Shields v. Ogden-Shields

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW RAY SHIELDS, Petitioner/Appellee,

v.

MICHELLE LOUISE OGDEN-SHIELDS, Respondent/Appellant.

No. 1 CA-CV 21-0240 FC
FILED 7-19-2022

Appeal from the Superior Court in Maricopa County
No. FC 2016-094699
The Honorable Marvin L. Davis, Judge
The Honorable Laura M. Reckart, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Hayes Esquire PLLC, Phoenix
By Cody Hayes
Counsel for Respondent/Appellant

Matthew Shields, Surprise
Petitioner/Appellee
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Michelle L. Ogden-Shields (“Mother”) challenges several
superior court rulings in a decree of dissolution, the denial of her motion to
amend the decree, and a post-decree order directing Mother’s attorney to
release funds to Matthew R. Shields (“Father”). For the reasons stated
below, we vacate the court’s denial of her request for attorneys’ fees and
remand for further consideration consistent with this decision. We affirm
all other rulings in the decree and the post-decree orders.

BACKGROUND

¶2 The parties married in 2000 and have two children. Father
petitioned for dissolution in August 2016, and after a March 2019 trial, the
superior court entered a decree addressing legal decision-making
authority, parenting time, child support, spousal maintenance, allocation of
community property and debts, and attorneys’ fees. Mother moved to
amend the decree under Arizona Rule of Family Law Procedure (“Rule”)
83. On Father’s motion, the court struck Mother’s Rule 83 motion, and
Mother appealed (“the first appeal”).

¶3 In the first appeal, this court vacated the order striking
Mother’s Rule 83 motion and directed the superior court to consider the
merits of that motion. See Shields v. Ogden-Shields, 1 CA-CV 19-0520 FC,
2020 WL 6840547, at *1 (Ariz. App. Nov. 19, 2020) (mem. decision). On
remand, the superior court denied the motion without comment.

¶4 While the Rule 83 motion was pending on remand, Father
renewed his earlier request for the release of refinance proceeds being held
by Mother’s attorney. Over Mother’s objection, the superior court ordered
her attorney to pay Father his share of refinance proceeds by April 9, 2021,
or face sanctions.

¶5 Mother timely appealed the decree, the denial of her Rule 83
motion, and the order to pay Father his share of the refinance proceeds. We
have jurisdiction under A.R.S. §§ 12-2101(A)(1), (2) and -2102(A).

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DISCUSSION

I. Allocation of Debts

¶6 Mother argues the superior court abused its discretion or
erred in allocating several debts because it relied on Father’s testimony
which, she claims, was not clear or convincing. We review the court’s
allocation of property for an abuse of discretion. Hrudka v. Hrudka, 186 Ariz.
84, 93 (App. 1995), superseded by statute on other grounds as noted in Myrick v.
Maloney, 235 Ariz. 491, 494, ¶ 8 (App. 2014).

A. Father’s Student Loan Debt

¶7 During the marriage, both parties incurred student loan debt.
The record shows that Father still owed approximately $71,000 on his
student loans at the time he served Mother with the petition. According to
Father, the parties used about $37,500 of his student loans for living
expenses during the marriage. Father argued that Mother should pay a
portion of the total student loan balance because (1) some of the funds were
spent on living expenses, and (2) Mother’s student loans were paid off
during the marriage. The court agreed and ordered Mother to pay $9,375
of the student loan debt as Father requested.

¶8 Mother does not dispute that Father incurred the entire
student loan debt during the marriage and does not object to paying her
share of the actual amount spent on community living expenses. Instead,
she argues Father’s estimate of the amount spent on living expenses does
not support the judgment against her. Mother misconstrues the burden of
proof.

¶9 A debt incurred by either spouse during the marriage is
presumed to be a community obligation, and the party challenging the
community nature of a debt “bears the burden of overcoming that
presumption by clear and convincing evidence.” Hrudka, 186 Ariz. at 91–
92; see also In re Marriage of Flower, 223 Ariz. 531, 535, ¶ 12 (App. 2010).
Because the student loan debt was incurred during the marriage, Mother
had the burden of proving that it was not entirely a community obligation.
See Hrudka, 186 Ariz. at 91–92. Mother did not offer any evidence
contradicting Father’s testimony about how much of the loans was spent
on community living expenses, and the superior court was within its
discretion to accept his testimony. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16
(App. 2009) (the credibility of witness testimony is for the superior court to
determine).

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¶10 Mother also argues the superior court failed to consider that
Father could deduct the interest paid on the student loan in 2016 and that
his failure to take the same deduction in 2017 increased his tax liability. This
argument is waived because Mother did not raise it with the superior court;
she cannot raise new theories on appeal. See Bobrow v. Bobrow, 241 Ariz.
592, 597, ¶ 23 (App. 2017).

B. Father’s Vacation and Sick Leave Payout

¶11 In 2017, Father changed jobs and received a payout of
$22,312.31 for accumulated vacation and $4,629.51 for sick leave from his
former employer. According to Father’s calculations, $15,331.08 of the
payout was earned during the marriage and he used that portion to pay off
community credit card debts, benefitting the community. In addition,
although the parties agreed to file joint tax returns in 2017, Mother filed
separately. Thus, Father also filed separately and incurred $11,921 in
increased tax liability as a result. He argued that Mother should pay half
this amount. The court agreed with Father’s position and ordered Mother
to pay one-half of Father’s 2017 tax liability ($11,921/2 = $5,960.50).

¶12 Mother contends the evidence does not support the
conclusion that Father’s 2017 taxes were higher solely due to the vacation
and sick leave payout or having to file separately. On cross-examination,
Father acknowledged that some taxes were withheld from the vacation and
sick leave payout. But Exhibit 39 does not show that any income taxes were
withheld. Thus, Mother failed to refute Father’s contention that the payout
increased his income and thus triggered additional income tax liability. The
court’s ruling is further supported by the fact that Mother did not file jointly
as agreed, thus increasing what Father owed.

¶13 Mother also argues Father changed his withholding status,
which resulted in a higher tax liability. This argument is waived because
Mother did not raise it in the superior court. Bobrow, 241 Ariz. at 597, ¶ 23.

¶14 Next, Mother argues the court did not “independently verify”
Father’s assertion that the community portion of the vacation payout was
$15,331.08. Father testified that a portion of the vacation time accrued after
the date of service and thus his separate property. Father’s pretrial
statement further explained his calculation in greater detail. Because
Mother did not refute that evidence, the record supports the calculation of
the community share of Father’s vacation payout, and she has shown no
error.

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C. Credit Card Debt Allocation

¶15 Mother argues the community debt allocation was unfair
because Father used the community vacation payout to pay down three
debts that were in his name only. Father, however, testified that the debts
were for community expenses. The superior court found that Father’s use
of community funds to pay these three debts as well as several other
community debts was appropriate, a finding supported by his testimony.
Mother failed to show that these debts were not for the benefit of the
community, so it was appropriate to use community funds to pay these
community debts.

¶16 Mother argues there was a discrepancy in the decree as to the
Hughes credit card debt. The court found that Father paid $4,790.50 of this
debt from the community vacation payout, leaving a balance of $302.
Father’s testimony supports this finding. Yet the court also ordered Father
to pay the Hughes debt “with a community balance of $4,138.86.” The last
statement from this account in November 2018 showed a balance due of
$3,817.24. Although it is unclear how the court calculated the $4,138.86
amount, Father remains liable for the balance due on this debt. Because
Mother has not shown how she was prejudiced by this discrepancy, she has
not established that reversible error occurred.

¶17 Mother also contends the court failed to consider that the
minimum monthly payment on the Bank of America credit card Father was
ordered to pay is $90 less than the Bank of America credit card allocated to
Mother. She did not raise this argument at trial, so it is waived. Bobrow,
241 Ariz. at 597, ¶ 23.

II. Spousal Maintenance

¶18 The superior court found that Mother could be eligible for
spousal maintenance under A.R.S. § 25-319(A)(1) because she lacked
sufficient property to provide for her reasonable needs. But after balancing
the § 25-319(B) factors, the court denied Mother’s request. We review
spousal maintenance orders for an abuse of discretion. Gutierrez v.
Gutierrez, 193 Ariz. 343, 348, ¶ 14 (App. 1998).

¶19 Mother argues the court erred by failing to properly consider
that (1) Father’s income was approximately double hers; (2) she had a
higher debt to income ratio; (3) her share of Father’s debt was never
lawfully established; (4) she should receive a proportionate share of the
student loan interest deduction; (5) she was assigned a disproportionate

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amount of Father’s 2017 tax liability and other debts; and (6) her vehicle
was incorrectly valued. Mother also argues the court ignored several
statutory factors such as the marital standard of living, the ability of the
payor spouse to meet his needs while paying spousal maintenance, the
comparative financial resources of the parties, including their earning
abilities, and the extent to which both spouses may contribute to the
children’s future education expenses. See A.R.S. § 25-319(B)(1), (4), (5), and
(8). But the court specifically considered these factors, and its findings are
supported by the trial evidence.

¶20 Although Mother disagrees with how the court viewed the
evidence, we do not reweigh the evidence on appeal. Hurd, 223 Ariz. at 52,
¶ 16. We will affirm the ruling if substantial evidence supports it, and even
conflicting evidence can constitute substantial evidence. Id. Mother has
shown no error.

III. Attorneys’ Fees in the Superior Court

¶21 The superior court denied Mother’s request for attorneys’ fees
after finding there was a substantial disparity of financial resources
favoring Father and both parties acted unreasonably at times, adding
“however, this was primarily due to disparate positions.” Mother argues
that without more explanation, these findings do not support the court’s
decision to deny her fee request.

¶22 We review the court’s ruling on a request for attorneys’ fees
under A.R.S. § 25-324(A) for an abuse of discretion. Myrick, 235 Ariz. at 494,
¶ 6. Under § 25-324(A), the court must consider two factors: the relative
financial disparity of the parties and the reasonableness of the positions
each party has taken. Financial disparity alone does not require the court
to award fees to the party with fewer financial resources; it is a discretionary
decision. Myrick, 235 Ariz. at 494, ¶ 9.

¶23 Because Father timely requested express findings of fact and
conclusions of law under Rule 82, the court’s factual findings must be
sufficient to allow us to determine the basis for the ruling. See Elliott v.
Elliott, 165 Ariz. 128, 135 (App. 1990). The findings here do not support the
denial of attorneys’ fees. First, the court found a substantial disparity of
financial resources favoring Father. Second, the court found that both
parties acted unreasonably but cited only their “disparate positions.”
Parties generally take disparate positions in a contested trial, and although
noting that both parties acted unreasonably at times, the court did not refer
to any other objectively unreasonable positions taken by Mother. See In re

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Marriage of Williams, 219 Ariz. 546, 549, ¶ 12 (App. 2008) (holding that the
reasonableness of a litigant’s position under § 25-324(A) is determined by
an objective standard). Although Father provides examples of Mother’s
arguably unreasonable positions, “we do not infer additional findings
necessary to sustain the award” when a party makes a Rule 82 request.
Stein v. Stein, 238 Ariz. 548, 551, ¶ 12 (App. 2015). We vacate the portion of
the decree denying Mother’s request for attorneys’ fees and remand for
further findings.

IV. Final Decision-Making Authority

¶24 The superior court denied Mother’s request for final decision-
making authority. Mother argues this ruling was not supported by the
evidence and constituted legal error. We review the legal decision-making
order for an abuse of discretion and accept the findings of fact absent clear
error. Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018).

¶25 The court found that the parties agreed they should be
awarded joint legal decision-making, but that Mother asked to be the
“Deciding Parent” on all issues relating to the children, based on her
perceptions that Father was not making appropriate decisions for the
children. The court concluded that Mother’s position on this point was
“slightly unreasonable.” The court also found the children were well-
adjusted and the parties were generally cooperative, despite their mutual
resentment. The record supports these findings. The parties were able to
eventually agree on medical treatment for one child despite Father’s initial
concerns. The court considered the evidence of disagreement between the
parents but determined, after hearing the testimony, that the parties could
exercise joint legal decision-making. Mother asks this court to view the
evidence differently, but we do not reweigh conflicting evidence on appeal.
Hurd, 223 Ariz. at 52, ¶ 16.

¶26 Mother also argues the superior court failed to consider that
it could grant her final decision-making authority on certain issues but not
all. But she has waived this argument because she does not identify the
portion of the trial record showing where she made this argument in the
superior court. See Myrick, 235 Ariz. at 495, ¶ 11. And even apart from
waiver, Mother has shown no error by the superior court in addressing
decision-making authority.

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V. Summer Parenting Time

¶27 The superior court ordered a 5-2-2-5 parenting time schedule
during the school year and an alternating one-week schedule for the
summer months. Mother argues the summer parenting time order is not in
the children’s best interests because it requires them to spend one week
apart from each parent. We review parenting time orders for an abuse of
discretion. Engstrom, 243 Ariz. at 471, ¶ 4.

¶28 No evidence supports Mother’s claim that the summer
schedule, which still provides equal parenting time, is detrimental to the
children, who were twelve and nine at the time of the decree. On the record
presented, Mother has shown no error in the discretionary ruling.

VI. Proposed Findings of Fact and Conclusions of Law

¶29 The superior court ordered the parties to submit any
proposed findings of fact and conclusions of law at least seven days before
the trial. Father filed his proposed findings of fact and conclusions of law
three days before the hearing. At trial, Mother objected in writing and
orally to Father’s untimely submission and asked for permission to submit
proposed findings of fact and conclusions of law within ten business days
after trial. The court denied Mother’s request because it did not want to
delay its ruling. The decree entered by the court, however, was in a form
prepared by the court, which did not adopt Father’s proposal and differs
substantially from it. We have jurisdiction to review this ruling under
A.R.S. § 12-2102(A) (for “an appeal from a final judgment,” appellate courts
“shall review any intermediate orders involving the merits of the action and
necessarily affecting the judgment, and all orders and rulings assigned as
error, whether a motion for new trial was made or not[]”). We review the
court’s decision to deny Mother’s untimely request for an abuse of
discretion. See Green v. Lisa Frank, Inc., 221 Ariz. 138, 153, ¶ 40 (App. 2009)
(sanctions imposed for violating a court order are reviewed for abuse of
discretion).

¶30 The superior court had discretion to deny Mother’s untimely
request. See Ariz. R. Fam. Law P. 76.2(a)(1), (b)(2) (court may sanction a
party by prohibiting them from supporting or opposing designated
arguments when that party fails to obey a pretrial order). According to
Mother, the ruling was prejudicial because the court adopted Father’s
proposed findings of fact and conclusions of law on the 2017 tax liability
and spousal maintenance without exercising its independent judgment.
However, on these issues, the court’s findings differ significantly from

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Father’s proposed findings, which also indicates that the court exercised its
independent judgment. See Elliott, 165 Ariz. at 134 (when a party requests
findings of fact, the court must independently make findings on all relevant
facts). Mother has not shown an abuse of discretion.

VII. Rule 83 Motion to Amend the Decree

¶31 Mother’s challenge to the denial of her Rule 83 motion to
amend the decree is limited to her appellate briefs incorporating the Rule
83 motion to amend the decree by reference. Incorporating a motion by
reference does not comply with ARCAP 13(a)(7), which requires a party to
provide supporting arguments and citations of authority. Thus, her
argument is waived, and we do not consider it. Brown v. U.S. Fid. & Guar.
Co., 194 Ariz. 85, 93, ¶ 50 (App. 1998) (citing former ARCAP 13(a)(6), now
13(a)(7)).

VIII. Orders to Release Refinance Proceeds

¶32 Consistent with the parties’ pretrial agreement, Mother
refinanced the marital home in her name. However, she withdrew
$44,619.66 in equity, which her attorney has since held in his trust account.
After accounting for some offsets, the superior court found that Mother
owed Father $44,574 from these proceeds. The decree ordered Mother’s
attorney to immediately release the funds to Father. Two days after Mother
sought relief under Rule 83, Father petitioned for immediate release of the
funds. The court granted Father’s request, as amended, and he then moved
for sanctions when Mother’s attorney failed to release the funds.

¶33 The day after Mother appealed from the decree, the superior
court granted Father’s request for attorneys’ fees in an amount to be
determined as a sanction for the failure to release the funds. Later, the court
awarded Father $2,000 in attorneys’ fees, to be paid by Mother’s attorney
based in part on “habitual non-compliance” with court orders.

¶34 While the sanctions issue was pending, the parties were also
litigating whether Mother must file a supersedeas bond. Two days before
it sanctioned Mother’s attorney for failing to immediately release the funds,
a different judge ruled that the funds were to remain in Mother’s attorney’s
trust account and Mother did not have to post a bond. Mother’s attorney
then moved for relief from the sanctions order.

¶35 After this court decided Mother’s first appeal, but before
entry of the appellate mandate in that appeal, Father renewed his request

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for the immediate release of the funds. Mother objected, inter alia, due to
her pending Rule 83 motion. She also notified the court that it had not ruled
on the motion for relief from the order sanctioning her attorney. In two
separate orders issued on the same day, the superior court (1) denied
Mother’s Rule 83 motion and (2) ordered that Mother’s attorney must
release the funds to Father by a certain date.

A. Order to Release Funds

¶36 Mother contends the superior court acted outside the
appellate mandate when it ruled on Father’s renewed request to release
funds. We lack jurisdiction over her attempt to argue that the superior
court failed to properly follow the mandate in the first appeal. 1 ARIZONA
APPELLATE HANDBOOK 2.0 Ch. 11 § 1.3(B)(i) at 11.13 (2020) (“The superior
court’s entry of judgment based on the appellate court’s specific mandate
and opinion is not appealable. The appropriate method of seeking review
of a claim that the superior court failed to properly follow the appellate
court’s mandate is instead through a special action.” (citation omitted)).
Regardless, in the first appeal, we held that the superior court erred in
striking Mother’s Rule 83 motion and remanded for the court to consider
and rule on that motion. Shields, 2020 WL 6840547, at *2, ¶¶ 8–9. The
mandate meant that Mother’s Rule 83 motion was now pending. The fact
Father sought release of the funds while the court was simultaneously
deciding Mother’s Rule 83 motion does not mean the court went outside
the mandate.

B. Motion for Relief from Sanctions

¶37 Mother also argues the superior court abused its discretion
because it did not rule on her attorney’s motion for relief from sanctions. In
responding to Father’s renewed request to release the funds, Mother
reminded the court of her attorney’s January 2020 motion for relief from the
sanctions judgment. The court held a status conference addressing Father’s
renewed request to release the funds but Mother has not provided a
transcript of that proceeding. The court later granted Father’s request
without addressing Mother’s motion for relief from sanctions.

¶38 A motion that is not directly ruled on by the superior court is
deemed denied by operation of law. McElwain v. Schuckert, 13 Ariz. App.
468, 470 (1970). When the court ruled on Father’s renewed request, it
resolved the issues related to the refinance funds, including the motion for
relief from sanctions.

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IX. Attorneys’ Fees, Sanctions, and Costs

¶39 Mother asks us to sanction Father, alleging his brief contains
misleading arguments and citations to authority. Although Father has
misstated the holding of some authorities, his actions do not warrant
sanctions.

¶40 Both parties request an award of attorneys’ fees on appeal.
Father is not represented on appeal by an attorney, so he is not entitled to
attorneys’ fees. See Munger Chadwick, P.L.C. v. Farwest Dev. & Constr. of the
Sw., LLC, 235 Ariz. 125, 126, ¶ 5 (App. 2014) (“[P]arties who represent
themselves in a legal action are not entitled to recover attorney fees.”).
Mother failed to provide any facts or argument supporting her request for
fees under A.R.S. § 25-324. In our discretion, we deny her request. Because
Father is the more successful party on appeal, he is awarded taxable costs
subject to compliance with ARCAP 21.

CONCLUSION

¶41 We vacate the superior court’s denial of Mother’s request for
attorneys’ fees and remand for reconsideration consistent with this
decision. We affirm all other rulings in the decree and post-decree orders.

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

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