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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               VICKY GAICKI BENTLEY, Petitioner/Appellee,

                                        v.

              VAN PHILLIP BENTLEY, Respondent/Appellant.

                           No. 1 CA-CV 15-0557 FC
                                FILED 9-13-2016


           Appeal from the Superior Court in Maricopa County
                          No. FN2008-001774
               The Honorable Peter A. Thompson, Judge

                                  AFFIRMED


                                   COUNSEL


Dickinson Wright, PLLC, Phoenix
By Steven D. Wolfson, Anne L. Tiffen
Counsel for Respondent/Appellant



                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Andrew W. Gould joined.
                         BENTLEY v. BENTLEY
                          Decision of the Court

H O W E, Judge:

¶1            Van Phillip Bentley (“Husband”) appeals from the family
court’s order modifying the amount of spousal maintenance paid to Vicky
Gaicki Bentley (“Wife”). For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           In 2009, the family court dissolved Husband and Wife’s
25-year marriage upon approving the parties’ consent decree of dissolution.
The court incorporated into the consent decree the parties’ property
settlement agreement, which stipulates that Husband pay Wife—whose
reported monthly expenses at the time were $5,778—monthly spousal
maintenance of $3,000 “for an indefinite duration.” The agreement
recognizes that at that time, “Wife does not have employment earnings or
income currently,” and that the parties disagreed “to what extent income
was or not attributed to Wife in making this agreement.” Further, the
agreement provides that the amount and duration of spousal maintenance
can be modified pursuant to A.R.S. §§ 25–319 and –327.

¶3           Both the agreement and the consent decree also require
Husband to maintain a $250,000 life insurance policy with Wife as the
irrevocable beneficiary. The agreement and decree specifically note,
however, that the “life insurance policy or its amount may be modified” if
spousal maintenance is modified. Finally, the agreement provides that Wife
would receive half the community portion of Husband’s pension benefit.

¶4            In May 2014, Husband petitioned for a downward
modification or termination of spousal maintenance, arguing that
substantial and continuing changes to the circumstances existed. He argued
that Wife had inherited “assets capable of generating income to be applied
to her reasonable needs to reduce or satisfy her need for spousal
maintenance.” He further argued that although Wife refused to disclose
whether she was employed before he petitioned for modification, the
family court should consider her actual or imputed earnings.

¶5             Based on the allegation that Wife could generate enough
income to satisfy her reasonable needs, Husband requested that the family
court terminate his spousal maintenance obligations. Husband requested
alternatively that the family court modify his monthly spousal maintenance
payments to $800 effective June 1, 2014, until his upcoming retirement.
Husband also requested attorneys’ fees under A.R.S. § 25–324, alleging that




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                           Decision of the Court

Wife failed to cooperate with discovery and disclosure requests preceding
the filing of his petition.

¶6           In her response to the petition, Wife disclosed that she had
obtained employment since the dissolution of marriage. She stated,
however, that she could not “support herself on her earnings, and certainly
not at any level close to the standard of living established during the
marriage.” She also disputed that she had failed to cooperate with
discovery and disclosure requests, stating that she had responded to the
requests by asking Husband’s attorney to provide legal authority for
compliance in the absence of a pending petition.

¶7            One month after Wife responded, Husband moved to compel
Wife to produce the requested documents he had still not received. At the
subsequent resolution management conference, the family court and the
parties discussed which documents remained undisclosed. Wife testified
that she believed she had fully complied with Husband’s requests, but
agreed to disclose any remaining documents. Accordingly, the court,
without ruling on the motion to compel, ordered that Wife disclose
outstanding items, which she ultimately did.

¶8            In August 2014, Wife filed an Affidavit of Financial
Information (“AFI”) stating that her monthly expenses totaled $5,303. Six
months later, in February 2015, Wife, who had by then retained counsel to
represent her, filed another AFI stating that her reasonable monthly
expenses were $4,666. She further noted that her gross monthly income,
excluding the spousal maintenance, was $2,366.

¶9             Twice before the March 2015 evidentiary hearing on
Husband’s petition, Husband made two settlement offers to Wife. But Wife
did not respond to either offer and the case proceeded. In a joint pre-hearing
statement, the parties told the family court that Wife had received a
notification in July 2014 from Husband’s employer that she was eligible to
receive her portion of Husband’s pension benefit, but that she had not yet
applied for it. Wife also “agree[d] that the Life Insurance policy should be
modified if spousal maintenance is.”

¶10          Regarding Wife’s monthly expenses, Husband testified at the
evidentiary hearing that when the parties negotiated their settlement
agreement, they determined that Wife’s needs would be met with $3,000
per month, the amount they agreed Husband would pay in spousal
maintenance. He also stated that Wife’s expenses listed in the February 2015
AFI were “substantially inflated,” and that after removing “elective” items



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                           Decision of the Court

like church contributions and family gifts, Wife’s monthly expenses were
about $3,000.

¶11           Wife argued that modification was not appropriate because
“the facts giving rise to the claimed change of circumstances were within
the knowledge of the parties when they entered into the Property
Settlement Agreement.” Wife testified that she was almost 58 years-old at
the time of the hearing, had health problems, and could not “make ends
meet” on $3,000 per month. She stated that she had not worked since
approximately 1986, but got a job four years after the divorce earning $13.18
per hour. She testified that she would not have taken the job if she had
known that it would terminate her spousal maintenance. She further stated
that she was unrepresented when she filled out the August 2014 AFI and
made mistakes on both it and the February 2015 AFI.

¶12            Regarding the pension benefit, Husband testified that Wife
was eligible to receive $1,311 per month as her portion of Husband’s
pension benefit beginning on Husband’s 60th birthday in April 2014. He
stated that the funds that were available to Wife but not collected since then
were lost and not recoverable. Wife testified, however, that she did not
learn that she was able to collect her portion of her Husband’s pension until
December 2014. Although she received notification in July 2014 of her
eligibility, she misunderstood the notifications to mean she would receive
those funds only upon her retirement.

¶13           Ultimately, the family court found that Husband met his
burden of proving changed circumstances. The family court stated that the
“monthly amount contracted to maintain the standard of living was
$3,000.00 per month” and that the agreement reflected “the amount
necessary to provide Wife with a continued standard of living based upon
that established during the marriage.” Despite this, the family court found
that her monthly normal and reasonable expenses were $4,883.1 Finding
that Wife earned $2,284 in monthly salary, $393 in interest income, and
$1,311 from Husband’s pension benefit beginning May 1, 2015, the family
court modified spousal maintenance to $895 per month effective May 1,
2015.



1      The amount of Wife’s reasonable expenses totaled $5,303 in her
August 2014 AFI and $4,666 in her February 2015 AFI. We are unable to
determine how the family court calculated the figure of $4,883, but
recognize that the amount most closely approximates the expenses listed in
Wife’s February 2015 AFI.


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                          BENTLEY v. BENTLEY
                           Decision of the Court

¶14            The family court declined, however, to attribute the
uncollected $1,311 per month from Husband’s pension benefit to Wife’s
total income from July 1, 2014, through April 30, 2015. Accordingly, the
family court modified the spousal maintenance obligation to $2,206 for that
time. The court stated that Wife was “completely unsophisticated
financially” and that her failure to collect the available pension benefit was
consistent with her actions related to her other finances, including making
less favorable investment choices. The family court also ordered that
Husband maintain the life insurance policy in place as established in the
parties’ consent decree and agreement, stating that neither party presented
any evidence of the policy, its provisions, premium variations, or other
details. Finally, the family court denied Husband’s request for attorneys’
fees, finding that he had greater financial resources than Wife and neither
party was unreasonable in the litigation. Specifically, the family court stated
that the parties “each had a very different view of how the litigation would
turn out.” The family court denied Husband’s motion for a new trial, and
Husband timely appealed.

                               DISCUSSION

              1a. Modification of Spousal Maintenance

¶15           Husband first argues that the family court should have
terminated—not simply modified—spousal maintenance because the
parties agreed to a monthly standard of living of $3,000 in the property
settlement agreement and Wife’s total monthly income now exceeds that
amount.2 We review the family court’s ruling modifying spousal
maintenance for an abuse of discretion. In re Marriage of Priessman, 228 Ariz.
336, 338 ¶ 7, 266 P.3d 362, 364 (App. 2011). Where parties agree to settle
their rights by an agreement incorporated into a dissolution decree, the
terms of the agreement are governed by contract law. LaPrade v. LaPrade,
189 Ariz. 243, 247, 941 P.2d 1268, 1272 (1997). Thus, we review the family
court’s interpretation of a property settlement agreement de novo. In re
Estate of Lamparella, 210 Ariz. 246, 250 ¶ 21, 109 P.3d 959, 963 (App. 2005).
Because the agreement did not establish a contractual amount for monthly



2      Wife failed to file an answering brief or request an extension of time.
No answering brief having been filed, we determine this appeal on the
record and the opening brief. Although we may treat Wife’s failure to
answer as a confession of reversible error, we choose in our discretion to
reach the merits of this case. See Nydam v. Crawford, 181 Ariz. 101, 101, 887
P.2d 631, 631 (App. 1994).


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                          BENTLEY v. BENTLEY
                           Decision of the Court

living expenses, the family court did not err in modifying spousal
maintenance.

¶16           In Arizona, a family court may modify or terminate a spousal
maintenance award when the moving party establishes a continuing and
substantial change in circumstances. A.R.S. § 25–327(A). In determining
whether such a change exists, the family court must compare the current
circumstances with those at the time of the dissolution. MacMillian v.
Schwartz, 226 Ariz. 584, 588 ¶ 12, 250 P.3d 1213, 1217 (App. 2011). The family
court should consider the same factors considered when granting the
original award for spousal maintenance, including the financial resources
of the party receiving maintenance, the party’s ability to produce sufficient
income, and the financial resources of the party paying spousal support.
A.R.S. § 25–319(B); Nace v. Nace, 107 Ariz. 411, 413, 489 P.2d 48, 50 (1971).

¶17           Husband does not contest the family court’s conclusion that
continuing and substantial changes existed, only that such changes did not
warrant termination of spousal maintenance. Relying on MacMillan,
Husband argues that because the property settlement agreement
established monthly spousal maintenance at $3,000, Wife’s standard of
living was contractually established at $3,000. In MacMillan, we stated that
because the settlement agreement “expressly stated the amount of spousal
maintenance that the parties agreed would be sufficient to meet Wife’s
reasonable needs,” the relevant standard of living for determining spousal
maintenance was “implicit in that agreement.” 226 Ariz. at 591 ¶ 28, 250
P.3d at 1220.

¶18           Here, by contrast, the property settlement agreement does not
expressly state that the amount of agreed-upon spousal maintenance would
suffice to meet Wife’s reasonable needs. Nor—contrary to the family court’s
conclusion—does the agreement provide that “the monthly amount
contracted to maintain the standard of living was $3,000.00 per month.”
Instead, the property settlement agreement sets forth only the amount the
parties agreed Husband would pay Wife for spousal maintenance. The
agreement specifically provides that the parties disagreed to what extent
any income was attributed to Wife. Further, the agreement contains no
provision about the standard of living or reasonable living expenses and no
representation that the $3,000 spousal maintenance met Wife’s reasonable
needs. Thus, the agreement does not implicitly represent an agreement on
the relevant standard of living or the amount of reasonable expenses for
determining spousal maintenance.




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                          BENTLEY v. BENTLEY
                           Decision of the Court

¶19           Husband next argues that the family court erroneously relied
on Wife’s February 2015 AFI to determine Wife’s reasonable expenses of
$4,833. Husband argues that the person receiving spousal maintenance
cannot increase her applicable standard of living by “voluntarily increasing
her expenses” and that Wife’s allegedly arbitrary increases in expenses
from August 2014 to February 2015 are insufficient as a matter of law to
establish a new standard of living. But the family court did not err.
Although Husband testified that Wife inflated her expenses from August
2014 to February 2015, her expenses actually decreased from before the 2009
dissolution to August 2014, and then again by February 2015, shortly before
the hearing. Despite Wife’s reduction in expenses and her increased income
due to employment, Wife’s expenses at the time of the hearing still
exceeded her income by $895 per month. Accordingly, the family court did
not abuse its discretion by modifying monthly spousal maintenance
downward to $895.

              1b. Effective Date

¶20           Husband further argues that the family court erred by not
modifying spousal maintenance to $895 retroactively to July 1, 2014,
because Wife failed to apply for the pension benefits she was eligible to
receive. Although we review the family court’s order modifying spousal
support for an abuse of discretion, we review de novo its interpretation of
statutory authority. Maximov v. Maximov, 220 Ariz. 299, 300 ¶ 2, 205 P.3d
1146, 1147 (App. 2009). In relevant part, A.R.S. § 25–327(A) provides that
spousal maintenance modifications are “effective on the first day of the
month following notice of the petition for modification . . . unless the court,
for good cause shown, orders the change to become effective at a different
date but not earlier than the date of filing the petition for modification or
termination.”

¶21            The record here supports the family court’s finding that such
good cause existed to change the effective date. Although Wife was eligible
to receive a portion of Husband’s pension benefit beginning April 2014,
Wife was unaware that she could collect the money. Wife mistakenly
understood that she could not collect the pension benefit until her
retirement and did not deliberately fail to collect the funds during that time.
Moreover, the pension benefit funds available to Wife but not received are
lost, so Wife does not have a manner to recover the nearly one year’s worth
of pension benefits. The family court noted that Wife was “completely
unsophisticated financially” and that her reasons for not collecting the
pension benefit were consistent with her other financial actions. Thus,
because the record supports the family court’s good cause finding, the court


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                           BENTLEY v. BENTLEY
                            Decision of the Court

did not abuse its discretion in only partially modifying spousal
maintenance retroactively to July 1, 2014.

              2. Life Insurance

¶22            Husband next argues that the family court erred by not
terminating his obligation to maintain a $250,000 life insurance policy. If a
property settlement agreement’s terms are clear and unambiguous, we give
effect to the agreement as written. Smith v. Melson, Inc., 135 Ariz. 119, 121,
659 P.2d 1264, 1266 (1983). Here, the consent decree and property settlement
agreement’s plain language provides that the family court may modify the
life insurance policy if the court modifies maintenance. Although the family
court modified spousal maintenance, the agreement’s permissive language
did not require the family court to also modify the life insurance policy
requirement. See Democratic Party of Pima Cty. v. Ford, 228 Ariz. 545, 548 ¶ 9,
269 P.3d 721, 724 (App. 2012) (providing that “may” indicates permissive
intent while “shall” denotes a mandatory provision). Further, although
Wife agreed in the joint pre-hearing statement that the policy should be
modified if spousal support is modified, her statement does not specify
how the life insurance policy should be modified if spousal maintenance is
modified. In fact, the parties did not present any details of the policy, its
provisions, premium variations, or other factors to the family court.
Husband argues on appeal that because he will “almost certainly move to
terminate the spousal maintenance upon his mandatory retirement” he
should not have to secure more years than his obligation is likely to last.
But this argument is unavailing because the agreement’s permissive
language does not mandate the family court to modify the life insurance
requirement even if the court may possibly terminate spousal support in
the future. Accordingly, the family court did not err by declining to modify
the life insurance requirement.

              3. Attorneys’ Fees

¶23            Husband argues finally that the family court erred in denying
his request for attorneys’ fees pursuant to A.R.S. § 25–324(A) because Wife
acted unreasonably throughout the litigation. We review the family court’s
ruling on a request for attorneys’ fees for an abuse of discretion. Myrick v.
Maloney, 235 Ariz. 491, 494 ¶ 6, 333 P.3d 818, 821 (App. 2014). We review
the record in the light most favorable to upholding the family court’s ruling
and will affirm if any reasonable evidence in the record supports the court’s
decision. Mitchell v. Mitchell, 152 Ariz. 317, 323, 732 P.2d 208, 214 (1987). We
defer to the family court’s credibility determinations because the court is in
the best position to weigh the evidence, observe the parties, and judge the


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                           BENTLEY v. BENTLEY
                            Decision of the Court

witnesses’ credibility. Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334
¶ 4, 100 P.3d 943, 945 (App. 2004). Because the record supports the family
court’s finding that Wife did not act unreasonably, the family court did not
err in denying Husband’s request for fees.

¶24           The family court may award reasonable attorneys’ fees “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.” A.R.S.
§ 25–324(A). An objective standard applies in assessing the reasonableness
of the parties’ positions. In re Marriage of Williams, 219 Ariz. 546, 548–49
¶ 10, 200 P.3d 1043, 1045–46 (App. 2008).

¶25           The record supports the finding that Wife did not act
unreasonably during any part of the litigation. First, the record shows that
before the petition, she received and relied upon advice from two attorneys
that she was not required to comply with Husband’s discovery requests
unless a petition or other litigation was pending. She also responded to
letters from Husband’s counsel to this effect and even asked counsel to
provide legal authority stating otherwise if incorrect. Second, the record
shows that her conduct was not unreasonable after Husband petitioned for
modification. Although Husband resorted to moving to compel Wife to
produce documents, the family court did not rule on the motion, but rather
discussed all undisclosed items at the resolution management conference
preceding the hearing. Wife testified that she thought that she had provided
all requested information and subsequently filed the requested documents
in compliance with the family court’s order.

¶26           Finally, the record shows that Wife did not act unreasonably
in her settlement position. Wife argued that modification was inappropriate
and challenged Husband’s position about changed circumstances
throughout the litigation. While the parties had different views of how the
litigation should result, as the family court noted, Wife’s arguments
throughout had merit and were not unreasonable. Wife’s arguments
ultimately led the family court to reject Husband’s request to terminate
spousal maintenance and to merely modify it. The evidence thus supports
the family court’s finding that neither party was unreasonable in their
settlement position.

              4. Attorneys’ Fees on Appeal

¶27         Husband requests attorneys’ fees on appeal pursuant to
A.R.S. § 25–324, anticipating that Wife would “urge groundless and




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                       BENTLEY v. BENTLEY
                        Decision of the Court

unreasonable arguments in opposition to the relief” he requests. But
because Wife did not act unreasonably, we deny Husband’s request.

                            CONCLUSION

¶28         For the foregoing reasons, we affirm.




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




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