Gutierrez v. Gutierrez

• Decision Date: 15 September 1998
• Docket Number: No. 1,CA-CV,1
• Citation: 193 Ariz. 343,972 P.2d 676
• Parties: , 278 Ariz. Adv. Rep. 3 In re the Marriage of Richard O. GUTIERREZ, Petitioner-Appellant, v. Adelita GUTIERREZ, Respondent-Appellee. 97-0420.
• Court: Arizona Court of Appeals

Page 676

972 P.2d 676

193 Ariz. 343, 278 Ariz. Adv. Rep. 3

In re the Marriage of Richard O. GUTIERREZ, Petitioner-Appellant, v. Adelita GUTIERREZ, Respondent-Appellee.

No. 1 CA-CV 97-0420.

Court of Appeals of Arizona,

Division 1, Department E.

Sept. 15, 1998.

Review Denied Feb. 23, 1999.

Van Norman & Van Norman, P.C. By Shawn Friend, Scottsdale, for Petitioner-Appellant.

Cohen & Fromm, P.C. By Bruce R. Cohen and Stephen R. Smith, Phoenix, for Respondent-Appellee.

Ulrich, Kessler & Anger, P.C. By Paul G. Ulrich and Donn G. Kessler, Phoenix, for Respondent-Appellee.

GARBARINO, Judge.

¶1 Richard Gutierrez appeals contending that the trial court erroneously found that he had wasted a portion of the parties' community retirement account. He also appeals the award of lifetime spousal maintenance to his wife, Adelita Gutierrez, and the order that he pay her attorneys' fees. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The parties were married for nineteen years. During the marriage, Richard worked as a car painter and presently earns approximately $70,000.00 per year. Adelita began working five years after the parties were married and currently works part-time as a teacher's aide earning $7.94 per hour. She is also the guardian of her minor nephew and mentally disabled niece.

¶3 During the marriage, Richard contributed to an employee retirement account from which he withdrew approximately $62,000.00. He deposited these funds into an account in his name only. Adelita claims that Richard wasted this money and that she neither had access to it nor knew how he spent it. Richard claims that he withdrew the money with Adelita's consent and that they both spent the money on everyday household expenses.

¶4 After a one-day bench trial, the trial court found Richard had wasted the money that he had withdrawn from the community retirement account. The court awarded Adelita the $104,000.00 remaining in the account. In addition, the court awarded her $20,000.00 as an equalizing payment to compensate her for what would have been half of the present value of the retirement account had Richard not withdrawn and wasted approximately $62,000.00. The court also awarded Adelita lifetime spousal maintenance based on her lack of skills, her inability to increase her earning ability, and her inadequate financial resources. The court also ordered Richard to pay Adelita's attorneys' fees. The amount of the fee award, $8,000.06, was set forth in a separate, subsequent judgment. The court filed a final, signed order on June 4, 1997, from which Richard filed a timely notice of appeal.

STANDARD OF REVIEW

¶5 The trial court's apportionment of community property will not be disturbed on appeal absent an abuse of discretion. See Hrudka v. Hrudka, 186 Ariz. 84, 93, 919 P.2d 179, 188 (App.1995). We view the evidence in the light most favorable to sustaining the trial court's findings and determine whether there was evidence that reasonably supports the court's findings. See Mitchell v. Mitchell, 152 Ariz. 317, 323, 732 P.2d 208, 214 (1987).

DISCUSSION

I. Waste of Community Asset

¶6 We first address Richard's withdrawal of approximately $62,000.00 from the community retirement account. The trial court concluded that Richard had wasted these funds. The trial court is specifically authorized to consider excessive or abnormal expenditures and the concealment or fraudulent disposition of community property when apportioning community property. See Ariz.Rev.Stat. Ann. (A.R.S.) § 25-318(A) (1991); see also Martin v. Martin, 156 Ariz. 452, 458, 752 P.2d 1038, 1044 (1988); Hrudka, 186 Ariz. at 93, 919 P.2d at 188. Richard argues that this Court should presume that any expenditures made during the marriage were for community obligations. He analogizes this "presumption" to the long-accepted presumption that debts incurred during marriage are presumed to be community debts, unless there is clear and convincing evidence to the contrary. See Hofmann Co. v. Meisner, 17 Ariz.App. 263, 267, 497 P.2d 83, 86 (1972). That presumption, which is primarily intended for the benefit of creditors, should not apply where one spouse has made a prima facie showing of abnormal or excessive expenditures. Here, Adelita made such a prima facie showing because Richard withdrew a large amount of money without her knowledge and apparently spent it in a manner unknown to her, but from which she never discerned a community benefit.

¶7 The spouse making the withdrawals should bear the burden of showing that the money was spent to benefit the community. See Troutman v. Valley Nat'l Bank of Arizona, 170 Ariz. 513, 517, 826 P.2d 810, 814 (App.1992) ("The party who asserts a fact has the burden to establish that fact."). We hold that the spouse alleging abnormal or excessive expenditures by the other spouse has the burden of making a prima facie showing of waste. It is then the burden of ¶8 Richard suggests that the trial court's findings do not support a finding of waste because he was not dishonest. The statute applies, however, to "excessive or abnormal expenditures." A.R.S. § 25-318(A). Dishonesty is not a prerequisite. In Lindsay v. Lindsay, 115 Ariz. 322, 329, 565 P.2d 199, 206 (App.1977), overruled on other grounds, Schroeder v. Schroeder, 161 Ariz. 316, 323, 778 P.2d 1212, 1219 (1989), the husband sold a community asset without the wife's knowledge and lost the proceeds gambling. The court found that the wife was entitled to her share of the proceeds of the sale of the community asset. See id. Similarly, here, Richard withdrew approximately $62,000.00 from the community retirement account without Adelita's knowledge, and he was unable to explain with any specificity how he had spent such a large sum of money. Absent a reasonable explanation, the trial court did not abuse its discretion in finding that Richard's expenditures were excessive and abnormal and did not benefit the community.

the spending spouse to go forward with evidence to rebut the showing of waste because all of the evidence relative to the expenditures is generally within the knowledge, possession, and control of the spending spouse.

¶9 The evidence reflected that Richard withdrew $37,311.45 on one occasion and $25,005.15 on a second occasion. Richard claimed that Adelita knew that he had withdrawn the money. Adelita denied this, testifying that she authorized only a $13,000.00 withdrawal to pay for a new roof on the parties' cabin. She testified that she did not know how the money was spent. Given Adelita's testimony that the only authorization she had given was for the $13,000.00 withdrawal, the evidence supports the trial court's conclusion that Richard spent the funds without her knowledge or permission.

¶10 Richard claimed the evidence established that he had spent the money on community expenses. He asserts that he bought a truck, repaid loans from his sister, bought furniture, and took vacations. The evidence showed, however, that Richard paid $19,905.00 in cash for his truck more than one year after he had withdrawn the money from the retirement account. The evidence also showed that the furniture was purchased one year before Richard withdrew the money. In fact, during his testimony, Richard conceded that he probably had not spent any of the money on furniture. Adelita testified that the parties only took one vacation since 1992--a trip to Disneyland. While on vacation, they stayed with Richard's parents, and Richard's father paid for most of their meals. The evidence supports the trial court's conclusion that Richard withdrew funds from the community retirement account and then used the funds for purposes other than the benefit of the community.

¶11 Richard claims that the evidence does not support the trial court's finding that he repaid $37,000.00 in loans from his sister. Richard admits that he spent the money that his sister loaned to him on drinking and gambling. There was conflicting evidence as to how much Richard owed and how much he had repaid his sister. Richard testified that he had no idea how much he had repaid his sister, but he estimated it was anywhere from $10,000.00 to $16,000.00. His sister claimed that she had loaned him $36,500.00 and that he had repaid her $10,000.00 in August 1992. The trial court found that Richard "may have used $37,000 ... to repay his sister."

¶12 Although the evidence did not support this figure, the error is harmless. Richard withdrew approximately $62,000.00 of community property without Adelita's authorization. He was unable to show that he had spent the money on community expenses. He testified that he had used some of it to repay the loans from his sister, which he admitted should be his separate obligation. Even if he used only $10,000.00 of the retirement funds to repay his sister, he repaid a separate obligation loan with community funds. There was evidence from which the trial court could properly conclude that he had wasted the entire amount and that Adelita was entitled to an award reimbursing her for her interest in the community retirement account.

¶13 The evidence in this case was conflicting. We will defer to the trial court's determination of witnesses' credibility and the weight to give conflicting evidence. See

Premier Financial Servs. v. Citibank (Arizona), 185 Ariz. 80, 85, 912 P.2d 1309, 1314 (App.1995). Reasonable evidence supported the trial court's finding of waste in this case.

II. Spousal Maintenance

¶14 The trial court awarded Adelita lifetime spousal maintenance of $1,000.00 per month between October 1, 1996 and June, 30, 1997, and $1,500.00 per month thereafter unless she remarries. We review the trial court's award of spousal maintenance for an abuse of discretion. See In re Marriage of Berger, 140 Ariz. 156, 167, 680 P.2d 1217, 1228 (App.1983). We view the evidence in the light most favorable to Adelita and will affirm the judgment if there is any reasonable evidence to support it. See Thomas v. Thomas...