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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                 DIANE RUTH ZWAR, Petitioner/Appellee,

                                        v.

                    BURL SWAIN, Respondent/Appellant.

                           No. 1 CA-CV 15-0016 FC
                               FILED 4-21-2016


           Appeal from the Superior Court in Maricopa County
                          No. FC2004-090657
                The Honorable Timothy J. Ryan, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of Amber L. Guymon, PLLC, Gilbert
By Amber L. Guymon
Counsel for Petitioner/Appellee

Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire
and Maxwell Mahoney
Counsel for Respondent/Appellant
                             ZWAR v. SWAIN
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Maurice Portley and Judge Patricia K. Norris joined.


T H O M P S O N, Presiding Judge:

¶1            Appellant Burl Gene Swain (Burl) appeals from the trial
court’s decision modifying his spousal maintenance payment to his ex-wife,
appellee Diane Ruth Zwar (Diane). For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Burl and Diane were married for thirty-three years until they
divorced in 2005. For a majority of the marriage Diane was a homemaker
and Burl was employed. Under the terms of the divorce decree, Burl was
ordered to pay Diane $1500.00 per month in spousal maintenance
indefinitely. Subsequently, Burl stopped paying Diane the full amount of
spousal maintenance. Burl filed a petition to modify the spousal
maintenance award, and the trial court held an evidentiary hearing in 2011.
Following that hearing, the trial court (Judge Gass) denied Burl’s request to
modify the spousal maintenance award, finding that he failed to establish
substantial and continuing changed circumstances to warrant modification
of the award.1 The court awarded Diane her attorneys’ fees and costs,
finding that Burl had substantially more financial resources and that he had
acted unreasonably in the litigation.

¶3            In 2012, Burl filed another petition to modify spousal
maintenance. After an evidentiary hearing, the trial court (Judge Hicks)
found that Burl had failed to prove he was entitled to a modification. In
calculating Burl’s income, the court included his Title 38 disability benefits.
Burl filed a special action in this court seeking relief, and, finding that the
trial court erred by considering the disability benefits in calculating the
spousal maintenance award, we vacated the trial court’s ruling and gave




1 In 2011 Judge Gass found that Burl was not truthful about earning extra
income as a handyman and that the evidence established he was “capable
of earning significant income, which he does.”

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                            Decision of the Court

directions for further proceedings consistent with our opinion. See Swain v.
Hicks ex rel. Cty. of Mariciopa, 235 Ariz. 209, 330 P.3d 966 (App. 2014).

¶4            After remand, the trial court (Judge Ryan) held another
evidentiary hearing on the motion to modify spousal maintenance. Judge
Ryan adopted findings made by Judge Hicks pertaining to Arizona Revised
Statutes (A.R.S.) § 25-319(B) (2009), including, in relevant part: 1) the
standard of living established during the marriage, 2) the duration of the
marriage, 3) Diane’s age, employment history, earning ability, and physical
and emotional condition, 4) Diane’s contribution to Burl’s earning ability,
5) the extent to which Diane reduced her career opportunities for Burl’s
benefit, 6) Diane’s financial resources, and 7) the time necessary for Diane
to acquire sufficient education or training to enable her to find appropriate
employment and whether such training was readily available. Judge Ryan
made new findings concerning Burl’s ability to meet his own needs while
meeting Diane’s needs and the comparative financial resources of both
parties. Judge Ryan found that Burl’s income not including the disability
benefits included 1) social security payments of $1705.00, 2) a pension
payment of $272.85, and 3) imputed income in the amount of $948.00 per
month ($7.90 per hour minimum wage at thirty hours a week), for a total of
$2925.85 per month. He further found that Diane had a monthly income of
$1139.00 from social security and a small pension payment. Judge Ryan
then subtracted Burl’s $400.00 a month arrearage payment to Diane from
his monthly income, finding that he had $2525.85 per month, and added
$400.00 per month to Diane’s income to account for the arrearage payment,
finding that Diane had $1539.00 per month. Judge Ryan then reduced
Burl’s monthly spousal maintenance payment from $1500.00 to $493.00,
“leav[ing] both parties with $2032.85 per month to support themselves.”
Judge Ryan denied both parties’ requests for attorneys’ fees.2

¶5            Burl timely appealed.3       We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1) (Supp. 2013).


2 In denying both requests for attorneys’ fees, Judge Ryan found that
although Burl had been reasonable in seeking a downward modification of
the spousal maintenance payments, his request to terminate spousal
maintenance altogether had been unreasonable. Judge Ryan also found
that Diane had been unreasonable in her efforts to continue to receive
$1500.00 per month after this court’s opinion reversing Judge Hicks’s order.

3Diane also filed a notice of appeal but did not pay a filing fee and this court
dismissed her appeal in February 2015.

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                            Decision of the Court

                                DISCUSSION

¶6           Burl raises two issues on appeal: 1) whether Judge Ryan
erred by relying on Judge Hicks’s findings after remand, and 2) whether
Judge Ryan erred by attributing to him $948.00 per month of minimum
wage income.

   A. Judge Hicks’s Findings

¶7            In our 2014 opinion in this case, we ruled that the trial court
should not have considered Burl’s Title 38 disability benefits in calculating
the spousal maintenance award. Swain, 235 Ariz. at 211, ¶ 8, 330 P.3d at
968. Accordingly, we vacated the decision and “remanded [the matter] to
the family court for further proceedings consistent with this opinion.” Id.
at ¶ 9. Burl argues that the trial court should have treated Judge Hicks’s
vacated order “as voided and as if it never existed.” He asserts that Judge
Ryan therefore erred by relying on any of Judge Hicks’s findings. We
disagree.

¶8             Burl cites Nielson v. Patterson, 204 Ariz. 530, 65 P.3d 911 (2003)
as authority for his argument that Judge Ryan could not rely on Judge
Hicks’s findings. Nielson does not apply here. In Nielson, our supreme court
held that the defendants did not need to preserve their challenge to the
underlying judgment by filing a protective cross-appeal because a trial
court order granting a new trial vacated the original entry of judgment. Id.
at 531, ¶¶ 2-4, 534, ¶ 15, 65 P.3d at 912, 915. The Nielson court further held
that when the appellate court reversed the trial court’s order granting a new
trial and ordered the trial court to reinstate the judgment, the time to appeal
the underlying judgment ran from the date the judgment was reinstated.
In this case, we directed the trial court to conduct further proceedings
consistent with our opinion which held that the trial court could not include
Burl’s Title 38 benefits in determining the award for spousal maintenance.
The court did so and did not deviate from what it was instructed to do. See
Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 334, ¶¶ 30-32, 212 P.3d 17,
26 (App. 2009). We did not require the court to discount the prior evidence
or findings made by the court which were not erroneous, including Judge
Hicks’s finding that Burl could be attributed minimum wage income of
thirty hours a week. See Swain, 235 Ariz. 209, 330 P.3d 966. As further
discussed below, the record supported the court’s finding on attributed
income. Accordingly, we find no error.




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                             Decision of the Court

   B. Attributed Income

¶9             We review de novo the trial court’s attribution of income to
Burl because it is an issue of law. See Pullen v. Pullen, 223 Ariz. 293, 295, ¶
9, 222 P.3d 909, 911 (App. 2009) (citations omitted). “Questions of what
factors to apply to attribute income are legal questions . . . [h]owever,
whether the trial court properly applied those factors is reviewed
deferentially.” Id. (citations omitted). Whether sufficient evidence
supported the court’s application of the test for attributing greater income
to a party is reviewed for clear error. Id. at 296, ¶ 9, 222 P.3d at 912 (citing
Kelsey v. Kelsey, 186 Ariz. 49, 51, 918 P.2d 1067, 1069 (App. 1996)).

¶10            In Pullen, we set out a balancing test for courts to use in
determining whether to use actual income or earning capacity to calculate
spousal maintenance when voluntary reduction of income issues are raised.
223 Ariz. at 297-98, ¶ 18, 222 P.3d at 913-14. The Pullen court set out five
factors for the trial court to balance in addition to other evidence:

               1. The reasons asserted by the party whose
                  conduct is at issue;

               2. The impact upon the obligee of considering
                  the actual earnings of the obligor;

               3. When the obligee’s conduct is at issue, the
                  impact upon the obligor of considering the
                  actual earnings of the obligee and thereby
                  reducing the obligor’s financial contribution
                  to the support order at issue;

               4. Whether the party complaining of a
                  voluntary reduction in income acquiesced in
                  the conduct of the other party; and

               5. The timing of the action in question in
                  relation to the entering of a decree or the
                  execution of a written agreement between
                  the parties.

Id. at 297, ¶ 15, 222 P.3d at 913.

¶11          The record supports the trial court’s conclusion that it could
use earning capacity (albeit a very limited earning capacity) to calculate
spousal maintenance in this case. The trial court considered Burl’s


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                            Decision of the Court

testimony that he had not worked since 2013 and that his disabilities
prohibited him from earning any income (factor one).4 The court
considered Diane’s testimony that she would lose her home if the spousal
maintenance award was reduced from $1500.00 per month (factor two).
Factors three and five do not apply here. As to the fourth factor, the record
reflects that Diane did not acquiesce to Burl’s voluntary reduction of
income. We find no error.

¶12             Burl argues that the trial court erred by attributing income to
him because he retired in good faith. See Chaney v. Chaney, 145 Ariz. 23, 27,
699 P.2d 398, 402 (App. 1985) (in deciding whether retirement is a
substantial change in circumstances which would allow modification of an
award for spousal maintenance the court looks at 1) the age of the obligor,
2) the voluntariness of the obligor’s retirement, and 3) whether the obligor
is retiring in good faith). In 2013, Burl testified that he wanted to work until
he was seventy years old. After this court vacated Judge Hicks’ ruling and
the case returned to the trial court for further proceedings, Burl changed his
position and testified that he was not able to work. Given the trial court’s
decision to attribute income and its explicit statement that Burl had not met
his burden of proof on this issue, the court necessarily rejected Burl’s
testimony, and on the entire record presented to the trial court, we cannot
say it abused its discretion in doing so.

¶13            Burl further argues that the trial court’s attribution of income
to him violates Leathers v. Leathers, 216 Ariz. 374, 166 P.3d 929 (App. 2007).
He argues that under Leathers, a court “cannot award spousal maintenance
such that the recipient ends up in a better financial situation tha[n] the
payor.” Leathers does not stand for this proposition, nor does Burl cite
authority that does. Accordingly, we find no abuse of discretion.

¶14           Because the trial court correctly considered the A.R.S. § 25-
319(B) factors in awarding Diane spousal maintenance and did not clearly




4 Although Burl testified at the August 2014 hearing that he was not doing
any handyman work, and he denied having painted his girlfriend’s home
(where he lived and was paying less than half of the expenses), his bank
statements from the previous year showed charges at Lowes for hundreds
of dollars each, plus charges at another hardware store. We also note that
Burl testified his monthly expenses included $200-$300 in charitable
contributions.



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                             ZWAR v. SWAIN
                            Decision of the Court

err by attributing to Burl $948.00 per month of minimum wage income, we
affirm the decision of the trial court.

   C. Attorneys’ Fees and Costs

¶15            Diane requests her attorneys’ fees pursuant to A.R.S. § 25-324
(Supp. 2013). An award of attorneys’ fees under section 25-324 may either
be based upon the financial resources of the parties or the reasonableness
of the positions taken in the litigation. After consideration of these factors,
we award Diane attorneys’ fees and costs on appeal in an amount to be
determined upon compliance with Rule 21(b) of the Arizona Rules of Civil
Appellate Procedure.




                                    :ama




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