Wethe v. Wethe ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JENNIFER VOREIS WETHE, Petitioner/Appellee,
v.
TROY BURTON WETHE, Respondent/Appellant.
No. 1 CA-CV 19-0185 FC
FILED 1-28-2020
Appeal from the Superior Court in Maricopa County
No. FC2017-054836
The Honorable Jennifer C. Ryan-Touhill, Judge
AFFIRMED
COUNSEL
Hildebrand Law, P.C., Scottsdale
By Kent Millward
Counsel for Petitioner/Appellee
Sirlin Law Firm, LLC, Phoenix
By Randi S. Sirlin
Counsel for Respondent/Appellant
WETHE v. WETHE
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.
C R U Z, Judge:
¶1 Troy Burton Wethe (“Husband”) appeals from the family
court’s award of spousal maintenance in the decree of dissolution and the
court’s denial of his request for attorneys’ fees. For the following reasons,
we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband married Jennifer Voreis Wethe (“Wife”) in 2000.
Husband and Wife had two children during the marriage. The parties later
separated and attempted mediation, but were unable to resolve their
dispute, and Wife petitioned for dissolution of the marriage in 2017.
¶3 The parties reached an agreement pursuant to Rule 69 of the
Rules of Family Law Procedure resolving issues regarding legal decision-
making authority, parenting time, and asset distribution. The court held a
trial to decide spousal maintenance and Husband’s request for attorneys’
fees and costs, among other issues not relevant to this appeal. Husband
requested spousal maintenance of $2,500 per month for eight years.
¶4 At trial, the court heard testimony from both parties
regarding their respective careers and their standard of living during the
marriage. Wife is a neuropsychologist, and at the time of trial, she earned
approximately $170,000 a year. Husband testified at trial that he had
recently taken a position as a career coach at Grand Canyon University
earning $50,000 a year, and he supplemented that income as a tennis
instructor. Husband has a master’s degree in education, specializing in
counseling psychology, but he testified that prior to his current
employment, the last time he had a job applying those skills “would have
been 2006.” He testified that he spent significant time at home caring for
his children and his ailing father.
¶5 The court awarded Husband spousal maintenance of $1,000
per month for two years and denied Husband’s request for attorneys’ fees
and costs. Husband timely appealed, and we have jurisdiction pursuant to
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Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and
-2101(A)(1).
DISCUSSION
I. Spousal Maintenance
¶6 Husband argues the court abused its discretion in awarding
him only $1,000 in monthly spousal maintenance for two years. We review
court orders on spousal maintenance for an abuse of discretion. Boyle v.
Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012). The court abuses its discretion if it
makes an error of law in reaching a discretionary conclusion or if the record
does not support a discretionary ruling. Id. We do not reweigh evidence
on appeal, and we will affirm the court’s ruling if substantial evidence
supports it. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).
¶7 In reviewing the amount and duration of an award of spousal
maintenance, we consider whether the court properly considered the
factors set out in A.R.S. § 25-319(B). Thomas v. Thomas, 142 Ariz. 386, 390
(App. 1984). The court need not apply every factor listed in § 25-319(B), as
some factors may not apply. Cullum v. Cullum, 215 Ariz. 352, 355, ¶ 15 (App.
2007). Fixed-term maintenance promotes the receiving spouse’s “diligent
effort to become self-sustaining,” but a court should balance this goal
against a “realistic appraisal of the probabilities” that the receiving spouse
can actually become self-sustaining to a “reasonable approximation of the
standard of living” the spouses enjoyed during the marriage. Rainwater v.
Rainwater, 177 Ariz. 500, 503 (App. 1993) (citation omitted) (internal
quotation marks omitted).
¶8 As to the first factor under A.R.S. § 25-319(B), Husband
contends the court erred in finding the parties enjoyed a “nice, middle-class
standard of living.” He insists that the parties instead enjoyed a higher
standard of living, or “an upper, middle class standard of living,” citing
“expensive wine clubs,” trips, timeshares, late-model cars, and camps for
one child. In separate pretrial statements, Wife described the parties’
standard of living as “average for a 4-person household,” and Husband
described “an upper middle-class standard of living” with “a nice home in
Scottsdale” and both parties belonging to “expensive health clubs.”
Husband testified that the family lived in “a nice house,” had timeshares,
“went on trips,” and enjoyed “Wine of the Month Clubs.” But the court
noted that the parties rented, and did not own, the marital home in which
the family lived prior to separation, and that neither party presented
credible evidence “the parties took multiple vacations, repeatedly
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purchased new vehicles, incurred substantial debt for which they still owe,
or lived an upper class lifestyle.” That the court found it received “no
credible evidence” regarding a lifestyle above middle class indicates the
court considered Husband’s testimony and weighed the credibility of his
characterization of the parties’ standard of living. We generally defer to the
findings of the court because “the family court is in the best position to
judge the credibility of witnesses and resolve conflicting evidence.” Vincent
v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015). On this record, the court did
not abuse its discretion in determining the parties’ standard of living.
¶9 Husband also cites health issues that he argues prevent him
from maintaining appropriate employment: a prior stroke, “CADASIL, an
early onset dementia disease,” and he was issued “a permanent handicap
placard.” The court found “no credible evidence” that demonstrated
Husband “has any physical or mental health issues” impacting his ability
to seek or maintain employment. See A.R.S. § 25-319(B)(3). The record
supports this finding. Husband’s separate pretrial statement does not
mention either medical condition, and Husband did not testify that he had
been diagnosed with CADASIL, that he had any ongoing effects from a
stroke, or that he faced any other health limitations. Because Husband did
not raise these arguments before the court, they are deemed waived, and
we do not consider them here. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz.
530, 535, ¶ 18 (App. 2007). We find no error in the court’s finding that
Husband does not have physical or mental issues affecting his ability to find
and maintain employment.
¶10 Husband raises other arguments contesting the court’s
findings under A.R.S. § 25-319(B).1 He argues that the court’s spousal
maintenance award did not adequately account for his contributions to
Wife’s career, did not address the disparity in the parties’ salaries, and did
not consider sufficiently the reasonableness of the community property
division in relation to his “reasonable needs.” Husband also contests the
court’s finding, under A.R.S. § 25-319(B)(11), that it received “no credible
evidence” of concealment of property held in common. He argues instead
that he presented evidence of Wife’s concealment of community funds.
However, the court’s finding makes it clear that it did not find “credible”
evidence on concealment of community funds. The key is that the court did
not find whatever evidence it heard to be credible. As such, Husband’s
1 In his appellate brief, Husband describes the spousal maintenance
award as “non-modifiable.” However, the court explicitly ordered that
“the award shall be modifiable as to amount and duration in accordance
with A.R.S. § 25-327.”
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additional arguments essentially ask us to reweigh evidence presented to
the court; we will not do so. Hurd, 223 Ariz. at 52, ¶ 16. The court, in its
fact-finding role, is tasked with making credibility determinations. Here,
the record supports the court’s findings as to each factor under § 25-319(B)
and its credibility determinations. In fact, the record is replete with
evidence which contradicts Husband’s position at trial. For instance,
having heard the parties’ testimony, the court found that “[i]f [Wife] is
correct, [Husband] was not a stay-at-home parent from 2007 to 2013,” that
“[Wife] testified that [Husband] was underemployed during the recent
years in their marriage,” and that “[Wife] testified the parties hired a nanny
who worked with the family almost fulltime and actually moved with the
family to Indianapolis.” On this record, there is a sufficient basis to hold
the court did not abuse its discretion in determining the amount and
duration of the spousal maintenance award.
II. Attorneys’ Fees
¶11 Husband argues that the court should have granted his
request for attorneys’ fees and costs. Husband contends that the court
abused its discretion in considering how much each party paid toward the
mediation and argues that the funds were community property. We review
a ruling on a fee request for abuse of discretion. Myrick v. Maloney, 235 Ariz.
491, 494, ¶ 6 (App. 2014).
¶12 A court may, in its discretion, award attorneys’ fees after
considering the financial resources of each party and the reasonableness of
the parties’ positions. A.R.S. § 25-324(A); Myrick, 235 Ariz. at 494, ¶ 9. Here,
the court expressly addressed each. Despite finding a “substantial”
disparity in financial resources, the court denied Husband’s request for
attorneys’ fees and costs because he “acted unreasonably” during the
litigation and in ultimately entering agreements “strikingly similar” to
those he had rejected over a year prior. The court also found Wife’s
testimony regarding the ineffective mediation more credible than
Husband’s testimony. See Vincent, 238 Ariz. at 155, ¶ 18 (noting “the family
court is in the best position to judge the credibility of witnesses” and that
appellate courts generally defer to the family court’s findings). As to his
generalized argument that the court improperly characterized the
payments for mediation, Husband fails to articulate clearly which
payments were improperly attributed. Finding sufficient support on the
record for the court’s findings that Wife paid the majority of the fees
associated with the parties’ pre-decree mediation, we find no error.
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Decision of the Court
¶13 Both parties request attorneys’ fees and costs pursuant to
A.R.S. § 25-324, and Wife requests fees and costs pursuant to ARCAP 25. In
our discretion, we deny both requests for attorneys’ fees. As the prevailing
party, however, Wife is awarded her taxable costs on appeal upon
compliance with ARCAP 21(b).
CONCLUSION
¶14 For the foregoing reasons, we affirm the court’s award of
spousal maintenance and its decision to deny Husband’s request for
attorneys’ fees, and we award Wife her taxable costs on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA
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