Vasquez v. Vasquez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARMEN JESSICA VASQUEZ, Petitioner/Appellant,

v.

ANTONIO L. VASQUEZ, JR., Respondent/Appellee.

No. 1 CA-CV 21-0654 FC
FILED 9-6-2022

Appeal from the Superior Court in Maricopa County
No. FC2017-094025
FC2018-095321
The Honorable Marvin L. Davis, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Saldivar & Associates, PLLC, Phoenix
By Maria David
Counsel for Petitioner/Appellant

Byrl R. Lane, PC, Phoenix
By Byrl Raymond Lane
Co-Counsel for Respondent/Appellee

Alexander R. Arpad Attorney at Law, Phoenix
By Alexander R. Arpad
Co-Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Peter B. Swann joined.

C R U Z, Judge:

¶1 Carmen Jessica Vasquez (“Mother”) challenges portions of
the decree of dissolution between her and Antonio L. Vasquez, Jr.
(“Father”). For the following reasons, we affirm in part and vacate and
remand in part.

FACTUAL AND PROCEDURAL HISTORY

¶2 The parties were married in 1992. Mother worked
sporadically throughout the marriage and was the primary caregiver for
the children, while Father was the main financial support for the family.
Because of Mother’s poor credit history, in 2004 Father purchased the
family residence in his name only and Mother signed a disclaimer deed
waiving any interest in the property.

¶3 In June 2017, Mother filed a petition for dissolution of
marriage. Of the five children born during their marriage, two were still
minors at the time the dissolution proceedings began.

¶4 A few months after filing the dissolution petition, Mother
filed a motion for temporary orders, requesting in relevant part, court
orders regarding the marital home, parenting time, and child support.
Mother alleged Father suffered from alcohol abuse and was behaving
irrationally, including texting his children he was suicidal. She requested
he be awarded supervised visitation. She additionally requested she be
awarded exclusive use of the marital home while Father continued to be
responsible for the mortgage payments.

¶5 The parties subsequently reached an agreement pursuant to
Arizona Rule of Family Law Procedure (“ARFLP”) 69 (“the 2017 temporary
orders”), whereby they would exercise equal legal decision-making
authority over the two minor children and Father would have parenting
time for several hours on Tuesday and Wednesday, as well as every other
weekend. Father was not permitted to consume alcohol during his
parenting time, and he was required to take medication and participate in

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counseling as recommended by his physician. Father was also ordered to
pay $900 in monthly child support. The parties were to equally split the
costs of unreimbursed medical expenses. Mother was given exclusive use
of the marital home and Father was responsible for mortgage payments.

¶6 In August 2018, Mother filed an expedited motion for
temporary orders. As relevant here, Mother requested orders regarding
parenting time, legal decision making, child support, spousal maintenance,
the marital home, and attorneys’ fees. Mother again alleged Father abused
alcohol and threatened suicide to the parties’ children. She also contended
Father neglected to make mortgage payments on the marital home for
nearly a year, and it was scheduled for a foreclosure auction unless a
balance of about $9,000 was paid in full.

¶7 In September 2018, the court issued its temporary orders (“the
2018 temporary orders”), awarding Mother sole legal decision-making
authority. Father was not allowed parenting time or communication with
the two minor children until he completed mental health treatment. Father
was ordered to pay $695 in monthly child support and $1,000 in monthly
spousal maintenance, and an income withholding order was issued. The
superior court granted Mother a $3,000 interim award of attorneys’ fees,
which would begin accruing interest if not paid in full by December 2018.
Finally, the court ordered Father to pay the balance of the mortgage
arrearage or sign a quitclaim deed to Mother in two weeks’ time, or a civil
arrest warrant would be issued. All other prior temporary orders from the
2017 agreement remained in effect.

¶8 Although Father initially failed to pay the mortgage balance,
and a civil warrant was issued for his arrest, he eventually paid the amount
due and the court quashed the warrant. Father did not pay the attorneys’
fee award to Mother.

¶9 In September 2021, a trial was held. By this time, only one of
the parties’ children was a minor. Mother sought sole legal decision-
making authority and parenting time, as well as $1,200 in monthly child
support and $1,500 in monthly spousal maintenance. Mother argued the
marital residence should be treated by the court as community property
and that she was entitled to a 50% interest. Father argued he was entitled
to equal legal decision-making authority, equal parenting time, a child
support order consistent with the Arizona Child Support Guidelines,
Arizona Revised Statutes (“A.R.S.”) section 25-320 app. (2018)

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(“Guidelines”),1 and that neither party was entitled to spousal support.
Finally, he argued the marital home was his separate property, although he
recognized Mother was entitled to an equitable lien.

¶10 After trial, the court entered a final decree awarding joint
legal decision-making authority to the parties over the parties’ remaining
minor child. Father was awarded supervised parenting time and ordered
to pay monthly child support of $962 pursuant to the Guidelines. The
superior court additionally found Mother was entitled to spousal
maintenance and awarded her $1,000 per month for five years. The
superior court noted Mother signed a disclaimer deed to the marital home
and awarded it to Father as his sole and separate property. The superior
court found Mother had “waived any rights/interest in the [marital home]
and failed to meet her burden in establishing any community interest claim
by not providing the required information to perform the proper analysis.”

¶11 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Community Lien

¶12 Mother argues the court erred when it awarded the house to
Father as his separate property and declined to award her a community
lien. We review de novo the legal question of whether property should be
classified as community or separate. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz.
521, 523, ¶ 4 (App. 2007). The existence and value of an equitable lien
presents mixed questions of fact and law. Valento v. Valento, 225 Ariz. 477,
481, ¶ 11 (App. 2010). This court defers to the superior court’s factual
findings unless clearly erroneous or unsupported by any credible evidence
but draws its own legal conclusions from those facts. Id.

¶13 Property acquired during marriage is presumed to be
community property, and the spouse seeking to rebut that presumption
must prove by clear and convincing evidence that the property is separate.
A.R.S. § 25-211(A); Brebaugh v. Deane, 211 Ariz. 95, 97-98, ¶ 6 (App. 2005).
A signed disclaimer deed provides this proof and, absent fraud or mistake,

1 The 2018 version of the Arizona Child Support Guidelines was in
effect at the time the superior court entered the final decree. Accordingly,
we apply that version to our analysis. See Pearson v. Pearson, 190 Ariz. 231,
233 n.1 (App. 1997).

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rebuts the community presumption. Bell-Kilbourn, 216 Ariz. at 524, ¶¶ 10-
11. Here, Mother signed a disclaimer deed, and she does not challenge its
validity. Accordingly, the evidence supports a finding that the marital
home is Father’s separate property.

¶14 “A separate property residence remains separate property
even if the community contributes funds and uses the residence as a family
home.” Femiano v. Maust, 248 Ariz. 613, 617, ¶ 17 (App. 2020). However, as
Mother recognizes, “capital contributions made with community funds
create a community interest in the separate asset that may be vindicated
through an equitable lien.” Id. Here, the undisputed evidence shows that
the property was used as the family home and community funds were used
to pay the mortgage and make improvements on the property. Aside from
Father’s argument that Mother waived her claim to a lien, he concedes that
she would otherwise have been entitled to a community lien on the
property. There is no evidence that Father had any earnings which could
be characterized as separate property. Since there is a presumption that
property earned during the marriage is community property, which Father
has not rebutted, his income used to pay the mortgage are community
contributions. See Brebaugh, 211 Ariz. at 97-98, ¶ 6. Thus, the community is
entitled to an equitable lien.

¶15 Father argues that Mother has waived any interest in the
home by failing to raise this argument at trial. But in her 2019 Resolution
Management Conference statement, Mother raised the issue of a
community lien. And, at trial, Mother testified that the home was an asset
to be divided. Father knew the calculation of the equitable lien was at issue,
and in his pretrial statement he calculated the value of Mother’s community
lien at $35,371. We therefore decline to find waiver. See Nold v. Nold, 232
Ariz. 270, 273-74, ¶¶ 10, 20 (App. 2013) (waiver is a discretionary doctrine,
not an “unalterable rule,” and the superior court has an “obligation to
equitably divide” community property).

¶16 Accordingly, we remand to the superior court to conduct
further proceedings to determine the value of the community lien and to
make any other equitable adjustments to the decree if needed.

II. Child Support

¶17 Mother argues the superior court erred in its determination of
the child support award. We generally review child support awards for an
abuse of discretion. Kelsey v. Kelsey, 186 Ariz. 49, 53 (App. 1996). An abuse
of discretion occurs when the superior court commits an error of law, or

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when the record, viewed in the light most favorable to upholding the
court’s conclusions, is devoid of competent evidence. Hurd v. Hurd, 223
Ariz. 48, 52, ¶ 19 (App. 2009). We review de novo the superior court’s
interpretation of the Guidelines. Clay v. Clay, 208 Ariz. 200, 202, ¶ 5 (App.
2004).

¶18 The court ordered Father to pay $962 in monthly child
support pursuant to the Guidelines. Mother argues the court erred in
failing to award an upward deviation of child support in the amount of
$1,200. In order to grant an upward deviation, the superior court must find
that “[a]pplication of the guidelines is inappropriate or unjust in the
particular case,” and it is in the best interests of the children. A.R.S. § 25-
320 app. § 20(A). Mother concedes that her failure to request specific
findings of fact pursuant to ARFLP 82 “waived the argument on appeal that
the superior court was obligated to explain why a deviation was not
warranted.” Nia v. Nia, 242 Ariz. 419, 425, ¶ 26 (App. 2017). When, as here,
neither party requested findings of fact or conclusions of law, we presume
that the court “found every fact necessary to support the judgment.” Neal
v. Neal, 116 Ariz. 590, 592 (1977).

¶19 Mother contends an upward deviation is appropriate because
she is currently unable to work, and her only form of income is child
support and spousal maintenance. “In determining child support, the
superior court must consider the reasonable needs of the children in light
of the parents’ resources.” Nash v. Nash, 232 Ariz. 473, 479, ¶ 23 (App. 2013).
Mother has failed to demonstrate that the child’s needs are not currently
met with the child support award as prescribed by the Guidelines. As
Mother recognizes, the parties “did not have an extravagant standard of
living during the marriage,” and there is no evidence Father has significant
financial resources such that application of the Guidelines would be
“inappropriate or unjust.” A.R.S. § 25-320 app. § 20(A)(1). Mother is
essentially asking this court to reweigh the evidence, but we must give due
regard to the superior court’s ruling, and we do not reweigh evidence on
appeal. See Hurd, 223 Ariz. at 52, ¶ 16. The court did not abuse its discretion
in declining to award an upward deviation of Father’s child support
obligation.

¶20 Mother also argues the court erred in calculating Father’s
income. The court attributed to Father an income of $66,144. Mother argues
Father’s overtime and bonuses should be considered part of his income, and
he should be attributed no less than the salary he earned during 2020:
$87,940 (a significant portion of which was from overtime work). Father
testified that he was starting a new job with a smaller company, and so he

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could no longer work overtime like he did in prior years. Mother claims
Father is trying to evade his support obligations by starting a job with lower
income, but his base salary is essentially the same—$30.50 per hour as
opposed to $31.80 per hour. Even if Father could still work overtime in his
new job, a contested issue left to the determination of the superior court,
that court is not obligated to include overtime pay as part of a father’s
income for child support calculation purposes; the Guidelines provide that
the court may consider overtime pay if it is historically earned, but it is not
mandated to do so. A.R.S. § 25-320 app. § 5(A) (“Generally, the court
should not attribute income greater than what would have been earned
from full-time employment. Each parent should have the choice of working
additional hours through overtime or at a second job without increasing the
child support award.”). We find no error.

¶21 Finally, Mother contends the court erred in failing to credit
her for $280 in monthly educational expenses when calculating the child
support obligation. Mother briefly testified that she had to pay $30 per
month for a laptop and another $250 per month for internet for their son’s
speech therapy. However, Mother did not expressly request the court
credit her this amount in special educational expenses, nor did she include
this amount on her proposed child support worksheets. Under the
Guidelines, the court is under no obligation to credit extra educational
expenses. A.R.S. § 25-320 app. § 9(B)(2) (the court “[m]ay add to the Basic
Child Support Obligation amounts for” education expenses) (emphasis
added). Further, Mother provided no evidence to substantiate the existence
of these expenses. See Hurd, 223 Ariz. at 52, ¶ 16 (credibility determinations
are within the province of the superior court). The superior court did not
err in failing to credit Mother for these educational expenses.

III. Spousal Maintenance

¶22 Mother argues the superior court erred in the amount and
duration of the spousal maintenance award. We review the superior court’s
award of spousal maintenance for an abuse of discretion and will affirm if
there is any reasonable evidence to support it. Gutierrez v. Gutierrez, 193
Ariz. 343, 348, ¶ 14 (App. 1998).

¶23 Once the superior court determines a spouse meets the
statutory requirements for maintenance in A.R.S. § 25-319(A), the court
must then consider the factors in A.R.S. § 25-319(B) to determine a
maintenance award that is “in an amount and for a period of time as the
court deems just.” A.R.S. § 25-319(B).

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¶24 The superior court awarded Mother $1,000 in monthly
spousal support for a period of five years. Mother contends the court erred
in failing to award her the requested $1,500 per month. In the decree, the
superior court expressly considered and weighed all the factors in A.R.S.
§ 25-319(B). Mother contends the court did not give enough weight to her
financial needs, Father’s earning capabilities, Mother’s contributions to
Father’s career, and the duration of the marriage. Mother is asking us to
reweigh the factors and evidence, but again, we do not reweigh evidence
on appeal. See Hurd, 223 Ariz. at 52, ¶ 16.

¶25 Mother also argues the court erred in failing to award her
spousal maintenance for an indefinite period. Mother contends she is
unable to be self-sufficient through employment because her current health
condition prevents her from working. The superior court did note that
Mother was currently unable to work because of her physical condition.
However, Mother did not argue that she is permanently disabled, and she
did not provide evidence that she would be unable to work in the future.
The superior court awarded Mother five years of spousal support to allow
her time “to secure additional employment and arrange for any training
[she] need[s] to secure appropriate employment.” The award is modifiable
and keeps open the possibility for Mother to seek modification of the award
should her medical conditions persist. The evidence supports the court’s
judgment. We find no error. The superior court did not abuse its discretion
in determining the amount and duration of the spousal support award.

IV. Temporary Orders

¶26 Mother argues the superior court erred by failing to include
in the final judgment an interim attorneys’ fee award, support arrears, and
reimbursement for various expenses in order to satisfy the 2017 and 2018
temporary orders. “Temporary orders signed by the court and filed by the
clerk are enforceable as final orders but terminate and are unenforceable
upon dismissal of the action, or following entry of a final decree, judgment,
or order, unless that final decree, judgment, or order provides otherwise.”
Ariz. R. Fam. Law P. 47(j)(1); see also A.R.S. § 25-315(F)(4).

A. $3,000 Attorneys’ Fee Award

¶27 First, Mother argues the court erred by failing to include in
the final decree the $3,000 attorneys’ fees plus interest awarded to Mother
in the 2018 temporary orders. Father concedes he has not yet complied with
this order and intended to pay the attorneys’ fee award with proceeds from
community property in Mother’s possession.

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¶28 The attorneys’ fee award within the temporary orders was
never incorporated into the final judgment. Without incorporation into the
final judgment, upon entry of the decree, those orders would terminate and
become unenforceable. A.R.S. § 25-315(F)(4) (“A temporary order or
preliminary injunction . . . [t]erminates when the final decree is entered or
when the petition for dissolution, legal separation or annulment is
dismissed.”). Father argues the attorneys’ fee award, while admittedly
made in the context of a temporary order, was a “discrete award embodied
in a signed judgment rather than a temporary order.” However, there is no
language in the 2018 temporary orders or the final decree that indicate any
of the rulings within the 2018 temporary order would not terminate upon
entry of the final decree. See Ariz. R. Fam. Law P. 47(j)(1).

¶29 Mother timely raised Father’s noncompliance with the
attorneys’ fee award at trial, and the court failed to address the issue in the
decree. Father does not dispute that he has failed to pay Mother the
attorneys’ fee award plus interest. We therefore remand for the court to
amend the decree to account for the $3,000 attorneys’ fee award plus
interest owed to Mother.

B. Support Arrears

¶30 Mother also argues the court failed to enter final orders
regarding support arrearages from Father’s failure to pay support under
the 2017 and 2018 temporary orders.

¶31 However, in her pretrial statement, Mother argued that
Father only owed arrearages between May 2017 and October 2017 in the
amount of $3,762.39. But Mother did not file her petition for dissolution
until June 2017, and child support and spousal maintenance were not
ordered until October 2017. Father was not ordered to pay support between
May and October 2017, and so he cannot owe any arrearages during this
time frame.

¶32 Insofar as Mother alleges Father has failed to pay spousal or
child support since October 2017, Mother failed to properly raise this issue
before the court. Mother claims she testified at trial that Father has
complied with “none” of the 2017 temporary orders. But aside from this
very vague testimony, Mother did not clearly raise the issue of support
arrearages, and regardless, she has provided no evidence or calculation of
arrears allegedly owed by Father. Following both the 2017 and 2018
temporary orders, income withholding orders were issued, and it appears
support has been automatically withheld from Father’s paychecks. In the

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four years between the court’s temporary orders for support and the final
decree, Mother never filed a notice or motion arguing Father was not
paying his support obligations. See Orfaly v. Tucson Symphony Soc’y, 209
Ariz. 260, 265, ¶ 15 (App. 2004) (arguments raised for the first time on
appeal generally deemed waived); Sholes v. Fernando, 228 Ariz. 455, 460,
¶ 14 n.3 (App. 2011) (arguments that are unsupported by citation to the
record are deemed waived). We find no error.

C. Reimbursement for Medical and Educational Expenses

¶33 Finally, Mother argues she is entitled to reimbursement for
medical and educational expenses pursuant to the 2017 and 2018 temporary
orders. However, Mother fails to point to any language in these court
orders that expressly required the parties to equally pay for educational
expenses. The superior court did not err in failing to require
reimbursement for these education expenses.

¶34 Mother additionally argues the court failed to enter final
orders regarding reimbursement for a $50 medical expense. The 2017 and
2018 orders did require Father to pay half of uncovered medical expenses.
However, the only evidence Mother provides of uncovered medical
expenses is a billing summary sheet that indicates she made a $50 payment
for one of the children’s dentist appointments in July 2017. The temporary
orders were not in effect until September 2017, and so the parties were not
yet ordered to equally pay for medical expenses when Mother made this
$50 payment. The superior court did not err in denying Mother’s request
for reimbursement.

CONCLUSION

¶35 For the foregoing reasons, we vacate in part and remand for
further proceedings for the superior court to determine the value of the
community lien. We also remand for the court to include in the final decree
the $3,000 interim attorneys’ fee award plus interest. We affirm the final
decree in all other respects.

¶36 Both parties request their attorneys’ fees and costs on appeal.
We have considered the relative financial resources of the parties and the
reasonableness of the positions asserted on appeal. In re Marriage of
Williams, 219 Ariz. 546, 550, ¶ 15 (App. 2008). In the exercise of our
discretion, we grant Mother a partial award of attorneys’ fees in addition to

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her costs on appeal, upon compliance with ARCAP 21.

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

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