Vogue v. Maleknia

NOTICE: NOT FOR PUBLICATION.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:

PATRICIA A. VOGUE, Petitioner/Appellee,

v.

REZA MALEKNIA, Respondent/Appellant.

No. 1 CA-CV 13-0735
FILED 12-23-2014

Appeal from the Superior Court in Maricopa County
No. FC2011-001674, FN2011-001498 (Consolidated)
The Honorable Joseph P. Mikitish, Judge

AFFIRMED

COUNSEL

Becker Zarling & Moye Law, Avondale
By Gina M. Becker-Zarling
Counsel for Petitioner/Appellee

Tiffany & Bosco, P.A., Phoenix
By Leonard J. Mark, May Lu, Natalya Ter-Grigoryan
Counsel for Respondent/Appellant
 VOGUE v. MALEKNIA
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.

W I N T H R O P, Judge:

¶1 Reza Maleknia (“Husband”) challenges a spousal
maintenance order in the Decree dissolving his marriage to Patricia Vogue
(“Wife”). He contends the family court abused its discretion by awarding
Wife $3000 in monthly spousal maintenance until her death or remarriage.
Finding no abuse of discretion, we affirm the award.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife married in 2004. At the beginning of their
marriage, Husband was a medical resident and Wife was a full-time
account executive for a mortgage company. When Wife served the petition
for dissolution seven years later, Husband was a practicing physician and
Wife was struggling with multiple sclerosis and had retired due to
disability. One of the family court’s temporary orders awarded Wife $3000
in monthly spousal maintenance.

¶3 Both parties testified at trial and submitted exhibits. They
also entered an Arizona Rule of Family Law Procedure (“Rule”) 69
agreement that resolved most issues but did not address spousal
maintenance. Although Husband conceded Wife would never be able to
return to work and was entitled to some spousal maintenance, he and Wife
differed as to its appropriate amount and duration.

¶4 The family court found Wife qualified for spousal
maintenance under Arizona Revised Statutes (“A.R.S.”) section 25-
319(A)(1) and (2) (2007). After considering and making findings on all
factors in A.R.S. § 25-319(B), the court ordered Husband to pay Wife $3000
in monthly spousal maintenance until her death or remarriage. The court
also held Wife was entitled to recover one-half of her attorneys’ fees
pursuant to A.R.S. § 25-324(A) (Supp. 2014).

¶5 The court’s Decree, which did not specify the amount of
attorneys’ fees, contained Rule 78(B) language certifying it was final and

2
 VOGUE v. MALEKNIA
Decision of the Court

appealable. Husband appealed from the Decree, and we have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2014).

ANALYSIS

I. Standards of Review

¶6 Husband challenges the amount and duration of the spousal
maintenance award. A family court retains “substantial discretion” to
determine the amount and duration of spousal maintenance under A.R.S.
§ 25-319(B). Rainwater v. Rainwater, 177 Ariz. 500, 502, 869 P.2d 176, 178
(App. 1993). We will not disturb its rulings absent an abuse of discretion.
In re Marriage of Berger, 140 Ariz. 156, 167, 680 P.2d 1217, 1228 (App. 1983).
A court abuses its discretion when it commits an error of law in reaching a
discretionary decision, reaches a conclusion without considering the
evidence, commits another substantial error of law, or makes a finding
lacking substantial evidentiary support. Flying Diamond Airpark, L.L.C. v.
Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007). We will
not set aside findings of fact unless they are clearly erroneous. Berger, 140
Ariz. at 161, 680 P.2d at 1222.

¶7 Because neither party requested findings of fact and
conclusions of law pursuant to Rule 82(A), “we are constrained by the
presumption that the Superior Court ‘found every fact necessary to support
the judgment, and such presumptive findings must be sustained if the
evidence on any reasonable construction justified it.’” Neal v. Neal, 116 Ariz.
590, 592, 570 P.2d 758, 760 (1977) (citations omitted). Likewise, we view the
evidence in the light most favorable to Wife, and will affirm if reasonable
evidence supports the award. See Cullum v. Cullum, 215 Ariz. 352, 354-55,
¶¶ 9, 13, 160 P.3d 231, 233-34 (App. 2007) (viewing the evidence in the light
most favorable to the wife and affirming the spousal maintenance award
without requiring her to first “use up” her property); Gutierrez v. Gutierrez,
193 Ariz. 343, 348, ¶ 14, 972 P.2d 676, 681 (App. 1998) (affirming lifetime
spousal maintenance to a wife whose age and skill level precluded her from
gaining employment adequate to support herself).

II. The Monthly Award of $3000 in Indefinite Spousal Maintenance

A. Reasonable Evidence Supports the Amount Awarded.

¶8 The family court determines the amount of spousal
maintenance after balancing all relevant factors, including those
enumerated in A.R.S. § 25-319(B). The court makes this evaluation on a
case-by-case basis in light of the evidence presented, recognizing that some

3
 VOGUE v. MALEKNIA
Decision of the Court

of the factors may not apply. Rainwater, 177 Ariz. at 502, 869 P.2d at 178.
Husband argues Wife’s claimed monthly expenses totaling $6103 were
unreasonable and the $3000 maintenance award was unsupported by the
trial evidence. We disagree.

¶9 Distilled to its essence, Husband’s argument is that Wife is not
entitled to a $3000 award which, combined with her other income, exceeds
her “reasonable needs” of $3688 by approximately $2000. Our duty on
review does not include re-weighing conflicting evidence; instead, we defer
to the family court’s resolution of such evidence and consider only whether
reasonable evidence supports the family court’s decision. Hurd v. Hurd, 223
Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009); accord Gutierrez, 193 Ariz.
at 347-48, ¶ 13, 972 P.2d at 680-81; Hamilton v. Municipal Court, 163 Ariz. 374,
378, 788 P.2d 107, 111 (App. 1989). Assessing the credibility of witnesses is
also a task committed to the family court, see Gutierrez, 193 Ariz. at 347-48,
¶ 13, 972 P.2d at 680-81, and that court need not believe even the
uncontradicted testimony of an interested witness. See In re Estate of
Wainola, 79 Ariz. 342, 346, 289 P.2d 692, 695 (1955); accord Hamilton, 163 Ariz.
at 377, 788 P.2d at 110.

¶10 Husband, a physician, currently earns approximately $20,000
per month, and before her illness, Wife earned approximately $8000 to
$9000 per month as a self-described “workaholic” mortgage executive. See
generally A.R.S. § 25-319(B)(4)-(5), (9). Wife is now unable to work and
facing substantial continuing medical bills. See A.R.S. § 25-319(B)(3), (9).
Although Husband disputes the family court’s characterization of their
marital lifestyle as “elaborate,” the parties’ standard of living indisputably
allowed them to maintain two separate apartments, in addition to a house,
during the marriage. See A.R.S. § 25-319(B)(1). Also, notwithstanding their
high earnings, the parties had no savings or retirement assets, a fact that
would be consistent with a high rate of spending. See id.

¶11 Wife supported Husband early in the nine-year (by the time
of trial) marriage by paying the mortgage and assisting him with obtaining
a “green card.” See A.R.S. § 25-319(B)(2), (6). Husband did not dispute he
subsequently obtained greater comparative resources and earning ability
than Wife. His $20,000 monthly income substantially exceeds the $3000 per
month awarded to Wife. See A.R.S. § 25-319(B)(4)-(5). Husband testified
his monthly expenses totaled approximately $7400, which meant he still
had $9600 left after paying $3000 in spousal support. At trial, Husband
alluded to other expenses, such as malpractice insurance, continuing
education, and billing expenses, but he never quantified the amounts.

4
 VOGUE v. MALEKNIA
Decision of the Court

¶12 Notwithstanding this evidence, Husband challenged Wife’s
claimed monthly expenses of $6103 and intimated she would qualify for
more public assistance if the family court awarded less spousal
maintenance. Husband argues that, in view of the lack of evidentiary
support for the family court’s award, this court should vacate the ruling
and award Wife $1000 per month for up to two years or remand the case
for a new determination.

¶13 The Decree provides no specific calculation or explanation for
the $3000 award, nor does it attempt to quantify Wife’s reasonable
expenses; however, A.R.S. § 25-319(B) does not require express findings on
the factors to be considered in assessing the award’s amount. See Elliott v.
Elliott, 165 Ariz. 128, 131 n.1, 796 P.2d 930, 933 n.1 (App. 1990). And, given
the parties’ failure to request findings of fact and conclusions of law under
Rule 82(A), we are constrained to assume the family court found every fact
necessary to support its $3000 award. See Neal, 116 Ariz. at 592, 570 P.2d at
760. Husband, who did not object to the adequacy of the express findings
in the family court, focuses his appellate arguments on whether substantial
evidence supports the award and any implicit findings.

¶14 The record contains detailed testimony concerning Wife’s
expenses. Wife testified she was receiving $1583 per month from Social
Security and $1662 from private disability insurance benefits ($2162 minus
a $500 monthly payment toward the balance owed to her disability attorney
for the next five years). Also, Wife’s disabled brother was paying her $400
per month for room and board. Wife spent $1295 per month in condo rent,
and had expenses for food, medical co-payments, and approximately
twelve different medications. Wife testified she was struggling to keep up
with her bills and had postponed urgent dental work because she lacked
funds.

¶15 Husband claimed, however, that if Wife received only $1000
in monthly spousal maintenance, she would likely qualify for medical
coverage through Medicare, which would cover some of her more
expensive medicines like Copaxone. After Wife started receiving $3000 in
spousal maintenance under the temporary orders, her expenses for
Copaxone, other medicines, and supplies totaled $505 per month. Wife’s
testimony, however, indicated Husband’s proposed “strategy” would
likely not work because her physicians were switching her from Copaxone
to Tecfidera, a medication with fewer side effects. Tecfidera alone would
cost Wife approximately $1500 for two months starting in January or
February 2014, but ultimately would average out to approximately $400 per
month. More importantly, Wife had already inquired about receiving

5
 VOGUE v. MALEKNIA
Decision of the Court

medical insurance coverage for the new medicine but “there’s not the same
kind of support” as she had received for Copaxone. Husband did not
testify otherwise. Thus, the evidence reasonably supported the family
court’s conclusions that it was unclear whether Wife would continue to
receive the same level of public assistance and whether or when her private
disability insurance payments would end.

¶16 Husband also argued Wife could reduce her non-medical
expenses for rent, cell phone service, and gasoline, among other items. Wife
disputed the feasibility of such adjustments for rent and gas and did not
admit any of the adjustments were reasonable in her case. The family court
made no findings that Husband’s suggested adjustments were reasonable,
and we defer to its resolution of this conflicting evidence concerning Wife’s
expenses and needs.1 See Gutierrez, 193 Ariz. at 347-48, ¶ 13, 972 P.2d at 680-
81. Therefore, notwithstanding Husband’s argument that Wife could and
should reduce her expenses by almost forty percent, we affirm the family
court’s $3000 spousal maintenance award. The relevant standard of living
for a spousal maintenance award is not a “minimum subsistence level.”
Rainwater, 177 Ariz. at 503, 869 P.2d at 179.

¶17 Finally, Husband argues the $3000 award, combined with
Wife’s monthly income, exceeds her claimed monthly needs by
approximately $500.2 But Wife counters she will need that amount to

1 Husband also argued Wife improperly claimed two expenses – an
AARP insurance premium and monthly dental work payments - in her
affidavit of financial information. Wife listed $250 for an AARP insurance
premium even though she was not yet paying for that insurance, and will
not qualify for such coverage until 2016. Wife testified she will purchase
AARP insurance when she turns fifty years of age because, otherwise, her
continuing medical expenses will be “through the roof.” The family court
may have allotted this amount toward Wife’s anticipated expense when she
applies for supplemental Medicare insurance in the near future. With
respect to the dental work, Wife was entitled to claim $665 per month for
this postponed expense, and in any event, the family court did not make
findings as to whether these specific line items were reasonable and need
be applied.

2 Husband charges that the family court’s award was punishment for
his spousal maintenance arrearages on the temporary orders. This is
speculation. Wife’s attorney reminded the family court of its prior
admonishment of Husband to pay support, but Husband never objected.

6
 VOGUE v. MALEKNIA
Decision of the Court

defray income taxes on her spousal maintenance and build up savings for
her needs after age sixty-five, when her private disability benefits will
terminate. These expenses support the award.

¶18 Viewing the evidence in the light most favorable to Wife, we
hold the family court did not abuse its discretion in ordering spousal
maintenance of $3000 per month. Wife’s progressing disease, significant
medical expenses, lack of employability, and other statutory factors under
A.R.S. § 25-319(B) all support the award. See Schroeder v. Schroeder, 161 Ariz.
316, 323, 778 P.2d 1212, 1219 (1989) (affirming an award of spousal
maintenance for an indefinite term to a wife who had found only non-
lucrative work and whose expenses had increased to include chemotherapy
treatment for cancer).

B. Reasonable Evidence Supports the Award’s Duration.

¶19 Husband also contends Wife was not entitled to receive
spousal maintenance indefinitely and an award of no more than two years
is sufficient to allow her to transition to a Medicare insurance program. A
goal of spousal maintenance is to support the receiving spouse’s transition
to independence, if possible. Rainwater, 177 Ariz. at 503, 869 P.2d at 179.
The family court has discretion to award indefinite maintenance, however,
when it appears from the evidence that independence is unlikely to ever be
achieved. See id. at 505, 869 P.2d at 181. On this record, the family court
reasonably found Wife qualified for such an award. See Schroeder, 161 Ariz.
at 323, 778 P.2d at 1219; Leathers v. Leathers, 216 Ariz. 374, 377, ¶ 12, 166 P.3d
929, 932 (App. 2007) (upholding spousal maintenance for an indefinite term
in view of the wife’s ongoing health concerns and other § 25-319(B) factors).
Although Husband argues the indefinite award was inconsistent with the
nature and “quality” of the marriage, and the wording of A.R.S. § 25-319(B)
allows for the consideration of factors other than those enumerated in the

Consequently, Husband has waived the issue. See Romero v. Sw. Ambulance,
211 Ariz. 200, 203-04, ¶¶ 6-7, 119 P.3d 467, 470-71 (App. 2005).

Equally unavailing is Husband’s argument that he never conceded
an ability to pay spousal maintenance under A.R.S. § 25-319(B)(4). Even if
true, other record evidence supported the family court’s finding that
Husband could pay the award. The $3000 award would be, as Wife argued,
a “15 percent . . . hit” on Husband’s income. Husband did not disagree with
this characterization. There is no record support indicating the family court
considered Husband’s ability to pay a dispositive factor or misperceived
the evidence.

7
 VOGUE v. MALEKNIA
Decision of the Court

statute, he cites no legal authority concerning the relevance of that factor.
We consequently find this argument unavailing. See generally Ness v. W.
Sec. Life Ins. Co., 174 Ariz. 497, 503, 851 P.2d 122, 128 (App. 1992); see also
ARCAP 13(a)(6) (requiring the appellant to support contentions with
citations to legal authorities).

III. Attorneys’ Fees and Costs on Appeal

¶20 Both parties have requested attorneys’ fees on appeal – Wife
pursuant to A.R.S. § 25-324 and Husband pursuant to A.R.S. § 12-349 (Supp.
2014). Under A.R.S. § 25-324(A) and (C), we have discretion to award costs
and expenses – including attorneys’ fees - after considering the parties’
financial resources and the reasonableness of their positions throughout the
litigation. In assessing resources, a court should consider relevant factors,
such as the degree of resource disparity between the parties, their ability to
pay fees, the ratio of fees owed to the assets and/or income of each party,
and similar matters. Magee v. Magee, 206 Ariz. 589, 592-93, ¶¶ 17-18, 81 P.3d
1048, 1051-52 (App. 2004). This court determines the reasonableness of the
parties’ positions under an objective standard. In re Marriage of Williams,
219 Ariz. 546, 548-49, ¶¶ 10-12, 200 P.3d 1043, 1045-46 (App. 2008).

¶21 We have no reason to believe Wife’s financial or other
circumstances have improved, and Husband has unreasonably raised
arguments on appeal he had not preserved in the family court.
Accordingly, in the exercise of our discretion, we award Wife her taxable
costs and an amount of reasonable attorneys’ fees on appeal pursuant to
A.R.S. § 25-324(A). This award is contingent upon Wife’s compliance with
ARCAP 21. Finding no basis for Husband’s request for an award of
attorneys’ fees pursuant to A.R.S. § 12-349, we deny that request.

8
 VOGUE v. MALEKNIA
Decision of the Court

CONCLUSION

¶22 Based on the foregoing analysis, we affirm the family court’s
spousal maintenance award.

:gsh

9