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In re Marriage of Cotter

Court of Appeals of Arizona, Second Division

June 21, 2018

In re the Marriage of Judith Soo Cotter, fka Judith Podhorez, Petitioner/Appellant, and Michael Podhorez, Respondent/Appellee.

          Appeal from the Superior Court in Pinal County No. S1100DO201601097 The Honorable Patrick K. Gard, Judge Pro Tempore

          Donaldson Stewart P.C., Chandler By David I. Sheffield Counsel for Petitioner/Appellant

          The Harrian Law Firm P.L.C., Glendale By Daniel Riley Counsel for Respondent/Appellee

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring concurred and Judge Brearcliffe concurred in part and dissented in part.



         ¶1 Judith Cotter appeals the trial court's determination that she is ineligible for spousal maintenance, arguing its determination was not supported by the evidence. Cotter also complains the court erred by failing to credit her for half the value of a television and denying her request for attorney fees. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

         Factual and Procedural History

         ¶2 On appeal, "[w]e view the evidence in the light most favorable to the [trial] court's order." Boyle v. Boyle, 231 Ariz. 63, ¶ 8 (App. 2012). Cotter and Michael Podhorez married in 1993. In 2013, after spending twenty-five years in the banking industry, Cotter began suffering from a condition that rendered her unable to work. With Podhorez's assistance, Cotter obtained social security disability benefits that allow her to work part time. In 2016, Cotter and Podhorez each filed separate bankruptcy cases, and around that time, Podhorez moved out of the marital home.

         ¶3 In June 2016, Cotter petitioned for dissolution of the marriage, seeking spousal maintenance and attorney fees. While the dissolution was pending, Podhorez suffered an acute mental health problem, such that he did not work during the four months before trial and began collecting short-term-disability benefits himself. Indeed, at the time of trial, he had not received a prognosis for when he might be able to resume working.

         ¶4 In August 2017, the trial court dissolved the marriage and distributed all property, but denied Cotter's requests for spousal maintenance and attorney fees. Concerning maintenance, the court found Cotter "ha[d] not established a statutory basis for entitlement to an award." With respect to fees, the court found there was "no substantial disparity of financial resources, " the parties did not "act unreasonably, " and no other circumstances warranted such relief. This appeal followed.


         ¶5 Although the parties do not raise the issue, we have an independent duty to examine our own jurisdiction. See Baker v. Bradley, 231 Ariz. 475, ¶ 8 (App. 2013). After the court entered its valid, final judgment in August 2017, Cotter first filed a notice of appeal and then a motion to reconsider or clarify in the alternative. See Ariz. R. Fam. Law P. 84. Pursuant to her motion before this court, we suspended the appeal and revested jurisdiction in the trial court so it could rule on her motion. However, after the court entered the resulting judgment in December 2017, Cotter failed to file a timely, amended notice of appeal. Accordingly, this court lacks jurisdiction to review any issue arising from Cotter's post-judgment motion or the December 2017 judgment. See In re Marriage of Thorn, 235 Ariz. 216, ¶ 10 (App. 2014) (appellate court lacks jurisdiction over issues raised in untimely, amended notice of appeal); Lee v. Lee, 133 Ariz. 118, 125 (App. 1982) (court lacks jurisdiction to consider arguments raised after notice of appeal filed). Thus, our review is limited to the August 2017 judgment and any findings made therein.

         Spousal Maintenance

         ¶6 Cotter first asserts the trial court erred by determining that she was ineligible for spousal maintenance.[1] Normally, we will affirm a trial court's spousal-maintenance order if reasonable evidence supports it. Boyle, 231 Ariz. 63, ¶ 8. 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." Muchesko v. Muchesko, 191 Ariz. 265, 271-72 (App. 1997).

         ¶7 Before granting a maintenance order, the trial court must, as a threshold matter, determine whether the requesting spouse is eligible for an award. See A.R.S. § 25-319(A). In making an eligibility determination, the court considers only the circumstances of the requesting spouse. See id. If the court determines the spouse is eligible for an award, it then considers the relevant circumstances of both parties to determine whether to actually grant an award and, if so, the amount and duration. See § 25-319(B). The only question before this court is whether the court erred by finding Cotter ineligible for a maintenance award.

         ¶8 Pursuant to § 25-319(A), the court may grant an award "if it finds that the spouse seeking maintenance . . . [l]acks sufficient property . . . to provide for [his or her] reasonable needs." The legislature has not defined "sufficient property." This court, interpreting a previous version of the statute, determined "sufficient property" meant property "capable of providing for the reasonable needs of the spouse seeking maintenance, " whether by actively producing income to provide for the spouse's reasonable needs or by being converted into a suitable form so that it would so provide. Deatherage v. Deatherage, 140 Ariz. 317, 320 (App. 1984). In Deatherage, the court contemplated that a spouse might need to convert non-income-producing property into income-producing property or sell, encumber, or otherwise dispose of it to provide for herself.[2] Id. at 321. Underlying these possible courses of action is the implicit determination that the property at issue was of such a value that it could provide for her reasonable needs without supplement. See id. at 320-21.

         ¶9 Further, our cases do not specify the period during which such property must be able to provide for a requesting spouse's needs in order to render him or her ineligible for a maintenance award. See Wineinger v. Wineinger, 137 Ariz. 194, 197-98 (App. 1983). They do, however, suggest that for the limited purpose of an eligibility determination, sufficient property is of such value that the spouse would be unlikely to exhaust it in his or her lifetime.[3] See id. In Wineinger, this court upheld a maintenance award determining that a spouse did not possess sufficient property because she would be required to consume her "retirement nest egg" by "liv[ing] off both the principal and interest from [her property]." Id. The court reasoned that requiring her to do so would "dissipat[e] it to an extent that when she no longer had any earning capacity, there would be nothing left upon which she could draw."[4] Id. (emphasis added). Moreover, the court in Deatherage remanded the case instructing the trial court to modify its maintenance award by limiting it to two years so the spouse could convert her property into a form that would provide for her reasonable needs going forward. 140 Ariz. at 321; see also Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984) (evaluating sufficiency of property by comparing monthly expenses against potential for income generation).

         ¶10 To the extent there is any ambiguity in the meaning of "sufficient property, " the history of § 25-319(A)(1) likewise supports the interpretation that sufficient property means property that, standing alone, can provide for a spouse's reasonable needs during his or her lifetime. See Premier Physicians Group, PLLC v. Navarro, 240 Ariz. 193, ¶ 9 (2016) (when statute ambiguous, "we determine its meaning by considering secondary factors, such as . . . historical background"). Earlier versions of § 25-319(A) required the trial court to find two circumstances before determining a spouse eligible for a maintenance award: both that he or she lacked sufficient property and that another condition rendered him or her unable to be self-sufficient.[5] See 1976 Ariz. Sess. Laws, ch. 171, § 5. By contrast, the current statute only requires a court to find one circumstance before determining a spouse eligible. See § 25-319(A) (court may grant maintenance for "any" of the reasons enumerated). Thus, although a spouse might be able to be self-sufficient through appropriate employment, he or she may nevertheless remain eligible for an award solely on the basis of insufficient property. See id. In short, a spouse must be ineligible under each of the four parts of subsection A to be deemed ineligible for spousal maintenance.[6]

         ¶11 Podhorez contends that "sufficient" is a "low threshold, " meaning "[a]dequate . . . [or] necessary for a given purpose." See Sufficient, Black's Law Dictionary (10th ed. 2014). He further argues that Cotter received "over $36, 000 in cash and marital assets, " which he asserts is "far more liquid assets than the average American [possesses]." But as we have explained above, adequate or necessary for the purposes of ยง 25-319(A)(1) means capable of independently providing for a spouse's reasonable needs during his or her life. Further, even assuming arguendo that, at the dissolution of their marriage, Cotter possessed "far more liquid assets than the ...

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