Dole v. Dole

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DALYNNE DOLE,
Petitioner/Appellee,

v.

PHILLIP DOLE,
Respondent/Appellant.

No. 1 CA-CV 19-0833 FC
FILED 12-17-2020

Appeal from the Superior Court in Maricopa County
No. FC2018-005549
The Honorable Michael C. Blair, Judge

AFFIRMED AS MODIFIED

COUNSEL

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Kristi A. Reardon, Alexandra Sandlin
Counsel for Respondent/Appellant

Sloma Law Group, Phoenix
By Melinda M. Sloma, Alexis M. Wood
Counsel for Petitioner/Appellee
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MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Phillip Dole ("Father") appeals from a decree of dissolution
("Decree") and contests the trial court's (1) calculation of his income for child
support and spousal maintenance; (2) division of the parties' vehicles; and
(3) award of attorney fees. For the following reasons, we affirm the Decree
as modified.1

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Dalynne Dole ("Mother") were married for
twenty-four years when Mother filed for divorce in 2018. The parties have
three adult and three minor children. Relative to this appeal, the parties
owned a marital residence, a rental home, and three vehicles: a 2015 Nissan
Versa, a 2009 Econoline 350 Van, and a 2011 Monte Carlo.

Father's Income and Spousal Support Calculation

¶3 In a temporary order issued in August 2018, the trial court
initially found Father's yearly gross income was $121,600 and he could pay
Mother $3,000 per month in spousal maintenance. During the trial, the
parties disputed Father's income. Father testified that he earns a base salary
of $127,000, plus an annual bonus paid in March. Father's Affidavit of
Financial Information ("AFI") reported a monthly gross income of $10,600
and an annual gross income of $146,603 in 2017, $123,933 in 2016, and
$114,432 in 2015. Although not included in the record on appeal, the parties
agree that a tax summary showed that Father's total income was $141,651
in 2018.2

1 We deny Father's motion to strike Mother's Answering Brief and
deny Mother's motion to file a Sur-Reply Brief as moot.
2 Father's reply brief admits that "Father's tax documents show that
the parties' income totaled $141,651 in 2018[.]" Father subsequently argues
that an attachment to his AFI "shows Father's actual gross income totaling

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¶4 Mother testified that Father's annual income was $158,431,
including his bonus and extra income. Mother based her testimony on
Father's June 2019 paystub, which indicated year-to-date earnings of
$79,215.46, including field hazard pay, overtime pay, and a $2,544 bonus
Father received in March. Mother testified that her calculation accounted
for Father's annual March bonus and "[did not] allow for future bonus
money[.]"

¶5 The trial court entered the Decree in October 2019. The trial
court calculated Father's gross income as $158,430.92 by doubling Father's
year-to-date earnings through the end of June 2019. The trial court ordered
Father to continue paying Mother $3,000 per month in spousal maintenance
for a six-year term. The trial court also ordered Father to pay $1,494 per
month in child support payments, commencing on November 1, 2019.3

The Vehicles

¶6 Before Mother filed for divorce, the parties discussed how to
divide their vehicles—Mother would keep the Versa and Econoline Van,
they would use $20,000 of community funds to purchase a new car for
Father, and use another $6,000 in community funds to pay off community
debts.

¶7 Father used the agreed-upon $20,000 to purchase a 2018 Ford
Flex one month before Mother filed for divorce. Mother used $2,000 to pay
community debts, but Father removed the remaining $4,000 from their joint
account and did not pay off community debts. Mother responded by
removing an additional $4,000 from their joint bank account, but she
testified that she later returned the money.

¶8 Father testified that the parties' agreement allowed him to use
the $20,000 to purchase a new car and assume sole responsibility for the
$10,000 debt associated with the new vehicle purchase. At trial, he
requested that he keep the Flex with no offset to Mother, or alternatively,
that the Flex, Versa, and Van be sold, and the proceeds split evenly.

$127,244.14 in 2018, $128,480.89 in 2017, and $131,692.16 in 2016." However,
neither Father's AFI, nor the attached tax summaries provided on appeal,
support these figures.
3 The trial court ordered Father to pay $1,489 per month for child
support payments, along with an additional $5 per month Support
Payment Clearinghouse fee.

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¶9 Father sold the Monte Carlo before trial. In a settlement
conference held immediately before trial, the parties reached a new
agreement pursuant to Arizona Rule of Family Law Procedure 69 ("Rule 69
Agreement") regarding the Monte Carlo. The trial court verbally restated
the parties' agreement as follows:

Parties have also agreed to file an amended 2018 tax return.
Father has agreed to pay any amount that may be owing there
in exchange for [M]other foregoing [sic] her claim to the
Monte Carlo vehicle. That will be done within 60 days after
the decree is filed by the court.

¶10 After the parties affirmed that they understood the terms of
the agreement, the trial court "adopt[ed] it as an order of the court effective
today." The trial judge then informed the parties that "the minute entry
you're going to get is just going to have general terms like I described it.
I'm going to have counsel submit me the formal document. You guys will
sign off on that." The parties subsequently filed a Notice of Filing an Order
"representing the Rule 69 Agreement reached on the record in open court
on August 6, 2019." Although the proposed form of order was submitted
by Mother's counsel, the notice purports to be jointly filed and signed "with
permission" by counsel for both parties. Father did not object to the notice,
and the trial court entered the proposed agreement as an order ("Order").
However, the Order did not match the terms of the agreement stated by the
court in the pre-trial settlement conference and omitted any reference to
Mother forgoing her interest in the Monte Carlo:

The parties shall file an amended 2018 tax return within 60
days of the entry of a Decree of Dissolution of Marriage.
HUSBAND shall be responsible for any and all taxes that may
be due and owing as a result of the 2018 filing.

¶11 The Decree ordered the Econoline Van sold and the proceeds
split. The Decree awarded Mother the Nissan Versa as her separate
property, with no offset to Father. The trial court awarded Father the Ford
Flex as his separate property with a $12,000 offset to Mother, finding that
Father used $12,000 of Mother's money when purchasing the new vehicle.
The trial court also awarded Mother a $900 offset for the Monte Carlo,
which Father had sold before trial.

Attorney Fees and Special Action

¶12 Both parties have been awarded attorney fees and costs at
various times throughout the proceedings. The trial court first awarded

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Father attorney fees and costs associated with a motion to compel
disclosure from Mother during the proceedings.

¶13 At the close of the proceedings, the trial court awarded fees to
Mother after finding that Father earns significantly more than Mother and
that Father had acted unreasonably when he requested additional
parenting time and failed to attend mediation. The court noted the prior
award of attorney fees to Father. It noted that "whatever Father is awarded
for his attorney fees and costs for his [motion to compel] shall be credited
against whatever Mother is awarded for her attorney fees and costs
incurred in the case as a whole." The trial court ultimately awarded Mother
$15,000 of her requested $35,434 in attorney fees and costs.

¶14 The trial court originally awarded both parties the marital
residence and rental property as joint tenants with a right of survivorship
until after their youngest child graduated from high school in 2025. Father
timely appealed from the Decree. While the appeal was pending, Father
petitioned for special-action relief from the real property awards, and this
Court accepted jurisdiction, reversed the trial court, and ordered the two
properties sold and the profits split equally between Mother and Father.
Dole v. Blair, 248 Ariz. 629, 634, ¶ 19 (App. 2020). This Court granted Father
an award of attorney fees in connection with the special action, stating:

[Father] argues Mother took an unreasonable position at trial
and that her appellate arguments were not made in good
faith. Having considered the financial positions of the parties
and given Mother's unsupported position on the law
regarding disposition of community property, in the exercise
of our discretion and under A.R.S. § 25-324(B)(2), we grant
Father a partial award of his reasonable attorneys' fees.

Id.

¶15 We have jurisdiction to consider the balance of the appeal
under A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Calculating Gross Income.

A. Standard of Review.

¶16 Child support and spousal maintenance awards are reviewed
for an abuse of discretion. Sherman v. Sherman, 241 Ariz. 110, 112, ¶ 9 (App.

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2016) (child support); Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9 (App. 2007)
(spousal maintenance). We view the evidence in the record "in the light
most favorable to upholding the trial court's decision" and will affirm
unless the record is "devoid of competent evidence to support the decision."
Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (quoting Fought v. Fought, 94
Ariz. 187, 188 (1963)). However, we review de novo a trial court's
interpretation of the Arizona Child Support Guidelines ("Guidelines").
Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21 (App. 2008). What
constitutes "gross income" is a question that requires us to interpret the
Guidelines, and thus, is a question of law subject to de novo review.
Patterson v. Patterson, 226 Ariz. 356, 358, ¶ 4 (App. 2011).

¶17 Father argues that the trial court erred when it doubled his
year-to-date earnings to calculate his annual gross income. He argues that
"[t]he trial court's error is not its consideration of Father's paystub, but its
mathematical error in simply doubling that paystub." Because the asserted
error is mathematic, we review the trial court's calculation of Father's
annual income for child support and spousal maintenance purposes for an
abuse of discretion.

B. The Trial Court Erred by Double-Counting Father's Annual
Bonus.

¶18 The first step in calculating child support is to determine
"gross income." Sherman, 241 Ariz. at 113, ¶ 14. Mother argues that the
calculation of a party's potential future income is inherently discretionary,
and that doubling Father's year-to-date earnings from his June paystub was
a reasonable way for the trial court to ballpark his year-end income. She
points out that Guidelines allow for courts to include income that is "not
continuing or recurring" for purposes of calculating child support, and that
the trial court was permitted to include Father's annual bonus, field hazard
pay, and overtime pay in its calculation for gross income.

¶19 We agree that it was within the trial court's discretion to
consider these non-recurring earnings as part of Father's "gross income."
But the only evidence in the record is that Father's annual bonus was paid
only once a year, in March. By doubling Father's mid-year income, the trial
court double-counted Father's $2,544 annual bonus to calculate his gross
income. See id. at 114, ¶ 15 (stating that the "crucial inquiry" under the
Guidelines "is whether the parent received 'actual money or cash-like
benefits . . . available for expenditures'" (quoting Cummings v. Cummings,
182 Ariz. 383, 385 (App. 1994)). Thus, the record is "devoid of competent
evidence to support the trial court's finding." See Little, 193 Ariz. at 520, ¶ 5

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(quoting Fought, 94 Ariz. at 188); cf. also Leathers, 216 Ariz. at 377, ¶ 13
(finding an abuse of discretion where the trial court calculated gross income
by annualizing an hourly wage even though "both husband and wife
testified that . . . [Husband's] income is variable, and he cannot line jobs up
one after the other").4

¶20 Because this is a relatively minor calculation error, we modify
the Decree without remand. See A.R.S. § 12-2103(A) (describing powers of
supreme court to modify judgments and "render such judgment or order as
the court below should have rendered . . . "); Kennedy v. Kennedy, 93 Ariz.
252, 257-58 (1963) (noting the power to modify judgments on appeal "to
effect a fair and equitable division of the community property, and to avoid
the expense of a retrial of these issues"); see also Acuna v. Kroack, 212 Ariz.
104, 115, ¶ 42 n.15 (App. 2006) (noting that the authority described in A.R.S.
§ 12-2103(A) "presumably applies as well to the court of appeals"). If we
adjust the Child Support Worksheet used by the trial court to reflect only
one payment of the annual bonus in Father's yearly gross income, Father's
final child support obligation decreases from $1,494 to $1,469 per month
(including the $5 Clearinghouse fee). We therefore modify the portion of
the Decree ordering Father to pay child support to provide for a monthly
payment of $1,469, effective from the date of the Decree.

¶21 Father also argues the trial court erred by doubling other
"non-recurring income," including his overtime pay, hazard pay, cash merit
payment, paid time off, and holiday pay when calculating his gross income.
He argues there was no evidence to support the trial court's assumption
that these kinds of earnings received in the first half of the year would also
be received in the second half of the year. However, unlike Father's annual
bonus, Father did not present evidence that these earnings would not recur
in the second half of 2019. The Guidelines allow courts to consider seasonal
or fluctuating income and non-recurring income when determining gross
income. See A.R.S. § 25-320 app. § 5(A). Thus, unlike with Father's annual
bonus, we do not find that the trial court abused its discretion by doubling
these earnings when estimating Father's gross yearly income.

4 Even though the trial court double-counted the 2019 annual bonus,
the calculation could be upheld if other competent evidence supported the
$158,430.92 figure. See Little, 193 Ariz. at 520, ¶ 5. However, the parties
agree that tax documents showed that Father earned, at most, $141,651 in
gross income in 2018, and tax summaries attached to Father's AFI reported
that Father had not earned more than $146,603 at any point from 2015 to
2018.

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C. Father Has Not Shown the Trial Court Abused its
Discretion in Ordering Him to Pay $3,000 in Spousal
Maintenance.

¶22 The trial court found Mother was entitled to a spousal
maintenance award "because she lacks sufficient property to provide for
her reasonable needs." See A.R.S. § 25-319(A)(1). The trial court also noted
that, at trial, Father proposed paying $2,000 per month in spousal
maintenance for up to three years. After considering the thirteen statutory
factors under A.R.S. § 25-319(B)(1)-(13), the trial court ordered Father to pay
Mother $3,000 per month in spousal maintenance for six years.

¶23 Father argues that the trial court's spousal maintenance
award should also be reconsidered. As noted above, except for double-
counting his $2,544 annual bonus, we have rejected Father's argument that
the trial court abused its discretion in calculating his income. While the
$2,544 difference alters the amount of child support under the Guidelines,
Father has not demonstrated that it would change the spousal maintenance
ordered by the trial court after considering the thirteen spousal-
maintenance factors specified in A.R.S. § 25-319(B).

¶24 Rather than focusing on a specific dollar amount, the trial
court noted that Father "earns a six figure salary[,]" "has more financial
resources than Mother[,]" "has a much higher earning ability in the labor
market than Mother[,]" and "should be able to contribute something" to the
children's future educational costs. Father does not show how reducing his
annual income by $2,544 would change the factual findings underlying the
trial court's spousal maintenance award such that the spousal maintenance
award would also be reduced.

¶25 Furthermore, the trial court initially ordered Father to pay
Mother $3,000 per month in spousal maintenance based on an assumed
annual income of $121,600. Subsequently, in the Decree, the court did not
alter that monthly amount even though it found that Father earned $36,000
more than the trial court had initially determined. Thus, Father fails to
show how the spousal maintenance award would be different even if the
court found that Father's gross annual income was $2,544 less.

¶26 Father argues the temporary spousal maintenance award was
based on factors that had changed by the time of trial, including the
emancipation of one of the parties' minor children, and the "substantial
retirement assets and other property in the Decree of Dissolution that was
[sic] unavailable to [Mother] at the time of trial." However, the trial court

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was aware of these factors when it determined the amount of spousal
maintenance. We defer to the trial court's resolution and decline to disturb
the trial court's spousal maintenance order. Lehn v. Al-Thanayyan, 246 Ariz.
277, 286, ¶ 31 (App. 2019).

II. Division of Vehicles.

¶27 Father argues the trial court erred when it awarded Mother a
$12,000 offset for Father's Ford Flex and a $900 offset for the value of the
Monte Carlo that Father sold before filing for divorce. Father first claims
the trial court failed to acknowledge the parties' pre-filing oral agreement
regarding the division of vehicles. In the alternative, Father argues the trial
court impermissibly altered the parties' Rule 69 Agreement when it omitted
language that Mother would forgo an interest in the Monte Carlo in
exchange for Father taking responsibility for any costs associated with filing
an amended 2018 tax return.

A. Standard of Review.

¶28 A trial court has the authority to equitably divide community
property between spouses pursuant to A.R.S. § 25-318(A). Generally, "all
marital joint property should be divided substantially equally unless sound
reason exists to divide the property otherwise." Toth v. Toth, 190 Ariz. 218,
221 (1997). We review the trial court's apportionment of community
property for an abuse of discretion. In re Marriage of Pownall, 197 Ariz. 577,
581, ¶ 15 (App. 2000). "We begin with the presumption that property
acquired by either spouse during marriage is community property."
Sommerfield v. Sommerfield, 121 Ariz. 575, 577 (1979). That presumption can
be rebutted by clear and convincing evidence. Id.

B. Oral Contract.

¶29 Father argues the trial court abused its discretion by failing to
recognize the parties' pre-filing oral contract dividing the vehicles.
However, evidence that the parties entered an enforceable contract before
trial is mixed. While Father testified that he and Mother agreed to a deal
allowing him to use $20,000 to purchase a new vehicle, Mother testified that
Father did not "keep up his end of that negotiation" when he transferred
$4,000 out of their joint account and did not use those funds to help pay off
community debt.

¶30 Although the parties testified about their discussions, the trial
court did not acknowledge any pre-filing contract regarding the division of
vehicles. We presume that the trial court knows the law and applies the

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correct legal standard. Hart v. Hart, 220 Ariz. 183, 188, ¶ 18 (App. 2009). We
also presume the trial court considered all relevant evidence. Fuentes v.
Fuentes, 209 Ariz. 51, 55-56, ¶ 18 (App. 2004). From the evidence presented
at trial, the court could find that the evidence did not demonstrate an
enforceable contract or that the dispute about Father's withdrawal of $4,000
from their joint account showed no meeting of the minds as necessary to
form a contract. See Muchesko v. Muchesko, 191 Ariz. 265, 268 (App. 1997)
(stating that as a contract, a settlement agreement is based on contract
principles of "an offer, acceptance, consideration, a sufficiently specific
statement of the parties' obligations, and mutual assent" and courts may
look to the parties' conduct in deciding "whether a meeting of the minds
occurred"). Alternatively, the trial court could have rejected the parties'
pre-filing contract because it "d[id] not represent a fair and equitable
distribution of the community property of the parties." See Wick v. Wick,
107 Ariz. 382, 384 (1971). The record provides adequate support for either
alternative, and we do not find the trial court abused its discretion in
refusing to recognize any pre-filing contract.

C. Rule 69 Agreement.

¶31 Father requests we amend the Decree to reflect the Rule 69
Agreement that Mother would forgo her claim to the Monte Carlo in
exchange for Father's payment of any outstanding debt associated with the
2018 tax filing.

¶32 Arizona Rule of Family Law Procedure 69 governs the
method by which parties may enter binding agreements. Parties are bound
to such an agreement after it is found to be reasonable and approved as an
enforceable order by the trial court. See Engstrom v. McCarthy, 243 Ariz. 469,
472, ¶ 8 (App. 2018). A trial court generally does not have discretion sua
sponte to modify such an agreement after it is approved as an enforceable
order. Id. at ¶¶ 8-10.

¶33 Father argues the trial court exceeded its authority by altering
the "original" Rule 69 Agreement verbally restated on the record by the trial
court. However, the trial judge informed Father that "the minute entry . . .
is just going to have general terms like I described it[,]" and that counsel
would need to submit to the court "the formal document[,]" which the
parties would then need to approve. We find that Father waived any
arguments regarding the Monte Carlo when his counsel authorized the
jointly-filed notice containing the proposed form of order and subsequently
failed to object or attempt to correct the Order issued by the court. See
Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) ("[A]bsent extraordinary

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circumstances, errors not raised in the trial court cannot be raised on
appeal."). We affirm the Decree's orders regarding the division of the
parties' vehicles.

III. Attorney Fees Below.

¶34 After considering the parties' financial resources and the
reasonableness of legal positions taken, courts are authorized to order
parties to pay the reasonable attorney fees and costs of another party. See
A.R.S. § 25-324(A). We review awards of attorney fees for an abuse of
discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 351, ¶ 32 (App. 1998). A
court abuses its discretion by making an error of law in reaching a
discretionary conclusion, In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8
(App. 2008), or by making a discretionary ruling that the record does not
support, Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2009). We assume that
trial courts fully consider evidence when awarding attorney fees pursuant
to A.R.S. § 25-324. See Fuentes, 209 Ariz. at 55-56, ¶ 18.

¶35 Father claims the trial court abused its discretion by awarding
Mother attorney fees and failing to award additional fees to Father. He
argues that Mother's attorney fee award should be vacated in light of this
Court's finding that Mother took unsupportable legal positions regarding
the division of community property. See Dole, 248 Ariz. at 634, ¶ 19. Father
argues that Mother's unsupported legal positions in the special action, on
top of the trial court's earlier finding that Mother acted unreasonably in
failing to disclose evidence at trial, combine to show the trial court abused
its discretion in awarding Mother attorney fees.

¶36 We disagree. Father has already been granted attorney fees
in connection with the conduct of which he complains. The trial court
found Father acted unreasonably in separate conduct by failing to attend
mediation and requesting a modification of parenting time, even though
the children had already testified they did not want increased time with
him. The trial court also found a financial disparity. Father does not
dispute the trial court's finding that Father makes "significantly more" than
Mother. The trial court did not abuse its discretion in awarding Mother her
reasonable attorney fees and costs. See Lehn, 246 Ariz. at 286, ¶ 31
(upholding attorney fee award where the record supported a finding of
financial disparity).

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IV. Attorney Fees and Costs on Appeal.

¶37 Both Mother and Father request attorney fees and costs on
appeal under A.R.S. § 25-324 and Rule 21 of the Arizona Rules of Civil
Appellate Procedure ("ARCAP").

¶38 Mother argues we should grant her an attorney fee award
because the trial court found a financial disparity between the parties. She
also argues that Father acted unreasonably. Father does not explain why
we should grant him attorney fees on appeal.

¶39 We exercise our discretion and deny both parties' requests for
attorney fees on appeal. Although Father has prevailed in part, Mother has
prevailed in the majority of this appeal. Therefore, we award Mother her
costs upon compliance with ARCAP 21.

CONCLUSION

¶40 We modify the portion of the Decree ordering Father to pay
child support to provide for a monthly payment of $1,469 effective from the
date of the Decree. We affirm the remainder of the Decree. We award
Mother her costs upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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