered on the same day stated that Father could claim both children as tax
exemptions for the 2011 tax year and Mother could claim both children for
the 2012 and 2013 tax years. The court vacated that order as well.

¶22         Although the consent decree and support order were vacated,
no other orders were entered and Father took both children as eligible
dependents for the 2011 tax year. The Decree then provided that Father

2      At trial, Father argued that Mother’s parents gifted the parties the
Modine and Bob Evans Farm stock during the marriage, that the parties’
respective shares were their separate property and no community funds
were used to purchase the Modine and Bob Evans Farm stock. The court
properly ordered the stock sold and the proceeds to be divided equally. See
A.R.S. § 25-211(A).


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                   VAN LEEUWEN v. VAN LEEUWEN
                         Decision of the Court

would take E. as a tax exemption every year. It further provided that Father
could claim H. in even numbered years, and Mother could claim the child
in odd-numbered years. Because the Decree was entered on April 30, 2013
Father had already claimed H. and E. as tax exemptions on his 2011 return.
On this record, we do not find that the family court abused its discretion in
declining to modify the tax exemption provision allowing Father to claim
H. for one extra year.

V.     Attorneys’ Fees on Appeal

¶23           Mother requests an award of costs and attorneys’ fees on
appeal pursuant to A.R.S. § 25-324(A), which grants this court discretion to
award fees based upon the parties’ financial resources and the
reasonableness of their positions throughout the litigation. Although the
parties took reasonable positions on appeal, the appellate record reflects
that Father’s gross income is greater than Mother’s. Father contends that
the parties now have equal incomes, but cites no supporting evidence.
Accordingly, we exercise our discretion to award Mother her reasonable
attorneys’ fees and costs incurred on appeal contingent upon her
compliance with Arizona Rule of Civil Appellate Procedure 21.

                              CONCLUSION

¶24           Based on the foregoing analysis, we find that the family court
should have amended the Decree to reflect that (1) Mother was entitled to
the $15,000 equalization payment as provided in the Agreement; (2) the
checking account balance exceeded $5,000 and contained $18,351.02; and (3)
Father owes Mother half the proceeds from the sale of the Thrivent stock.
As a result, we vacate the Decree’s division of the community checking and
savings accounts and remand this case to allow the family court to divide
those accounts properly, consistent with this decision. The family court
shall also order Father to share the proceeds of the Thrivent stock with
Mother. We otherwise affirm the Decree.




                                   :ama



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