Ward v. Smith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LEILANI WARD, Petitioner/Appellee,

v.

JUSTIN SMITH, Respondent/Appellant.

No. 1 CA-CV 20-0008 FC
FILED 03-09-2021

Appeal from the Superior Court in Maricopa County
No. FC2018-093823
The Honorable Andrew J. Russell, Judge Pro Tempore

AFFIRMED

COUNSEL

Moon Law Firm PLC, Mesa
By Robert J. Moon
Co-Counsel for Petitioner/Appellee

Al Arpad Esq., Phoenix
By Alexander R. Arpad
Co-Counsel for Petitioner/Appellee

Hayes Esquire PLLC, Phoenix
By Cody L. Hayes
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

F U R U Y A, Judge:

¶1 Justin Smith (“Father”) appeals provisions of the decree
dissolving his marriage to Leilani Ward (“Mother”) regarding legal
decision-making authority, parenting time, property division, and
attorneys’ fees. Because the superior court reviewed the evidence
presented, made all necessary findings, and did not err in deciding any of
the issues Father assigns as error, we affirm the decree.

FACTS AND PROCEDURAL HISTORY

¶2 The parties were married in 2008 and have one minor child.
Mother filed a petition to dissolve the marriage in 2018. The parties
participated in a settlement conference in March of 2019 that resolved some,
but less than all, issues. The remaining issues were resolved following a
September 2019 trial, and the court entered the decree of dissolution in
November of 2019.

¶3 Father timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Legal Decision-Making Authority and Parenting Time

¶4 Father argues that the superior court erred by not awarding
him final decision-making authority as to the child and by ordering less
than equal parenting time.

¶5 We review the superior court’s legal decision-making and
parenting time orders for abuse of discretion. DeLuna v. Petitto, 247 Ariz.
420, 423, ¶ 9 (App. 2019). The court abuses its discretion when it “commits
an error of law” in reaching a discretionary decision or “when the record is
devoid of competent evidence to support the court’s decision.” Woyton v.
Ward, 247 Ariz. 529, 531, ¶ 5 (App. 2019) (internal citations omitted).
Further, the superior court must “determine legal decision-making and

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parenting time . . . in accordance with the best interests of the child.” A.R.S.
§ 25-403(A). In doing so, the court must consider the non-exhaustive list of
factors enumerated in A.R.S. § 25-403(A)(1)–(11) “that are relevant to the
child’s physical and emotional well-being.” We will not disturb the court’s
factual findings unless they are clearly erroneous. Strait v. Strait, 223 Ariz.
500, 502, ¶ 6 (App. 2010). “A finding of fact is not clearly erroneous if
substantial evidence supports it, even if substantial conflicting evidence
exists.” Kocher v. Dep’t of Revenue of State of Ariz., 206 Ariz. 480, 482, ¶ 9 (App.
2003). And we view the evidence in the light most favorable to sustaining
the decree. Lehn v. Al-Thanayyan, 246 Ariz. 277, 283, ¶ 14 (App. 2019).

A. Arizona Rule of Family Law Procedure (“ARFLP”) 69
Arguments

¶6 Father argues that reversal is required on multiple issues
because of alleged inconsistency with the parties’ agreements reached
during a settlement conference, citing ARFLP 69. But the record reflects that
the parties had not agreed on the specific issues Father challenges on
appeal, and that the superior court properly addressed those unresolved
issues during and after trial. See ARFLP 69(b) (“An agreement under
[ARFLP 69] is not binding on the court until it is submitted to and approved
by the court as provided by law.”). Therefore, Father has not established
error in this regard.

B. Joint Legal Decision-Making Authority

¶7 The parties agreed to joint legal decision-making, which the
superior court ordered. Relying on Nicaise v. Sundaram, 245 Ariz. 566 (2019),
Father assigns error to the court in not granting him “final” legal decision-
making authority, or alternatively, in not ordering the parties to make use
of co-parenting counseling or similar assistance to resolve legal decision-
making issues between them. Nicaise provides that vesting final authority
in one parent may be appropriate in instances where “the parents cannot
reach a joint agreement in good faith” and such a grant does not constitute
“sole legal decision-making.” Nicaise, 245 Ariz. at 569, ¶ 14. As such, it
describes an additional tool available to the court in resolving issues that
concern legal decision-making. It does not, as Father suggests, require that
courts grant final authority to one parent. Thus, Nicaise is inapposite.

¶8 Here, the superior court had before it all trial evidence and
arguments presented in analyzing the child’s best interests and expressly
examined the relevant factors enumerated in A.R.S. § 25-403(A)(1)–(11) and
A.R.S. § 25-403.01(B). Having done so, the court rejected Father’s request

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for “final say.” The court explained that it was concerned that Father’s
insistence on having the final say “stem[med] more from his desire to be in
control than from any issues related to the child’s best interests.” The court
further observed that joint legal decision-making was reasonable, given
that the parties had made “legal decisions together” during their marriage
and found no evidence that they would be unable “to continue making
appropriate legal decisions together” moving forward.

¶9 The record contains adequate support for the superior court’s
decision in this regard. For example, Mother testified that granting Father
final authority would not be in their “son’s best interest” because she feared
Father would use it “as a tool [for] control and manipulation.”

¶10 Although Father may not agree with the superior court’s
decision or the weight the court assigned to certain evidence in arriving at
certain conclusions, we will not reweigh evidence on appeal. See Lehn, 246
Ariz. at 284, ¶ 20. Father has shown no error in the joint legal decision-
making determination in the decree.

C. Parenting Time

¶11 Father next argues that the regular weekly parenting time
plan violates the parties’ agreement to share parenting time equally. More
specifically, Father argues that the superior court’s decree fails to expressly
set a custody exchange time during midweek and further errs by requiring
the parties to exchange custody of the child at noon on Sundays, including
on Sundays that are also holidays.

¶12 Preliminarily, the record reflects that midweek custody
exchanges occurred with regularity. Further, the subject of midweek
exchange time was neither disclosed as a subject of dispute in Father’s
pretrial statement, nor was it raised at trial. Parties waive the right to raise
an objection if the specific objection is not raised in their pretrial statements.
See ARFLP 76.1(f)(5)–(7), (h). Further, we generally do not address
arguments raised for the first time on appeal. Airfreight Express Ltd. v.
Evergreen Air Ctr., Inc., 215 Ariz. 103, 109, ¶ 17 (App. 2007). Therefore,
Father has waived this argument.

¶13 As to Father’s other challenge of the decree’s fixed Sunday
exchange of custody provision, his arguments in that regard are also
unpersuasive.

¶14 Presumptively, it is in a child’s best interests to have
“substantial, frequent, meaningful and continuing parenting time with

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both parents.” A.R.S. § 25-103(B)(1); see also A.R.S. §§ 25-403.02(B)
(“Consistent with the child’s best interests . . . the court shall adopt a
parenting plan that provides for both parents . . . that maximizes their
respective parenting time.”), and -411(J) (“[T]he court shall not restrict a
parent’s parenting time rights unless it finds that the parenting time would
endanger seriously the child’s physical, mental, moral or emotional
health.”). However, none of these statutes guarantee that any parent will
have exactly equal parenting time, even in the absence of evidence of
“parental unfitness or endangerment.” See Gonzalez-Gunter v. Gunter, 249
Ariz. 489, 492, ¶¶ 11–12 (App. 2020). Thus, although equal parenting time
is presumed to be in a child’s best interests, the superior court has both the
authority and the duty to evaluate all evidence before adopting an
appropriate parenting time plan, which need not be exactly equal. Id.

¶15 At trial, Father asked the superior court to order the parents
to exchange the child pursuant to a variety of different options. As an
example, Father proposed that an exchange occur on alternating Saturday
and Sunday evenings. Under this proposed plan, Mother would have had
the child 182 hours over a two-week period, and Father 154 hours. Under
the plan the court ultimately adopted in its decree, Mother will have 188
hours of parenting time every two weeks, and Father 148 hours. Other
options proposed by Father presented similar calculations, with
correspondingly small deviations when compared to the division of time
called for in the decree. Even if Father could demonstrate that the modest
differences were material, on the record presented (including evidence of
complications introduced by Mother’s schedule), he has not shown the
court abused its discretion by ordering a consistent Sunday transfer.

¶16 Father also argues that the superior court abused its
discretion by ordering that Sunday holidays be treated like any other
Sunday. Again, Father fails to show error in the court’s findings and
conclusions regarding the parenting time plan it adopted. See Vincent v.
Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015) (“[T]he family court is in the best
position to judge the credibility of witnesses and resolve conflicting
evidence, and appellate courts generally defer to the findings of the family
court.”). On this record, Father has not shown the court erred in addressing
parenting time.

II. Property Division

¶17 Father further argues the superior court erred in its division
and assignment of certain property interests as between the parties.

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¶18 A superior court’s division of marital property in a
dissolution proceeding “shall assign each spouse’s sole and separate
property to such spouse” and “shall also divide the community, joint
tenancy and other property held in common equitably, though not
necessarily in kind[.]” A.R.S. § 25-318(A). Aside from property acquired by
gift, devise, or descent, or after service of a petition for dissolution of
marriage, all property acquired during marriage is presumed to be
community. See A.R.S. § 25-211(A)(1)–(2). Likewise, debt incurred by either
spouse during marriage is presumed a community obligation. See In re
Marriage of Flower, 223 Ariz. 531, 537, ¶ 24 (App. 2010). We review the
court’s division of property for an abuse of discretion but review the court’s
characterization of property de novo. Helland v. Helland, 236 Ariz. 197, 199,
¶ 8 (App. 2014).

A. Home Equity Line of Credit (“HELOC”) Debt

¶19 Mother came into the marriage owning a home on Flower
Street, which she rented out. The home was subject to a HELOC. During
the marriage, the balance of the loan increased by somewhat more than
$16,500. The superior court ruled that the debt increase was a community
obligation because Father offered “insufficient evidence . . . to show
otherwise.” On appeal, Father argues the debt increase should have been
allocated solely to Mother.

¶20 “[D]ebts incurred during marriage are presumed to be
community debts, and the party who contends otherwise has the burden of
overcoming the presumption by clear and convincing proof.” Lorenz-Auxier
Fin. Grp., Inc. v. Bidewell, 160 Ariz. 218, 220 (App. 1989). “This presumption
applies to debt secured by separate property” if that debt is incurred for the
benefit of the community. See Hammett v. Hammett, 247 Ariz. 556, 562, ¶ 29
(App. 2019) (citing Johnson v. Johnson, 131 Ariz. 38, 45 (1981) (“[W]e [do not]
see any reason why the [community obligation] presumption should be
negated by the fact that the husband used his separate property to secure
the community loans.”); United Bank of Ariz. v. Allyn, 167 Ariz. 191, 198
(App. 1990). Father questions the legitimacy of the loan statements Mother
provided to Father “for the home equity account from September 2010
through March of 2019.” However, Father apparently did not subpoena
relevant documents and the record does not show he made other efforts to
introduce evidence to carry his burden to meet the applicable clear and
convincing standard. See Lorenz-Auxier, 160 Ariz. at 220. Having found that
Father failed to meet his burden of proof, the superior court did not abuse
its discretion in characterizing the HELOC debt as a community obligation.

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B. Amount of the Community Lien

¶21 Father next argues the superior court erred in calculating the
value of the community lien against the Flower Street home. Specifically,
Father contends the community lien calculation did not account for the
community’s purchase of a $4,987 air conditioning unit for that home in
2012.

¶22 When community funds are used to make capital
contributions toward a separate asset, the community’s interests “in the
separate asset [] may be vindicated through an equitable lien.” Femiano v.
Maust, 248 Ariz. 613, 617, ¶ 17 (App. 2020). Such a community lien “should
account for any increase in equity created by . . . capital improvements.” Id.
at ¶ 18. “[W]hen community funds are used to improve separate property, a
value-at-dissolution formula which takes into account the enhanced value
of the property should be utilized rather than an amount-spent formula . . .
[.]” Drahos v. Rens, 149 Ariz. 248, 250 (App. 1985).

¶23 In this case, the superior court did not find Father’s evidence
sufficient to support his arguments. This finding is supported by the record,
particularly given that Father did not establish the extent to which the 2012
air conditioning unit increased the value of the home at dissolution in
November of 2019. Therefore, Father has shown no abuse of discretion as
to this issue.

C. Reimbursements

¶24 Father also contends that the superior court abused its
discretion by not awarding the community reimbursement for rental
income purportedly owed by Mother’s mother (“Grandmother”), who was
living in the guest house of the parties’ marital residence.

¶25 Father testified there was an agreement for Grandmother to
pay rent for the guest house and introduced an email he sent to Mother
mentioning this rent as a “line item.” After considering the email and
Father’s testimony, the superior court found Father’s contention “too
speculative given the evidence presented, and therefore denie[d] Father’s
request.” Father has not shown that the court failed to consider evidence or
otherwise abused its discretion by rejecting Father’s claim.

¶26 Citing Bobrow v. Bobrow, 241 Ariz. 592 (App. 2017), Father
additionally argues that he was entitled to reimbursement for “a vehicle
loan payment he made on Mother’s behalf and . . . expenses [he] paid in
connection with the sale of the marital residence”—which expenses

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allegedly total $1,200. But Father does not provide record citations or cite to
evidence showing expenses that were required to be reimbursed. Further,
it does not appear Father raised a Bobrow argument before the superior
court, and it will not be addressed for the first time on appeal. See ABC
Supply, Inc. v. Edwards, 191 Ariz. 48, 50 (App. 1996) (“Only the theories
expressly raised at trial are properly preserved for appeal.”) (internal
quotation omitted). Accordingly, this claim fails.

¶27 Father also argues the superior court erred by failing to award
him reimbursement for increased taxes he paid due to Mother filing her
2017 and 2018 taxes as married, filing separate, rather than jointly.
However, he did not offer any authorities or evidence of record to support
this contention, and therefore, we deem it waived. See ARCAP 13(a)(6);
Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (observing that
appellant is required “to provide ‘citations to the authorities, statutes and
parts of the record relied on[]’ [and] [f]ailure to do so can constitute
abandonment and waiver of that claim.” (citing State v. Moody, 208 Ariz.
424, 452, ¶ 101 n.9 (2004)).

III. Alleged Procedural Irregularities

A. Statements Made by Superior Court at Trial

¶28 Father argues that the superior court committed reversible
error by expressing its desire for additional briefing at the close of trial.
Father points to passages in the record revealing the court’s frustration
based on the parties’ failure to provide “sufficient evidence or testimony []
on most” of the disputed issues raised at trial. This failure appears to
explain why the court ordered them to submit supplemental briefing. The
court expressly considered the parties’ post-trial briefs, and Father has not
shown otherwise. Although Father suggests the court should have ordered
a continuance to allow more evidence, he did not make such a request.

B. Consideration of Unadmitted Exhibit

¶29 Father contends remand is necessary because the superior
court erroneously considered exhibit 13, which was not admitted based on
hearsay grounds. Father, however, has not shown the court relied on
exhibit 13 to his detriment. Cf. Gasiorowski v. House, 182 Ariz. 376, 382 (App.
1994) (explaining an abuse of discretion must result in demonstrable
prejudice to a complaining party to be considered reversible error).

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C. Contempt Petition

¶30 Father asserts that the superior court failed to resolve his
petition for contempt concerning Mother’s alleged failure to comply with a
preliminary injunction. Father is correct that the record does not reflect an
explicit denial of his request that Mother be found in contempt. Even
assuming this court has appellate jurisdiction over the contempt ruling,
which typically would be addressed through special action, “when a court
fails to expressly rule on a [petition], we deem it denied.” See State v.
Mendoza-Tapia, 229 Ariz. 224, 231, ¶ 22 (App. 2012) (citing State v. Hill, 174
Ariz. 313, 323 (1993)). The absence of a written ruling under these
circumstances does not constitute reversible error.

IV. Attorneys’ Fees

¶31 As a final matter, Father challenges the superior court’s denial
of attorneys’ fees, which we review for abuse of discretion. See Democratic
Party of Pima Cnty. v. Ford, 228 Ariz. 545, 547, ¶ 6 (App. 2012). Father
challenges the court’s findings pursuant to A.R.S. § 25-324(A) that he “acted
unreasonably in the litigation.”

¶32 The superior court found both parties acted unreasonably,
and the record supports that finding. That finding, in turn, supports the
court’s denial of the parties’ requests for attorneys’ fees. As such, the court
did not abuse its discretion by denying Father’s request for attorneys’ fees.

CONCLUSION

¶33 Because Father has shown no error, we affirm the decree.

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¶34 On appeal, both parties request an award of their respective
attorneys’ fees under A.R.S. § 25-324(A). In our discretion, we award
Mother her reasonable attorneys’ fees on appeal pursuant to A.R.S. § 25-
324(A), based primarily on the unreasonableness of Father’s positions and
the failure of counsel to fully support the arguments advanced with
appropriate citations to the record and citations to controlling authority. As
the successful party on appeal, we additionally award Mother her taxable
costs upon compliance with ARCAP 21.

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

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