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CourtListener opinion 10799210
Date unknown · US
- Extracted case name
- HOWIE v. HOWIE
- Extracted reporter citation
- 545 P.3d 931
- Docket / number
- 1 CA-CV 23-0587 FC
Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 10799210 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.
Retrieval annotation
Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.
Category: pension / defined benefit issues
Evidence quotes
QDRO“-9482 (the "9482 account"), a Roth IRA with IRA Services Trust, account number ending in -6620 (the "6620 account"), and a 401(k) account with Husband's employer (the "Broadcom 401k"). The superior court ordered that the 9482 account be divided by means of a qualified domestic relations order ("QDRO"), with each party "receiv[ing] one half of the value of the account, including any losses and gains that accrued up to" the issuance of the Decree. The court did not, however, order that any other retirement account be divided by QDRO, nor 4 HOWIE v. HOWIE Decision of the Court did the court order that any other account be valued as of the date”
retirement benefits“47, ¶ 13. We do not reweigh evidence on appeal, Lehn v. Al-Thanayyan, 246 Ariz. 277, 286, ¶ 31 (App. 2019), and will uphold the superior court's findings of fact absent clear error. Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 1996). I. Marital Property A. The Retirement Accounts 1. The Court's Ruling Dividing the Retirement Accounts Did Not Explain, and the Record Does Not Support, the Use of Different Valuation Dates and Methods of Division. ¶12 The parties had five retirement accounts during the marriage: an individual retirement account ("IRA") with Forge Trust, account number ending in -9911 (the "9911 account"), a Roth”
pension“ccounts should be divided by QDRO. Husband, by contrast, maintains that none of them should be divided by QDRO, asserting that ordering equalization payments instead will spare the parties the expense of QDRO preparation. ¶20 QDROs are often used to allocate pension and other retirement assets between spouses. A QDRO may not be necessary, however, when dividing certain types of retirement accounts. Welch v. Welch, 886 S.E.2d 921, 924 (N.C. App. 2023) (noting that husband's IRA could be divided by court order without a QDRO). Although a court is not required to order the division of retirement accounts by QDRO, see id.,”
401(k)“oth IRA with Forge Trust, account number ending in -9923" (the "9923 account"), an IRA with IRA Services Trust, account number ending in -9482 (the "9482 account"), a Roth IRA with IRA Services Trust, account number ending in -6620 (the "6620 account"), and a 401(k) account with Husband's employer (the "Broadcom 401k"). The superior court ordered that the 9482 account be divided by means of a qualified domestic relations order ("QDRO"), with each party "receiv[ing] one half of the value of the account, including any losses and gains that accrued up to" the issuance of the Decree. The court did not, however, order that”
Source and provenance
- Source type
- courtlistener_qdro_opinion_full_text
- Permissions posture
- public
- Generated status
- machine draft public v0
- Review status
- gold label pending
- Jurisdiction metadata
- US
- Deterministic extraction
- reporter: 545 P.3d 931 · docket: 1 CA-CV 23-0587 FC
- Generated at
- May 14, 2026
Related public corpus pages
Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.
Clean opinion text
NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
CHERYL A. HOWIE, Petitioner/Appellee/Cross-Appellant,
v.
SCOTT D. HOWIE, Respondent/Appellant/Cross-Appellee.
No. 1 CA-CV 23-0587 FC
FILED 02-13-2025
Appeal from the Superior Court in Coconino County
No. S0300DO201900439
The Honorable Fanny Steinlage, Judge Retired
The Honorable Elaine Fridlund-Horne, Judge
The Honorable Cathleen Brown Nichols, Judge Retired
AFFIRMED IN PART,
REVERSED AND REMANDED IN PART
COUNSEL
Berkshire Law Office, PLLC, Tempe
By Alexandra Sandlin, Keith Berkshire
Counsel for Petitioner/Appellee/Cross-Appellant
Walneck Law, Scottsdale
By Edward J. Walneck
Counsel for Respondent/Appellant/Cross-Appellee
HOWIE v. HOWIE
Decision of the Court
MEMORANDUM DECISION
Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael S. Catlett and Judge David D. Weinzweig joined.
K I L E Y, Judge:
¶1 Scott Howie ("Husband") and Cheryl Howie ("Wife") each
challenge certain provisions of the decree (the "Decree") that dissolved
their marriage. For the following reasons, we affirm in part, reverse in part,
and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2 Husband and Wife were married in 1998 and have two
children. During the marriage, Husband was employed as a consultant for
Broadcom Inc. ("Broadcom"). Wife worked in sales until approximately
2003, when she left the workforce to be the primary care provider for the
parties' children. Wife re-entered the workforce in 2020, with limited
success. The parties accumulated substantial assets during the marriage,
including two residences, one in Cave Creek and one in Flagstaff; rental
properties; financial accounts; vehicles; and numerous other items of
personal property.
¶3 Wife filed the petition for dissolution of marriage in October
2019.
¶4 In February 2020, the superior court entered temporary
orders for legal decision-making, parenting time, child support, and
spousal maintenance. As relevant here, the court ordered Husband to make
monthly payments toward certain community debts (including the
mortgage and related expenses for the parties' residences and rental
properties) and awarded Wife monthly maintenance of $1,200 and child
support of $1,039. A little over a month later, Wife filed a contempt petition
alleging that Husband had failed to make payments toward community
expenses as required. Several months later, Wife filed an amended petition
for contempt alleging, inter alia, that Husband had failed to pay temporary
spousal maintenance and child support as ordered.
2
HOWIE v. HOWIE
Decision of the Court
¶5 In July 2020, Wife moved for an order compelling disclosure
of certain financial records. Following a hearing in September 2020, the
court granted Wife's motion to compel and awarded her attorney fees.
¶6 After an evidentiary hearing in November 2020, the superior
court found Husband in civil contempt for failing to pay temporary spousal
maintenance and child support as ordered. The court ruled that Husband
owed Wife past due support totaling $6,933, and again awarded Wife
attorney fees.
¶7 In March 2021, Wife filed a petition for contempt with respect
to the September 2020 order compelling disclosure. In June 2021, Husband
moved to dismiss the contempt action, alleging that he had provided the
required disclosure. After further filings, the parties entered a stipulation
that Husband was in contempt of the court's disclosure orders. The court
again awarded Wife attorney fees.
¶8 After lengthy pretrial proceedings and a nine-day trial, the
superior court issued a detailed 89-page ruling (the "Under Advisement
Ruling") resolving the parties' disputes over marital property and debt,
spousal maintenance, and child support.1 After resolving the parties'
disputes over attorney fees and certain other issues, the court entered the
Decree which incorporated the provisions of the Under Advisement
Ruling.
¶9 After the entry of the Decree, Husband's timely appeal and
Wife's timely cross-appeal followed. We have jurisdiction under A.R.S. §§
12-120.21(A)(1) and 12-2101(A)(1), (2).
DISCUSSION
¶10 The superior court's comprehensive Under Advisement
Ruling set forth findings and determinations on all disputed issues and
awarded spousal maintenance, calculated past child support, allocated the
marital assets, and apportioned responsibility for community debts. Most
of these findings and determinations are unchallenged on appeal. Husband
challenges the court's orders allocating certain financial assets and items of
tangible personal property, the amount of his monthly spousal
maintenance obligation, the court's failure to order reimbursement for
community expenses he claimed to have paid with separate funds during
1 As both of the parties' children had turned eighteen before the Under
Advisement Ruling was issued, the court did not address legal decision-
making or parenting time.
3
HOWIE v. HOWIE
Decision of the Court
the pendency of these proceedings, and the award of attorney fees to Wife.
Wife challenges only the court's orders dividing certain financial accounts.
¶11 We review de novo the superior court's categorization of
property as separate or community, but review the superior court's
allocation of that property under an abuse of discretion standard. Whitt v.
Meza, 257 Ariz. 149, __, ¶ 27, 545 P.3d 931, 939 (App. 2024); see also Boncoskey
v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007) ("In apportioning
community property between parties at dissolution, the superior court has
broad discretion to achieve an equitable division, and we will not disturb
its allocation absent an abuse of discretion."). We review awards of spousal
maintenance and attorney fees under A.R.S. § 25-324(A) for abuse of
discretion. See Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14 (App. 1998)
(spousal maintenance); Alulddin v. Alfartousi, 255 Ariz. 436, 443, ¶ 26 (App.
2023) (attorney fees under A.R.S. § 25-324(A)). Likewise, we review a court's
imposition of sanctions under an abuse of discretion standard. Kelly v. Kelly,
252 Ariz. 371, 375, ¶ 16 (App. 2021). Further, "[w]e will defer to the trial
court's determination of witnesses' credibility and the weight to give
conflicting evidence." Gutierrez, 193 Ariz. at 347, ¶ 13. We do not reweigh
evidence on appeal, Lehn v. Al-Thanayyan, 246 Ariz. 277, 286, ¶ 31 (App.
2019), and will uphold the superior court's findings of fact absent clear
error. Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 1996).
I. Marital Property
A. The Retirement Accounts
1. The Court's Ruling Dividing the Retirement
Accounts Did Not Explain, and the Record Does Not
Support, the Use of Different Valuation Dates and
Methods of Division.
¶12 The parties had five retirement accounts during the marriage:
an individual retirement account ("IRA") with Forge Trust, account
number ending in -9911 (the "9911 account"), a Roth IRA with Forge Trust,
account number ending in -9923" (the "9923 account"), an IRA with IRA
Services Trust, account number ending in -9482 (the "9482 account"), a Roth
IRA with IRA Services Trust, account number ending in -6620 (the "6620
account"), and a 401(k) account with Husband's employer (the "Broadcom
401k"). The superior court ordered that the 9482 account be divided by
means of a qualified domestic relations order ("QDRO"), with each party
"receiv[ing] one half of the value of the account, including any losses and
gains that accrued up to" the issuance of the Decree. The court did not,
however, order that any other retirement account be divided by QDRO, nor
4
HOWIE v. HOWIE
Decision of the Court
did the court order that any other account be valued as of the date of
dissolution. Instead, the court awarded the 9911 account to Wife and
ordered her to make an equalization payment to Husband equal to 15
percent of the account's value when the marital community terminated
upon service of the petition for dissolution of marriage in October 2019. The
court awarded the three remaining accounts to Husband, ordering him to
make an equalization payment to Wife equal to one-half the value of the
account when the marital community terminated. Both parties challenge
various aspects of the court's allocation of the retirement accounts.
¶13 Wife asserts that all five of the retirement accounts should be
divided by reference to their value at the time of dissolution, not when the
petition was served at the beginning of the case. Noting, correctly, that the
court found that all of the retirement accounts were community property,
Wife argues that both spouses were entitled to share in the increase in value
of these accounts over the pendency of these lengthy proceedings.2 By
directing that the accounts be divided by reference to their value when the
proceedings began in October 2019, she maintains, the court "deprive[d]
[her] of the gains" these accounts enjoyed between the initiation of these
proceedings in 2019 and the issuance of the Decree almost four years later.
Asserting that "losing out on years of gains" is not "an equitable result,"
she asks that the order "dividing the parties' retirement accounts . . . be
vacated, and remanded" with instructions that all of the accounts be valued
as of the date of dissolution, not the date of service. In his briefing, Husband
does not respond to Wife's arguments on this point.
¶14 When dividing marital property, the superior court has broad
discretion to determine the appropriate date of valuation. Sample v. Sample,
152 Ariz. 239, 242 (App. 1986) ("[T]he choice of a valuation date should be
dictated by largely pragmatic considerations, and . . . it is the equitableness
of the result that must stand the test of fairness on review." (cleaned up)).
In Meister v. Meister, 252 Ariz. 391 (App. 2021), the husband challenged the
court's valuation of a jointly owned business as of the time of service of the
petition for dissolution, arguing that the valuation date failed to account for
a "significant" loss in value that the business experienced "after the divorce
proceedings began." Id. at 394, ¶ 1. Finding "[no] Arizona authority
mandating or even suggesting a community asset must be valued at or near
the date of service," this Court held, instead, that a trial court's
determination of a valuation date "must comport with principles of fairness
2 Wife acknowledged in her trial testimony that Husband should be
awarded the increase in value of the Broadcom 401k that is attributable to
deposits he made from his paycheck after the date of service.
5
HOWIE v. HOWIE
Decision of the Court
and equity." Id. at 396, 397, ¶¶ 15, 17. While a trial court "may use the date
of service, or a date near the date of service, as a starting point in choosing
the valuation date," we held, "the [trial] court must select a different date
when necessary to ensure an equitable result." Id. at 397, ¶ 18. The trial court
abused its discretion, we concluded, by valuing the community business as
of the date of service without "factor[ing]" in the events that occurred after
service that negatively affected the business's value. Id. at ¶ 19.
¶15 Here, Wife asserts, and Husband does not dispute, that the
retirement accounts increased in value over the course of the lengthy
dissolution proceedings, a fact that militates in favor of valuing the
accounts as of the end of these proceedings, not the beginning. A.R.S. § 25-
211(B)(2) ("[S]ervice of a petition for dissolution of marriage . . . does not . . .
[c]hange the status of community property used to acquire new property
or the status of that new property as community property."); see also
Schickner v. Schickner, 237 Ariz. 194, 199, ¶ 22 (App. 2015) (noting that "the
community is generally entitled to the profits and gains attributable to
community assets" (cleaned up); "[T]he service of a petition for dissolution
does not alter the status of preexisting community property." (citation
omitted)).
¶16 Although Husband testified at trial that he was entitled to the
benefit of the increased value of his retirement accounts because he
"actively manage[d]" them, Wife disputed Husband's testimony on this
point. Management of the accounts was not "very labor-intensive," she
testified, and their increased value was due not to Husband's efforts, but to
"market gains."
¶17 The effect of the court's decision to value the 9923 account, the
6620 account, and the Broadcom 401k as of the date of service was to award,
to Husband, all of the increase in their value during the pendency of the
proceedings. Likewise, the effect of the court's decision to value the 9911
account as of the same date was to award Wife all of the increase in its value
during the proceedings. But to the extent the retirement accounts' increased
value was due to market forces and not the labor of either spouse, the
marital community was entitled to share equally in their increased value.
See Sample v. Sample, 152 Ariz. 239, 242 (App. 1986) (recognizing that the
marital community is entitled to the increased value of a community
account when account "appreciated solely from market forces"). The court
made no findings, however, about whether the increased value of any of
the accounts was due to market forces, Husband's investment management
activities, or a combination of factors. Absent such findings, we cannot
affirm the court's unexplained decision to value those four accounts as of
the date of termination. See Wineinger v. Wineinger, 137 Ariz. 194, 198 (App.
6
HOWIE v. HOWIE
Decision of the Court
1983) ("The trial court is not required to divide community property exactly
equally," but "it cannot . . . make its award arbitrarily.").
¶18 Both parties challenge the court's order requiring a QDRO for
the 9482 account but not the others. Husband, for example, asserts that the
court erred in failing "to divide all the retirement [accounts] in the same
manner," contending that treating the retirement accounts "differently"
necessarily leads to "an inequitable result." Wife likewise contends that the
manner in which the court divided the retirement accounts did "not
accomplish an equitable result."
¶19 The parties disagree, however, on the appropriate remedy.
Wife argues that all five retirement accounts should be divided by QDRO.
Husband, by contrast, maintains that none of them should be divided by
QDRO, asserting that ordering equalization payments instead will spare
the parties the expense of QDRO preparation.
¶20 QDROs are often used to allocate pension and other
retirement assets between spouses. A QDRO may not be necessary,
however, when dividing certain types of retirement accounts. Welch v.
Welch, 886 S.E.2d 921, 924 (N.C. App. 2023) (noting that husband's IRA
could be divided by court order without a QDRO). Although a court is not
required to order the division of retirement accounts by QDRO, see id., a
court may not divide marital property in an arbitrary manner. Wineinger,
137 Ariz. at 198.
¶21 Neither the Under Advisement Ruling nor the Decree contain
any findings that would justify valuing the 9482 account as of the date of
dissolution but the other four accounts as of the date of service. Nothing in
the Under Advisement Ruling nor the Decree explains why a QDRO should
be used to divide only the 9482 account and not the others. An arbitrary
decision is, by definition, an abuse of discretion. See Avila v. Ariz. Dep't of
Econ. Sec., 160 Ariz. 246, 248 (App. 1989) (citing State v. Thomas, 142 Ariz.
201, 204 (App. 1984)) ("An abuse of discretion is characterized by
arbitrariness or capriciousness and failure to conduct an adequate
investigation into the relevant facts."). In the absence of any explanation, or
justification apparent from the record, for the court's decision not to treat
the five accounts in a consistent manner, we are constrained to find an
abuse of discretion. See Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012)
(citation omitted) (noting that a court abuses its discretion by "making a
discretionary ruling that the record does not support"); see also City of
Phoenix v. Geyler, 144 Ariz. 323, 330 (1985) (holding when the trial court
identifies "[n]o grounds for its action . . . and none clearly appear[] from the
record, we are not disposed to assume that the trial court exercised its
7
HOWIE v. HOWIE
Decision of the Court
discretion and denied relief for some proper and permissible reason"). We
therefore reverse the court's orders for the division of the parties' five
retirement accounts and remand for a redetermination of the date of
valuation and method of division in a consistent manner unless the court
makes a specific finding that equity requires that one or more of these
accounts be treated differently from the rest.
2. The Record Does Not Support the Unequal Division
of the 9911 Account.
¶22 Wife opened the 9911 account in 2012, funding it with monies
from several accounts she owned before the marriage. The superior court
found that although the "source funds" for the account were Wife's
separate property, the funds in the account were later commingled with
community funds and "the identity of the [source funds] as separate
property [was] lost." The court further found that Wife failed to "rebut[],
by clear and convincing evidence, the presumption that [the 9911 account
was] community property." The court nonetheless ordered an unequal
division of the funds in the account, determining that "fairness and equity"
required that Wife be awarded 85 percent of the funds in the account while
Husband received the remaining 15 percent. The court therefore awarded
the 9911 account to Wife, and ordered her to make an equalization payment
to Husband in the amount of 15 percent of the balance in the account. In
dividing the 9911 account unequally, the court noted that it "considered
[the] length of the marriage, the contributions of each spouse to the
community, and the source of funds used to acquire the property."
¶23 Husband challenges the court's 85% - 15% division of the
funds in the 9911 account, asserting that the court erred by determining that
the account should "be divided in any manner other than a 50-50 equitable
division." Wife does not challenge the court's finding that she did not
"demonstrate, by clear and convincing evidence[,] what portion" of the
funds in the 9911 account "is her sole and separate property," a burden that
rests with her, see Cooper v. Cooper, 130 Ariz. 257, 259-60 (1981). Wife
nonetheless argues that the court acted within its discretion in ordering "the
unequal division" of the 9911 account because, she contends, "the account
was largely funded with separate property."
¶24 A court must allocate marital property "equitably." A.R.S. 25-
318(A). Usually, an "equitable" allocation of marital property will be a
"substantially equal[]" division. In re Marriage of Inboden, 223 Ariz. 542, 544,
¶ 6 (App. 2010). While a trial court has discretion to award marital property
in an unequal manner to achieve an equitable result, see Goodell v. Goodell,
257 Ariz. 536, __, ¶ 25, 551 P.3d 1177, 1184 (App. 2024), the court's discretion
8
HOWIE v. HOWIE
Decision of the Court
is not unlimited. See Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)
(noting that while "the trial court's equitable apportionment of community
property" will not be disturbed "absent an abuse of discretion," an abuse
of discretion may be found "when a trial court commits an error of law in
the process of exercising its discretion" (citations omitted)). Dividing jointly
held property into equal shares generally is the most equitable approach,
unless a sound reason exists for making a different division. Toth v. Toth,
190 Ariz. 218, 221 (1997).
¶25 When one spouse's separate contribution to a community
account loses its separate character by commingling with community
funds, the court may not continue to treat the spouse's contribution as
separate and divide the community account unequally. Marriage of Inboden,
223 Ariz. at 545, ¶ 12 (holding that trial court "abused its discretion when it
ordered a substantially unequal distribution of . . . jointly titled marital
property only for the purpose of reimbursing each spouse for their
respective financial contributions to the purchase of the property"); In re
Marriage of Flower, 223 Ariz. 531, 535, ¶ 15 (App. 2010) ("[A] court may not
order a substantially unequal division of [jointly held] property solely to
reimburse the purchasing spouse.").
¶26 Wife asserts that the court's award to her of 85 percent of the
funds in the 9911 account was consistent with Toth v. Toth, 190 Ariz. 218
(1997). In Toth, the day after an 87-year-old man married a 66-year-old
woman, he used $140,000 of his separate funds to purchase a house for the
couple. Id. at 219. The couple separated two weeks later and, in less than a
month, the marriage ended when the husband filed a petition for an
annulment. Id. The trial court awarded the wife $15,000 for her interest in
the house. Id. On appeal, the wife challenged the award, insisting that
because the house was jointly titled in the name of both spouses, she was
entitled to a share equal to that of the husband. Id. The Arizona Supreme
Court disagreed and affirmed the trial court's unequal division of the
house. Id. at 221. In so holding, the Toth court noted that A.R.S. § 25-318(A)
requires that marital property be divided "equitably" rather than "equally."
Id. Because the husband "paid for [the] property entirely from his separate
funds" and "[t]he marriage lasted two weeks, allowing no time for a marital
relationship to develop," the Toth court held that the trial court did not
abuse its discretion in determining that an equal distribution of the house
would not be equitable. Id. at 221-22. As the Toth court noted, however, "an
equal distribution of joint property" is "equitable" in "most cases," and a
different result was warranted only due to the "unusual" facts of that case.
Id. at 221.
9
HOWIE v. HOWIE
Decision of the Court
¶27 The facts of the present case are wholly unlike those of Toth.
The duration of the Toths' marriage was measured in days, while Husband
and Wife were married for over 21 years. The asset at issue in Toth – a house
– was purchased one day after the parties' marriage using what were
indisputably the husband's separate funds. Here, by contrast, the parties
were married for fourteen years before Wife opened the 9911 account, and
community funds were added to this account over the next seven years.
The narrow holding of Toth based on the unusual facts of that case has no
application here.
¶28 In awarding 85 percent of the funds in the 9911 account to
Wife, the court noted three factors: "the length of the marriage," "the
contributions of each spouse to the community," and "the source of funds
used to acquire the property." While the first factor may justify an unequal
division of marital property if the marriage was too brief to "allow[] . . .
time for a marital relationship to develop," Toth, 190 Ariz. at 221, nothing
about the length of the parties' two-decade marriage here could justify an
unequal division of marital assets. See id. at 222 (noting that it is "likely in
any real marriage of any significant duration" that "a division [of marital
assets] based solely on reimbursement" would be "clearly inappropriate").
¶29 Likewise, the court made no finding, and nothing in the
record suggests, that Husband's contribution to the community was so
negligible as to warrant an unequal division of marital assets. See Marriage
of Inboden, 223 Ariz. at 547, ¶ 17 ("[I]f a spouse contributes to the marital
relationship as a whole[,] . . . then an unequal property division would not
be justified so long as these contributions were not completely negligible."
(citation omitted)).
¶30 In considering the "source of the funds," the court noted that
Wife contributed her separate funds to the 9911 account while Husband
contributed no separate funds of his own. But Husband's failure to
contribute separate funds to the 9911 account is irrelevant. The principle
that separate funds in an account become transmuted into community
property if their separate character is lost through commingling applies
irrespective of whether both spouses, or only one, contributed separate
funds to the account. See Cooper, 130 Ariz. at 259-60 (reversing trial court's
finding that savings account was wife's separate property, where account
consisted of wife's separate funds and funds belonging to the community
and wife "did not sustain her burden of demonstrating which portion of
the monies in the account retained their separate character"); see also Potthoff
v. Potthoff, 128 Ariz. 557, 563 (App. 1981) (holding that, where husband and
wife maintained one shared bank account and both contributed separate
funds to the account, the funds in the shared account, "through
10
HOWIE v. HOWIE
Decision of the Court
commingling and loss of identity, were transmuted into community
funds"). The fact that Wife contributed separate funds to the 9911 account
while Husband did not cannot, by itself, justify a substantially unequal
division of that account.
¶31 In support of the court's unequal division of the 9911 account,
Wife cites her own trial testimony that she signed the paperwork to open
the 9911 account only at Husband's rather aggressive insistence, and that
she was unable to trace the funds in the 9911 account because Husband
refused to disclose financial records during the pendency of these
proceedings. But the court made no findings on these matters. In any event,
Husband's alleged failure to disclose financial records relating to the 9911
account cannot justify dividing that account unequally. While a court may
consider a party's obstructionist litigation tactics in awarding fees, see
A.R.S. § 25-324(A) (stating court may award fees "after considering the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings"), and may impose
sanctions on a party that fails to abide by disclosure and discovery
obligations, see Ariz. R. Family Law P. ("ARFLP") 65(b), a court may not
award marital assets to one spouse to punish the other for litigation
misconduct. Cf. A.R.S. § 25-318(A) ("[T]he court shall . . . divide the
community, joint tenancy and other property held in common equitably,
though not necessarily in kind, without regard to marital misconduct.");
Hatch v. Hatch, 113 Ariz. 130, 133 (1976) ("Property may not be distributed
in order to reward one party or punish the other.").
¶32 Because the reasons cited by the court do not justify its
unequal division of the funds in the 9911 account, we reverse that aspect of
the Decree and remand for a determination of "substantially equal"
division of the 9911 account. See Marriage of Inboden, 223 Ariz. at 546, ¶ 14.
B. The Broadcom RSUs
1. Because the Broadcom RSUs Were Awarded to
Husband During the Marriage, the Court Correctly
Applied the Presumption that They Were
Community Property.
¶33 During the marriage, Broadcom awarded Husband 1,240
restricted stock units ("RSUs")3, most of which had not yet vested at the
3 A restricted stock unit is a form of compensation that confers on an
employee the right to receive one share of stock on a future specified date.
Day v. LSI Corp., 174 F. Supp. 3d 1130, 1142 (D. Ariz. 2016).
11
HOWIE v. HOWIE
Decision of the Court
time of trial. Noting that RSUs awarded during an employee-spouse's
marriage "are presumed to be community property, regardless of whether
vested or unvested," the court held that Husband failed to present the
"clear and convincing evidence" necessary to rebut the presumption. The
court observed that an employee-spouse "can seek to rebut the
presumption . . . by presenting clear and convincing evidence regarding the
employer's purpose for awarding the shares," but held that Husband had
failed to do so. Although Husband testified about his understanding of
Broadcom's purpose in issuing the RSUs, the court noted, Husband
presented no employment agreement or other documentary evidence, nor
any "testimony whatsoever from a representative of Broadcom," to
establish Broadcom's intent. Finding Husband's testimony insufficient to
"rebut the presumption that the 1,240 shares are community property," the
court proceeded to determine the value of the community portion of the
RSUs by applying the formula set forth in In re Marriage of Hug, 154
Cal.App.3d 780, 201 Cal. Rptr. 676 (1984). Finding that the community
owned 382.85 of the RSUs and that each RSU had a value of $290.30 at the
time the marital community terminated, the court ordered Husband to pay
Wife $55,571 for her one-half share of the value of the community's RSUs
(382.85 x $290.30 = $111,141.35 ÷ 2 = $55,570.68).
¶34 Husband argues that the superior court erred in determining
that his unvested Broadcom RSUs were community property. He argues,
first, that the presumption that property acquired during the marriage is
community in nature does not apply to unvested RSUs. Before applying the
"community" presumption, he contends, a court must answer "the
threshold question" of whether unvested RSUs were "acquired" during the
marriage. To answer that question, he contends, the court must determine
the purpose for which the employer issued the unvested RSUs. A court
cannot properly find unvested RSUs that are awarded during the marriage
to be community property, he maintains, unless the court first finds that the
unvested RSUs were awarded as a reward for the employee's past services
that were provided during the marriage.
¶35 The presumption that all property acquired during the
marriage is community in nature applies to vested and unvested interests
in property created during the marriage. See, e.g., Johnson v. Johnson, 131
Ariz. 38, 41 (1981) ("[I]t is well settled in Arizona and elsewhere that
pension rights, whether vested or non-vested, are community property
insofar as the rights were acquired during [the] marriage[.]"); Van Loan v.
Van Loan, 116 Ariz. 272, 274 (1977) (rejecting "the proposition that an
employee has no more than a mere ‘expectancy' prior to the maturation of
his pension rights," and citing with approval case law holding that "the
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HOWIE v. HOWIE
Decision of the Court
community's interest" in "an employee's unvested right to a pension . . .
constitutes property divisible by the court" (cleaned up)). Here, in
determining whether the vested and unvested Broadcom RSUs awarded to
Husband were separate or community property, the court correctly began
with the presumption that if they were awarded during the marriage, they
were community property. See Brebaugh v. Deane, 211 Ariz. 95, 99, ¶ 15
(App. 2005) (noting "the presumption that [stock options] granted during
the marriage are entirely community property"); Goodell, 257 Ariz. at ¶ 32,
551 P.3d at 1185 (observing that RSUs are treated like stock options when
dividing marital property). The court further correctly held that Husband
could overcome the presumption only with clear and convincing evidence
that the RSUs were his separate property. See Barroso v. Barroso, 1 CA-CV
17-0347 FC, 2018 WL 4018034 at *3, ¶ 17 (Ariz. App. Aug. 23, 2018) (mem.
decision) (rejecting argument "that the superior court erred by
characterizing [Father's] RSUs as community property"; "The RSUs were
granted during the marriage, and Father did not present evidence at trial
sufficient to rebut the presumption that they were community property.").
¶36 In support of his position that the "community" presumption
does not apply to unvested RSUs, Husband relies on Goodell v. Goodell, 257
Ariz. 536, 551 P.3d 1177 (App. 2024). In Goodell, the wife argued that the
husband committed community waste by leaving his job before his
employer-issued RSUs vested, thereby forfeiting them. Id. at ¶ 31, 551 P.3d
at 1185. Concluding that the forfeited RSUs were community property, the
trial court awarded the wife one-half of their value using "a combination"
of the formulas established in Hug and In re Nelson, 177 Cal. App. 3d 150,
222 Cal. Rptr. 790 (1986). Goodell, 257 Ariz. at ¶ 12, 551 P.3d at 1182. On
appeal, this Court reversed. Id. at ¶ 38, 551 P.3d at 1186. The Goodell court
held that "the Hug and Nelson formulas . . . serv[e] different purposes,"
explaining that the Hug formula applies to stock options "granted for past
or current performance" while the Nelson formula applies "if the options
are for future performance." Id. at ¶ 32, 551 P.3d at 1185. The Court
concluded that the trial court erred in failing to determine "whether the
RSUs were intended for past performance or as a future incentive" and in
fashioning "a combination" of two "mutually exclusive" formulas for
dividing them. Id. at ¶¶ 32-33, 551 P.3d at 1185.
¶37 Nothing in Goodell suggests that the "community"
presumption does not apply to RSUs granted during the employee-
spouse's marriage; indeed, Goodell does not mention the presumption at all.
Moreover, as its extensive discussion of the issue shows, the superior court
here was well aware of the principle that whether RSUs granted during
marriage are the employee-spouse's separate property depends on the
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HOWIE v. HOWIE
Decision of the Court
employer's purpose in granting them. After considering Husband's
testimony about his employer's purpose in granting the RSUs as well as
Husband's failure to present documentary or testimonial evidence from his
employer, the court acted within its discretion in finding the evidence
insufficient to overcome the presumption that the RSUs were community
property. See Gutierrez, 193 Ariz. at 347-48, ¶ 13 (noting that appellate court
defers to trial court's credibility determinations and weighing of evidence).
Further, the Goodell court's holding that the trial court erred in combining
the Hug and Nelson formulas has no application here. Goodell is of no help
to Husband.
2. The Court Did Not Abuse its Discretion in
Determining that Husband Failed to Meet His
Burden of Overcoming the Presumption that the
Broadcom RSUs Were Community Property.
¶38 Husband next argues that the court erred in finding that he
failed to overcome the "community" presumption because, he insists, the
"overwhelming evidence" at trial established that the unvested RSUs were
awarded to him "to encourage future performance."
¶39 For purposes of allocating the spouses' property, courts treat
RSUs in the same manner as stock options. See Barroso, 2018 WL 4018034 at
*3, ¶ 17. Stock options intended to compensate the employee-spouse for
past services rendered during the marriage are community property, while
stock options intended to encourage the employee-spouse's continued
employment and future performance are his or her separate property.
Brebaugh, 211 Ariz. at 98, ¶ 8. For the same reason, RSUs that are granted
during marriage to reward the employee-spouse's past service are
community property, while RSUs awarded to incentivize performance in
the future, after termination of the marital community, are the employee-
spouse's separate property. See Goodell, 257 Ariz. at ¶ 32, 551 P.3d at 1185.
¶40 Although Husband contends that the trial evidence showed
that his unvested RSUs "were intended to encourage [his] future
performance," the superior court did not abuse its discretion in finding to
the contrary. Husband presented no documentary evidence at trial of the
terms of the RSUs or the purpose for which they were awarded. Nor did he
present the testimony of any representative of his employer to explain why
the employer granted the RSUs. The only evidence Husband cites to
indicate that the unvested Broadcom RSUs were intended to encourage
future performance is his own testimony. Specifically, Husband cites the
following exchanges with his counsel during direct examination:
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HOWIE v. HOWIE
Decision of the Court
Husband's counsel: And so are they [i.e., the RSUs] given to
you as like a bonus or is it some kind of incentive program,
what is it?
Husband: I imagine that they granted them to us so that, you
know, what quite often happens in the course of acquisition
is that talented employees head for the exits because they
want to trade certainty for uncertainty in those times. So when
these were provided, I can't speak to the motivation of
Broadcom (unintelligible). It would appear that they wanted
to retain talented employees (unintelligible).
...
Husband's counsel: [C]an you explain to me why you refer to
[the RSUs] that way?
Husband: Certainly. Well, because it's not -- it's not
something that, you know, is a -- is part of the (Unintelligible)
remuneration on it -- regular pay period, and it's -- it's more
of a -- a deferred or incentive compensation to stay with the
company, and they're all granted if you satisfy the terms of
continued employment.
(emphasis added).
¶41 Husband's testimony about what he "imagine[s]" Broadcom
intended hardly constitutes competent evidence of his employer's purpose
in granting the RSUs. See Trailhead Restriction, LLC v. City of Phoenix, 1 CA-
CV 22-0735, 2023 WL 6439954 at *5, ¶ 30 (Ariz. App. Oct. 3, 2023) (mem.
decision) (holding that witness's "conclusory assertions" about opposing
party's "understanding of" disputed transaction, "unaccompanied by any
specific facts, do not constitute admissible evidence"); People v. Guenther,
104 Cal.App.5th 483, 525, 324 Cal. Rptr. 3d 765, 800 (2024) ("A lay witness
generally may not give an opinion about another person's state of mind[.]")
(citation omitted)). Further, when asked at trial to describe the RSUs,
Husband testified that he would "probably" consider them "deferred
compensation." Husband's testimony on this point undermines his claim
that the RSUs were awarded for future services that had yet to be rendered.
See Brebaugh, 211 Ariz. at 99, ¶ 15 (observing that stock options are
community property if "intended solely as compensation for work
performed or deferred compensation").
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HOWIE v. HOWIE
Decision of the Court
¶42 Husband asserts that he "received annual performance
bonuses that varied based upon his own performance during the year" as
well as the company's. Because his annual bonuses were intended to
compensate him for his performance over the preceding year, he reasons,
the RSUs must have been intended to incentivize future performance.
Husband did not raise this argument at the trial court, and so he waived it.
See Pflum v. Pflum, 135 Ariz. 304, 307 (App. 1982) ("Matters not raised below
will not be considered on appeal." (citations omitted)). In any event, it is
not for this Court to re-weigh the evidence. Gutierrez, 193 Ariz. at 347-48,
¶ 13. We affirm the court's determination that the evidence presented was
insufficient to overcome the presumption that the RSUs were community
property because they were granted during the marriage.
3. The Court Erred in Ordering Husband to Make an
Equalization Payment to Wife of One-Half of the
Value of the Vested and Unvested RSUs.
¶43 Finding that "the fair market value of each share" of
Broadcom stock was $290.30, the court found that the marital community's
interest in the Broadcom RSUs equaled 382.85 shares, and so ordered
Husband to make an equalization payment to Wife of $55,571 for her one-
half share ($290.30 x 382.85 = $111,141.35 ÷ 2 = $55,570.68). Husband asserts
that the court erred in calculating the amount of the equalization payment.
RSUs are taxed once they vest, he maintains, and the court's failure to take
Husband's tax liability into account led the court to reach a "highly
overinflated" value of the Broadcom RSUs.
¶44 Wife does not dispute Husband's position on this point. On
the contrary, she contends that "the trial court should have ordered" the
division of the Broadcom RSUs "via QDRO, so that Wife [would] receive
her half of the assets while accounting for the tax implications." In response,
Husband concurs that to the extent the RSUs are community property, "a
QDRO will be necessary" to divide them. In light of the parties' agreement
that a QDRO is the appropriate means to divide the community interest in
the RSUs, we will vacate the provision of the Decree requiring Husband to
make a $55,570.68 equalization payment to Wife, and remand with
instructions to order the preparation of a QDRO to divide the community's
interest in the Broadcom RSUs. Dividing the RSUs in this manner will
resolve any concerns about an unequal allocation of the associated tax
burden. See Brett R. Turner, Equitable Distribution of Property, § 6:19 4th ed.
2024 ("Benefit[s] received under a QDRO are treated as income to the
nonowning spouse who receives them and not as income to the spouse who
earned the benefits." (citation omitted)).
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HOWIE v. HOWIE
Decision of the Court
¶45 In its Under Advisement Ruling, the superior court
determined the value of the Broadcom RSUs using the formula set forth in
Hug. Husband argues, on appeal, that the QDRO should be conducted
using the valuation method set forth in Nelson instead.
¶46 The formula set forth in Hug "gives more weight to the
employee's entire tenure with the employer during marriage" than the
formula set forth in Nelson. Brebaugh, 211 Ariz. at 100, ¶ 20. For that reason,
"the Hug formula . . . is most appropriate for stock options that are granted
for past services" while "the Nelson formula is more appropriate for stock
options which are intended to compensate an employee for future efforts."
Id. at ¶¶ 20-21. Because the record supports the court's determination that
Husband failed to rebut the presumption that the vested and unvested
RSUs are community property, we hold that the court did not err in
determining that the Hug formula, not the Nelson formula, applies to the
division of the RSUs.
C. Division of Employee Stock Purchase Plan Shares
¶47 During the marriage, Husband purchased stock through
Broadcom's Employee Stock Purchase Plan ("ESPP"). In its Under
Advisement Ruling, the court found that thirteen shares of stock purchased
through the ESPP were community property, valued at $3,773.90. The court
awarded Husband all shares purchased through the Broadcom ESPP and
ordered him to make an equalization payment to Wife of one-half of their
value, or $1,887.
¶48 Wife argues the court erred in ordering an equalization
payment instead of ordering that the Broadcom ESPP be divided by QDRO.
At oral argument, Husband acknowledged that the ESPP should have been
divided via QDRO. We therefore vacate the portion of the Decree ordering
an equalization payment of $1,887 and remand with instructions to order
the preparation of a QDRO to divide the Broadcom ESPP.
D. Reward Points from Customer Loyalty Programs
¶49 During the marriage, Husband maintained rewards accounts
with American Airlines, Inc. ("American"), Hilton Hotels & Resorts
("Hilton"), and Hertz Global Holdings, Inc. ("Hertz"). The court found that
these accounts constitute community property, and that the community
owned 1,055,000 American rewards miles, 938,285 Hilton rewards points,
and 10,840 Hertz rewards points. The parties do not dispute these
determinations.
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HOWIE v. HOWIE
Decision of the Court
¶50 At trial, Wife testified that the miles and points in Husband's
name cannot be transferred to her. She asked, instead, that she be awarded
half their value, testifying that the miles and points were each "worth about
10 cents." Husband indicated uncertainty about whether the miles and
points are transferrable, but agreed that Wife "is entitled to an equitable
distribution of them." He offered no testimony of their value. Finding that
"fairness and equity" required an "equal division" of the miles and points,
the court ordered that Husband transfer half of the miles and points to Wife,
with the parties sharing equally in any transfer fees or costs. In the
alternative, the court held that, "[i]f a transfer . . . is not possible," Husband
was to make an equalization payment to Wife representing one-half of the
value of the miles and points, with each mile and point valued at five cents.
¶51 In their briefing, the parties do not challenge the court's order
that Husband transfer half the miles and points to Wife if possible.
Husband argues, however, that the court erred in its alternative ruling
requiring an equalization payment if a transfer cannot be effected. Husband
asserts that Wife offered no foundation for her estimate that each mile and
point was worth ten cents, and, in any event, the court's decision to value
them at five cents apiece was "arbitrary" and supported by no evidence.
According to Husband, the superior court should have ordered that he
"hold one half of all points in [a] constructive trust" for Wife's benefit.
¶52 In response, Wife argues that the court did not abuse its
discretion in attributing a value of five cents to each point and mile. In view
of the conflict between "Wife's testimony that the miles and points were
worth ten cents" and Husband's failure to present "any evidence . . .
regarding [their] value," Wife maintains, the court acted within its
discretion in "determin[ing] that it was equitable to attribute a minimal
value of five cents to the miles and points."
¶53 Because Husband did not propose at trial that he hold the
miles and points in a constructive trust, he has waived that argument on
appeal. See Pflum, 135 Ariz. at 307. We agree with Husband, however, that
no evidence in the record supports the court's determination that the miles
and points had a value of five cents each. See Smith v. Smith, 253 Ariz. 43,
45, ¶ 9 (App. 2022) ("Under the abuse of discretion standard, this court will
reverse the superior court's finding when the record is devoid of competent
evidence to support the decision." (cleaned up)). We therefore set aside the
court's determination of the value of the miles and points and remand for
a new determination of the value of the miles and points if the parties are
unable to secure the transfer of one-half of the miles and points to Wife. See
Beasley v. Beasley, 717 So.2d 208, 209 (Fla. Dist. Ct. App. 1998) (affirming trial
court's order dividing airline miles equally between the parties but setting
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HOWIE v. HOWIE
Decision of the Court
aside the court's determination that, if "the miles could not be divided (per
airline policy)," husband was to pay wife for their value at a rate of ten cents
per mile; "[T]he court erred in assigning a value to the miles absent
evidence to support that valuation.").
E. Husband's Personal Property
¶54 In his testimony, Husband claimed ownership of certain
items of personal property, including two ladders, a concrete mixer, a wood
splitter, and gas cans. When asked by his counsel whether he was asking
that those items be awarded to him "if in [Wife's] possession," Husband
answered, "Indeed." The Decree awards Husband each of those items, and
further provides that, "if Wife has" those items "in her possession, they
shall be returned to Husband."
¶55 Husband argues that the provision that Wife shall return
these items to Husband "only under the condition that she has [them]"
creates "a sort of loop-hole [sic]" that allows Wife to evade her obligation
merely by "claim[ing] non-possession of the items." As a result, Husband
contends, the Decree's award of these items of property is "essentially
unenforceable." Husband asks that the Decree "be corrected" to
"affirmatively" direct Wife to provide these items to Husband "regardless
of the status of her possession."
¶56 An order allocating marital property must identify the
property with sufficient specificity to determine if the order has been
complied with and, if not, to permit its enforcement. See A.R.S. § 25-318(F)
("The decree or judgment shall specifically describe by legal description
any real property affected and shall specifically describe any other property
affected."); see also Joyner v. Joyner, 460 S.W.3d 467, 475 (Mo. App. 2015)
(citations omitted) ("[T]he trial court must make a distribution of marital
property that is definite and capable of enforcement."). Here, the Decree
expressly awarded to Husband all of the items he identifies. The Decree is
hardly "unenforceable"; Husband can seek the imposition of contempt
sanctions if he can show that Wife had the items and failed to turn them
over. See ARFLP 91. Contrary to Husband's assertion, the court had no
authority to order Wife to deliver the items of personal property to
Husband "regardless of the status of her possession." Wife could not
properly be ordered to deliver personal property that she never had in the
first place. In any event, Husband asked the superior court to require Wife
to turn those items over to him "if" they were in her possession, and so
cannot fault the court for ordering precisely what he requested. See Schlecht
v. Schiel, 76 Ariz. 214, 220 (1953) ("[O]ne who deliberately leads the court to
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Decision of the Court
take certain action may not upon appeal assign that action as error."). We
find no error in the court's ruling.
II. Spousal Maintenance
¶57 At trial, Wife requested an award of spousal maintenance in
the amount of $5,000 per month for 20 years. Husband denied that she was
entitled to any spousal maintenance at all. The court determined that Wife
was entitled to spousal maintenance, finding, inter alia, that she lacked
sufficient property or earning capacity to meet her reasonable living
expenses and that she sacrificed her own career to "serv[e] as the primary
care provider for the [parties'] children," allowing Husband to pursue a
career that required extensive travel away from home. Determining that
Husband's gross monthly income, including salary, bonus, and the value
of vested RSUs, exceeded $22,000 and that Wife's most recent earnings (for
the first four months of 2022) came to $2,250 per month, the court ordered
Husband to pay Wife spousal maintenance in the amount of $7,000 per
month for 3.5 years.
¶58 Husband challenges the spousal maintenance award. He does
not dispute, on appeal, Wife's entitlement to spousal maintenance, nor does
he challenge the 3.5-year duration of the award. Instead, he argues that the
court abused its discretion in determining the parties' incomes and Wife's
reasonable living expenses.
A. Husband's Income
¶59 The court found that Husband's "gross monthly income" for
purposes of spousal maintenance "is $22,130.14." The court calculated this
figure by adding Husband's "gross monthly income from his regular
salary," or $11,379; his bonus income, which it found to average $3,307.42
per month; and the income he could derive from "cash[ing] out" the vested
RSUs. Husband challenges each of these three findings.
1. The Court Did Not Err in Determining Husband's
Monthly Salary.
¶60 Noting that the court expressly stated that it "is not able to
determine with specificity Husband's net monthly income, given taxation
issues," Husband contends that the court erred in using his gross monthly
salary, rather than net salary, in calculating his monthly income.
¶61 But Husband himself is to blame for the court's inability to
calculate his after-tax income. The standard orders issued at the outset of
the case included the directive that "[i]f the case involves a claim [for]
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HOWIE v. HOWIE
Decision of the Court
spousal maintenance, each party's Affidavit of Financial Information must
include net income information, in addition to gross income information."
Despite the court's instructions, Husband's affidavit of financial
information ("AFI") lists only his "[g]ross monthly salary/wages," with no
net income figure.
¶62 Husband attached to his AFI copies of two pay stubs listing
his "net pay." Noting that the pay stubs "reflect[] a withholding rate of
31.2%," Husband argues that the court could have used this figure to
"estimate" his after-tax income. Not so; an employee's withholding rate
does not necessarily reflect the employee's tax liability. See United States v.
Spencer, 178 F.3d 1365, 1367-68 (10th Cir. 1999) ("[A]n employee's paycheck
withholding is based on a myriad of factors, many of which bear no
relationship to the actual amount of tax owed or the rate at which the
income is taxed.").
¶63 Because Husband failed to present evidence of his net
monthly salary at trial despite the court's order requiring him to do so, the
court did not err in considering Husband's gross, rather than net, monthly
salary when determining his income for purposes of spousal maintenance.
See Biddulph v. Biddulph, 147 Ariz. 571, 573-74 (App. 1985) (holding party
that "presented no evidence to the trial court concerning his potential tax
liability . . . cannot . . . claim" on appeal that "the fault lies with the trial
court").
2. The Court Did Not Err in Determining Husband's
Average Monthly Bonus Income.
¶64 Husband next contends that the court erred in using the
annual bonus he received in 2021 to determine his monthly bonus income.
The $39,659.53 bonus in 2021, he contends, was the "highest bonus [he] ever
received," and using this bonus "as a baseline for future year bonuses was
improper."
¶65 As Wife correctly asserts, however, in determining Husband's
income from bonuses, the trial court considered not only Husband's
$39,659.53 bonus in the year 2021, but the $34,835 bonus he received in 2020
as well. Further, the court noted Husband's failure to present evidence of
the amount of his bonus in 2019. Because the amount of his bonus in 2019
was "peculiarly within his knowledge," Husband should have presented
evidence on that point if he wanted the court to consider it. See Gutierrez,
193 Ariz. at 350, ¶ 27 (noting that Husband failed to offer evidence of his
expenses, and so "cannot now complain that the trial court abused its
discretion in failing to consider them" in determining the amount of
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HOWIE v. HOWIE
Decision of the Court
spousal maintenance). The court did not abuse its discretion in determining
Husband's bonus income based on the evidence presented. And if
Husband's purported fear of a future decrease in his bonus income
materializes, Husband will be free to seek a modification of the amount of
spousal maintenance at that time. See Chaney v. Chaney, 145 Ariz. 23, 27
(App. 1985) ("[C]ourts will not ordinarily look very far into the future to
discover a probable decrease in income, but rather will delay consideration
of the question until it is presented by an appropriate motion after the
change has occurred.").
3. The Court Engaged in Impermissible Double-
Counting When Determining the Income Husband
Could Generate from the Sale of Vested RSUs.
¶66 Finally, Husband argues that the court erred in considering
income that Husband could receive from selling vested RSUs in
determining his income.
¶67 This Court has long held that because stock options are a form
of compensation, vested stock options are properly considered in
determining a parent's income for purposes of calculating child support.
See In re Marriage of Robinson and Thiel, 201 Ariz. 328, 330, 332, ¶¶ 1, 9 (App.
2001). RSUs, too, are a form of compensation, see Day v. LSI Corp., 174 F.
Supp. 3d 1130, 1142 (D. Ariz. 2016), and so RSUs, once vested, are properly
treated as income for purposes of determining support awards. See In re
E.J.S., 483 P.3d 110, 115, ¶ 24 (Wash. App. 2021) (holding that parent's
vested RSUs "count as income for child support purposes whether or
not . . . liquidated").
¶68 Husband's contention that he "should not be forced to
liquidate" his vested RSUs to pay spousal maintenance is contrary to the
well-established principle that spouses and parents cannot voluntarily
defer receipt of otherwise available income as a means of reducing the
amount of their support obligations. See MacMillan v. Schwartz, 226 Ariz.
584, 589-90, ¶ 20-21 (App. 2011) (holding that trial court did not abuse its
discretion in treating payments by employer into deferred compensation
plan as employee's income for spousal maintenance purposes); see also Little
v. Little, 193 Ariz. 518, 521, ¶ 6 (1999) (noting that, when determining child
support, court may impute income to parent "if the parent's earnings are
reduced voluntarily and not for reasonable cause"). And Husband's
assertion that the value of his RSUs is simply "theoretical" until "the RSUs
are vested" ignores the fact that the court considered, as income, only the
RSUs that were vested or would vest within the next year. Cf. In re Marriage
of Rowe, 117 Ariz. 474, 476 (1978) (holding that court's finding that
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Decision of the Court
unemployed spouse "would be employable within three years" did not
justify modification of spousal maintenance award and noting that "what
may occur three years in the future" was "speculation").
¶69 We agree with Husband, however, that the court engaged in
impermissible "double-counting" when considering the proceeds from the
sale of vested RSUs in determining Husband's income. In attributing to
Husband the proceeds that could be realized from sale of RSUs that were
already vested or would vest within the next year, the court overlooked the
fact that it already awarded half of the value of those RSUs to Wife. Because
the court ordered Husband to make an equalization payment to Wife equal
to one-half of the value of all of the RSUs, the court should have treated
only one-half of the vested and soon-to-be-vested RSUs as assets available
to Husband for the payment of spousal maintenance. By attributing to
Husband income from the potential sale of all of the vested and soon-to-be-
vested RSUs even though the court awarded half of them to Wife, the
court's calculation overstated Husband's available income from the sale of
vested RSUs.
¶70 We hold that, by including income Husband could derive
from the sale of RSUs without accounting for its award to Wife of one-half
of the RSUs, the court erred in determining Husband's income for the
purposes of spousal maintenance. We therefore remand for a new
determination of Husband's income.
¶71 Although the court did not err in determining Husband's
monthly salary and bonus income, see supra ¶¶ 60-65, the court is not bound
by those findings when determining Husband's current income for
purposes of redetermining spousal maintenance. Instead, when
redetermining spousal maintenance, the court may consider not only the
income Husband could earn from the sale of his share of the vested and
soon-to-be vested RSUs, but any additional evidence the parties may
present of Husband's current monthly salary and bonus income.
B. Wife's Income
¶72 In his reply brief, Husband argues that the court erred in
attributing "minimal" income to Wife, asking this Court to "judicially
notice" that "fast-food restaurants and similar employers" offer "starting
salaries" that exceed the amount the court attributed to Wife.
¶73 Because Husband waited until his reply brief to offer a
meaningful challenge to the court's determination of Wife's income for
purposes of spousal maintenance, Husband has waived this claim. Polanco
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v. Indus. Comm'n of Ariz., 214 Ariz. 489, 491, ¶ 6 n. 2 (App. 2007) (holding
that argument "mention[ed] . . . in passing" with "no relevant supporting
authority" was waived as insufficiently developed (citations omitted)); In
re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 25 n. 5 (App. 2000) ("Arguments
raised for the first time in a reply brief are deemed waived." (citation
omitted)). As indicated in ¶ 71, supra, however, when redetermining
spousal maintenance, the court may consider additional evidence of Wife's
current income and earning capacity.
C. Wife's Reasonable Living Expenses
¶74 Wife claimed living expenses of $11,299 per month. The court
found that her reasonable monthly living expenses were $10,612. Husband
challenges the court's determination, complaining that the figure the court
found to be reasonable was "excessive and abnormal." In support of his
position, Husband notes, first, that "the $10,612 figure" is "nearly a
thousand dollars more than Husband's monthly expenses."
¶75 Husband cites no authority, and we are aware of none, for the
proposition that the monthly living expenses of the recipient of spousal
maintenance are necessarily unreasonable if they exceed those of the paying
spouse. The court found Wife's monthly expenses to be reasonable based
on Wife's testimony and her affidavit of financial information, and we
decline to re-weigh the evidence or substitute our own judgment on appeal.
See Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 1996).
¶76 Although Husband complains in general terms about Wife's
purportedly exorbitant living expenses, the only specific expense he
identifies as excessive is her reported "pet expenses" of $1,816 per month.
Acknowledging that she has two dogs and a cat, Wife testified that the bulk
of her pet expenditures go toward the cost of boarding and caring for three
horses. Wife further testified that two of the three horses she keeps belong
to the parties' daughter and that during the marriage the parties always
kept horses (as many as six at one time). Husband did not dispute Wife's
testimony on these points. Because the undisputed evidence shows that the
parties kept multiple horses throughout the marriage, we find no abuse of
discretion in the court's determination that Wife reasonably incurs the
expense of keeping three horses. See Helland v. Helland, 236 Ariz. 197, 203,
¶ 28 (App. 2014) ("An order for payment of spousal maintenance should
promote a transition to financial independence for the receiving spouse
while allowing a reasonable approximation of the standard of living established
during the marriage." (emphasis added) (cleaned up)).
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¶77 In the absence of any other specific challenge to Wife's
claimed living expenses, we find that the court did not err in determining
Wife's reasonable living expenses.
III. Husband's Bobrow Claim
¶78 A party who uses separate property to service community
debt or maintain community assets after termination of the marital
community is generally entitled to reimbursement for those expenditures,
unless the other spouse establishes that the expenditures were intended to
be a gift to the community. Bobrow v. Bobrow, 241 Ariz. 592, 596-97, ¶¶ 19-
20 (App. 2017). In reliance on Bobrow, Husband asserted a claim at trial for
reimbursement for the monthly mortgage payments, property taxes, utility
bills, maintenance costs, and related expenses that he paid for the
community's rental properties. When asked at trial if he disclosed
"receipts" for "maintenance" such as "plumbing work . . . or air conditioner
work" before trial, Husband replied, "I have records of it. I didn't know I
had to disclose it." When he offered evidence of expenses he purportedly
paid for the rental properties, Wife moved to preclude it. The court granted
Wife's motion in part and entered sanctions limiting the scope of Husband's
testimony concerning expenses he paid for the rental properties. The court
ruled that it would allow Husband to present evidence of his payment of
the mortgages, property taxes, and property management fees associated
with the rental properties, reasoning that Wife and Husband owned the
rental properties jointly and so both "should have access to that type of
information." The court declined, however, "to permit [Husband] to testify
or present other evidence in relation to utilities, repairs, [and] maintenance"
because he failed to disclose receipts or other documentation of the cost of
"repairs or upkeep for the various units."
¶79 In the end, the court found that Husband failed to establish
that he used any separate funds to pay community expenses, finding,
instead, that Husband used community funds to pay community expenses.
The court explained that the evidence showed that Husband "elected to
continue to have" his post-termination paychecks deposited into the same
account with Desert Financial Credit Union ("DFCU") into which he
deposited community property in the form of rent payments from tenants
of the community's rental properties. Finding it "impossible to determine
what expenses were paid" with Husband's post-termination salary, the
court held that the commingling of separate and community income
"transmuted" Husband's post-termination salary deposits into community
property. "If Husband wished" to establish "that some portion of the
commingled funds were his sole and separate property," the court held, "he
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had to demonstrate this . . . by clear and convincing evidence. He has not
done so."
¶80 Husband does not dispute the court's finding that he
commingled separate and community funds by depositing post-service
paychecks and community rent checks into a single account. Husband
asserts, however, that he could have traced the disposition of the funds
deposited into this account but for the court's order precluding evidence as
a sanction for nondisclosure. Identifying certain trial exhibits that "were not
admitted due to the sanctions," Husband asserts that but for the court's
preclusion order, he could have "offered much more information" to enable
the court "to accurately determine" which funds were his separate property
for purposes of establishing his Bobrow claim. Alleging that the court
abused its discretion in imposing the "crushing" sanction of preclusion,
Husband requests that we "remand the Bobrow reimbursement issue to the
trial court for further determination." In response, Wife argues that "the
trial court appropriately sanctioned [Husband] by limiting his
reimbursement claims at trial to certain expenses paid for the parties' real
properties."
¶81 We agree with Wife. ARFLP 65(a)(2)(A) allows a party to
request sanctions for the failure to disclose information. See ARFLP 65.
Appropriate sanctions include "prohibiting the disobedient party from
supporting or opposing designated arguments, or from introducing
designated matters in evidence." ARFLP 65(b)(1)(B). The court had
previously granted Wife's motion to compel disclosure of documentation
of these expenses. Although Husband asserts, without explanation, that he
"believed he was compliant" with his disclosure obligations, he points to
nothing in the record suggesting that he timely disclosed the receipts and
other documents whose preclusion he now challenges. In the absence of
any evidence in the record to suggest that the court erred in concluding that
Husband failed to comply with his disclosure obligations, we find no error
in the court's ruling precluding him from offering evidence of the
undisclosed maintenance expenses he purportedly incurred in maintaining
the rental properties. And the court did not err in determining, based on
the evidence admitted, that Husband failed to establish that community
expenses were paid using separate funds he deposited into the DFCU
account.
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IV. Attorney Fees
A. The Court Did Not Abuse Its Discretion in Awarding Wife
40% of Her Reasonable Attorney Fees Under A.R.S. § 25-
324(A).
¶82 In considering an award of attorney fees, the court noted that
"Husband's gross monthly income in 2021 was $22,130.14" and that "Wife
had no gross income after paying business expenses." The court found that
the parties' assets were comparable after taking into account the disposition
of marital property and the award of spousal maintenance to Wife. The
court further found that both parties had taken unreasonable positions
during the proceedings. Wife was unreasonable, the court found, in
requesting an award of spousal maintenance for 20 years and in seeking an
excessive share of the RSUs granted to Husband. Husband was
unreasonable, the court found, in failing to comply with his discovery
obligations and with the temporary orders, resulting in two contempt
citations. We review an award of attorney fees for an abuse of discretion,
Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014) (citation omitted), and
will not reverse the award "if there is any reasonable basis for it." In re
Marriage of Gibbs, 227 Ariz. 403, 410, ¶ 20 (App. 2011) (cleaned up).
¶83 Husband contends that the court abused its discretion in
ordering him to pay 40 percent of Wife's attorney fees even though "the
trial court found Wife's position to be unreasonable." Given that the court
found both parties to be unreasonable, Husband argues "[i]t is well within
the authority of a trial court to not award attorney's fees" to either party.
Husband concludes by urging that the issue be remanded "for further
determination in light of the fact that the trial court determined both parties
to be unreasonable."
¶84 Section 25-324(A) gives a court discretion to award attorney
fees to either party after consideration of "the financial resources of both
parties and the reasonableness of the positions each party has taken
throughout the proceedings." A.R.S. § 25-324(A). As Wife correctly argues,
A.R.S. § 25-324(A) does not preclude an award of attorney fees to one party
merely because the court found both parties to be unreasonable. See In re
Matter of Brown v. Smith, 1 CA-CV 24-0164 FC, 2024 WL 4513029, at *2, ¶ 9
(Ariz. App. Oct. 17, 2024) (mem. decision) (holding that the trial court was
within its discretion to award attorney fees to one party when both parties
were found to have acted unreasonably). Here, the court considered both
the financial resources of the parties as well as the reasonableness of their
respective positions. Therefore, the court did not abuse its discretion by
awarding Wife a portion of her attorney fees. See Magee v. Magee, 206 Ariz.
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589, 591, ¶8 n.1 (App. 2004) (noting that the "reasonableness of the
positions" provision "is separate from the ‘financial resources' provision,
and an applicant need not show both . . . in order to qualify for
consideration for an award").
B. We Decline to Award Attorney Fees on Appeal.
¶85 Husband and Wife both request attorney fees and costs on
appeal, citing ARCAP 21 and A.R.S. § 25-324. In our discretion, we deny
each party's request for attorney fees. Wife is awarded costs on appeal,
pending her compliance with Arizona Rule of Civil Appellate Procedure
21.
CONCLUSION
¶86 For the foregoing reasons, we affirm in part, reverse in part,
and remand for further proceedings consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: JR
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