Bennett v. Hanna-Bennett

1

In re the Marriage of Brandon C. Bennett, Petitioner/Appellee, v. Tammi S. Hanna-Bennett, Respondent/Appellant.

No. 2 CA-CV 2021-0109-FC

Court of Appeals of Arizona, Second Division

August 15, 2022

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. D20180067 The Honorable Deborah Pratte, Judge Pro Tempore

Berkshire Law Office PLLC, Tempe

By Keith Berkshire and Kristi Reardon

Counsel for Petitioner/Appellee

Richard A. Beck, Sahuarita

Counsel for Respondent/Appellant Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Vice Chief Judge Staring concurred.

MEMORANDUM DECISION

BREARCLIFFE, JUDGE:

¶1 Tammi Hanna-Bennett appeals the trial court's denial of her request for spousal maintenance. Tammi contends that the court erred by: finding her ineligible for spousal maintenance; making certain findings of fact regarding her employment; awarding Brandon Bennett his attorney fees and costs; and engaging in "deep-seated favoritism toward" Brandon. For the following reasons, we affirm the award of attorney fees, reverse the denial of spousal maintenance, and remand.

Factual and Procedural Background

¶2 "We view the evidence in the light most favorable to sustaining the trial court's findings and will uphold them unless they are clearly erroneous or unsupported by the evidence." In re Marriage of Priessman, 228 Ariz. 336, ¶ 2 (App. 2011). Tammi and Brandon were married in Arizona in June 2006 and had one child together in December of that year. Brandon filed a petition for dissolution of marriage with children in January 2018. In his petition, Brandon requested that "no spousal maintenance be ordered," and that Tammi be ordered to pay his attorney fees and other costs if this matter was contested. In Tammi's response to the petition for dissolution, she claimed she was "entitled to spousal maintenance pursuant to A.R.S. § 25-319(A)," and requested that she receive a "modifiable award of spousal maintenance in the amount of $2,000 for a period of 5 years." In June 2018, the trial court ordered Brandon to temporarily pay Tammi $1,500 per month in spousal maintenance, beginning on July 1, 2018.

¶3 At trial, Tammi sought an award of $1,500 in spousal maintenance for a term of seven years. The trial court denied her request for spousal maintenance. The court found that Tammi was not eligible for spousal maintenance because none of the five conditions for eligibility under § 25-319(A) applied to Tammi. In addition to making the findings under subsection A, the court also found that, during the time that Brandon had been paying temporary spousal maintenance, Tammi "chose not to significantly work and/or to expand her work experience" and that she had applied for and received an additional $875 per month in support from Brandon's Department of Veterans Affairs (V.A.) disability benefits.^[1] The final order of dissolution was issued in July 2021.

¶4 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Analysis

Eligibility for Spousal Maintenance

¶5 Tammi first argues on appeal that the trial court erred by concluding she did not qualify for spousal maintenance.^[2] We will affirm the court's order if reasonable evidence supports it. In re Marriage of Cotter, 245 Ariz. 82, ¶ 6 (App. 2018). "However, when an issue presents a mixed question of fact and law, 'we will accept the trial court's findings of fact unless clearly erroneous and draw our own legal conclusions based on those facts.'" Id. (quoting Muchesko v. Muchesko, 191 Ariz. 265, 271-72 (App. 1997)).

¶6 When deciding whether to grant an award of spousal maintenance, a trial court must first consider the factors in § 25-319(A) to determine if the spouse seeking maintenance is eligible. The court need only find one of the factors to be met to allow for an award of maintenance. See § 25-319(A) ("the court may grant a maintenance order for either spouse for any of the following reasons" (emphasis added)); see also Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 17 (App 1998). Under § 25-319(A), the spouse seeking maintenance is eligible if that spouse:

1. Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse's reasonable needs.

2. Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.

3. Has made a significant financial or other contribution to the education, training, vocational skills, career or earning ability of the other spouse.

4. Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.

5. Has significantly reduced that spouse's income or career opportunities for the benefit of the other spouse.

The spouse's eligibility is based solely on that spouse's circumstances. Cotter, 245 Ariz. 82, ¶ 7. Only if the court finds the requesting spouse eligible may it then consider, among other things, the circumstances of both spouses to determine if the award of maintenance should be granted and, if so, how much. See id.; see also § 25-319(B).

¶7 Here, the trial court found none of the factors to be satisfied and therefore concluded that Tammi was ineligible for spousal maintenance. As to the first factor-the only factor at issue on appeal-the court found that Tammi has "sufficient property to provide for her reasonable needs." Tammi argues that the court erred on several grounds.^[3]First, she argues that the court conflated the factors that may be considered to determine whether she had sufficient property with the factors to determine whether she can be self-sufficient through reasonable employment under § 25-319(A)(2). Tammi also asserts that the property she was awarded cannot be deemed sufficient.

¶8 In support of her argument, Tammi relies on Cotter, in which a wife seeking maintenance was awarded $36,000 in cash and marital assets. 245 Ariz. 82, ¶ 11. The trial court made no express finding whether, under § 25-319(A), such property was sufficient to meet her reasonable needs, the value of the property she had been awarded, or how long that property could sustain her. Id. ¶ 12. Although this court recognized that the trial court was not obligated to make such findings on the record, it nonetheless could not determine whether the court had applied the proper test for sufficiency under the statute. Id. This court therefore remanded the matter to the trial court to make a determination as to whether the wife's property "could provide for her reasonable needs without being exhausted." Id. The property would be sufficient under the law, this court said, if the property "standing alone" - also described as "without supplement" -"can provide for [the] spouse's reasonable needs during his or her lifetime." Id. ¶¶ 8, 10. Consequently, the trial court, for purposes of § 25-319(A)(1), could not consider the wife's ability to earn through labor in evaluating whether her awarded property could support her. See id. ¶¶ 10-11. The court had to evaluate the sufficiency of that property alone- at least as to the threshold determination of eligibility.

¶9 As in Cotter, the trial court here did not expressly find that Tammi had or had not been awarded property sufficient to provide for her reasonable needs during her life without supplement. And, also as in Cotter, because neither party requested the court make findings of fact or conclusions of law, it was not required to do so. Higgins v. Higgins, 154 Ariz. 87, 88 (App. 1987); see also Ariz. R. Fam. Law P. 82(a)(1) (requiring court to make express findings of fact and conclusions of law "[i]f requested before trial").^[4] However, when such findings and conclusions are not required, the record on appeal must still contain reasonable evidence to support the court's conclusion of eligibility for spousal maintenance under § 25-319(A). See Cotter, 245 Ariz. 82, ¶ 12; see also Femiano v. Maust, 248 Ariz. 613, ¶ 12 (App. 2020).

¶10 As an initial matter, we agree that the trial court erroneously considered factors relevant to whether Tammi could be self-sufficient through reasonable employment when determining if she possessed sufficient property. When it discussed its determination under § 25-319(A)(1) regarding the sufficiency of her property, the court expressly relied on the fact that Tammi had "not worked significantly during the pendency of this matter, nor pursued other potential occupations of her choice during this period of time." It also considered that Tammi had not pursued or completed her paralegal certificate and that, at the time of trial, Tammi testified that she was not pursuing education as an x-ray technician as she had previously claimed. Although certainly relevant to any determination of eligibility under § 25-319(A)(2), none of these facts relate to whether Tammi's separate property or property awarded to her were sufficient to meet her reasonable needs-and therefore her eligibility-under § 25-319(A)(1). The court erred, therefore, in considering factors not required by the law.

¶11 On the latter question, because the trial court erroneously considered Tammi's employment history in its analysis of § 25-319(A)(1), we cannot conclude that the court would have found ineligibility under the proper test. Apart from the irrelevant facts the trial court considered discussed above, the court relied on Tammi being "awarded an equitable division of the parties' accounts, the Volkswagen, which she sold and retained the...