Slaman v. Slaman

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN THE MATTER OF: ) ) MARVIN L. SLAMAN, ) ) Petitioner/Appellee, ) ) v. ) ) LORI D. SLAMAN, ) ) Respondent/Appellant. ) ) ) DIVISION ONE FILED: 10/26/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CV 09-0571 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Navajo County Cause No. DO-20080430 The Honorable Michala M. Ruechel, Judge AFFIRMED Riggs, Ellsworth & Porter, P.L.C. By Michael R. Ellsworth Attorney for Petitioner/Appellee Show Low Coronado & LaBarge Law Group, P.L.L.C. By Eduardo H. Coronado Attorney for Respondent/Appellant Show Low P O R T L E Y, Judge ¶1 Lori D. Slaman ( Wife ) appeals the modified her 2004 spousal maintenance award. order which We find that the trial court did not abuse its discretion in reducing the award. FACTUAL AND PROCEDURAL BACKGROUND ¶2 The The parties were married in 1971 and divorced in 2004. decree ordered Marvin L. Slaman ( Husband ) to pay Wife $1,950 per month in lifetime spousal maintenance. ¶3 Husband petitioned to terminate or, modify the spousal maintenance order in 2008. alternatively, After a hearing, the trial court modified the spousal maintenance order to $1,200 per month. The court found that Husband continued to be underemployed by choice, and although Wife s mental health had not improved, her expenses had been reduced because she had sold her house and bought another residence mortgage free. ¶4 Wife pursuant to filed Arizona an appeal, Revised and Statutes we have ( A.R.S. ) jurisdiction section 12- 2101(C) (2003). DISCUSSION 1 ¶5 Wife argues that the family court erred as a matter of law when it considered the financial effect of the sale of her 1 This court struck Part III of Husband s Answering Brief on April 21, 2010. 2 separate property. She also contends that the court abused its discretion by finding that a change in circumstances existed to warrant modification. ¶6 We review the family court s determination that there were changed circumstances warranting a modification of spousal maintenance under an abuse of discretion standard. Van Dyke v. Steinle, 183 Ariz. 268, 273, 902 P.2d 1372, 1377 (App. 1995). We review related questions of law de novo. proving changed modification. circumstances is on Id. the The burden of party seeking Scott v. Scott, 121 Ariz. 492, 494, 591 P.2d 980, 982 (1979). ¶7 Here, the family court found that Wife s reduced living expenses constituted a substantial and continuing change that justified a $750 decrease in the spousal maintenance award. Wife argues modification. ¶8 argued that this change did not legally support a We disagree. In Scott, the husband liquidated his pension plans and that the liquidation and other factors modification of his spousal maintenance obligation. 591 P.2d at 983. justified Id. at 495, The trial court denied his request. 493, 591 P.2d at 981. a Id. at On appeal, our supreme court held that the transformation of assets from one form to another is not a changed circumstance; asset liquidation 3 may be relevant if reflective of a change in circumstances, such as an increase in debt. Id. at 495, 591 P.2d at 983. The court continued, and stated that the wife s sale of the family home, which resulted in a $317 decrease in her monthly expenses, could be considered a substantial and continuing change in circumstances. Id. Specifically, the court stated that [h]er new lower monthly expenses, however, represent a changed circumstance which, if substantial and continuing, would merit a modification of [the] support payments. ¶9 Id. (emphasis added). Here, the trial court correctly recognized that the sale of Wife s home post-decree was not, in and of itself, a changed circumstance maintenance. warranting modification of spousal The reduction in her living expenses that resulted from the sale was, however, properly considered as a substantial and continuing changed circumstance supporting the modification order. ¶10 Consequently, we find no abuse of discretion. Wife also argues that the trial relied on the appreciation of her property. court improperly She contends that appreciation of property awarded to a spouse in a divorce is reasonably foreseeable and, therefore, not a proper basis for modification. See Marquez v. Marquez, 132 Ariz. 593, 595, 647 P.2d 1191, 1193 (App. 1982) (holding the appreciation of real property is reasonably foreseeable 4 and cannot support modification of the spousal maintenance portion of a divorce decree). We agree with the statement of law, but disagree that the trial court relied on any appreciation of the property to modify the spousal maintenance award. ¶11 the Wife also argues that the property awarded to her in decree modified. is her sole and separate property and cannot be See States v. States, 124 Ariz. 189, 190, 603 P.2d 81, 82 (1979). We agree, but also find that the trial court only focused on Wife s reduced expenses as directed by Scott. ¶12 Wife next argues that she should not be required to use up the proceeds from the sale of the property awarded to her in the decree to support herself. The trial court did not order her to use up the proceeds of the sale of the house. Rather, the court considered Wife s reduction of monthly expenses after the sale of the house and purchase of a different residence, and her need of support from Husband. Because the trial court properly considered this evidence to resolve the petition to modify spousal maintenance, Scott, 121 Ariz. at 495, 591 P.2d at 983, we find no error. ¶13 Finally, Wife argues that the finding of changed circumstances is not supported by the evidence and, therefore, it was an abuse of discretion to modify spousal maintenance. Specifically, she claims there was no basis for the decision to 5 reduce support by $750 per month. The court found Wife s expenses were reduced because she had no mortgage payment and had reduced her cost of living, and those circumstances were substantial and continuing. Affidavit divorce of with Financial her Moreover, a comparison of Wife s Information November 2008 AFI ( AFI ) filed demonstrates during that monthly living expenses have decreased over $2,000. the Wife s Because there is a factual basis to support the trial court s decision, we find no abuse of discretion. ATTORNEYS FEES ON APPEAL ¶14 Wife requests an award of attorneys fees on appeal pursuant to ARCAP 21. Because she is not the prevailing party, we deny her request. CONCLUSION ¶15 We affirm the modification of the spousal maintenance order. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ MARGARET H. DOWNIE, Judge /s/ ____________________________ PATRICIA A. OROZCO, Judge 6