SCHMIT v. SCHMIT

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NOTE: 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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: CHRISTOPHER SCHMIT, Petitioner/Appellee, v. SHAWNNETTE SCHMIT, Respondent/Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07/10/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0506 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN 2010-001928 The Honorable Thomas L. LeClaire, Judge AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS Christopher Schmit Petitioner/Appellee Surprise Law Offices of Scott David Stewart PLLC By Aaron T. Blase Attorneys for Respondent/Appellant Phoenix J O H N S E N, Judge ¶1 Shawnnette Schmit ( Wife ) appeals the superior court s decree of dissolution of her marriage to Christopher Schmit ( Husband ). She argues the superior court abused its discretion by denying her request for spousal maintenance, by failing to sanction Husband for violating a preliminary injunction that required him to maintain her health insurance, by not granting her half of the couple s 2009 tax refund and by refusing her request for attorney s fees. For the reasons that follow, we affirm in part, reverse in part and remand. FACTS AND PROCEDURAL HISTORY ¶2 Wife and Husband married in 2001. Husband filed a petition for dissolution. customary preliminary injunction that In July 2010, The court issued the stated, Both parties shall maintain all insurance coverage in full force and effect and enjoined both parties from removing, or causing to removed the other from any existing insurance coverage. Statutes ( A.R.S. ) section 25-315(A) be See Arizona Revised (West 2012). 1 Wife filed a motion for temporary orders, requesting, among other things, that the court order Husband to pay her spousal maintenance and pay her health insurance premiums. The court denied Wife s request for temporary spousal maintenance but acknowledged Husband s agreement to continue paying Wife s health insurance. 1 Absent material revision after the date of the events at issue, we cite a statute s current version. 2 ¶3 After the parties reached agreement on certain issues, the superior court set trial on spousal maintenance, attorney s fees, treatment of a tax refund and Wife s contention that Husband had violated the preliminary injunction by failing to maintain her health insurance. In the judgment and decree issued after trial, the court denied Wife s request for spousal maintenance and ordered the refund for Tax Year 2010 to be prorated, with Wife to receive one-half of 58 percent of the tax return, or $5,036. that Husband injunction, be and The court did not address Wife s request sanctioned ordered each for violating party to bear the his preliminary or her own attorney s fees. ¶4 Wife timely appealed. 2 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101(A)(1) (West 2012). DISCUSSION A. ¶5 Spousal Maintenance. An award of spousal maintenance is within the sound discretion of the trial court and we will reverse only upon a 2 Husband failed to file an answering brief on appeal. We could construe this as confession of error. Thompson v. Thompson, 217 Ariz. 524, 526, ¶ 6, n.1, 176 P.3d 722, 724 (App. 2008). In an exercise of our discretion, however, we will decide the appeal on its merits. See Gibbons v. Indus. Comm n of Ariz., 197 Ariz. 108, 111, ¶ 8, 3 P.3d 1028, 1031 (App. 1999). 3 finding of an abuse of that discretion. In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 31, 5 P.3d 911, 917 (App. 2000) (quotations omitted). favorable to the We view the evidence in the light most superior court order and will affirm the judgment if there is any reasonable evidence to support it. Cullum v. Cullum, 215 Ariz. 352, 354, ¶ 9, 160 P.3d 231, 233 (App. 2007). ¶6 Under A.R.S. § 25-319 (West 2012), the superior court may award maintenance if it finds the spouse seeking maintenance falls within any of the following categories: 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. Contributed to the educational opportunities 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 selfsufficient. ¶7 Wife argues that because she meets the first two criteria, the court should have awarded her spousal maintenance. She recounts the considerable evidence presented at trial about her low earning history and her inability to work as a hair 4 stylist due to carpal tunnel syndrome. But it is not sufficient to meet one or more of the criteria listed in the statute; when a spouse meets one of the criteria, the court then may exercise its discretion to grant an award of spousal maintenance. See A.R.S. § 25-319(A); Cullum, 215 Ariz. at 354, ¶ 11, 160 P.3d at 233 ( spousal maintenance may be awarded when any one of four factors is present ). ¶8 We hold the superior court did not abuse its discretion and did not act arbitrarily in denying Wife s request for maintenance. Although Wife cites evidence calling into question a number of the court s statements in the decree, in reviewing a decision on spousal maintenance, we may infer from any judgment the findings necessary to sustain it if such additional findings do not conflict with express findings and are reasonably supported by the evidence. Thomas v. Thomas, 142 Ariz. 386, 390, 690 P.2d 105, 109 (App. 1984) (quotations omitted). ¶9 During the two years prior to the dissolution, Wife, a licensed cosmetologist, had pursued an ultimately unsuccessful mobile hair-styling [c]ontinuously business. encouraged Husband Wife to seek testified other he had employment. Husband also testified the reason Wife s business was failing was a lack of motivation on Wife s part; he said that instead of vigorously trying to expand the business, she was watching TV. 5 ¶10 Wife testified that since the filing of the petition for dissolution, she had applied for a number of retail and clerical positions without success. Wife had experience working at Starbucks, but she only applied to one Starbucks store for work, and she testified she had never considered applying to more stores. Although Wife s primary work experience is in cutting hair, the record does not reveal that she applied for such a position dissolution. since the filing of the petition for Notwithstanding the court s skepticism during the temporary orders hearing about the validity of Wife s complaints of pain, the record at the March 2010 trial clearly establishes that she was diagnosed with carpal tunnel syndrome. Nevertheless, Wife testified that since a corrective surgery on her right hand, she had done a couple of haircuts. ¶11 In the decree, the superior court quoted at some length from the order it issued denying temporary maintenance, in which during the the court expressed temporary orders skepticism hearing that at Wife s she testimony suffered from carpal tunnel syndrome that might preclude her from working as a hair stylist. The court then stated: The medical documents submitted at trial merely annotate Wife s claim based on her assertion of the injury to the examining physician. To the extent that Wife does, however, suffer from carpal tunnel syndrome or other similar condition, that condition is readily treatable and not debilitating to 6 the degree of requiring spousal maintenance. The Court does not view the request for spousal maintenance as a contest of medical diagnoses. The issue is whether Wife could have and should have sought and obtained outside employment rather than pursue an obviously unsuccessful business venture for two years. The Court again finds that Wife could and should have abandoned the hair styling business and obtained outside employment. Having obtained appropriate employment, Wife would be able to support herself in accordance with A.R.S. § 25-319. ¶12 Wife does not dispute that properly treated, her carpal tunnel syndrome would not preclude her from working as a hair stylist. Although she argues that Husband s post- dissolution income far exceeds her own, we cannot conclude the superior court abused its discretion in concluding that because she can support herself, spousal maintenance was not abused its violating the appropriate. 3 B. Cancellation of Wife s Health Insurance. ¶13 discretion Wife by next argues failing to the superior sanction Husband court for preliminary injunction that required him to maintain her health insurance in place during the dissolution proceedings. ¶14 At trial, Wife presented undisputed evidence that Husband quit his job in November 2010, thus ending her group 3 The superior court s decision to deny spousal maintenance is premised on its conclusion that Wife s carpal tunnel syndrome is readily treatable. That presupposes that Wife can afford the treatment or has insurance that will cover it. See infra ¶¶ 13-18. 7 health insurance coverage. Unaware that her insurance had been canceled, Wife underwent carpal tunnel surgery on her right hand on December 9, 2010. The surgery on her right hand was therefore not covered by insurance, and when she discovered she had no health insurance, she was forced to cancel a similar surgery scheduled to be performed on her left hand on January 6, 2011. ¶15 On sanctions January against injunction. 27, 2011, Husband Wife for filed a violating notice the seeking preliminary She asked the court to order him to provide her with health insurance and reimburse her for the medical bills she incurred while uninsured. asked that the court At trial in March, Wife again sanction Husband. Husband took the position that Wife should have to pay the medical bills herself because it s her . . . surgery. The court did not rule on the motion during trial, and the decree of dissolution was silent on the issue. denied. The failure to rule implies that the motion was See Atchison, Topeka & Santa Fe Ry. Co. v. Parr, 96 Ariz. 13, 15, 391 P.2d 575, 577 (1964); Pearson v. Pearson, 190 Ariz. 231, 237, 946 P.2d 1291, 1297 (App. 1997). ¶16 The preliminary injunction the court entered upon filing of the petition for dissolution has the force and effect of an order of the superior court signed by a judge and is enforceable by all remedies made available by law, including 8 contempt of court. A.R.S. § 25-315(A)(5). We review the superior court s decision on whether to impose sanctions for violation of a court order for an abuse of discretion. Green v. Lisa Frank, Inc., 221 Ariz. 138, 153, ¶ 40, 211 P.3d 16, 31 (App. 2009); Woodworth v. Woodworth, 202 Ariz. 179, 184, ¶ 30, 42 P.3d 610, 615 (App. 2002). ¶17 The injunction plainly enjoined Husband from causing Wife to be removed from their existing medical insurance and required him to maintain all insurance coverage in full force and effect. Husband argued at trial that he did not intend to terminate Wife s insurance coverage when he quit his job and took a new position. Regardless of Husband s intentions, he caused Wife to be removed from her existing health insurance when he quit his job and failed to take whatever action was required to continue her coverage. violation of connection the with her injunction, first As a direct result of his Wife carpal compelled to cancel the second. incurred tunnel expenses surgery and in was Without the second surgery, she suffered persistent numbness in that hand, impairing her ability to work in her profession. ¶18 We conclude the superior court abused its discretion by failing to sanction Husband for violating the preliminary injunction that insurance. On required remand, the him to court 9 maintain shall enter Wife s an health appropriate order requiring Husband to hold Wife harmless against any injury she suffered as a result of his breach. C. The 2009 Tax Refund. ¶19 Wife next argues the superior court erred in awarding her 29 percent rather than 50 percent of the couple s 2009 tax refund. ¶20 At trial, Wife presented evidence that the 2009 refund, which totaled $17,306, was deposited in Husband s bank account. In the decree of dissolution, however, the superior court referred to a $17,365 refund received for Tax Year 2010. The court calculated Wife s entitlement by the percentage of the year prior to the filing of the petition for dissolution on July 26, 2010. This percentage was 58 percent of the year, and the court awarded Wife half of that, or 29 percent of the refund. ¶21 Wife argues the court likely was mistaken as to the tax year of the refund, and we agree. It was clear during the March 2010 trial that the parties were referring to the 2009 tax refund, not the 2010 tax refund. The only discussion of 2010 taxes occurred at the beginning of trial, when Husband and Wife agreed it would be mutually beneficial to file their 2010 tax return jointly and split any refund. The tax refund for 2010 was not in dispute, as it was subject to a binding agreement under Arizona Rule of Family Law Procedure 69, and the parties 2010 tax statement was not in evidence. 10 We therefore vacate the superior court s order regarding the Division of Tax Refund for Tax Year 2010 and remand for the court to consider the division of the refund for tax year 2009. D. Attorney s Fees. ¶22 Finally, discretion when Specifically, Wife it she argues declined contends financial disparity superior court the in may the to the superior award court parties award court her attorney s failed assets attorney s abused to and fees fees. consider income. and its the The costs in dissolution proceedings pursuant to A.R.S. § 25-324 (West 2012) after considering the parties financial resources and the reasonableness of their positions throughout the proceedings. ¶23 Although the superior court possesses discretion to award attorney s fees in a dissolution proceeding, Medlin v. Medlin, 194 Ariz. 306, 309, ¶ 17, 981 P.2d 1087, 1090 (App. 1999), it abuses that discretion when it denies attorney s fees to the spouse who has substantially fewer resources, unless those resources are clearly ample to pay the fees. In re Marriage of Robinson & Thiel, 201 Ariz. 328, 335, ¶ 21, 35 P.3d 89, 96 (App. 2001) (quotations omitted). As long as a party has taken reasonable positions in the litigation, whether he or she has prevailed is irrelevant under a § 25-324 analysis. Breitbart-Napp v. Napp, 216 Ariz. 74, 84, ¶ 39, 163 P.3d 1024, 1034 (App. 2007). Rather, [r]elative 11 financial disparity between the parties is the benchmark for eligibility. Id. at ¶ 37 (quotations omitted). ¶24 There is no dispute in the record that Wife substantially fewer financial resources than Husband. testified at trial that at his current position, has Husband he earns $12,300 per month, which is approximately what he earned at his previous job. Wife s last steady employment was at Starbucks in 2006 and 2007, where she earned $5,112 in 2006 and $6,783 in 2007. She then operated her hair-styling business at a loss for the next two years. At the time of trial, Wife was unemployed and, given her carpal tunnel syndrome, could not earn a living as a hair stylist. Moreover, the superior court did not find and the record does not show that either party took unreasonable positions over the course of the litigation. ¶25 Accordingly, on the record presented, we hold the superior court abused its discretion in denying Wife s request for attorney s fees. remand with We reverse the court s order on fees and directions that the court award Wife reasonable attorney s fees. ¶26 Wife also requests appeal pursuant to § 25-324. an award of attorney s fees on The statute applies not only to attorney s fees in the superior court, but also to attorney s fees on appeal. Countryman v. Countryman, 135 Ariz. 110, 111, 12 659 P.2d 663, 664 (App. 1983). For the reasons stated above, we award Wife her attorney s fees in this appeal. CONCLUSION ¶27 We affirm the superior court s order denying Wife s request for spousal maintenance. We reverse the court s denial of Wife s request for sanctions for Husband s violation of the preliminary injunction and direct the court to order Husband to hold her harmless against the injury his breach caused her. vacate the court s order regarding the 2010 tax refund We and remand for the court to consider the proper distribution of the 2009 tax refund. Finally, we reverse the court s order denying Wife s request for attorney s fees and remand for the court to enter an award of reasonable attorney s fees in Wife s favor. We award Wife conditioned on her her costs and her compliance attorney s with Arizona Appellate Procedure 21. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PHILIP HALL, Judge 13 fees Rule on of appeal, Civil

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