Solberg v. Solberg ( 2016 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    ERIC C. SOLBERG, Plaintiff/Appellant,
    v.
    REBECCA L. SOLBERG, Defendant/Appellee.
    No. 1 CA-CV 15-0380FC
    FILED 7-7-2016
    Appeal from the Superior Court in Maricopa County
    No. FC2011-000167
    The Honorable Aimee L. Anderson, Judge
    AFFIRMED
    COUNSEL
    Gillespie, Shields, Durrant & Goldfarb, Mesa
    By Mark A. Shields, DeeAn Gillespie Strub
    Counsel for Plaintiff/Appellant
    The Murray Law Offices, Scottsdale
    By Stanley David Murray
    And
    The Law Offices of Stone & Davis
    By Lisa Johnson Stone
    Counsel for Respondent/Appellee
    SOLBERG v. SOLBERG
    Decision of the Court
    MEMORANDUM DECISION
    Judge Jon W. Thompson delivered the decision of the Court, in which
    Presiding Judge Patricia A. Orozco and Judge Peter B. Swann joined.
    T H O M P S O N, Judge:
    ¶1             Eric C. Solberg (husband) appeals from the trial court’s signed
    judgment declining to change the nature of property held with Rebecca L.
    Solberg (wife) as tenants in common, the denial of his motion for
    modification of spousal maintenance, and the award of attorneys’ fees
    against him in the amount of $31,829.09. Finding no abuse of discretion by
    the trial court, we affirm.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2           Husband and wife were divorced by a decree on entered on
    February 6, 2013. That judgment awarded a community property rental
    house (the Electra property) as tenants in common. Wife was awarded
    spousal maintenance in the amount of $3,500 for sixty months. That
    judgment was not appealed.
    ¶3             In April 2014, husband filed a Petition for Order to Appear
    Re: Division of Undivided Asset and Modification of Spousal Maintenance.
    Husband asserted that that the property was “not divided” in the decree.
    Husband further asserted that wife had an increased income, or the
    potential for an increased income, while husband’s dental practice was not
    bringing in the same income it had previously. Husband asserted that wife
    had less actual living expenses than were contemplated when the spousal
    maintenance award was entered, while he had additional debt from loans
    and taxes, and that he was preparing to pay for their child to attend college.
    ¶4            The family court held an evidentiary hearing. Husband, wife,
    and husband’s accountant testified. After review of the record, and after
    consideration of the arguments, the family court declined husband’s
    request to divide the Electra property or to modify wife’s spousal
    maintenance award. The court stated husband’s “unwillingness to continue
    to be partners with Respondent is not good cause to deviate from the terms
    of the Decree” and that the “original terms of the parties Decree, as it relates
    to the property located on Electra Lane, remain in full force and effect.” It
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    SOLBERG v. SOLBERG
    Decision of the Court
    found husband had not met his burden of proof to modify the spousal
    maintenance award.
    ¶5           Wife was awarded $31,829.09 in attorneys’ fees pursuant to
    Arizona Revised Statute (A.R.S.) § 25-324 (2007) after finding husband’s
    position was “unreasonable.” Husband timely appealed.
    DISCUSSION
    ¶6           On appeal, husband asserts that the family court erred, as a
    matter of law, in failing to “divide” the Electra property which had been
    part of the marital community. To this end, he cites to A.R.S. § 25-318(A)
    (2007) which states:
    In a proceeding for dissolution of the marriage . . . [the
    court] shall also divide the community, joint tenancy and
    other property held in common equitably, though not
    necessarily in kind, without regard to marital misconduct.
    This statute, he asserts, requires the court to allocate assets in a manner not
    including tenants in common. Specifically, husband argues “[t]he
    mentality behind this statute is clear: divorced parties should not be forced
    to continue as co-owners of property.” We disagree.
    ¶7             The record is clear that the Electra property was an asset in
    the decree. The family court changed the status of this investment property
    from community property to tenants in common. Because this is not a
    situation like Cooper v. Cooper, 
    167 Ariz. 482
    , 487, 
    808 P.2d 1234
    , 1239 (App.
    1990), where an asset was not addressed in the decree, husband’s reliance
    on that case for the proposition that he could bring an action to divide the
    property is misplaced.
    ¶8             Preliminarily we note, as did wife in her answering brief, that
    if husband had an objection to the award of the property as tenants in
    common, he should have appealed that determination. He did not and,
    even were we not to find against him on the merits, his argument would
    nonetheless be waived. See Bike Fashion Corp. v. Kramer, 
    202 Ariz. 420
    , 425,
    ¶ 22, 
    46 P.3d 431
    , 436 (App. 2002) (failing to raise an issue in first appeal
    waives it as to the second appeal). As father did not request findings of fact
    or conclusions of law below, therefore, we presume the family court made
    all necessary findings supported by the evidence. Neal v. Neal, 
    116 Ariz. 590
    , 592, 
    570 P.2d 758
    , 760 (1977).
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    SOLBERG v. SOLBERG
    Decision of the Court
    ¶9             No case law supports husband’s contention that a family
    court, acting in equity, could not award property to a former husband and
    wife as tenants in common. In fact, we direct husband’s attention to A.R.S.
    § 25-318(D) which specifically provides:
    The community, joint tenancy and other property held in
    common for which no provision is made in the decree shall
    be from the date of the decree held by the parties as tenants in
    common, each possessed of an undivided one-half interest.
    There was no abuse of discretion here, and the family court is affirmed as
    to the Electra property. See Hatch v. Hatch, 23 Ariz.App. 487, 490, 
    534 P.2d 295
    , 298 (1975).
    ¶10           Husband next challenges the family court’s denial of his
    request to modify wife’s spousal maintenance award. To this end, he
    asserts she has lowered expenses and an increase in her hourly pay. On
    appeal, we review the family court's denial of a request for modification of
    spousal maintenance awarded in a dissolution decree for an abuse of
    discretion. Nace v. Nace, 
    107 Ariz. 411
    , 413, 
    489 P.2d 48
    , 50 (1971). Therefore,
    we view the evidence in the trial court in the light most favorable to
    sustaining the family court’s ruling, and we will affirm if there is any
    reasonable evidence to support it. See Thomas v. Thomas, 
    142 Ariz. 386
    , 390,
    
    690 P.2d 105
    , 109 (App. 1984).
    ¶11             Family courts should consider all factors in determining
    whether a reduction in spousal maintenance is appropriate, rather than
    using a dollar-for-dollar reduction for wife’s increased earnings. See Norton
    v. Norton, 
    101 Ariz. 444
    , 477, 
    420 P.2d 578
    , 581 (1966). Further, wife’s
    lowered expenses due to cohabitation do not necessarily constitute a reason
    for reduction in spousal maintenance where there is no substantial net
    change in her expenses. See Van Dyke v. Steinle, 
    183 Ariz. 268
    , 279-80, 
    902 P.2d 1372
    , 1383-84 (App. 1995) (holding a cohabitation is not a sufficient
    basis, in itself, for reduction of spousal maintenance).
    ¶12          The family court heard testimony from both husband and
    wife. The court found “[a]lthough there has been minimal change in
    circumstance, the income earned by Petitioner has not been substantial or
    continuing.” The family court also heard testimony regarding father’s
    income from which it could have found no substantial decrease since the
    2012 decree. The transcript reasonably supports the family court’s
    determination that husband “has not met the burden of proof required
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    SOLBERG v. SOLBERG
    Decision of the Court
    based on his failure to demonstrate either a substantial or continuing
    change of circumstances“ as to wife’s earnings or expenses.
    ¶13           The trial court is the best judge of the credibility of the
    witnesses and the weight of the evidence. Goats v. A.J. Bayless Mkts., Inc., 
    14 Ariz. App. 166
    , 171, 
    481 P.2d 536
    , 541 (1971). We will not substitute our
    opinion of that determination. See 
    id. at 169,
    481 P.2d at 539. On this record,
    we cannot conclude the court abused its discretion in denying husband’s
    request to modify his spousal maintenance obligation.
    Attorneys' Fees Below and On Appeal
    ¶14           After considering the factors of A.R.S. § 25-324, the family
    court awarded wife attorneys' fees in the amount of $31,829.09. The family
    court found husband took an “unreasonable posture” in this matter. The
    court was aware of the parties’ relative financial positions and heard
    testimony which could support a finding that husband’s positons were
    unreasonable. For the above stated reasons, we do not find the trial court
    abused its discretion in the award of attorneys’ fees to wife under A.R.S. §
    25-324. See Magee v. Magee, 
    206 Ariz. 589
    , 590, ¶ 1, 
    81 P.3d 1048
    , 1049 (App.
    2004).
    ¶15          Husband and wife each request their attorneys’ fees on
    appeal. Wife is awarded costs and reasonable fees, in an amount to be
    determined, after compliance with ARCAP 21.
    CONCLUSION
    ¶16           The family court is affirmed.
    :AA
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