Tumlinson v. Tumlinson ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JOE GLENN TUMLINSON, Respondent/Appellant,
v.
JODI LYNN TUMLINSON, Petitioner/Appellee.
No. 1 CA-CV 14-0374 FC
FILED 5-12-2015
Appeal from the Superior Court in Maricopa County
No. FN2012-092479
The Honorable John R. Hannah, Judge
AFFIRMED
COUNSEL
Joe Glenn Tumlinson, Surprise
Respondent/Appellant
Jodi Lynn Tumlinson, Phoenix
Petitioner/Appellee
TUMLINSON v. TUMLINSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.
C A T T A N I, Judge:
¶1 Joe Glenn Tumlinson (“Husband”) appeals from the property
division and spousal maintenance provisions of the decree dissolving his
marriage to Jodi Lynn Tumlinson (“Wife”). For reasons that follow, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Husband and Wife were married in May 2009. During the
marriage, they financed the purchase of a house costing $93,000. They also
acquired two cars and an RV, although the RV was sold after Wife filed for
dissolution. At the time of dissolution, the mortgage debt on the house
(where Wife resided) was approximately $88,000.
¶3 Husband worked as a mechanic throughout the marriage and
the dissolution proceedings, earning approximately $1,200 to $1,400 each
month. Wife entered the marriage with a $25,000 fund that she used to
finance her business of buying and selling property, but that fund was
exhausted during the marriage. At the time of the dissolution trial, Wife
earned $200 monthly as a housekeeper; she was unable to find additional
employment because of a disability. Wife received Social Security disability
payments of approximately $600 monthly, and she supplemented her
income with rent payments from a roommate to help cover the cost of the
mortgage.
¶4 Wife petitioned for dissolution in June 2012. In August 2012,
the parties signed a document stating that they would attempt
reconciliation and would jointly file for bankruptcy. The agreement further
provided that Wife would keep the house, Husband would keep the RV,
and Wife would not request spousal maintenance should reconciliation fail.
By the time of a resolution management conference in December 2012,
however, the parties were again disputing spousal maintenance and
division of the marital home.
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TUMLINSON v. TUMLINSON
Decision of the Court
¶5 At a temporary orders hearing in February 2013, the superior
court found that the parties’ August agreement was no longer practicable.
At that time, the court divided the community share of Husband’s
remaining pre-petition income (two paychecks and one annual profit
sharing payment) and found that Husband owed Wife for two months’
mortgage payments, but offset that amount by Husband’s half of the
community share of proceeds from the sale of the RV. To effectuate this
preliminary property division under which Husband owed Wife
approximately $3,600, the court ordered Husband to pay Wife $300 per
month, nominally characterized as spousal maintenance.
¶6 After an evidentiary hearing in March 2014, the superior court
entered a dissolution decree. The court awarded each party his or her
vehicle and all personal property in his or her possession. With the
agreement of the parties, the court granted Wife the marital residence, as
well as the mortgage debt. The court found that the February 2013
temporary orders had effectuated a fair and equitable equalization of
property, and that Husband had paid the full $3,600 owed to Wife since that
hearing.
¶7 The superior court also granted Wife spousal maintenance
after finding that her disability rendered her unable to be self-sufficient
through appropriate employment. See Ariz. Rev. Stat. (“A.R.S.”) § 25-
319(A)(2).1 The court also found that, although Wife received the house in
the property division—and thus the income from the roommate’s rent
payments—she nevertheless would be unable to meet her needs. See A.R.S.
§ 25-319(A)(1). The court considered the relatively short duration of the
marriage, Wife’s limited earning ability, Husband’s comparatively greater
earning ability, and the loss of Wife’s $25,000 working capital that she had
used to help support herself before the marriage. See A.R.S. § 25-319(B)(2),
(3), (5), (6), (9). On that basis, the court granted Wife spousal maintenance
in the amount of $300 per month for 42 months.
¶8 Husband timely appealed from the dissolution decree.2 We
1 Absent material revisions after the relevant date, we cite to the
current version of statutes and rules.
2 Before filing his notice of appeal, Husband filed a motion in superior
court seeking to alter or amend the judgment. The superior court denied
that motion in an unsigned minute entry. This court stayed the appeal and
revested jurisdiction in the superior court to enter a signed, appealable
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TUMLINSON v. TUMLINSON
Decision of the Court
have jurisdiction under Article 6, Section 9, of the Arizona Constitution and
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶9 Husband’s primary argument on appeal is that the superior
court erred by awarding Wife spousal maintenance in contravention of the
parties’ August 2012 agreement. We review an award of spousal
maintenance for an abuse of discretion. Gutierrez v. Gutierrez, 193 Ariz. 343,
348, ¶ 14, 972 P.2d 676, 681 (App. 1998). We consider whether record
evidence supports the court’s conclusion that the recipient qualified for
maintenance under A.R.S. § 25-319(A), and whether reasonable evidence
supports the amount of the award in light of the relevant factors set forth
in § 25-319(B). Boyle v. Boyle, 231 Ariz. 63, 66, ¶¶ 11, 13, 290 P.3d 456, 459
(App. 2012).
¶10 Under A.R.S. § 25-317, the parties to a dissolution proceeding
may enter a written agreement determining, among other terms, property
division and spousal maintenance. Although the separation agreement
may bind the parties, the superior court retains discretion to reject the
agreement if it is unfair or inequitable. A.R.S. § 25-317(B); Breitbart-Napp v.
Napp, 216 Ariz. 74, 79, ¶ 14, 163 P.3d 1024, 1029 (App. 2007).
¶11 To the extent the August 2012 agreement can be construed as
a separation agreement within the meaning of § 25-317, Husband arguably
waived any argument to that effect by failing to raise it at the dissolution
trial. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994).
Although Husband brought up the agreement at the temporary orders
hearing in early 2013, he did not assert that the agreement remained
effective at the dissolution trial over a year later, in the wake of the parties’
discharge in bankruptcy.
¶12 Furthermore, the August 2012 agreement was more clearly
directed to an impending bankruptcy than to the dissolution. The
agreement addressed only two assets and failed to delineate the parties’
individual or joint debts. It did not reflect an equitable balancing of the
parties’ property, and it purported to waive spousal maintenance without
consideration of the parties’ respective ability to be self-sufficient. Thus,
the superior court properly addressed those issues notwithstanding
arguably relevant provisions in the 2012 agreement.
order; the superior court did so, and this court thereafter reinstated the
appeal. See ARCAP 9(e)(1)(C), (2).
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TUMLINSON v. TUMLINSON
Decision of the Court
¶13 Husband has not shown that the superior court erred by
determining that spousal maintenance was necessary. The court found that
Wife was unable to be self-sufficient through appropriate employment, and
thereby implicitly found that the 2012 agreement (which did not provide
for maintenance) would be unfair. See A.R.S. § 25-317(B) (stating that the
court is not bound by the parties’ separation agreement if it finds the
agreement is unfair). Although Husband argues that Wife is capable of
finding additional employment, the evidence at trial supports the court’s
conclusion that, despite Wife’s efforts to secure employment, her disability
prevents her from earning enough money to meet her needs. See Boyle, 231
Ariz. at 66, ¶ 11, 290 P.3d at 459.
¶14 Husband also argues that the division of property was unfair.
Under A.R.S. § 25-318(A), the superior court is directed to divide commonly
held property equitably. We review the court’s equitable allocation of
property for an abuse of discretion. Inboden v. Inboden, 223 Ariz. 542, 544, ¶
7, 225 P.3d 599, 601 (App. 2010).
¶15 Contrary to Husband’s assertion that “[Wife] got everything,”
the decree reflects that Husband was awarded his car as well as his personal
property. The court also divided the community interest in the proceeds
from the sale of the RV and awarded Husband half the value at the
temporary orders hearing. Although Wife was awarded the marital home,
there was very little equity in the home, and Wife alone is responsible for
the substantial mortgage debt. Despite Husband’s argument that the home
was worth more than the remaining mortgage debt, he did not offer an
appraisal or other evidence to support his assertion. Under the
circumstances, Husband has not shown that the court abused its discretion
in equitably dividing community property. See Inboden, 223 Ariz. at 544, ¶
7, 225 P.3d at 601.
CONCLUSION
¶16 The judgment is affirmed.
:ama
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