In Re the Marriage of Hinkston , 133 Ariz. 592 ( 1982 )

OPINION

JACOBSON, Presiding Judge.

In this appeal involving a dissolution proceeding, we are asked to determine if the lower court abused its discretion concerning the amount of spousal maintenance awarded to appellee and the award of custody of the parties’ son to an adult brother. We affirm in part and reverse in part.

Don Hinkston, appellant, and Leola Hink-ston, appellee, were married in 1952. On September 25, 1979, a decree of dissolution was entered wherein the lower court ordered that the parties’ home should be sold and the net proceeds be distributed fifty-five percent in favor of appellee (approximately $10,400.00) and forty-five percent in favor of appellant (approximately $8,500.00). Additionally, appellant was given a 1967 automobile valued at $500.00, a 1960 motorcycle valued at $100.00, a tent trailer worth approximately $25.00, and a mobile home which had zero equity. The decree ordered appellant to pay spousal maintenance in the amount of $275.00 per month for as long as appellee is unemployed, and $125.00 per month if appellee became employed, said amounts to be paid indefinitely. Appellant was further ordered to pay $100.00 per month for the support of John, the parties’ one minor child.¹ Custody of John was awarded to John’s older brother, Tom Evans. Additional facts will be related as they become necessary.

Appellant first argues that the lower court erroneously awarded appellee spousal maintenance in the amount of $275.00 per month for an indefinite period of time. Apparently, it is appellant’s position that the trial court abused its discretion regarding both the amount and the duration of the award. It is an extremely well-settled rule of law that because the trial judge is in the best position to properly tailor an award of spousal maintenance, the trial court is given broad discretion to determine what is a reasonable amount, and we will not interfere with the amount awarded unless an abuse of discretion has been shown. Sommerfield v. Sommerfield, 121 Ariz. 575, 592 P.2d 771 (1979); Burkhardt v. Burkhardt, 109 Ariz. 419, 510 P.2d 735 (1973); Nelson v. Nelson, 114 Ariz. 369, 560 P.2d 1276 (App.1977); Day v. Day, 20 Ariz.App. 472, 513 P.2d 1355 (1973).

According to the testimony presented in the lower court, at the time of the dissolution hearing appellant was not employed because he had spent approximately two months preparing the family residence for sale. However, appellant testified that previous to that he had been employed as a construction worker hanging sheetrock and as a security guard, and that he intended to return to both jobs when the work on the house was finished. It is not strenuously argued, nor could it be, that because appellant only intended to return to these jobs the lower court was not sufficiently presented with an amount of monthly income from which an award of spousal maintenance could be given. Appellant gave no indication of anything that would prevent him from returning to either job, and he testified without hesitation regarding the number of hours required by each position and the respective amounts of income he expected to earn.

Rather, appellant argues that an indefinite award of $275.00 per month for maintenance is excessive. We do not agree. Both parties testified that appellee had not worked in the past eight years,² and the record reflects that appellee only had a tenth grade education. Also, it is undisputed that appellee had Huntington’s disease and that, according to a conciliation court recommendation, it could not be predicted how slowly or rapidly the disease would progress or how much the disease would interfere with appellee’s ability to become employed.

Under these circumstances, we cannot say that the trial court abused its discretion by requiring appellant to pay maintenance of $275.00 per month for an indefinite period of time. Some of the factors to be considered by the trial court when determining the amount of maintenance are: the financial needs of the wife, the wife’s ability to sustain her own needs, the husband’s financial condition, and the standard of living established during the marriage. A.R.S. § 25-319; Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d 199 (App.1977); Pettibone v. Pettibone, 22 Ariz.App. 570, 529 P.2d 724 (1974). Certainly the schedule of expenses prepared by appellee evidenced a financial need of at least $275.00 per month, even considering that appellee was not awarded custody of her son. It was also proper for the trial court to consider appellee’s undisputed medical condition and the effect it might have on her future ability to sustain herself. Pettibone v. Pettibone, supra. Furthermore, we note that although the award falls near the high end of the scale, the amount awarded is within the guidelines adopted by the Domestic Relations Division of the Maricopa County Superior Court. And finally, when computed on an annual basis, such an amount would reasonably compare to the standard of living established by the parties during their marriage.³

Although the trial court is vested with broad discretion when determining a wife’s need for maintenance, there still must be some support in the record for the court’s determination. Lindsay v. Lindsay, supra. Moreover, spousal maintenance is impermissible unless a spouse meets the requirements of A.R.S. § 25-319(A) at the time of the dissolution hearing. Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977). Accordingly, we find no justification for that part of the maintenance order which required appellant to pay $125.00 per month even if appellee became employed. Appellee testified that she wanted to work, that she had “applications in all over the place,” and that she was next on the list to be hired at Motorola. There is simply nothing in the record to support the trial court’s determination that if appellee obtained employment, she would need an additional $125.00 per month to sustain herself. Nor can additional alimony be predicated on mere hopes and speculative expectations. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963); Lindsay v. Lindsay, supra. We therefore strike that portion of the decree requiring appellant to pay maintenance of $125.00 per month if appellee becomes employed. Since we find that the employment of the appellee is unsupported by the record, we of necessity must also strike that portion of the award which conditioned spousal maintenance in the sum of $275 per month “for as long as appellee is unemployed.” The amount of spousal maintenance to be paid in the future is best left to future petitions for modification based upon the normal change of circumstances criteria.

Lastly, appellant argues that the trial court abused its discretion by awarding custody of the parties’ only minor child, John, to John’s older brother.

The entire argument concerning this issue set forth in the appellant’s opening brief (p. 6) is as follows:

Finally, the Court erred in awarding the minor child to an adult brother. The conciliation court report indicated the child favored Mr. Hinkston, and further, recommended liberal visitation to both Mr. and Mrs. Hinkston (thus obviating any negative aspects of Mr. Hinkston having custody). Moreover, Mr. Hink-ston had temporary custody of the child up to the date of dissolution (as per an Order to Show Cause). It is respectfully submitted that the minor child would be better off with the Father, than with an adult brother, and therefore Mr. Hink-ston should be awarded custody.

In fact, the evidence before the court clearly indicates that appellant is both temper-mentally unfit to have custody and is unable to provide proper physical care for the child. The appellee in her answering brief supports the trial court’s order granting custody to the older brother. In LeRoy v. Odgers, 18 Ariz.App. 499, 503 P.2d 975 (1973), Division 2 of this court held that in absence of a finding of unfitness of a parent to have custody, the trial court abuses its discretion in awarding custody in a dissolution proceedings to a non-parent. Appellant does not question the evidentiary finding that he is unfit to have custody and appellee admits she is incapable of exercising custody. Moreover, appellant does not directly put in issue the authority of the trial court to grant custody to a non-parent. Under these circumstances, we hold, at least facially, the custody order is proper.

For the first time in the reply brief, the appellant raises the issue that the trial court did not comply with A.R.S. § 25-328, which provides as follows:

§ 25-328. Separate trials when custody or visitation is an issue

A. In all cases when custody or visitation is a contested issue, the court shall first hear all other issues including maintenance and child support. The contested issue of custody or visitation shall not be heard at any hearing involving other issues even upon agreement of attorneys.

B. After all other issues have been decided and the amount of maintenance and child support established by the court, then the issues of custody or visitation may be heard.

Normally, issues raised for the first time in a reply brief shall not be considered by the appellate court. Evans v. Federal Savings and Loan Insurance Corp., 11 Ariz.App. 421, 464 P.2d 1008 (1970). Appellant contends however that the failure to follow A.R.S. § 25-328 is jurisdictional, citing Honsey v. Honsey, 126 Ariz. 336, 615 P.2d 14 (App.1980) and thus may be raised at anytime. In Honsey, a domestic relations case in which no answering brief was filed, Division Two of this court, without any analysis, stated:

The issue of child custody was heard prior to the resolution of all the other issues including the amount of child support established by the court. While neither counsel objected to the procedure, the provisions of A.R.S. Sec. 25-328 are clearly jurisdictional.

126 Ariz. at 337, 615 P.2d at 15.

Honsey is a classic example of the mischief that can arise when courts indiscriminately use the term jurisdiction (the power to act) when what is meant is legal error (the court acted improperly). Failure to follow A.R.S. § 25-328 is clearly legal error, even non-waivable legal error, but it cannot be jurisdictional. The power of the superior court to award custody of minor children in a dissolution proceeding is derived initially from the Arizona Constitution, art. 6, § 14 and is directly conferred by A.R.S. § 25-331. A.R.S. § 25-331 is clear that jurisdiction (the power) of the superior court to act in custody matters is derived from the domiciliary status of the child, the connection of the child and the contestants with this state, and the physical presence of the child within the state. See generally A.R.S. § 8-403.

The legislature has enacted an elaborate interlocking framework of legislation attempting to clarify the question of the superior court’s jurisdiction in child custody matters. To envision that this framework could be overthrown simply because the court failed to follow a procedural direction of the legislature is simply not required either legally or by any public policy considerations.

Moreover, to hold that the superior court lacks jurisdiction and therefore its orders are void, simply because the procedural dictates of A.R.S. § 25-328 are not followed, possibly casts into doubt numerous custody orders of the court which are presently being followed. Again, such a result is not legislatively required.

We therefore hold that the failure to follow A.R.S. § 25-328 does not deprive the superior court of jurisdiction to enter a custody decree, but simply makes a decree not entered in conformity with the statute legally erroneous. The failure to raise this legal error in a proper manner does not require us to consider it.

That portion of the decree dissolving the marriage, dividing the property, awarding indefinite spousal maintenance of $275 per month and awarding custody to Tom Evans is affirmed. The decree is modified to strike the award to appellee of $125.00 per month in the event she becomes employed, and strike the condition that continuance of the award of $275 per month depends upon her remaining unemployed.

Affirmed as modified.

1 . If appellee ever became employed, she was also ordered to pay child support in the amount of $35.00 per month.

2 . There is some confusion here. Although both parties did testify that appellee had last worked eight years ago, appellee also testified that she had been employed at Casecraft approximately two and one-half years ago.

3 . For the year prior to the dissolution, the parties had a net income of $4,250.00. At $275.00 per month, appellee would be given a yearly amount of $3,300.00. Even assuming a net monthly salary of $865.00 from the sheetrock position only, and including the payment of $100.00 per month child support, appellee would still be left with a yearly income of approximately $5,880.00.