Pullen v. Pullen

• Decision Date: 24 December 2009
• Docket Number: No. 1 CA-CV 08-0818.,1 CA-CV 08-0818.
• Citation: 222 P.3d 909
• Parties: In re the Marriage of Connie Dale PULLEN, Petitioner/Appellee, v. Arthur Harlan PULLEN III, Respondent/Appellant.
• Court: Arizona Court of Appeals

222 P.3d 909

In re the Marriage of Connie Dale PULLEN, Petitioner/Appellee, v. Arthur Harlan PULLEN III, Respondent/Appellant.

No. 1 CA-CV 08-0818.

Court of Appeals of Arizona, Division 1, Department E.

December 24, 2009.

Connie Dale Pullen, Golden Valley, In Propria Persona.

Law Offices of Keith S. Knochel, P.C. by Aline K. Knochel, Bullhead City, Attorneys for Appellant.

OPINION

KESSLER, Judge.

¶ 1 Arthur Harlan Pullen, III ("Husband") appeals the trial court's dissolution decree and denial of his motion for a new trial. Husband argues: (1) the court applied an incorrect legal standard for attributing income to him in excess of his actual current income for purposes of determining spousal maintenance; and (2) there was insufficient evidence to hold that he voluntarily reduced his earning capacity and was voluntarily underemployed. We hold the court considered the appropriate factors for attributing to Husband his prior income in determining spousal maintenance and there was evidence supporting that holding. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Husband and Connie Dale Pullen ("Wife") were married in 1978. After 29 years of marriage, Wife moved out of their home and filed a petition for dissolution of marriage. In that petition, Wife requested an award of spousal maintenance. Wife also obtained an order of protection against Husband.

¶ 3 Wife was unemployed when she filed the petition for dissolution, but at the time of trial was working for the Kingman Unified School District as a special education teaching assistant. In that position, Wife made $9.02 an hour, or $12,191.00 annually, for a nine month position. She was also taking classes to obtain a teaching certification in special education.

¶ 4 Prior to trial, Husband was a commercial truck driver for Federal Express Freight ("FedEx") in Kingman and made $64,988.00 annually. Several months after Wife filed her petition for dissolution, Husband voluntarily ended his employment at FedEx and moved to Washington. At the time of trial, Husband was employed as a commercial truck driver by Evergreen Building Products in Port Townsend, Washington, making $15 an hour.

¶ 5 Husband testified that he left Kingman because he had been accused of violating the restraining order against him and wanted to avoid further problems. Husband also testified that he chose to move to Port Townsend because he had lived there previously and had a girlfriend there with whom he planned on pursuing a relationship. He chose Washington despite the fact FedEx would not transfer him there, but would have transferred him to other locations. Husband asserted that he had difficulty finding a position in Port Townsend due to the economy, and thus accepted the job at Evergreen Building Products in spite of the decrease in salary.

¶ 6 The court determined that Wife met the criteria under Arizona Revised Statutes ("A.R.S.") section 25-319(A)(2007) for an award of maintenance. The court also found that Husband had left his employment with FedEx for personal reasons during the divorce proceedings. The court attributed to Husband his previous income and determined that Wife was entitled to spousal maintenance of $1000 per month for a period of ten years, beginning on July 1, 2008.

¶ 7 Husband filed a motion for a new trial on August 7, 2008. The trial court denied the motion by an unsigned minute order on September 11, 2008 and by a signed order on October 14, 2008. Husband timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).

DISCUSSION

¶ 8 Husband argues that the trial court erred both in the decree and in the order denying his motion for new trial by attributing his prior income to him for determining maintenance.¹ Husband contends that the court applied an incorrect legal standard for attributing income to him and the evidence did not support the finding that he was voluntarily underemployed. He argues that the court did not consider evidence of his motivation for relocating to a new market area and his good faith attempt to secure comparable employment during the dissolution action.

¶ 9 We review whether a court can attribute greater income to a party de novo, because it is an issue of law. Hall v. Lalli, 194 Ariz. 54, 57, ¶ 5, 977 P.2d 776, 779 (1999) (questions of law are reviewed de novo); Gerow v. Covill, 192 Ariz. 9, 14, ¶ 19, 960 P.2d 55, 60 (App.1998). Questions of what factors to apply to attribute income are legal questions. Gambill v. Gambill, 137 P.3d 685, 688, ¶ 7 (Okla.Civ.App.2006) (whether government benefits should be considered as income to wife is a legal question reviewed de novo). However, whether the trial court properly applied those factors is reviewed deferentially. Megremis v. Megremis, 179 N.C.App. 174, 633 S.E.2d 117, 123 (2006). Cf. Chen v. Warner, 280 Wis.2d 344, 695 N.W.2d 758, 780, ¶ 43 (2005) (whether spouse unreasonably terminated employment is question of law, but because it is tied so closely to factual findings, appellate court should give appropriate deference to trial court's ruling). Accord Van Offeren v. Van Offeren, 173 Wis.2d 482, 496 N.W.2d 660, 663-64 (App.1992). Whether sufficient evidence supported the court in application of the test is reviewed only for clear error. Kelsey v. Kelsey, 186 Ariz. 49, 51, 918 P.2d 1067, 1069 (App.1996).²

¶ 10 The trial court has broad discretion in deciding whether to grant or deny a motion for a new trial, Melcher v. Melcher, 137 Ariz. 210, 212, 669 P.2d 987, 989 (App. 1983), and "we will not overturn that decision absent a clear abuse of discretion." Delbridge v. Salt River Project Agric. Improvement & Power Dist., 182 Ariz. 46, 53, 893 P.2d 46, 53 (App.1994). We review orders denying motions for new trial for an abuse of discretion; a court abuses its discretion if, in reaching its decision, it applies an erroneous rule of law. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10, 63 P.3d 282, 285 (2003); Martinez v. Binsfield, 195 Ariz. 446, 449-50, ¶ 11, 990 P.2d 647, 650-51 (App. 1999), vacated on other grounds, 196 Ariz. 466, 999 P.2d 810 (2000). The burden is upon the party seeking to overturn the trial court's denial of a motion for a new trial to show that the trial court abused its discretion. Delbridge, 182 Ariz. at 53, 893 P.2d at 53.

I. Attribution of Income

¶ 11 Husband first argues that the court applied an incorrect legal standard for attributing income to him in excess of his current income. He contends that the court should not have attributed his prior income to him because he made a good faith attempt to secure "sufficiently adequate and comparable employment in relocating to a new market area and obtaining new employment with dramatically lower wages amidst the dissolution action." We disagree.

¶ 12 In Little v. Little, 193 Ariz. 518, 522, ¶ 11, 975 P.2d 108, 112 (1999), the Arizona Supreme Court adopted an intermediate balancing test to determine whether to use actual income or earning capacity to calculate child support when a parent voluntary reduces his or her income. The intermediate test mandates balancing a number of factors. Little, 193 Ariz. at 522, ¶ 12, 975 P.2d at 112.³ Accord McNutt v. McNutt, 203 Ariz. 28, 33, ¶ 20, 49 P.3d 300, 305 (App.2002) (stating the Little balancing test should apply when obligor accepts lower paying employment).

¶ 13 In adopting the intermediate test, the Little court expressly rejected both the good faith test, which Husband argues should be applied, and a strict rule test. It identified three fundamental flaws with the good faith test: (1) The good faith test erroneously assumes that a divorced or separated party to a support proceeding will continue to make decisions in the best interest of the family unit, when often the party will not do so; (2) It fails to give enough weight to the support obligation involved; and (3) The test by its very nature has a built-in bias in favor of finding good faith to exist. Little, 193 Ariz. at 521-22, ¶ 9, 975 P.2d at 111-12. The court also rejected the strict rule test as too inflexible because a reduction of income resulting from a voluntary act of a party is disregarded and the court considers only one factor, the party's earning capacity. Id.

¶ 14 No published decision in Arizona has applied Little to attribute income for spousal maintenance purposes. Nor can we rely on Little to delineate what factors to balance if we adopted an intermediate test because Little focused on the need of the child for child support. However, many other jurisdictions have treated child support and spousal maintenance similarly when voluntary reduction of income issues are raised. See Lewis Becker, Spousal and Child Support and the "Voluntary Reduction of Income" Doctrine, 29 Conn. L.Rev. 647, 722-23 (1997) (citing In re Marriage of Ilas, 12 Cal.App.4th 1630, 16 Cal.Rptr.2d 345, 350 (1993); Cushman v. Cushman, 585 So.2d 485, 486 (Fla.Dist.Ct. App.1991); Cochran v. Cochran, 14 Va.App. 827, 419 S.E.2d 419, 420-21 (1992); Van Offeren, 496 N.W.2d at 664-66). We agree with those authorities and conclude the reasoning of the court in Little, to apply an intermediate balancing test, equally applies in the spousal maintenance context.

¶ 15 The next question is what factors should be balanced. One commentator has proposed the intermediate test should be composed of five factors: (1) The reasons asserted by the party whose conduct is at issue; (2) The impact upon the obligee of considering the actual earnings of the obligor; (3) When the obligee's conduct is at issue, the impact upon the obligor of considering the actual earnings of the obligee and thereby reducing the obligor's financial contribution to the support order at issue; (4) Whether the party complaining of a voluntary reduction in income acquiesced in the conduct of the other party; and (5) The timing of the action in question in relation to the entering of a decree or the execution of a written agreement...