Lund v. Lund

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Marriage of:

MARY ANN LUND, Petitioner/Appellant,

v.

RICHARD J. LUND, Respondent/Appellee.

No. 1 CA-CV 14-0446 FC
FILED 1-12-2016

Appeal from the Superior Court in Maricopa County
No. FC2010-003216
The Honorable Thomas L. LeClaire, Retired Judge
The Honorable Jay R. Adleman, Judge

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH
INSTRUCTIONS

COUNSEL

Horne Slaton & Sannes, PLLC, Scottsdale
By Sandra L. Slaton, Kristin M. Roebuck
Counsel for Petitioner/Appellant

Law Office of Scott E. Boehm, PC, Phoenix
By Scott E. Boehm
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Peter B. Swann and Chief Judge Michael J. Brown joined.

J O N E S, Judge:

¶1 Mary Ann Lund (Wife) appeals the family court’s orders
dissolving her marriage to Richard Lund (Husband) and denying her
motions for a new trial and to amend the decree. For the reasons that
follow, we affirm in part, reverse in part, and remand with instructions.

FACTS1 AND PROCEDURAL HISTORY

¶2 Husband and Wife were married in November 1991. Wife
filed a petition for dissolution of marriage in May 2010. By that time, the
parties had accumulated substantial assets in the form of real and personal
property, investment and retirement accounts, and fractional ownership
interests in various entities involved in real estate development.

¶3 Husband and Wife entered into a settlement agreement in
October 2011 that purported to resolve all issues. However, in August 2012,
the family court rejected that agreement, determining it was “so lacking in
specificity” regarding the identity, nature, and extent of the parties’ assets
it did not represent a fair and equitable distribution of the community
property. On its own motion, the court appointed a special master “to
determine the value, liabilities, percentage of ownership, and other
necessary determinations to establish the community’s business interests
and assets.”

¶4 The parties participated in discovery, hired experts, and, in
March 2013, presented evidence and testimony before the special master
who thereafter issued written findings and conclusions regarding the
nature and extent of the parties’ business assets. The family court then held

1 “[W]e view the evidence in the light most favorable to supporting
the decision below.” Cooper v. Cooper, 167 Ariz. 482, 487 (App. 1990) (citing
Johnson v. Johnson, 131 Ariz. 38, 44 (1981)).

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oral argument on the parties’ objections to the special master’s findings and
conclusions and a one-day trial on remaining matters.

¶5 In December 2013, the family court entered a final decree
dissolving the marriage and incorporating many of the special master’s
findings and conclusions. Husband then filed a motion to amend the decree
to reflect proper allocation of retirement account funds and proceeds from
the sale of the parties’ home, as well as maintenance of and payment for
their children’s health insurance, which the court granted. Wife also filed a
motion to amend the decree and for a new trial on the same bases presented
within this appeal, which the court denied. Wife timely appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-
120.21(A)(1),2 -2101(A)(1), and (A)(5)(a).

DISCUSSION

I. Allocation of “Real Property”

¶6 Wife first argues the family court’s order addressing “any
other real property” was not a true “division” of the property and violated
A.R.S. § 25-318. The order states:

Any other real property owned by the parties shall be held
equally, and titled as determined by the parties by mutual
agreement, and held or sold as determined by the parties
upon mutual agreement.

We review the disposition of property for an abuse of discretion, which may
occur when the family court commits an error of law. Kohler v. Kohler, 211
Ariz. 106, 107, ¶ 2 (App. 2005) (citing Fuentes v. Fuentes, 209 Ariz. 51, 56,
¶ 23 (App. 2004)).

¶7 As an initial matter, the parties agree the above-referenced
provision is intended to address four investment properties held “via layers
of limited liability companies that are [owned, in part, by] community
entities.”3 Because the community’s fractional ownership interest is not in

2 Absent material changes from the relevant date, we cite a statute’s
current version.

3 These interests include a 4.85% interest in a residential condominium
project in Flagstaff known as Biltmore Pines valued at $282,000, an 8.3%
interest in an industrial condominium project in San Diego, California

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title to the property, but in the entities holding that title, the decree is in
error in referring to these assets as “real property” interests.4 See Burkett v.
Mott by Maricopa Cnty. Pub. Fiduciary, 152 Ariz. 476, 478 (App. 1986)
(including documents of title and securities within the definition of
“incorporeal personal property”); Ariz. Tractor Co. v. Ariz. State Tax Comm’n,
115 Ariz. 602, 604 (App. 1977) (holding a partnership interest is intangible
personal property) (citing Blodgett v. Silberman, 277 U.S. 1, 11 (1928), and In
re Finkelstein’s Estate, 245 N.Y.S.2d 225, 229 (1963)).

¶8 Addressing the merits of Wife’s argument,5 we look to A.R.S.
§ 25-318(A), which provides the family court “[i]n a proceeding for
dissolution of the marriage . . . shall . . . divide the community, joint tenancy
and other property held in common equitably, though not necessarily in
kind.” (Emphasis added.) See also Martin v. Martin, 156 Ariz. 452, 456 (1988)
(“[T]he court must equitably divide the community, joint tenancy and other
property held in common.”) (emphasis added). Our supreme court has also
acknowledged that physical assets may not always be readily divisible by
the court or available for distribution. Id. at 458. That being the case,
Arizona law requires an equitable, rather than equal, division, and the

known as Otay Mesa valued at $90,176, a 2.6% interest in undeveloped land
in Flagstaff known as Butler and Fourth valued at $36,400, and a 50%
interest in undeveloped land in Peeples Valley known as Envoy/Peeples
valued at $35,000.

4 For this reason, we find no merit in Wife’s argument, premised upon
the purported violation of A.R.S. § 25-318(F) (requiring the decree to
“specifically describe by legal description any real property affected”), that
the decree is unenforceable for vagueness.
5 Husband urges us to reject this argument based upon the doctrines
of waiver or invited error because the family court’s order reflected an
agreement of the parties to an equal-share allocation of the investment
properties. While we share Husband’s concern that Wife does not
challenge the nearly identical order “that the Riverside property [held in an
entity of which the community owns a 16% interest] be split equally and
retained by the parties by mutual agreement and disposed of by mutual
agreement of the parties,” in our discretion, we address the merits of Wife’s
contention. See Stop Exploiting Taxpayers v. Jones, 211 Ariz. 576, 580 n.3, ¶ 17
(App. 2005) (citing Larsen v. Nissan Motor Corp., 194 Ariz. 142, 147, ¶ 12
(App. 1998)).

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family court has broad discretion in allocating community property to
achieve equity and “accommodate the necessities of the situation.” Id.

¶9 Although Wife would no doubt prefer a cash payout instead
of an award of a fractional interest in undeveloped land and consortium-
owned commercial investment properties located across several states, the
family court was not required to sever her interest, but simply delineate it
separately from Husband’s. Cf. Collier v. Collier, 73 Ariz. 405, 414 (1952)
(authorizing spouse to pursue a partition action to sever separate interests
in joint property “which interests . . . are identical and equal”). In doing so,
a court may award the property to one spouse and award an offsetting sum,
or impose a lien, in favor of the other spouse representing his share of the
value of the property. See A.R.S. § 25-318(E)(1); Martin, 156 Ariz. at 457;
Spector v. Spector, 94 Ariz. 175, 179, 186 (1963) (affirming, as modified, the
family court’s order awarding community property to husband and
imposing a lien in favor of wife where the forced sale of non-liquid assets
would realize less than their actual value). Moreover, an equitable division
may be accomplished by ordering the ownership interest be changed from
a community asset to a tenancy in common. Cf. A.R.S. § 25-318(D) (stating
any joint property not accounted for within 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”).

¶10 An equitable division may also be accomplished at a more
fundamental level by dividing the parties’ membership shares in entities
holding title to the real property. Under these circumstances, each party
retains an interest in the asset but holds a separately discernible estate or
interest. See Collier, 73 Ariz. at 411-12 (“The fact that the co-tenants happen
to be husband and wife has no bearing upon the nature or quality of their
ownership just as their marriage is of no consequence when considering the
nature and quality of the ownership of the separate property of each.”).
Given the nature of the assets at issue here, it is apparent the family court
intended a division of the parties’ membership interests when it ordered
the assets be “held equally.”

¶11 Wife’s citation to Walston v. Walston, 971 S.W.2d 687 (Tex.
App. 1998), is unpersuasive. In Walston, the Texas Court of Appeals
considered whether personal property “subject to partition in kind” was
properly allocated when each party was granted an undivided fifty percent
share, and the record did “not reflect any reason why the household
furnishings or the other items in the . . . community estate cannot be split
by the trial court between the parties.” Id. at 692-93. In contrast, the
property at issue here — the community’s fractional interests in entities

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holding real estate investments — is not necessarily “subject to partition in
kind” in the same manner as household furnishings. Nor does dividing the
parties’ fractional membership interest in an investment project present the
same obvious practical problems that awarding them, for example, an
undivided fifty percent interest in a refrigerator would. Moreover, the
record suggests the court’s decision to award the parties equal rights in the
property was appropriate: (1) the parties’ ownership interest was held
through layers of other entities; (2) the fractional interest the parties’
exercise might limit their ability to force a sale or obtain an appropriate
value from their sale; (3) the division of the parties’ interest could easily be
accomplished through amendment of the entities’ operating agreements;
and (4) where they share equally in the existing investments, neither party
would obtain a windfall or suffer a shortfall from changes in market
conditions that the other would not.

¶12 The family court was required to do no more than divide the
parties’ ownership interest in the entities holding the investment properties
between them and did not abuse its discretion in granting the parties equal
shares in the real estate investment interests at issue here. We therefore
affirm the decision of the family court with respect to this issue and remand
with instructions to enter an order effecting the division of the community’s
interests consistent with ¶ 7, supra.

II. Waste of Community Assets6

¶13 Wife next argues the family court erred in rejecting the special
master’s determination that Husband spent funds drawn from a
community business on “personal expenses” without making a specific
determination that the finding was clearly erroneous. On this subject, the
special master stated:

6 “Waste” is traditionally defined as harm to real property by a tenant
to the detriment of an heir, reversioner, or remainderman. Black’s Law
Dictionary (10th ed. 2014). This Court has used the term to describe
excessive or abnormal expenditures from community property that must
be accounted for when making an equitable distribution. See, e.g., Gutierrez
v. Gutierrez, 193 Ariz. 343, 346, ¶ 6 (App. 1998) (citing A.R.S. § 25-318(A)
(1991) (recodified as A.R.S. § 25-318(C)), Martin, 156 Ariz. at 458, and Hrudka
v. Hrudka, 186 Ariz. 84, 93 (App. 1995), superseded in part by statute on other
grounds as recognized in Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8 (App.
2014)).

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[S]ums taken by [Husband] for personal expenses from the
Biltmore Holdings entity should be considered by the court
as potential waste. . . . [Husband] has not explained how
these monies were for community purposes, either personal
community expenses of the family or for business expenses of
the Lund community business. . . . The total for the money
taken by Husband from Biltmore Holdings for the years 2008
through 2012 is $254,821. The Master determines that Wife is
entitled to a credit for half of this amount . . . .

The special master also recommended Husband be permitted to clarify
“why the cash transfers . . . should not be considered as personal expenses
of [Husband]” and that any credit to Wife be “subject to an explanation
offered at trial [by Husband] about the cash transfers in 2011 and 2012.”
The family court ultimately denied Wife’s claim for waste after determining
she had presented insufficient evidence to establish a prima facie case,
concluding “[Wife]’s evidence amounts to nothing more than conjecture,
innuendo, and assumptions.”

¶14 The family court may adopt, modify, or reject in whole or in
part the report or recommendations of a special master, Ariz. R. Fam. L.P.
72(G), but “shall not reverse the special master’s findings of fact unless
clearly erroneous,” Ariz. R. Fam. L.P. 72(H). A finding can be clearly
erroneous when the reviewing court — here, the family court — “on the
entire evidence, ‘is left with definite and firm conviction that a mistake has
been committed.’” Civil Rights Div. of Ariz. Dep’t of Law v. Amphitheater
Unified Sch. Dist. No. 10, 140 Ariz. 83, 86 (App. 1983) (interpreting identical
language in Arizona Rule of Civil Procedure 52(a)) (quoting Merryweather
v. Pendleton, 91 Ariz. 334, 338 (1962)). Conversely, “[a] finding of fact cannot
be ‘clearly erroneous’ if there is substantial evidence to support it.” Visco v.
Universal Refuse Removal Co., 11 Ariz. App. 73, 75 (1969) (citing Bohmfalk v.
Vaughan, 89 Ariz. 33, 38 (1960), and Reliable Elec. Co. v. Clinton Campbell
Contractor, Inc., 10 Ariz. App. 371, 373 (1969)).

¶15 Although the family court did not make an express finding
that the special master’s suggestion waste may have occurred was clearly
erroneous, we assume the court knew the law, applied it correctly, and
made all findings necessary to support its order. Fuentes, 209 Ariz. at 58,
¶ 32 (quoting State v. Trostle, 191 Ariz. 4, 22 (1997)); Chudzinski v. Chudzinski,
26 Ariz. App. 130, 133 (1976) (citing Silva v. De Mund, 81 Ariz. 47, 51 (1956)).
Wife’s sole evidence on the issue was a spreadsheet she prepared
summarizing monies she “believed” Husband spent entertaining a
girlfriend during their marriage; she did not offer any evidence supporting

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her assertion that those expenditures, totaling nearly $300,000, were
actually spent for the benefit of the girlfriend. Conjecture, innuendo, and
assumptions do not constitute substantial evidence to support a finding.
See City of Tucson v. Citizens Utils. Water Co., 17 Ariz. App. 477, 481 (App.
1972) (“Mere speculation and arbitrary conclusions are not substantial
evidence and cannot be determinative.”); see also Ariz. Corp. Comm’n v.
Citizens Utils. Co., 120 Ariz. 184, 190 (App. 1978) (concluding speculative
testimony of expert was not substantial evidence sufficient to support
Commission’s order setting rate of return). And, the court’s explicit
conclusion that waste did not occur indicates Wife’s evidence was not
substantial.

¶16 Thus, the court was within its authority to reject the special
master’s unsubstantiated conclusion that Husband may have committed
waste. And because Wife did not first establish the expenditures were
abnormal or excessive, the court correctly concluded Husband was not
required to establish where the funds were spent. See Gutierrez, 193 Ariz. at
346 (“We hold that the spouse alleging abnormal or excessive expenditures
by the other spouse has the burden of making a prima facie showing of
waste.”).

III. Prima Facie Evidence of Waste

¶17 Wife argues the family court erred by sustaining Husband’s
objection to her claims for waste she alleges to have occurred prior to
service of the dissolution petition on the basis that “the marital community
was [then] intact.” We review the court’s determination regarding the
sufficiency of the evidence to establish a prima facie case of waste for an
abuse of discretion. See Kline v. Kline, 221 Ariz. 564, 573, ¶ 35 (App. 2009)
(citing Cavanagh v. Ohio Farmers Ins., 20 Ariz. App. 38, 44 (1973)). Generally,
“[a] court abuses its discretion when the record fails to provide substantial
support for its decision or the court commits an error of law in reaching the
decision.” State ex rel. Montgomery v. Karp, 236 Ariz. 120, 123, ¶ 7 (App.
2014) (citing Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001)).

¶18 Wife correctly asserts that misuse of community assets may
constitute waste regardless of whether the expenditures were made during
the marriage or following service of the dissolution petition. See Martin, 156
Ariz. at 455-56 (1988) (holding the family court may compensate one spouse
for the misuse of community property by the other during the marriage to
offset the value of the lost property); Gutierrez, 193 Ariz. at 346-47, ¶¶ 3, 8
(affirming finding of waste based upon excessive and abnormal
expenditures during marriage). Contrary to Wife’s assertion however,

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although the family court considered the date of service of the dissolution
petition in establishing the appropriate date for valuation of the community
business, this factor was not the basis for sustaining Husband’s objection to
Wife’s claim of waste for pre-petition expenditures.

¶19 Rather, the family court specifically and correctly noted that,
to substantiate a claim for waste, Wife was required to make a prima facie
showing that expenditures were abnormal or excessive. See A.R.S. § 25-
318(C); Guitierrez, 193 Ariz. at 346, ¶ 7. Yet, while acknowledging Husband
received funds from the community business, neither the special master nor
the court found his expenditures were abnormal or excessive. To the
contrary, the court concluded, based upon the “historical manner in which
the parties moved money” and testimony indicating both parties used
community funds to maintain community assets, the transfers were not
abnormal.7

¶20 The family court correctly applied the law, and its conclusion
that Wife failed to establish a prima facie case of waste for any portion of the
asserted time period is supported by the record. Therefore, we find no
error.

IV. Wife’s Expert Witness

¶21 Wife also contends the family court erred by precluding her
expert witness from testifying about spousal maintenance at trial. We
review the family court’s decision to preclude expert testimony for an abuse
of discretion. See Baroldy v. Ortho Pharm. Corp., 157 Ariz. 574, 588 (App.
1988) (citing Englehart v. Jeep Corp., 122 Ariz. 256, 258 (1979)). We will
uphold the court’s ruling if legally correct for any reason supported by the
record. State v. Childress, 222 Ariz. 334, 338, ¶ 9 (App. 2009) (citing State v.
Canez, 202 Ariz. 133, 151, ¶ 51 (2002)).

¶22 The record reveals Wife disclosed a forensic accountant to
testify “as a financial consultant as to the community assets, property

7 The special master further recognized that, by setting the business
valuation date as the date of service of the dissolution petition, “Wife is not
penalized for business decisions Husband made after he knew he was
going to be divorced.” The family court apparently agreed and, on this
basis, rightfully rejected Wife’s argument she should receive half the value
of the community business and half of the funds he withdrew from the
business after the date of valuation, which would presumably have
depleted its value.

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values, waste, and Husband’s income.” At trial, Wife attempted to call the
expert to testify as to how Husband’s diversion of assets from the
community business should affect the calculation of an award of spousal
maintenance to Wife. Husband’s counsel objected that this testimony
exceeded the scope of Wife’s expert disclosure. In response, Wife argued
the expert’s February 2013 report, containing her analysis of the
community’s interest in various business entities, and her “entire working
file” provided sufficient notice as to the subject matter of her anticipated
testimony.

¶23 The family court expressed concern regarding the lack of
proper disclosure, but also determined the conclusions Wife sought from
the expert — described by Wife’s attorney as “what she thinks [Husband]
was really earning as far as would not show up on his affidavit of financial
information and . . . the monies that he took that should be deemed relevant
for these purposes” — were “already contained in the special master’s
report . . . [s]o I don’t need testimony as to that.” Indeed, the expert’s
opinions regarding the nature and extent of the distributions Husband
received from the community business, characterized by Wife throughout
as “waste,” are well-established within both the expert’s reports, which
were admitted into evidence, and the special master’s report. Thus,
although we reject Husband’s argument that Wife was required to
specifically disclose her financial consultant as a “spousal maintenance
expert,” we find the court acted within its discretion in excluding
unnecessary cumulative evidence.8 See Ariz. R. Evid. 403 (authorizing the
exclusion of unnecessary cumulative evidence); Felipe v. Theme Tech Corp.,
235 Ariz. 520, 526-27, ¶ 23 (App. 2014) (explaining a trial court acts within
its discretion to prevent the presentation of cumulative evidence where the
opinions are “established” and “substantially the same”).

¶24 Wife also argues the family court erred in excluding her
expert’s testimony and working file as rebuttal to Husband’s testimony
regarding his understanding of the contents of the expert’s reports and the
nature of the expert’s testimony before the special master. We disagree.
First, the court admitted the expert’s reports into evidence, but Wife never
moved to admit the additional 50,000 pages she claimed comprised the
expert’s working file. Wife cannot now rightfully complain the court did
not admit evidence that she did not offer. See State v. Logan, 200 Ariz. 564,

8 Because the cumulative nature of the proffered expert testimony
supported its preclusion, we need not address Wife’s argument that the
family court erred in precluding the expert as unqualified pursuant to
Arizona Rule of Evidence 702.

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566, ¶ 11 (2001) (noting a party may not inject error into the record and then
profit from it on appeal) (quoting State v. Tassler, 159 Ariz. 183, 185 (App.
1988)). Second, the family court was clear that the parties’ testimony
regarding the expert’s conclusions was relevant only to the determination
of whether Wife took an unreasonable position in the litigation warranting
an award of attorneys’ fees — a topic upon which the expert’s rebuttal
would have been irrelevant.

V. Spousal Maintenance

¶25 Wife argues the family court abused its discretion in
awarding her spousal maintenance of only $1,000 per month for four years.
Wife does not contest the factual findings underlying the family court’s
award, arguing instead the court did not properly weigh the factors set
forth in A.R.S. § 25-319(B). We do not reweigh evidence on appeal, Reeck v.
Mendoza, 232 Ariz. 299, 303, ¶ 14 (App. 2013), and will affirm if there is any
reasonable evidence to support the family court’s order. Gutierrez, 193 Ariz.
at 348, ¶ 14.

¶26 Here, the family court commented on each of the factors listed
in A.R.S. § 25-319(B). Although many of the factors weighed in favor of an
award of maintenance, the court also found:

Both parties are receiving substantial assets following the
dissolution of the marriage. It appears that each party will
have in excess of $1,000,000.00 of assets distributed to
him/her. Moreover, [Husband] notes that his stream of
income has been diminished by the economic decline in the
real estate market since 2007 so that he has not completed a
deal in the last six (6) years. [Husband] also notes that he has
lost the opportunity to put into place real estate deals and that
the real estate deals of the type that [Husband] has previously
closed take two (2) to three (3) years to come to fruition.
[Husband] testified, without challenge and without rebuttal
that he has no current deals pending and no business deals on
the horizon. Therefore, currently [Husband] has no income
except for the existing income that comes from any of the
business deals that were distributed to the parties pursuant to
the findings and recommendations of the Special Law Master
as adopted by this Court. Moreover, [Husband]’s unrebutted
testimony supports a determination, which the Court now
makes, that [Husband] has no additional income in the
foreseeable future.

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Additionally, the Court has ordered distribution of
significant cash and assets to [Wife] during the pendency of
this litigation. Therefore, after the distribution of assets as
contemplated by this Decree, the parties financial standing
will be relatively equal . . . .

¶27 Here, the record reflects both parties received substantial
property in relatively equal amounts following dissolution of their
marriage, Wife received significant cash distributions throughout the
proceedings, and Husband’s real estate business has declined dramatically.
Under these circumstances, we cannot say the family court abused its
discretion in awarding Wife less maintenance than requested. See Holby v.
Holby, 131 Ariz. 113, 114 (App. 1981) (declining to disturb award of spousal
maintenance where wife had no work skills and was unable to meet
necessary monthly expenses through income and spousal maintenance
awarded).

¶28 Wife further contends the family court erred in precluding
additional evidence of “excessive or abnormal expenditures, destruction,
concealment or fraudulent disposition of community, joint tenancy and
other property held in common,” pursuant to A.R.S. § 25-319(B)(11). She
asserts the court had “an absolute duty to consider any and all of those
claims anew at trial.” Although Wife offers no legal support for the
imposition of such a duty, and we find none, we have already determined
Wife had adequate opportunity to present evidence on the issue of waste at
trial, and there is reasonable evidence to support the court’s conclusions in
this regard. See supra Parts II and III. Moreover, the record reflects the court
was aware of, considered, and rejected Wife’s claim that Husband’s
purportedly wasteful distributions from the community business should be
attributed to him as income for purposes of calculating spousal
maintenance, notwithstanding the special master’s comments. We find no
error.

VI. Setoff From Prior Order

¶29 Finally, Wife argues the family court abused its discretion in
denying her motion for a new trial and to amend the judgment to reflect a
setoff for $90,000 the court previously ordered Husband to pay to Wife. The
sums Wife seeks represent her share of distributions from the Biltmore
Pines investment property. She asserts the court’s denial was in error
because it concluded “[t]hose funds were in fact transferred.” We review
the denial of a post-trial motion for an abuse of discretion. Hutcherson v.
City of Phx., 192 Ariz. 51, 53, ¶ 12 (1998). A court abuses its discretion where

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its decision is based upon a clearly erroneous finding of fact. See Shoen v.
Shoen, 167 Ariz. 58, 62 (App. 1990).

¶30 Wife noted within her pretrial statement that, although
Husband had paid $90,000 as previously ordered, he had done so with
community funds, thereby paying her with money half of which was
already hers. Wife asserted he therefore still owed her $45,000 for the
obligation plus $3,295.93 in attorneys’ fees and costs awarded in the course
of enforcement proceedings. Wife also alleged Husband owed her an
additional $10,000 distribution from Biltmore Pines. In total, it appears
Wife asserts an outstanding obligation owed her by Husband of $58,295.93;
indeed, Husband acknowledged he owed Wife at least $50,0009 in his
pretrial statement, prior pleadings, and trial testimony.

¶31 Based upon this undisputed testimony, the family court erred
in finding Husband had fully satisfied this obligation to Wife and abused
its discretion in denying Wife’s post-trial motions by omitting this offset
from the decree. We therefore reverse the court’s finding that the $90,000
obligation was satisfied and remand with instructions to calculate and
award Wife an amount of money in satisfaction of those sums which remain
unpaid.

CONCLUSION

¶32 Based upon the foregoing, we reverse that portion of the
decree pertaining to the $90,000 judgment previously entered and remand
to the family court to amend the decree consistent with ¶¶ 7, 12, 31, supra.
We leave to the discretion of the family court whether additional evidence
or testimony is required. We affirm the dissolution decree in all other
respects.

¶33 Wife requests an award of attorneys’ fees and costs incurred
on appeal, asserting a disparity of income between the parties renders such
an award appropriate under A.R.S. § 25-324(A). In our discretion, and
based upon the findings of the family court as to the parties’ respective

9 The record does not demonstrate how Husband reached this figure,
but the parties agree the obligation arises from Husband’s payment of
$90,000 to Wife from an account owned by the community and in which
Wife already owned a 50% interest.

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financial position, we decline that request. However, as the prevailing
party, Wife is entitled to her costs on appeal upon compliance with ARCAP
21(b).

:ama

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