In re the Marriage of Judith Soo Cotter, fka Judith Podhorez, Petitioner/Appellant, and Michael Podhorez, Respondent/Appellee.
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
Harrian Law Firm P.L.C., Glendale By Daniel Riley Counsel for
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Staring concurred and Judge Brearcliffe
concurred in part and dissented in part.
ECKERSTROM, CHIEF JUDGE:
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.
and Procedural History
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.
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.
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
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.
Cotter first asserts the trial court erred by determining
that she was ineligible for spousal
maintenance. 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).
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.
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. 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.
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. 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." 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).
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. 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
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 § 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 ...