Dominguez v. Dominguez ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
SILVIA DOMINGUEZ, Petitioner/Appellee,
v.
CARLOS DOMINGUEZ, Respondent/Appellant.
No. 1 CA-CV 13-0601
FILED 10-21-2014
Appeal from the Superior Court in Maricopa County
No. FC2012-093526
The Honorable Bethany G. Hicks, Judge
AFFIRMED
COUNSEL
Steadman Law Firm, PLC, Mesa
By Timothy W. Steadman
Counsel for Petitioner/Appellee
Law Offices of Jose De La Luz Martinez, PLLC, Phoenix
By Jose De La Luz Martinez
Counsel for Respondent/Appellant
DOMINGUEZ v. DOMINGUEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Dean M. Fink1 joined.
W I N T H R O P, Presiding Judge:
¶1 Carlos Dominguez (“Husband”) appeals the family court’s
award of spousal maintenance to Silvia Dominguez (“Wife”) pursuant to
the court’s dissolution decree. Husband alleges the family court abused its
discretion when it awarded Wife $2,000 per month in spousal maintenance
because the court allegedly did not consider (1) Husband’s reasonable
living expenses and (2) the marital property apportioned to Wife. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Wife petitioned for dissolution of her twenty-seven year
marriage to Husband on July 13, 2012. At the time the petition was filed,
Wife and Husband had one minor child, who lived with Wife. At a
temporary orders hearing in February 2013, the court determined
Husband’s then current monthly income to be $7,447 based on a paystub
reflecting his 2012 earnings, which Husband submitted with his Affidavit
of Financial Information (“AFI”). The court then awarded Wife $1,300 per
month in temporary spousal maintenance. In ordering the temporary
award, the court found Wife lacked sufficient property to provide for her
reasonable needs and Wife was unable to be self-sufficient through
appropriate employment under Arizona Revised Statutes (“A.R.S.”) section
25-319(A) (West 2014).2 Husband was also ordered to pay child support
and to reimburse Wife for attorneys’ fees.
¶3 In April 2013, Wife filed an emergency motion to enforce the
court’s temporary orders, alleging Husband was in arrears because he had
1 Pursuant to Article 6, Section 3 of the Arizona Constitution, the
Arizona Supreme Court designated the Honorable Dean M. Fink, a Judge
of the Maricopa County Superior Court, to sit in this matter.
2 We cite the current version of the statutes if no revisions material to
our decision have occurred since the relevant dates.
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Decision of the Court
failed to pay child support, spousal maintenance, and Wife’s attorneys’
fees. The court held a hearing on April 26, 2013, addressing Wife’s
emergency motion, at which Husband provided copies of his paychecks in
an effort to prove the proper amounts of spousal maintenance and child
support were being garnished from his pay. The court ordered Husband
to file an AFI and attach his income tax returns for the previous two years.
At a subsequent hearing on May 29, 2013, Husband provided his AFI to
both the court and counsel for Wife. The court found Husband in contempt
of court for his previous failure to pay child support and spousal
maintenance. Husband was incarcerated in the Maricopa County Jail until
he paid $5,000 to purge the contempt.
¶4 The dissolution trial was held on July 26, 2013. Wife was
represented by counsel and Husband represented himself. Both Husband
and Wife testified at the dissolution trial. During his testimony, Husband
provided an AFI to the court and Wife’s counsel. Husband did not seek to
admit his AFI into evidence, and the court did not do so; however, the court
did find Husband’s AFI was consistent with the court’s prior finding from
the temporary orders hearing. Husband’s AFI estimated his gross monthly
salary at $7,000. During trial, Husband acknowledged he had a 401(K)
retirement account worth approximately $100,000, which Husband had
earned from his employment while married to Wife.
¶5 On August 5, 2013, the court issued a divorce decree, finding
Husband’s gross income was $87,000 annually. In the decree, the court
specifically addressed each prong of A.R.S. § 25-319(A) and found Wife was
entitled to spousal maintenance. The court then addressed each prong of
A.R.S. § 25-319(B), and awarded Wife $2,000 per month in spousal
maintenance for seven years. In addition, the court found Husband capable
of paying spousal maintenance in the amount of $2,000 per month for seven
years. Husband appeals the court’s award of spousal maintenance. We
have jurisdiction over his timely appeal pursuant to A.R.S. § 12-2101(A)(1).
ANALYSIS
I. Failure to comply with ARCAP 13(a)(6)
¶6 Before addressing the merits of Husband’s arguments, we
address both parties’ failure to fully comply with the Arizona Rules of Civil
Appellate Procedure (“ARCAP”). Rule 13(a)(6) of ARCAP states an
argument shall contain citations to the “parts of the record relied on.” In
his opening brief, Husband makes numerous factual assertions but does not
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consistently cite the record to support these assertions.3 We caution counsel
for both parties that the failure to provide proper citation may be treated as
waiver of the arguments made. See Ritchie v. Krasner, 221 Ariz. 288, 305,
¶ 62, 211 P.3d 1272, 1289 (App. 2009) (holding the failure to comply with
ARCAP Rule 13 can constitute waiver of that claim). Nonetheless, despite
the parties’ failure to comply with ARCAP Rule 13(a)(6) and Rule 13(b), we
address Husband’s claims on the merits. See Clemens v. Clark, 101 Ariz. 413,
414, 420 P.2d 284, 285 (1966).
II. The Merits
¶7 Husband alleges the court abused its discretion in awarding
Wife $2,000 in spousal maintenance for seven years when it failed to
consider (1) Husband’s reasonable living expenses and (2) the marital
property apportioned to Wife. An abuse of discretion occurs when the
record is “devoid of competent evidence to support the decision of the
[family] court.” Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668 (1963).
Absent a clear abuse of discretion, the family court’s judgment will not be
reversed. O’Connor v. O’Connor, 16 Ariz. App. 599, 601, 494 P.2d 1344, 1346
(1972).
A. The family court did not fail to consider Husband’s
reasonable expenses as contained in his AFI when it determined the
amount and duration of Wife’s spousal maintenance award.
¶8 The family court made specific findings under A.R.S. § 25-
319(A) and (B) that indicate the court considered the information contained
in Husband’s AFI in its award of spousal maintenance to Wife. Specifically,
the court found Husband’s monthly gross income as listed in his AFI to be
approximately $7,000. Moreover, under A.R.S. § 25-319(B)(9), the court
explicitly found Husband had the ability to support himself and contribute
to Wife’s needs. In addition, the court found Husband capable of paying
the amount and duration of the award.
¶9 Husband asserts his net pay after spousal maintenance is
deducted cannot meet his reasonable needs. To support his assertion,
Husband refers to the information contained within his AFI and his
testimony from the dissolution trial. Husband reiterates his monthly gross
3 Husband occasionally cites to a transcript of the dissolution trial and
to the divorce decree. However, he fails to cite to the record as support for
many of his other factual assertions.
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income as listed on his AFI is approximately $7,000. Both Husband and
Wife agree Husband’s reasonable monthly expenses enumerated in the AFI
total approximately $3,368.4 During trial, when asked by Wife’s counsel if
Husband had provided paystubs or his income tax returns with his AFI,
Husband answered, “Yes. I provided them in the form. If they’re not there,
but I think they were just asking for the first two pages of the income tax
returns. And I think they didn’t ask for any checks. But if it’s necessary I
can provide them at anytime.”
¶10 Husband asserts his answer at trial demonstrates he “clearly
disclosed” his most recent income tax returns to the family court. We
disagree. Despite his assertion, Husband fails to cite to any other evidence
in the record to indicate the court used the aforementioned tax returns in
rendering its decision.5 Wife submitted the only joint tax return of the
parties contained in the record. It is the responsibility of the appealing
party to ensure the record contains all necessary documents; otherwise, we
assume the record supports the family court’s findings. See Baker v. Baker,
183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). The limited record Husband
has provided this court does not contradict the court’s finding that
Husband earned $87,000 annually, or approximately $7,000 per month.
Moreover, the record does not support Husband’s assertion that his
reasonable expenses as contained in his AFI were not considered, as the
court made relevant findings based on the information contained within his
AFI. Accordingly, the court did not abuse its discretion.
B. The family court did not abuse its discretion when it
awarded Wife the amount and duration of the spousal maintenance
and her share of the community property.
¶11 The family court is not required to apply each factor of A.R.S.
§ 25-319(B); rather, the court determines the amount and duration of
spousal maintenance on a case-by-case basis. Cullum v. Cullum, 215 Ariz.
352, 355, ¶ 15, 160 P.3d 231, 234 (App. 2007) (internal citation omitted). An
abuse of discretion may occur if the family court fails to address a factor
“with respect to which the parties presented evidence.” Elliott v. Elliott, 165
Ariz. 128, 136, 796 P.2d 930, 938 (App. 1990). Husband asserts the family
court did not properly weigh his testimony regarding the retirement
4 When calculated by this court, Husband’s reasonable monthly
expenses differ minimally from the amount asserted by both parties.
5 Husband failed to submit any financial documents, including
income tax returns or paystubs, to substantiate his claim on appeal.
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account when the court failed to explicitly address Wife’s portion of the
retirement account in awarding her spousal maintenance under A.R.S. § 25-
319(B)(9). However, in determining Wife’s eligibility for spousal
maintenance, the court explicitly found “[t]he property distributed is not
sufficient to provide for Wife’s needs.” See A.R.S. § 25-319(A)(1). In
addition, under A.R.S. § 25-319(B)(9), the court stated, “Husband has the
earning ability to support himself and to contribute to Wife’s needs.”
¶12 It is clear from this record the family court did not fail to
consider Wife’s potential interest in the retirement account when it
awarded Wife maintenance for seven years. Husband’s assertion that
Wife’s interest in that account should reduce or eliminate her award is
baseless.6 Because Wife is in her late forties, which is several years away
from retirement age, Wife likely cannot access the retirement account
without incurring a significant penalty. This court will not compel Wife to
supplement her income by prematurely withdrawing funds from the
retirement account. See Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 20, 972
P.2d 676, 681 (App. 1998). Based on the record before this court, the family
court did not abuse its discretion in awarding Wife $2,000 in spousal
maintenance for seven years.
III. Wife’s Request for Attorneys’ Fees
¶13 Wife requests attorneys’ fees on appeal, arguing Husband’s
appeal lacks merit and is entirely unreasonable. Wife fails to cite any legal
authority to support her request. Further, Wife does not offer current proof
of the financial resources of the parties. See A.R.S. § 25-324(A).
Accordingly, we deny Wife’s request for attorneys’ fees.
6 Husband’s only testimony regarding the retirement account
involved the existence, value, and the establishment of the account during
the parties’ marriage.
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DOMINGUEZ v. DOMINGUEZ
Decision of the Court
CONCLUSION
¶14 For the foregoing reasons, we affirm.
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