Pachtman v. Pachtman

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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:

KAREN TOMORY PACHTMAN, Petitioner/Appellant,

v.

MICHAEL ARTHUR PACHTMAN, Respondent/Appellee.

No. 1 CA-CV 12-0678
FILED 08-19-2014

Appeal from the Superior Court in Maricopa County
No. FN2010-093843
The Honorable Benjamin R. Norris, Judge

AFFIRMED IN PART, VACATED IN PART, REMANDED

COUNSEL

Law Offices of Robert E. Siesco Jr., Phoenix
By Robert E. Siesco

Law Office of Gregory E. Hinkel, Glendale
By Gregory E. Hinkel
Co-Counsel for Petitioner/Appellant

Dickenson Wright, PLLC, Phoenix
By Robert L. Schwartz, Anne L. Tiffen
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Kent E. Cattani joined.

P O R T L E Y, Judge:

¶1 Karen Tomory Pachtman (“Wife”) challenges various rulings
leading to the decree of dissolution, as well as the award of attorneys’ fees
to Michael Arthur Pachtman (“Husband”). Based on the following, we
affirm in part, vacate in part, and remand this matter for further
proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Shortly before their marriage in December 2003, the parties
entered into a Prenuptial Property Agreement (“PPA”). Some five years
later, and after negotiations, they entered into a Memorandum of
Understanding (“MOU”), and Husband then transferred various sole and
separate business assets to the community.

¶3 The parties separated in December 2010, and Wife filed her
petition for dissolution in February 2011. The case proceeded to trial. After
considering the evidence, the family court filed its ruling and issued a
decree of dissolution in April 2012. Wife filed a motion for reconsideration
and to alter or amend the decree, which was only granted in part, as well
as an unsuccessful motion for new trial and for amended or supplemental
findings of fact. The court granted Husband his attorneys’ fees and costs
and subsequently awarded him additional fees to encompass his response
to the motion for new trial. This appeal followed.

DISCUSSION

¶4 Wife contends that the family court erred in its construction
of the PPA and MOU. We review the court's interpretation of the
agreements de novo. Rand v. Porsche Fin. Servs., 216 Ariz. 424, 434, ¶ 37, 167
P.3d 111, 121 (App. 2007) (“The interpretation of a contract is a question of
law, which we review de novo.”) When reviewing a contract, it “must be
read as a whole in order to give a reasonable and harmonious meaning and
effect to all of its provisions.” Nichols v. State Farm Fire & Cas. Co., 175 Ariz.
354, 356, 857 P.2d 406, 408 (App. 1993) (citation omitted) (internal quotation

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marks omitted). We also interpret contracts according to their plain and
ordinary meaning, and if unambiguous, we will not create ambiguity to benefit
one party to the detriment of another. Keggi v. Northbrook Prop. & Cas. Ins. Co.,
199 Ariz. 43, 46, ¶ 11, 13 P.3d 785, 788 (App. 2000). “The purpose of contract
interpretation is to determine the parties' intent and enforce that intent. . . .
[W]hether a contract is reasonably susceptible to more than one
interpretation is a question of law, which we review de novo.” Grosvenor
Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶ 9, 218 P.3d 1045, 1050 (App.
2009). The parties' intent is a question of fact for the fact finder and we will
not reverse the fact finder's determination unless it is clearly erroneous.
Chopin v. Chopin, 224 Ariz. 425, 428, ¶ 7, 232 P.3d 99, 102 (App. 2010); see
Harrington v. Pulte Home Corp., 211 Ariz. 241, 246-47, ¶ 16, 119 P.3d 1044,
1049-50 (App. 2005) (“We must defer, absent clear error, to the factual
findings upon which the trial court’s conclusions are based.”).

¶5 During the trial, the family court had to construe the PPA and
MOU. The court determined that it had to construe both agreements
together to resolve three disputed issues: (1) what length of time was Wife
to receive $6,000 per month as spousal maintenance; (2) when was Husband
obligated to start depositing funds into the joint account for temporary
support, how much was he to deposit and was Wife entitled to half of all
the funds deposited into the account during the applicable time period; and
(3) what, if any, “additional spousal maintenance” was Husband obligated
to pay Wife for transferring her interest in a community-held company to
Husband.

I. Duration of Spousal Maintenance

¶6 The parties agreed that the PPA required Husband to pay
Wife $6,000 a month as spousal maintenance. They disagree, however,
about the length of Husband’s obligation to pay spousal maintenance.

¶7 PPA ¶ 5.7(D) provides that Wife would receive spousal
maintenance “upon the entry of a decree of dissolution with a property
settlement being adjudicated . . . .” The parties disagree about the meaning
of another sentence in the paragraph that states: “[t]hat monthly spousal
maintenance amount shall continue so long as [Wife] is living, until the
earlier of the following events: (a) a date which follows the dissolution date
by one-half of the number of months that the parties were married, or (b)
[Wife’s] remarriage.” (Emphasis added.) The dispute, as a result, is over
the term “dissolution date.”

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¶8 Under the PPA, the use of the term “dissolution date” would
be given its customary meaning of the date of the decree of dissolution;
especially considering that the initial sentence of subparagraph D discusses
“upon the entry of a decree of dissolution with a property settlement being
adjudicated as well.” See Ariz. Rev. Stat. (“A.R.S.”) § 25-325(A) (“A decree
of dissolution of marriage . . . is final when entered.”).

¶9 The issue was, however, complicated by a pretrial ruling.
Before trial, the family court had to resolve whether Wife was only entitled
to spousal maintenance under the MOU or whether she would get spousal
maintenance in the PPA and additional spousal maintenance under the
MOU. The court determined that the PPA and MOU had to be read
together, that if there was any ambiguity the MOU controlled, that Wife
was entitled to spousal maintenance under the PPA and additional spousal
maintenance under the MOU, and the additional spousal maintenance
would be “retroactive to the date of the [d]issolution [e]vent.”

¶10 Husband then used the ruling to argue at trial that the family
court should apply the defined “dissolution event” in MOU
¶ 2(m), to the term “dissolution date” in PPA ¶ 5.7(D). Despite the fact that
the pretrial motion and the trial issue were different, the family court
adopted Husband’s position, and determined that the “dissolution date”
was the date the petition for dissolution was filed and not the entry of the
decree. As a result, the court concluded that the parties were married for
85 months instead of 99 months.

¶11 Here, the family court did not need to look to the MOU
generally or specifically to MOU ¶ 2(m) to determine the meaning of the
“dissolution date” in PPA ¶ 5.7(D) because the meaning of the phrase may
be determined within the four corners of the PPA. Although the PPA
spousal maintenance provision does not specifically define “dissolution
date,” see PPA ¶ 5.7(D)(3), the introductory sentence of PPA ¶ 5.7(D) clearly
states that Wife’s spousal maintenance shall begin upon entry of a decree.
The provision is consistent with A.R.S. § 25-325(A) that provides a decree
of dissolution is final when entered by the court. As a result, the intent of
the parties in the PPA is clear – Wife would get spousal maintenance upon
entry of a dissolution decree.

¶12 Moreover, our interpretation of the term is also supported by
the PPA temporary support provision. PPA ¶ 5.7(C) provides that the
temporary support through the joint account ends on the date of a decree,
which is also the date that permanent support begins pursuant to PPA ¶
5(D). The mechanism in the PPA that the parties agreed to is similar to a

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typical divorce where there is initially temporary support and the final
spousal maintenance for whatever period of time begins with the entry of
the divorce decree.

¶13 In addition, because the MOU obligations were unrelated to
the original and separate spousal maintenance obligation in the PPA, the
PPA did not need to be read in conjunction with the MOU. MOU ¶ 13
specifically provides that the MOU controlled over the PPA only “[i]n the
event of any conflict between the provisions.” Furthermore, Restatement
(Second) of Contracts § 213 (1981) states that “[a] binding integrated
agreement discharges prior agreements to the extent that it is inconsistent
with them.” (Emphasis added.)

¶14 Here, the family court interpreted the PPA in light of MOU ¶
2(m) and found that the “dissolution event” was the date the petition of
dissolution was filed. However, unlike the PPA, MOU ¶ 2(m) did not
discuss spousal maintenance, but only the additional spousal maintenance
Wife was entitled to if she transferred her interest in a community-held
company to Husband. Consequently, the family court misinterpreted the
PPA term “dissolution date.”1

¶15 Because we have found interpretative error, we vacate the
portion of the decree limiting spousal maintenance to 42.5 months, which
was calculated as one-half the duration of the marriage. We remand the
issue to the family court and direct the court to modify the spousal
maintenance order to provide that the parties were married from December
20, 2003 to April 9, 2012,2 and Wife, as a result, is entitled to 49.5 months of
spousal maintenance under PPA ¶ 5.7(D)(3).

1 Because, as the court found, the two documents were prepared at different
times and for different purposes, there was nothing in the MOU that
suggested it was modifying the PPA spousal maintenance provision as
required by PPA ¶ 10.1. Cf. Childress Buick Co. v. O’Connell, 198 Ariz. 454,
456, ¶¶ 9-10, 11 P.3d 413, 415 (App. 2000) (finding that two agreements were
not “separate and sequential contracts,” but “contemporaneous documents
. . . to be read together to determine the nature of the transaction”).
2 We refer to the date the decree was filed with the Clerk of the Court. See

Ariz. R. Fam. L.P. 81(A) (“The filing with the clerk of the judgment
constitutes entry of such judgment.”).

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II. Joint Account

¶16 The parties created a mechanism in the PPA for temporary
support in the event of separation or divorce. PPA ¶ 5.7(C) provided that
either party could use the joint account to pay living expenses. A related
provision, PPA ¶ 4.3, provided that the parties had set up a joint account
“for the deposit of funds to pay certain expenses, including by way of
example, but not limited to, utility expenses, living expenses, travel
expenses, food expenses and community property debts.” Husband was
obligated to fund the joint account to the same level as the twenty-four
months prior to the couple separating or filing of a petition for dissolution
of marriage. See PPA ¶ 5.7(C). And, the parties agreed that the following
items listed in ¶ 5.7(A) were expressly excluded from determining the prior
twenty-four month funding level: “any gifts of separate property, or any
transmutation or conversion of separate property into community
property, or any payments of community debt with separate property
funds (other than any such payments for the regular mortgage payments
for the parties[‘] joint residences).”

¶17 At trial, Wife argued that the twenty-four month funding
history included deposits from various community medical practices and
other business entities. According to Wife’s calculations, the average
deposits over the last twenty-four months were $216,340.92 per month. As
a result, Wife argued she was entitled to receive half the amount deposited
in the joint account each month since the parties separated on December 19,
2010.

¶18 The parties, however, stipulated in June 2011 that Husband
would deposit $45,000 each month into the joint account. Husband argues
the stipulation bars Wife from making any additional claims for temporary
support. He also argues that the PPA did not intend the twenty-four month
average to include business deposits into the joint account.

¶19 The family court initially concluded that Husband’s
obligation to fund the joint account began when the parties separated in
December 2010, and continued until the entry of a decree. The court,
however, declined to include deposits from the community businesses that
were made to cover business expenses that were paid for out of the joint
account, but instead held that Husband was bound by his stipulation to
deposit $45,000 a month from the joint account from December 2010 until
the entry of the decree. Following the order, the parties continued to seek
clarification as to when Husband’s obligation began. The parties attached
different meaning to the court’s order stating that Husband was bound by

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the stipulation to deposit $45,000 into the joint account beginning June 1,
2011. The court subsequently ruled that Husband’s obligation to fund the
joint account was completely satisfied by paying Wife $22,500 from June 1,
2011 through April 6, 2012.

A. Duration of Obligation to Fund Joint Account

¶20 As a threshold matter, we resolve the issue of when
Husband’s obligation to fund the joint account began because the family
court left the parties with conflicting rulings. Here, in the under
advisement ruling, the family court stated that Husband’s obligation to
fund the joint account began on the date of separation — December 19, 2010.
In fact, at the March 26, 2012 hearing, Husband’s attorney conceded that
Husband was ordered to fund the joint account beginning December 19,
2010. In ruling on a motion for clarification, however, the court stated that
the obligation to fund the joint account was satisfied by Husband’s
payments from June 2011 to April 2012.3

¶21 The family court’s initial ruling controls. PPA ¶ 5.7(C) states
that the obligation to fund the joint account begins upon the parties’
separation. The court and both parties accepted the position until later in
the proceedings. The ruling is consistent with the purpose of PPA ¶ 5.7(C),
which was to provide temporary support to pay living expenses during the
pendency of the divorce proceedings. Consequently, the obligation to
create and fund the joint account began when the parties separated on
December 19, 2010.

B. Amount of Funding Obligation

¶22 The family court found that the parties stipulated that
Husband was obligated to deposit $45,000 per month into the joint account.
We agree.4

3 We note that the decree states that Husband’s obligation began on
“December 18/19, 2011.” (Emphasis added.) Even assuming a clerical
error, the court can make the correction on remand.
4 Wife only challenged the effect of the parties’ stipulation in her reply brief.

We will not consider issues or explanations raised for the first time in the
reply brief. Muchesko v. Muchesko, 191 Ariz. 265, 268, 955 P.2d 21, 24 (App.
1997).

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¶23 Although Wife argues that the amount she should have had
access to in the joint account should include business deposits Husband
made, her argument is inconsistent with the purpose of the PPA. Paragraph
5.7(C) of the PPA states that the joint account is for the parties to use to pay
for their living expenses. The family court heard testimony that the
community businesses would make deposits into the joint account and the
parties then would pay the businesses’ expenses from that account in order
to take advantage of substantial credit card rebates. Given the purpose of
the joint account under the PPA and the benefit of getting credit card
rebates, it would otherwise be inequitable and inconsistent with the
purpose of the PPA to compensate Wife for business deposits that were not
made to pay living expenses for the parties on a temporary basis.5

¶24 Although Wife contends that the purpose of the joint account
support provision was not limited to paying the parties’ living expenses,
she does not offer an alternative purpose that is stated within the PPA.
Moreover, Wife does not explain how the community business expenses,
which had been historically paid from the joint account, would be paid if
she were entitled to withdraw one-half the business deposits.

¶25 Wife also contends that she was entitled to whatever surplus
was remaining in the joint account. Husband did not address that
argument. The issue was not in the parties’ joint pretrial statement, and
Wife did not raise it until her motion for new trial. Accordingly, we decline
to address the issue that was not presented to the family court in a timely
manner. See Conant v. Whitney, 190 Ariz. 290, 293, 947 P.2d 864, 867 (App.
1997).

¶26 The family court did not adopt the correct date for the
creation and funding of the joint account. Accordingly, we remand the
matter to the family court and direct it to modify its order to state that
Husband pay Wife $22,500 for the period from the date of separation,
December 19, 2010, until the entry of the decree, April 9, 2012.

III. Valuation of Wife’s Interests in Harbor Heights

¶27 Wife argues that the court erred in its determination of the
value of her interest in Harbor Heights (“HH”), a holding company that

5Given our resolution, we need not address Husband’s arguments that the
business deposits were one of the expressly excluded items under PPA ¶
5.7(A) or that inclusion would be unconscionable.

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owns various businesses and assets. We will affirm the family court’s
“factual findings unless clearly erroneous or unsupported by any credible
evidence.” Valento v.Valento, 225 Ariz. 477, 481, ¶ 11, 240 P.3d 1239, 1243
(App. 2010). “‘The valuation of assets is a factual determination that must
be based on the facts and circumstances of each case.’” Walsh v. Walsh, 230
Ariz. 486, 490, ¶ 9, 286 P.3d 1095, 1099 (App. 2012) (quoting Kelsey v. Kelsey,
186 Ariz. 49, 51, 918 P.2d 1067, 1069 (App. 1996)).

¶28 During the marriage, the parties jointly owned HH. HH is
managed by a general partner, an entity called Dharma, which the parties
also jointly owned. Upon dissolution, Wife was to receive “additional
spousal maintenance” in return for transferring her interests in HH to
Husband for one dollar. See MOU ¶ 2(m)(1). The family court, however,
had to determine the amount of “additional spousal maintenance” Wife
would receive based on the value of her interest in HH. Id. In effect, Wife
receives a form of annuity payment in exchange for transferring her interest
in HH to Husband.

¶29 MOU ¶ 2(m)(3) states that the parties would appoint an
appraiser whose valuation would be “binding and conclusive upon the
parties.” The appraiser presented the family court with two alternative
valuations, a fair market value of $5,826,000 and an investment value of
$7,277,000. He explained that the difference related to one item: an
indemnity clause applicable to Wife. The clause indemnified Wife from a
three million dollar community debt, and, therefore, had a value of $1.5
million. The appraiser testified that the indemnification value was factored
out of the fair market value because Wife would retain the indemnification
after she transferred her interest in HH. The family court adopted the fair
market valuation because Wife retained the indemnification protection.
The court stated that:

[I]t would be unfair to include the value of these
indemnifications in the value of HH for
purposes of determining what Wife is giving up
by conveying her interest in HH to Husband. If
the Court were to adopt the investment
valuation approach, Wife would receive both
(a) the indemnifications themselves, and (b)
Husband also effectively would have [to] pay
Wife for ½ the value of these indemnifications,
even though Wife is not giving them up.
Accordingly, the Court adopts the fair market
valuation approach, since it more accurately

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reflects the value of what Wife is actually giving
up in surrendering her interest in HH to
Husband.

¶30 Wife contends the appraiser’s investment value was
conclusive and binding. Contrary to Wife’s assertions, the appraiser did
not state that the investment value was the only applicable standard. The
MOU did not limit the appraiser to using one form of valuation. The
appraiser testified regarding the two valuations and explained the
difference. The court, after hearing the testimony and argument, chose the
fair market value of HH. The court’s determination to use the fair market
value, as a result, was not clearly erroneous.

IV. Harbor Heights Distributions

¶31 MOU ¶ 2(i) states that “during and throughout their
marriage” HH will make distributions to cover the parties’ living expenses
and current federal and state tax obligations. Wife contends that this
distribution obligation did not end until the date the decree was entered in
April 2012. The family court, however, applied its prior ruling that
February 3, 2011, the filing date of the petition, was the “dissolution date”
and concluded that HH distributions ended on that date because Wife was
required to sign over her interests in HH within thirty days of that
dissolution date. The court also reasoned that any cash assets of HH that
would pay these obligations for Wife were included in the December 31,
2010 valuation of HH, and Wife would receive the benefit of that increased
valuation because her “additional spousal maintenance” was tied to the
value of HH.

¶32 Wife argues that the order interpreting the “dissolution date”
for purposes of MOU ¶ 2(m) has no bearing on the interpretation of other
provisions in the MOU. Wife contends she was entitled to distributions
from HH until the date the decree was entered. Reading MOU ¶ 2(i) alone
would support Wife’s position that HH distributions for tax payments
would continue “throughout the marriage,” which, according to A.R.S. §
25-325(A), lasts until entry of the decree. However, the parties’ rights and
obligations regarding HH are also addressed in MOU ¶ 2(m). As a result,
paragraphs 2(i) and 2(m) should be read together to determine the intent of
the parties to their contract. See Brisco v. Meritplan Ins. Co., 132 Ariz. 72, 76,
643 P.2d 1042, 1046 (App. 1982) (“We must read each section of the
agreement in relationship to each other, to bring harmony, if possible,
between all parts of the writing.”).

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¶33 As the family court noted, there is “contradictory and
confusing language” in MOU ¶ 2(m). Moreover, MOU ¶ 2(m) conflicts with
the language of MOU ¶ 2(i), which provides that HH distributions will
continue throughout the marriage. However, MOU ¶ 2(m)(6) states:
“Effective as of the Dissolution Date, [Wife] shall no longer have any of the
rights or powers of a member of Dharma or a partner of [HH], including, but
not limited to, the right to any distributions therefrom.” (Emphasis added.)

¶34 The family court properly determined the intent of the MOU
provisions. Wife was required to turn over her interest in HH and was
compensated by receiving “additional spousal maintenance” based on the
value of HH. The value of HH was determined as of December 31, 2010,
and included HH’s cash assets. Because HH became Husband’s separate
property on February 3, 2011, Wife was not entitled to receive distributions
from HH after February 2, 2011.

¶35 Additionally, it is reasonable to ascribe the same meaning to
the term “dissolution date” when it appears in more than one place in the
same document. The interpretation best reconciles the MOU’s inconsistent
and confusing language. As a result, we affirm the order that Wife is not
entitled to distributions from HH after February 3, 2011.6

V. Termination of Additional Spousal Maintenance Obligation

¶36 Wife argues the family court erred in concluding that the
additional spousal maintenance payments provided in the MOU would
terminate on Husband’s death or her remarriage. Husband contends that
the provision is governed by § 25-327(B) and therefore the spousal
maintenance must end upon Husband’s death or Wife’s remarriage. See
A.R.S. § 25-327(B) (“Unless otherwise agreed in writing or expressly
provided in the decree, the obligation to pay future maintenance is
terminated on the death of either party or the remarriage of the party
receiving maintenance.”); see also Palmer v. Palmer, 217 Ariz. 67, 73, ¶ 23, 170

6The court denied Wife any distributions from HH toward her 2010 to 2011
income tax returns. MOU ¶ 2(i) directs HH to pay the community’s income
tax liability “during and throughout their marriage.” In contrast, MOU ¶
2(m) addresses Wife additional spousal support for the transfer of her
interest in HH “[i]n the event of a divorce, legal separation or other
dissolution of the marriage”. Because the two provisions address separate
events, we remand to the family court to consider whether Wife is entitled
to payment of any community tax liabilities for the time period up to
February 3, 2011.

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P.3d 676, 682 (App. 2007) (finding that spousal maintenance terminated
upon remarriage because the decree did not “explicitly address remarriage
. . . [or] provide that Husband shall have a continued obligation to make
spousal maintenance payments notwithstanding Wife’s remarriage”);
Diefenbach v. Holmberg, 200 Ariz. 415, 418, ¶ 11, 26 P.3d 1186, 1189 (App.
2001) (holding language regarding non-modifiability is ineffective to
prevent termination on death of recipient absent express language
regarding termination).

¶37 Again, we must consider what the parties intended by the
MOU. See Grosvenor, 222 Ariz. at 593, ¶ 9, 218 P.3d at 1050. Paragraph
2(m)(1) of the MOU states that in exchange for Wife transferring her interest
in HH to Husband, Husband will pay Wife additional spousal maintenance
“for the rest of her life.” Moreover, MOU ¶ 2(m)(7) provides that the
additional spousal maintenance payments “shall be non-modifiable, except
in the event of [Wife’s] death (in which event they shall terminate), and for
no other reason in accordance with A.R.S. []§ 25-319(C).” The family court
found that the parties intended this provision to compensate Wife for
transferring her interest in HH in the form of an annuity payment. The
language of MOU ¶ 2(m) supports this interpretation.

¶38 Given the purpose of the additional spousal maintenance
payments, we conclude that the payments were not technically spousal
maintenance, but a form of property settlement. See Steiner v. Steiner, 179
Ariz. 606, 611-12, 880 P.2d 1152, 1157-58 (App. 1994) (holding that whether
an obligation is in the nature of spousal support or a form of property
settlement depends on the intent of the parties at the time of the agreement).
Therefore, § 25-327 did not apply and the court appropriately concluded
that the parties did not intend the obligation to survive Husband’s death
because there was no provision expressly stating that intent and no
provision for life insurance to guarantee that Wife would receive some
minimal amount for the property distribution, despite the fact that the
parties heavily negotiated the MOU.

¶39 Wife testified that because of the parties’ age difference, both
attorneys agreed that the additional spousal maintenance would last for
Wife’s lifetime. Husband, however, testified that the additional spousal
maintenance under the MOU ended upon his death. He also testified that
there was no provision that required that he obtain life insurance to pay the
additional spousal maintenance should he predecease Wife, as was
required for the spousal maintenance obligation under the PPA. Based on
the MOU and the testimony, the court did not clearly err in determining

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that the parties did not intend that the additional spousal maintenance
obligation would survive Husband’s death.

¶40 We disagree, however, that the parties intended the
obligation to terminate upon Wife’s remarriage. At trial, Husband never
took the position that this obligation terminated upon Wife’s remarriage.
His trial brief only argued that the additional spousal maintenance
obligation did not survive his death. There was no testimony regarding the
parties’ intent should Wife remarry. Thus, we must look exclusively to the
contract language. The MOU states that Wife would receive additional
spousal maintenance for the rest of her life and that it would terminate for
no other reason than Wife’s death. See MOU ¶¶ 2(m)(1), 2(m)(7). The two
provisions do not suggest that the parties intended to terminate the
obligation upon Wife’s remarriage. The omission of a remarriage limitation
indicates the parties intentionally left out a provision terminating the
obligation on Wife’s remarriage. As a result, the finding that the additional
spousal maintenance under the MOU terminates upon Wife’s remarriage
was error and is vacated.

VI. Mortgage Payments on Marital House

¶41 The court ordered Wife to reimburse Husband for the
mortgage payments he had made on the marital house because Wife was
living in the house or was permitted to live in the house during the months
Husband made the mortgage payments. Wife contends this was an error
of law because she had invoked her rights under the anti-deficiency statutes
and was, therefore, allowed to avoid paying the mortgage. Wife also argues
that Husband voluntarily made these mortgage payments after they
decided to let the house go into foreclosure, so he should be responsible for
the payments.7

¶42 The issue involves the division of a community obligation,
which we review for an abuse of discretion. See Valento, 225 Ariz. at 481,
¶ 11, 240 P.3d at 1243. We agree with the family court that the anti-
deficiency statutes did not preclude the court from ordering Wife to repay
Husband for the mortgage payments. The anti-deficiency statutes protect
the parties from judgments in favor of creditors. See A.R.S. §§ 33-729, -814.

7 Husband argues that Wife waived the argument regarding her anti-
deficiency rights by failing to make this argument at trial. However,
attorneys for both parties mentioned that they intended to take advantage
of the anti-deficiency statutes and let the marital house go into foreclosure.

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The statutes do not preclude the court from allocating the burden of past
mortgage payments between two spouses in a divorce action. Moreover,
the court considered the testimony of the parties. Specifically, the court
accepted Husband’s testimony that he opted to pay five months of past-due
payments in order to obtain interim refinancing on a $16 million
commercial property loan. Husband testified that because Wife delayed
transferring her interest in HH, the lender would not provide the interim
refinancing unless Wife was no longer on the property or the loan was
current. Although Wife challenges the fact that her delay in transferring
her interest in HH was the sole reason Husband had to obtain the interim
financing, she offered no contrary evidence. Additionally, the court also
concluded that because Wife had exclusive access to the house for most of
the contested five months, the parties were ordered to share the mortgage
obligation equally. Based on the record, we find no abuse of discretion.

VII. Attorneys’ Fees Awards

¶43 Wife argues that the family court erred by awarding Husband
attorneys’ fees and costs and denying her request for attorneys’ fees at trial.
We review the grant or denial of attorneys’ fees for an abuse of discretion.
See Engel v. Landman, 221 Ariz. 504, 514, ¶ 45, 212 P.3d 842, 852 (App. 2009);
In re Marriage of Robinson & Thiel, 201 Ariz. 328, 335, ¶ 20, 35 P.3d 89, 96
(App. 2001).

¶44 In the post-trial ruling entitled “Under Advisement Ruling,”
the family court made several rulings regarding attorneys’ fees. In the
provision addressing an award of attorneys’ fees and costs, the court
ordered each party to bear his or her own fees and expenses because both
parties took unreasonable positions throughout the proceedings and both
had substantial financial resources. However, in a subsequent section
addressing other reimbursements owed by Wife to Husband, the family
court awarded Husband approximately $34,000 for fees and expenses he
incurred as a result of Wife filing order of protection (“OOP”) pleadings
and raising criminal charges for alleged computer fraud. The court also
awarded Husband $12,500 in attorneys’ fees as a result of Wife’s motion for
new trial.

A. Findings of Fact

¶45 Wife argues that despite her requests, the family court failed
to make adequate findings of fact in the under advisement ruling regarding
its denial of her request for attorneys’ fees and costs. Section 25-324(A)
provides that “the court shall make specific findings concerning the

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portions of any award of fees and expenses that are based on consideration
of financial resources and that are based on consideration of reasonableness
of positions.” A.R.S. § 25-324(A). The findings of fact are intended “to
enable the appellate court to examine the basis on which the . . . court
reached its ultimate judgment.” Reed v. Reed, 154 Ariz. 101, 103, 740 P.2d
963, 965 (App. 1987).

¶46 Here, the court’s findings satisfy the statutory requirements.
For example, the ruling noted that Wife was entitled to spousal
maintenance under the PPA and additional monies of $130,650 annually
under the MOU. Additionally, the court found that Wife acted improperly
in securing an OOP and attempting to have Husband charged with
criminally intercepting her private email correspondence. Thus, the ruling
made sufficient findings in regards to both factors. See Miller v. Bd. of
Supervisors of Pinal Cnty., 175 Ariz. 296, 300, 855 P.2d 1357, 1361 (1993)
(noting that sufficient factual findings require the court to articulate “the
essential and determinative facts on which the conclusion was reached”
(citation omitted) (internal quotation marks omitted)).

¶47 Wife next contends that because she has fewer financial
resources than Husband, the evidence did not support the denial of her
request for attorneys’ fees.8 When considering an award of fees under § 25-
324(A), the court is “obligated to consider . . . the degree of resource
disparity between the parties, the ratio of the fees owed to assets and/or
income of each party,” as well as a party’s ability to pay his or her own fees.
Magee v. Magee, 206 Ariz. 589, 592-93, ¶ 17, 81 P.3d 1048, 1051-52 (App.
2004). However, and contrary to Wife’s argument, the existence of a
financial disparity does not require an award of fees to the poorer party. Id.
at 593, ¶ 18, 81 P.3d at 1052 (“If the trial court finds such a disparity, it is
then authorized to undertake its discretionary function of determining
whether an award is appropriate.” (emphasis added)). Accordingly, we affirm
the family court’s denial of Wife’s request for attorneys’ fees.

B. Order of Protection and Related Fees

¶48 Wife also contends that the court erred by awarding Husband
fees relating to the OOP. We agree.

8 Although not raised by the parties, we note that Wife withdrew $1,200,000
from HH immediately prior to filing for divorce. Even though she
voluntarily returned some of those funds and was ordered to return more,
she was permitted to retain $300,000 to pay attorneys’ fees.

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¶49 Wife obtained an ex-parte OOP in December 2010, but
voluntarily had it dismissed in May 2011. Husband, however, requested a
hearing in July but his request was subsequently denied as moot. Although
the procedural rules for an OOP proceeding allow fees to be awarded,
Arizona Rule of Protective Order (“Protective Rule”) 2(C) provides that the
court can only grant fees after a substantive OOP hearing. Because
Husband did not timely request a substantive hearing and none was
conducted, the award of fees is inconsistent with the requirement under
both Protective Rule 2(C) and A.R.S. § 13-3602(P), that attorneys’ fees may
be awarded for an OOP after a hearing. Accordingly, we vacate the portion
of the award of attorneys’ fees granted to Husband as additional
expenditures in response to the OOP.

¶50 Wife also argues that the court erred by awarding Husband
fees to defend himself from her allegation that he committed computer
fraud by intercepting her private correspondence. She specifically argues
§ 25-324 does not support the award of fees to Husband. Although the court
found her actions improper, the court did not indicate the basis for the
award to Husband. As a result, we remand the issue back to the family
court to provide a basis for its ruling, whether under § 25-324(B) or other
statute or rule, and, if appropriate, to award Husband fees relating to the
criminal computer fraud claim.

C. Motion for New Trial

¶51 Wife also argues that the court made insufficient findings to
support the order awarding fees to Husband for responding to Wife’s
motion for new trial. The court awarded fees to Husband after finding that
the motion for new trial was unreasonable because it raised arguments
thoroughly litigated at trial or that should have been raised before or during
trial.

¶52 We disagree with the court’s ruling for two reasons. First,
§ 25-324(A) requires that the court make specific findings regarding both
the parties’ financial resources and the reasonableness of their positions.
The court did not mention the parties’ financial resources in its ruling.

¶53 Second, and more importantly, the Arizona Rules of Family
Law Procedure (“Family Rule”) permits a litigant to file a motion for new
trial and raise perceived errors of law and to challenge certain rulings by
claiming they were not justified by law or evidence. See Ariz. R. Fam. L.P.
83(A)(5) (“[E]rror in the admission or rejection of evidence or other errors
of law occurring at the trial or during the progress of the action.”); see also

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Ariz. R. Fam. L.P. 83(A)(6) (“[T]hat the ruling, decision, findings of fact, or
judgment is not justified by the evidence or is contrary to law.”). Although
it can be perceived that a litigant is being unreasonable by filing a motion
for new trial within fifteen days of a judgment after a contentious trial, the
Family Rules allow a party to seek a new trial. And, here, Wife’s motion
for new trial complied with Family Rule 83, and she now has prevailed on
some of the issues raised in the motion. Consequently, because the motion
was not unreasonable, we vacate the award of fees in the amount of $12,500
to Husband for responding to the motion for new trial.

D. Attorneys’ Fees and Costs on Appeal

¶54 Both parties request an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. § 25-324. Neither party took unreasonable
positions on appeal. Despite Husband’s greater earning ability, Wife also
has a significant monthly income. As a result, in the exercise of our
discretion, we deny both requests.

CONCLUSION

¶55 Based on the foregoing, we: (1) vacate that portion of the
decree limiting the duration of spousal maintenance to Wife and direct the
family court to modify the decree, pursuant to PPA ¶ 5.7(D)(3), to indicate
that Wife is entitled to 49.5 months of spousal maintenance; (2) vacate the
portion of the ruling on the motion for clarification that ordered Husband
to fund the joint account from June 1, 2011 to April 6, 2012 and modify the
ruling on the motion for clarification and the decree to reflect that
Husband’s obligation to pay into the joint account began on December 19,
2010 and ended on April 9, 2012, and to make any division of the relevant
funds; (3) affirm the decree’s valuation of Wife’s interest in HH; (4) affirm
the order denying distributions from HH to Wife after February 3, 2011, but
remand for consideration of whether Wife is entitled to payment of her
portion of the community’s federal and state tax obligations up to February
3, 2011 from HH; (5) affirm the decree that Husband’s obligation to pay
Wife additional spousal maintenance under MOU ¶ 2(m) terminates upon
his death, but vacate the portion of the decree that such payments terminate
upon Wife’s remarriage; (6) affirm the order that Wife is responsible for
one-half the mortgage payments Husband made for the marital house; (7)
affirm the order denying Wife’s request for attorneys’ fees; (8) vacate the
order awarding Husband fees in connection to the OOP; (9) remand to the
family court to clarify its basis for awarding Husband fees in connection
with allegation of criminal interception of private correspondence and, if
appropriate, to grant fees only for that behavior; and (10) vacate the order

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awarding $12,500 in attorneys’ fees to Husband for responding to Wife’s
motion for new trial.

:gsh

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