Smith v. Smith ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Matter of:
TRICIA A. SMITH, Petitioner/Appellee,
v.
HEATH A. SMITH, Respondent/Appellant.
No. 1 CA-CV 21-0300 FC
FILED 2-3-2022
Appeal from the Superior Court in Maricopa County
No. FC2020-004769
The Honorable Monica Edelstein, Judge
AFFIRMED
COUNSEL
Tiffany & Bosco PA, Phoenix
By Kelly Mendoza
Counsel for Petitioner/Appellee
The Sampair Group PLLC, Glendale
By Patrick S. Sampair
Counsel for Respondent/Appellant
SMITH v. SMITH
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
H O W E, Judge:
¶1 Heath A. Smith (“Husband”) appeals the family court’s
award of $1,500 per month of spousal maintenance for 20 years. Father
argues first that the family court erred in considering the parties’
relationship before marriage to set the award duration. He argues second
that the court failed to consider his financial needs in setting the award
amount. Neither argument warrants reversal. Although the court found
that Husband and Wife had lived as a “married community” for over 20
years in setting the duration of the award, the court found other facts to
support the duration, and any error did not prejudice Husband. And
although the court did not state explicitly that it considered Husband’s
financial needs in setting the amount of the award, Husband presented
evidence of his financial position, and nothing shows that the court ignored
his financial needs. We therefore affirm the award.
FACTS AND PROCEDURAL HISTORY
¶2 Husband and Wife were married in 2009 but had lived
together for approximately 10 years before. They have four children, three
of whom are minors and two of whom were adopted. The parties separated
in June 2020, and Wife later petitioned for dissolution of their marriage. She
simultaneously moved for temporary orders, requesting spousal
maintenance of $1,500 per month. Soon after, Husband responded to the
petition, alleging that Wife was capable of gainful employment and did not
need spousal maintenance.
¶3 Husband works as an electrical foreman and stated in his
Affidavit of Financial Information (“AFI”) that he grosses $5,120 monthly
and $32 hourly. The pay statement he provided with his AFI included two
hours of overtime work. Wife also filed an AFI, attesting that she is a stay-
at-home mother and that her disability, which she later testified is a genetic
disorder affecting her joints, spine, and hips, precludes her from working.
She listed as income $1,931 per month in adoption subsidies for two of the
children, part of the parties’ Adoption Assistance Program Agreement.
2
SMITH v. SMITH
Decision of the Court
¶4 The court held a hearing on Wife’s motion for temporary
orders and ruled on child support, use of the marital residence, and
distribution of the adoption subsidy, among other things. The family court
later conducted an evidentiary hearing. Wife testified that her genetic
disorder impinged the nerves in her legs and that, along with a heart
condition, made her unable to work. She stated that she also planned to
schedule spine surgery. She added that she had applied for Social Security
Disability Insurance (“SSDI”) but was denied because she did not have
enough working credits. She had later applied for Supplemental Security
Income (“SSI”) twice but was denied both times because Husband’s income
exceeded the income limit. She also testified that the adoption subsidy for
both adopted children was her only source of income and that after the
divorce was finalized, she would again apply for SSI. Private health
insurance, however, could cost her between $500 and $600 per month.
Turning to the issue of Husband’s income, she testified that he regularly
worked overtime and performed “side work” outside of his normal
employer. Wife added that she had also taken out a $10,000 personal loan
from family to help with expenses.
¶5 Husband later testified that he earned $32 per hour and spent
$4,285.32 per year insuring the children. He added that he stopped doing
side work, the last time being seven-to-eight years ago, and that although
he had worked more overtime after the parties separated, he would not
continue to work weekends or overtime. He further testified that Wife was
the “perfect mom,” had been actively involved in the children’s lives and
schooling before her health declined, and had planned to work after the
children grew older. He added that Wife takes prescription opiates for her
health condition that make her drowsy and preclude her from working;
without taking the medication, she would be able to work.
¶6 The court issued a decree of dissolution that determined legal
decision-making, parenting time, child support, division of assets including
awarding Wife half of Husband’s retirement 401(k), and spousal
maintenance. The court also awarded Wife $849 in monthly child support;
in calculating this amount, it attributed the $1,931 adoption subsidy as
Wife’s gross monthly income. The court listed $5,960 as income to Husband.
The court also found that Wife was entitled to spousal maintenance under
A.R.S. § 25–319(A).
¶7 On the issue of amount and duration of spousal maintenance
under A.R.S. § 25–319(B), the court found that (1) the parties were “legally
married for approximately ten year[s] but ha[d] lived as a married
community since the birth of their first [c]hild more than 20 years ago”;
3
SMITH v. SMITH
Decision of the Court
(2) Wife is 40 years old and unable to work due to her disability, and Father
is employed as an electrician with a steady income; (3) Wife is unable to
meet her needs apart from child support and the adoption subsidy, and she
took a $10,000 personal loan to support herself and the children;
(4) Husband is able to be self-sufficient and provide for the children while
Wife is not able to care for herself or the children; (5) Husband worked
fulltime and overtime while Wife raised the children; (6) Husband has
sufficient income to support the children while Wife does not; (7) Wife is
unable to seek a traditional loan, and she has to receive disability benefits
to make ends meet; and (8) Wife would need to expend $500–$600 per
month in insurance if she does not qualify for government assistance to
keep up with the expenses related to her health conditions and upcoming
surgery. The court also required that Wife file an updated AFI if she started
receiving disability income or subsidized medical insurance. The court set
spousal maintenance at $1,500 per month for 20 years. The decree also
allowed the duration and amount of spousal maintenance to be modified.
Husband timely appeals.
DISCUSSION
¶8 Husband and Wife agree that Wife is entitled to spousal
maintenance for a certain amount and duration.1 Husband objects,
however, to the family court’s determination of the particular duration and
amount of spousal maintenance. The family court has “substantial
discretion to set the amount and duration of spousal maintenance.”
Rainwater v. Rainwater, 177 Ariz. 500, 502 (App. 1993). Thus, we review the
family court’s ruling on spousal maintenance for an abuse of discretion,
which occurs if it involves an error of law or the record does not support
the award. Boyle, 231 Ariz. at 65 ¶ 8. We view the evidence in the light most
1 Husband nonetheless notes that the family court, in ruling that Wife
was entitled to spousal maintenance, erred in basing its ruling in part on
the fact that the parties “lived as a de facto married couple for more than 20
years.” Spousal maintenance is appropriate if a spouse meets any of the
statutory grounds under A.R.S. § 25–319(A), however. Boyle v. Boyle, 231
Ariz. 63, 65 ¶ 9 (App. 2012) (emphasis added). Because the court found that
Wife met three other grounds for spousal maintenance under the statute—
which Husband does not contest—any error is harmless. Ariz. R. Fam. Law
P. 86 (“At every stage of the proceeding, the court must disregard all errors
and defects that do not affect any party’s substantial rights.”); see also Walsh
v. Walsh, 230 Ariz. 486, 494 ¶ 24 (App. 2012) (not all errors warrant reversal;
this court will reverse only if a party suffers prejudice from the error, and
the prejudice “appear[s] affirmatively in the record”).
4
SMITH v. SMITH
Decision of the Court
favorable to the family court’s order and will affirm its ruling if reasonable
evidence supports it. Id.I. Duration
¶9 The court did not abuse its discretion in setting the duration
of Wife’s spousal maintenance at 20 years. Once the court finds that a
spouse is entitled to spousal maintenance, it considers “all relevant factors”
in A.R.S. § 25–319(B) to determine the amount and duration. Section
25–319(B) presents a non-exclusive list of 13 enumerated factors. “To strike
the proper balance,” not every factor will apply, but the court abuses its
discretion by neglecting an applicable factor. Rainwater, 177 Ariz. at 502.
The court can also consider other relevant factors, such as a payee spouse’s
ability to withdraw from retirement accounts, as well as the purpose of
spousal maintenance: to achieve financial independence for the payee
spouse. Helland v. Helland, 236 Ariz. 197, 202–03 ¶¶ 27–30 (App. 2014).
¶10 Here, Husband challenges the court’s analysis of the
“duration of the marriage” factor, arguing that the court ordered a 20-year
term of spousal maintenance based on the combined length of the parties’
marriage and premarital cohabitation, a duration the record otherwise did
not support. Of course, the court found that the parties “were legally
married for approximately ten year[s] but have lived as a married
community since the birth of their first [c]hild more than 20 years ago.” But
nothing indicates that the court’s statement of this obvious fact weighed
much in the court’s duration determination. The court made seven other
more pertinent findings that indisputably supported a 20-year spousal
maintenance period:
(3) Wife is 40 years old and unable to work due to her
disability, and Father was employed as an electrician with a steady income;
(4) Wife is unable to meet her needs apart from child support
and the adoption subsidy, and she took a $10,000 personal loan to support
herself and the children;
(5) Husband was able to be self-sufficient and provide for the
children while Wife is not able to care for herself or the children;
(6) Husband worked fulltime and overtime while Wife raised
the children;
(8) Husband has sufficient income to support the children
while Wife does not;
5
SMITH v. SMITH
Decision of the Court
(9) Wife is unable to seek a traditional loan and she has to
receive disability benefits to make ends meet;
(12) Wife would need to expend $500–$600 per month in
insurance if she does not qualify for government assistance to keep up with
the expenses related to her health conditions and upcoming surgery.
¶11 Considering these findings, the court had more than sufficient
reasons—regardless whether it also considered the length of the parties’
entire relationship as a “married community”—to set a 20-year duration for
the payment of spousal maintenance. Not only did the court look at the
parties’ past efforts, such as Wife’s role as a stay-at-home mother and
Husband’s role as breadwinner, but the court also considered their financial
positions going forward to heed the goal of financial independence.
Because Wife is unable to work due to a disability that neither party
contested, her only source of income is the adoption subsidy, subject to her
ability to successfully apply for other government assistance. Husband’s
financial position, however, effectively remains the same because he
continues to have stable employment. Further, the court also knew that
after 20 years, Wife would have access to half of Husband’s retirement
account awarded in the decree. See Helland, 236 Ariz. at 202–03 ¶¶ 27–30
(wife who could not work because of her age and health was properly
awarded spousal maintenance until age 63, when she could then withdraw
from her retirement accounts and receive Social Security benefits). These
circumstances taken together show that regardless of the length of the
parties’ relationship, the court did not err when it set the duration at 20
years. Husband suffered no prejudice. See Rule 86; Walsh, 230 Ariz. at 494
¶ 24. The court thus did not abuse its discretion.
II. Amount
¶12 The court also did not abuse its discretion in setting Wife’s
spousal maintenance at $1,500 per month. To award spousal maintenance,
the court considers the ability of the payee spouse to meet her needs, the
payor spouse’s ability to pay, and the parties’ financial resources under the
factors of A.R.S. § 25–319(B). Because of the family court’s substantial
discretion in setting spousal maintenance, Rainwater, 177 Ariz. at 502, we
presume that the family court fully considered the evidence in the record
in issuing the decree, even if the decree does not detail the relevant evidence
considered, see Fuentes v. Fuentes, 209 Ariz. 51, 55 ¶ 18 (App. 2004).
¶13 Here, Husband argues that the court erred in not considering
his ability to meet his own needs when setting $1,500 in monthly spousal
6
SMITH v. SMITH
Decision of the Court
maintenance because of its financial impact on him. Husband notes that
Wife’s income is only slightly less than his after combining the adoption
subsidy, child support, and spousal maintenance. The record, however,
includes information about both parties’ financial positions. Both parties
filed their AFI, included information about their financial position in their
joint pretrial statement, and testified about their financial positions at the
evidentiary hearing. The court also admitted evidence of the parties’
income, expenses, and savings during the evidentiary hearing. The
dissolution decree provided details about Husband’s financial position. We
presume, therefore, that the family court considered the evidence before it
in calculating the amount and duration of spousal maintenance.
¶14 This case is akin to Fuentes. Like Husband here, the husband
in Fuentes appealed his $1,000 monthly spousal maintenance obligation,
arguing that the court did not consider his financial needs. Id. at 54 ¶ 6, 55
¶ 17. Although the family court’s decree of dissolution did not provide
details about his financial position, this court presumed that the family
court considered the evidence before it: the husband had testified about his
income, filed a joint pretrial statement that addressed the parties’ financial
positions, and filed his AFIs. Id. at 55 ¶ 18. Further, the wife was able to
work parttime, up to 32 hours per week. Id. at 53 ¶ 4. Although her spousal
maintenance was approximately 22% of Husband’s income, this court
concluded that the award was proper. Id. at 54 ¶¶6, 9, 57 ¶ 29. Here, the
spousal maintenance award is approximately 25% of Husband’s income,
which is not unusual. See id.; see also Gutierrez v. Gutierrez, 193 Ariz. 343, 346
¶ 2, 348 ¶ 14 (App. 1998) (spousal maintenance of approximately 25% of
husband’s monthly income was proper).
¶15 Moreover, any hardship that Husband may face because of
the spousal maintenance order is ameliorated because the amount and
duration in the decree is subject to modification. The court also stated that
if Wife begins to receive disability income or subsidized medical insurance,
then she must file an updated AFI. She had testified that she would apply
for these benefits after the dissolution. Any additional income to Wife could
affect her spousal maintenance. See A.R.S. 25–327(A) (modification proper
on showing of substantial and continuing changed circumstances).
Including the modification provision indicates that the court had
thoroughly calculated the amount of spousal maintenance in the decree.
Because reasonable evidence supports the family court’s findings, no abuse
of discretion occurred.
7
SMITH v. SMITH
Decision of the Court
CONCLUSION
¶16 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
8