MARRIAGE OF FLORES v. MARTINEZNo. 2 CA-CV 2013-0101.

IN RE THE MARRIAGE OF: SYLVIA FLORES, Petitioner/Appellant, and
GILBERTO MARTINEZ, Respondent/Appellee.

Court of Appeals of Arizona, Division Two.
Filed March 13, 2014.
Underwood Law Office, Phoenix, By Sonya E. Underwood, Counsel for Petitioner/Appellant.
Toledo Law Firm, Mesa, By Gustavo Toledo Counsel for Respondent/Appellee.
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).

MEMORANDUM DECISION

KELLY, Presiding Judge.

¶1 In this post-dissolution, domestic relations case, Silvia Flores appeals from the trial court's 2011 order, which provided her former spouse, Gilberto Martinez, with equitable relief from the judgment he owed her. For the following reasons, we vacate the trial court's order in part and remand.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding the trial court's ruling. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, n.1, 169 P.3d 111, 112 n.1 (App. 2007). Flores petitioned for dissolution of marriage in 2005, and the dissolution decree was filed in March of 2008. Based on an appraisal, the court determined that the parties' mixed-use property, on which they lived and conducted their restaurant business, was worth $490,000 and the business itself was worth $77,500. The court awarded Martinez the real property and business and ordered him to pay Flores $287,500 as her community share. The court then awarded Flores an additional $150,000 as "reimbursement for her share of unreported business income . . . received by [Martinez] after service of the Petition for Dissolution of Marriage." The court further ordered the parties to sell their real property in Nevada and split the proceeds. It awarded Flores attorney fees and costs in the amount of $25,000.

¶3 By January 12, 2009, the total amount due on the judgment, including interest and costs up to that date, was $593,196.16. Because Martinez had failed to make payments to Flores on the judgment, she successfully garnished approximately $41,000 from his bank accounts. In May 2009, after Martinez transferred the mixed-use property to his daughter, Flores filed a petition to show cause regarding the fraudulent transfer, Martinez's failure to pay the mortgage on the parties' Nevada property while collecting rents on it, and to enforce Flores's previous judgments. Flores claimed Martinez's actions were an attempt to avoid paying the judgment in violation of A.R.S. § 44-1004 ("the Fraudulent Transfer Act"). She asked the court to award her the mixed-use business and property and the Nevada property as a remedy and to satisfy her judgment.

¶4 After a hearing, the trial court found Martinez had transferred the mixed-use property to his daughter to avoid paying the outstanding judgment to Flores. It found that Martinez's daughter had "worked closely with" him "to assist in his calculated scheme" and that both Martinez and his daughter would "do and say anything to deprive [Flores] of what is lawfully hers." It agreed that the transfer of the mixed-use property from Martinez to his daughter was fraudulent under § 44-1004 and voided the transfer. Pursuant to remedies outlined in the Fraudulent Transfer Act, A.R.S. § 44-1007, the court allowed Flores to satisfy her judgment with the mixed-use property and business.1 Because the court found the value of the mixed-use property and business was inadequate to satisfy the full amount of the outstanding judgment, it also awarded Flores the Nevada property, which both parties testified was worth approximately $60,000.The court ordered Martinez not to deplete the business assets and awarded Flores $13,224.40 in attorney fees for the proceedings.2

¶5 Martinez, citing "mathematical errors," filed an "Objection to Form of Judgment." He claimed the award "completely deprive[d him] of his portion of the community property" and "exceed[ed] the outstanding judgments owed" to Flores, and requested that the court credit him for amounts he already had paid.3 In an April 2010 order, the court affirmed its award to Flores, explaining the order was "made necessary by [Martinez]'s egregious actions after entry of the Decree." It stated Martinez's "proper opportunity to seek relief [was] to seek a new trial." Martinez then moved for a new trial on the April 2010 order, re-alleging the claims made in made in his objection.

¶6 In its ruling on Martinez's motion for a new trial, the trial court noted Martinez's "nefarious conspiracy" to "leave his former partner with absolutely nothing" but stated that "notwithstanding [Martinez's] conduct, . . . he ought to get something from the marriage." The court then granted a new trial to "ensure that the final distribution of property, as modified by [the post-decree orders[,] . . . is fair and equitable considering all of the circumstances." It specifically limited the new trial to its April 2010 order awarding Flores the business, mixed-use property, and Nevada property, "and not the [property award contained in] the Decree of Dissolution of Marriage." The court then agreed to consider evidence regarding Martinez's alleged depletion of funds from the restaurant and Flores's motion to enforce the court's December 2009 order.

¶7 The new trial on the April 2010 order was held in September 2010. In 2011, the trial court found with respect to Flores's motion to enforce that Martinez had "embarked on a course of conduct to deplete funds from the business and defer payment on the bills and obligations of the business." It then ordered Martinez to pay Flores $31,015.68 in exchange for Flores holding Martinez harmless for the alleged debts and obligations. It also awarded Flores her reasonable attorney fees. Regarding Martinez's motion for a new trial and request for an equitable adjustment, the court rejected Flores's position that Martinez's fraudulent transfer had prevented her from foreclosing on the property, and found that Martinez could not pay Flores's judgment due to the economy. It thus found that despite Martinez's "`unclean hands,'" including his admission he had taken Flores's clientele,4 Martinez was entitled to equitable relief.

¶8 The trial court affirmed its award of the mixed-use property to Flores but directed her to "make an equitable adjustment to [Martinez] in the amount of $287,500.00, which is one-half of the original value placed upon the mixed-use property, pursuant to appraisals performed in 2006 and 2007." It declared it would "make no adjustment based upon current market value despite the fact that both parties admit that the current value is substantially less than the appraised values." The court gave Flores credit for various amounts already ordered, including $150,000 for unreported cash awarded in the decree, attorney fees already ordered, the $31,015.68 awarded for debts and obligations in the current order, and her attorney fees incurred in the current proceeding. The court did not provide credit to Flores for any unreported cash or income received by Martinez since the entry of the decree or for any interest that had accrued on the judgment. The court then credited Martinez $41,262.14 for funds garnished in January 2009. Flores timely appealed.5 We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).

Equitable Relief

¶9 We first address the trial court's decision to provide Martinez with "equitable relief" from satisfying Flores's judgment against him. Whether the court may grant equitable relief from a liquidated judgment is a question of law we review de novo. See In re Marriage of Waldren, 217 Ariz. 173, ¶ 6, 171 P.3d 1214, 1216 (2007).

¶10 The trial court, in its April 2010 order, awarded Flores the mixed-use and Nevada properties to satisfy the outstanding judgment against Martinez. The court stated this relief was "made necessary by [Martinez]'s egregious actions after entry of the Decree" and was authorized pursuant to A.R.S. § 25-318(P), which states in relevant part that

[i]f a party fails to comply with an order to pay debts, the court may enter orders transferring property of that spouse to compensate the other party. If the court finds that a party is in contempt as to an order to pay community debts, the court may impose appropriate sanctions under the law.

The court also relied on remedies outlined in the Fraudulent Transfer Act to allow Flores to satisfy her judgment with property Martinez had attempted to conceal.6 §§ 44-1004, 44-1007.

¶11 Following the new trial in September 2010, during which the court also addressed Flores's motion to enforce judgment and present evidence of Martinez's depletion of business assets, the court affirmed its award of the mixed-use property to Flores but found that Martinez was entitled to "equitable relief." It then directed Flores to "make an equitable adjustment to [Martinez] in the amount of $287,500.00, which is one-half of the original value placed upon the mixed-use property." The court did not cite a statutory basis for this adjustment other than stating in its order granting a new trial that Martinez "ought to get something from the marriage."7 Flores argues the court "was without any legal authority to cause [her] to be indebted to [Martinez] for simply attempting to satisfy her final judgments."

¶12 Every power a trial court exercises in a dissolution proceeding must be pursuant to the supporting statutory framework. Anonymous Wife v. Anonymous Husband, 153 Ariz. 573, 575, 739 P.2d 794, 796 (1987); Fenn v. Fenn, 174 Ariz. 84, 87, 847 P.2d 129, 132 (App. 1993). Although "the standards to be applied in a dissolution proceeding are those of an equity court," Weaver v. Weaver, 131 Ariz. 586, 587, 643 P.2d 499, 500 (1982), dissolution proceedings remain statutory actions, and any "authority not expressly given by statute cannot . . . be assumed," Van Ness v. Superior Court, 69 Ariz. 362, 365, 213 P.2d 899, 900 (1950).

¶13 The trial court awarded Flores the mixed-use and Nevada properties to satisfy the judgment owed to her pursuant to the Fraudulent Transfer Act, but it did not cite—and we could not discern from the record—a statutory basis for ordering Flores to make an equitable adjustment to Martinez for half the original value of the mixed-use property. While mathematical error could provide a basis to modify or correct an award, see Ariz. R. Fam. Law P. 85, the court did not point to errors in its original calculation and did not explain how the 2011 order addressed any such errors.

¶14 Additionally, the trial court's belief that Martinez "ought to get something from the marriage" is an improper basis for equitable relief from Martinez's obligation to pay a liquidated judgment, particularly when the court had noted specifically that it was not modifying the property award in the divorce decree. Martinez argued that the April 2010 order "failed to account for [his] portion of the community property," and that the trial court, in awarding Flores the Nevada property, did so because it "wrongly believed that there wasn't enough community property to satisfy the judgments." But Martinez had no community interest in property awarded to Flores to satisfy her judgment under § 44-1007; any property awarded in the decree had become separate—rather than marital—property. See Koelsch v. Koelsch, 148 Ariz. 176, 181, 713 P.2d 1234, 1239 (1986) (following property award pursuant to decree of dissolution, "each spouse receive[d] an immediate, present, and vested separate property interest in the property awarded to him or her by the trial court . . . [and the] former spouse los[t] any interest in and control over that separate property"). We therefore conclude the court erred in granting Martinez equitable relief from Flores's judgment. Van Ness, 69 Ariz. at 365, 213 P.2d at 900.

Property Award and Off-Set

¶15 We next must determine whether the trial court's calculation of the award to satisfy Flores's judgment and credits to Martinez was supported by the evidence. We will uphold the court's factual findings unless clearly erroneous or unsupported by credible evidence. See Hrudka v. Hrudka, 186 Ariz. 84, 91, 919 P.2d 179, 186 (App. 1995). We review legal conclusions de novo. Alley v. Stevens, 209 Ariz. 426, ¶ 6, 104 P.3d 157, 159 (App. 2004).

Accrued Interest

¶16 We first examine the trial court's decision to exclude interest that had accrued on Flores's judgment from the amount Martinez had been ordered to pay. Whether a party is entitled to interest is a matter of law, which we review de novo. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 508, 917 P.2d 222, 237 (1996). In its order following the September 2010 trial, the court awarded Martinez a credit for funds garnished from his bank accounts but "decline[d] to provide any credit for any interest accrued by [Flores] as and for her monetary Judgment that she obtained pursuant to the parties' Decree of Dissolution."8 Flores claims that the trial court erred by "provid[ing Martinez] with a credit for [his] garnished funds while failing to recognize [Flores's] interest on her judgments."

¶17 "[W]here a party retains and makes use of money belonging to another, equity requires that interest be paid on the money so retained and used." Malecky v. Malecky, 148 Ariz. 121, 122, 713 P.2d 322, 323 (App. 1985); see also Proffitt v. Proffitt, 105 Ariz. 222, 224, 462 P.2d 391, 393 (1969) (trial court's award of separate property pursuant to § 25-318 proper where, although defendant had possession of money, title was adjudged as belonging to plaintiff). Interest on a liquidated debt is due as a matter of right. See A.R.S. § 44-1201; Canal Ins. Co. v. Pizer, 183 Ariz. 162, 164, 901 P.2d 1192, 1194 (App. 1995); Imperial Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 74, 730 P.2d 245, 251 (App. 1986). A claim is liquidated "`if the evidence furnishes data which, if believed, makes it possible to compute the amount with exactness, without reliance upon opinion or discretion.'" Malecky, 148 Ariz. at 122, 713 P.2d at 323, quoting Homes & Son. Constr. Co. v. Bolo Corp., 22 Ariz.App. 303, 306, 526 P.2d 1258, 1261 (1974). "Whether a claim is liquidated is a question of fact." Able Distrib. Co. v. James Lampe, 160 Ariz. 399, 406, 773 P.2d 504, 511 (App. 1989).

¶18 The trial court found Flores's interest on the judgment was $44,055.48 as of 2009. Neither party disputed the amounts Flores had been awarded or the amount of interest. See Malecky, 148 Ariz. at 122, 713 P.2d at 323. The court's failure in its 2011 order to account for interest that had accrued on her judgment denied Flores compensation for the loss of the use of money Martinez had wrongfully withheld from her, and effectively reduced her judgment by a substantial portion. See Lee Dev. Co. v. Papp, 166 Ariz. 471, 478, 803 P.2d 464, 471 (App. 1990) (finding prejudgment interest akin to "compensation for use by defendant of money to which the plaintiff is entitled"); see also Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 361, 701 P.2d 851, 857 (App. 1985) (claim under Fraudulent Transfer Act was liquidated judgment such that award of interest was proper).

¶19 We thus conclude that Flores was entitled to collect interest on the judgments accruing in her favor after the dissolution decree. And the sum of the judgments, including any amounts for child support and spousal maintenance arrears, plus interest to date, should be the basis for the trial court's award to satisfy Flores's judgment.9

Present-Day Property Values

¶20 We next consider whether the court abused its discretion by failing to account for the present-day value of the mixed-use property and business. "The valuation of assets is a factual determination that must be based on the facts and circumstances of each case." Kelsey v. Kelsey, 186 Ariz. 49, 51, 918 P.2d 1067, 1069 (App. 1996). We will not re-weigh evidence; rather, we "limit our inquiry to a determination of whether substantial evidence exists to support the trial court's action." Rowe v. Rowe, 154 Ariz. 616, 620, 744 P.2d 717, 721 (App. 1987). We will uphold the court's findings unless they are clearly erroneous or are unsupported by credible evidence. See Hrudka, 186 Ariz. at 91, 919 P.2d at 186.

¶21 In requiring Flores to pay Martinez a $287,500 offset in exchange for granting her the property, the court utilized the value of the mixed-use property as stated in the dissolution decree, which relied on appraisals conducted in 2006 and 2007. Despite recognizing that both parties agreed the current value of the property was "substantially less than the appraised values," the court declined to make an adjustment for current market value. Flores argues this effectively "rewarded the party that committed fraud with a judgment that was based upon 2006 and 2007 appraisals without any consideration for the decreased value of [the] mixed-use property, which had . . . been deliberately depleted by [Martinez]."

¶22 Both parties presented evidence that market changes following the decree of dissolution rendered the mixed-use property less valuable than in 2006 and 2007. In a prior hearing and in pleadings, Martinez had presented evidence that the property was worth approximately $289,500 as of March 2008.10 Substantial evidence supported the trial court's finding that Martinez had depleted assets and devalued the business since the decree was entered. No evidence suggested that either the business or mixed-use property had retained their 2006/2007 values, and using devalued property to purportedly satisfy a judgment effectively reduced the value of Flores's judgment, to which she already held title. See Proffitt, 105 Ariz. at 224, 462 P.2d at 393. We thus conclude the trial court's decision to use property values at the time of the decree was not supported by credible evidence and cannot be sustained. See Hrudka, 186 Ariz. at 91, 919 P.2d at 186; Lee v. Lee, 113 Ariz. 118, 123, 649 P.2d 997, 1002 (App. 1982).

Depletion of Business Assets

¶23 We next consider the trial court's award of $31,015.68 to Flores and its order holding Martinez harmless for specified outstanding debts and obligations.11 On appeal, Flores alleges that "[p]ursuant to Arizona law, the Trial Court was without any legal authority to Order [her] to pay a nonparty creditor for post-decree debt that was incurred by [Martinez]." Rather, she claims, the trial court should have held Martinez "directly accountable for the post-decree debt he incurred in an effort to continue his fraud." She also suggests the court should have compensated her for the depleted value of the business and "lost profits" in light of "evidence prov[ing] that [Martinez] deliberately removed the restaurant's customer base, diverted them to his new restaurant, and left the mixed-use property in a depleted state" which, she claims, "violated the Trial Court's own Orders." Flores contends the court abused its discretion by failing to award damages based on her "past and future lost earnings."

¶24 Flores carries the burden to establish the trial court's error. See Ariz. R. Civ. App. P. 13(a)(6) (appellant's brief must contain argument with citation to authority). But she has failed to develop her argument, and has not supported it with citations to the record. See id. Although she appears to imply the court incorrectly examined and weighed the evidence presented at the hearing, this suggestion—without more—is insufficient to meet her burden, and we can discern no obvious error from the record.

¶25 Even were Flores's argument adequately presented, credible evidence supported the trial court's order. See Hrudka, 186 Ariz. at 91, 919 P.2d at 186. At the hearing on Flores's motion for reimbursement and motion to enforce, the court heard evidence on each of the alleged debts and expenses and found that while Flores's testimony was more credible than Martinez's, "based on the evidence presented, . . . some, but not all, of the claims made by [Flores were] valid." The court thus ordered Martinez to pay Flores $31,015.68 to discharge the sums.

¶26 Although the court did not make explicit findings to explain its reasoning for the amount ordered, it was not required to do so. See Hrudka, 186 Ariz at 91, 919 P.2d at 186; see also Gilliland v. Rodriquez, 77 Ariz. 163, 167, 268 P.2d 334, 337 (1954) ("A court is called upon to make findings of only ultimate facts and is not required to bolster them by subsidiary findings on evidentiary matters upon which such ultimate facts are based."). It would impose an undue burden on a trial judge to list every fact upon which his or her findings are based. Christy C. v. Ariz. Dep't of Econ. Sec., 214 Ariz. 445, 452, 153 P.3d 1074, 1081 (App. 2007). And it is not our role to weigh evidence on appeal. See Whittemore v. Amator, 148 Ariz. 173, 175, 713 P.2d 1231, 1233 (1986). We thus uphold the court's award for depletion of business assets.

Business Proceeds

¶27 Flores next argues the trial court erred by failing to award her any of the "business proceeds that had been retained by [Martinez] since the entry of the Decree of Dissolution." Although in the decree she was awarded $150,000 in unreported cash from the business, she claims she also should have received an "equitable share of the unreported cash, as well as the profits that [Martinez] received from the business since the entry of the Decree." But Flores has failed to clearly explain her allegation that the trial court erred, and she has not cited any portions of the record in support of her argument. See Ariz. R. Civ. App. P. 13(a)(6). Therefore, we do not consider this claim.

¶28 To the extent Flores implies the trial court had an independent duty to award her any income Martinez earned or failed to report, we uphold the trial court's ruling. From the time Martinez was awarded the mixed-use property and business in the decree of divorce until the time Flores was awarded the property and business to satisfy her judgment, Martinez's earnings from the business were his separate property. See Koelsch, 148 Ariz. at 181, 713 P.2d at 1239 ("[E]arnings after dissolution are separate property."). Flores has provided no authority or argument sufficient to demonstrate she had any interest in such proceeds. See Ariz. R. Civ. App. P. 13(a)(6); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393-94 n.2 (App. 2007) (failure to develop argument and cite relevant authority constitutes waiver); Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143, 750 P.2d 898, 901 (App. 1987) ("It is not incumbent upon the court to develop an argument for a party."). We thus affirm the court's ruling in that respect.

Attorney Fees on Appeal

¶29 Both parties have requested their reasonable attorney fees and costs on appeal. However, as neither party has advanced unreasonable positions on appeal nor demonstrated financial need sufficient to merit an award of fees under A.R.S. § 25-324, in our discretion, we decline to grant either party's request. See Leathers v. Leathers, 216 Ariz. 374, ¶ 22, 166 P.3d 929, 934 (App. 2007) (appellate court must examine both financial resources and reasonableness of positions under § 25-324(A)).

Disposition

¶30 For the foregoing reasons, we vacate the portion of the trial court's order granting one-half the value of the mixed use property to Martinez. We remand for entry of a new order granting Flores the full, current value of the mixed-use property towards satisfaction of her judgment against Martinez, along with accruing interest on the judgment. In all other respects, the court's order is affirmed.

FootNotes


1. The court noted that Rule 85(c), Ariz. R. Fam. Law P., would have allowed it to modify the decree of dissolution as a remedy against Martinez's fraud, but—because the remedy requested by Flores was available pursuant to § 44-1007—the court did not need to rely on Rule 85(c) for relief.
2. Martinez's depletion of business assets is described in footnote 4 and paragraphs 23 through 26 of this decision.
3. These amounts included $7,446.18 in child support arrearages which Martinez had discharged, a $1,132.50 credit from the original decree, and $41,262.14 garnished from Martinez's bank accounts.
4. Flores presented evidence that Martinez had started a new restaurant that was substantially similar to the parties' business and that he had depleted the business's assets and directed clients to his new restaurant, even after the trial court's April 2010 order prohibiting him from doing so.
5. Although Martinez contests our jurisdiction based on Flores's two prior notices of appeal, he fundamentally misstates the law. In No. 2 CA-CV 2011-0106 (memorandum decision filed Feb. 22, 2012) and No. 2 CA-CV 2012-0073 (memorandum decision filed Nov. 20, 2012), this court dismissed Flores's first appeal as premature due to motions pending in the trial court, see Craig v. Craig, 227 Ariz. 105, ¶ 13, 253 P.3d 624, 626 (2011), and the second due to the lack of a signed, final order being entered in the trial court, see A.R.S. § 12-2101(A)(2). These procedural bars to this court's jurisdiction were corrected before Flores's third notice of appeal and jurisdiction thus is properly vested in this court. See Ariz. R. Civ. App. P. 8(a); § 12-2101.
6. Section 44-1007 allows a creditor to garnish against the fraudulent transferee, void the fraudulent transfer, attach the transferee's assets, levy execution on the asset transferred or its proceeds, and "[a]ny other relief the circumstances may require."
7. Despite Flores's claim that the trial court modified the "Decree of Dissolution . . . to reassign and/or `swap' the judgments," the trial court specifically limited its equitable relief to the April 2010 order, and not the decree. We thus do not consider these arguments.
8. Martinez had been ordered to begin making payments on the original judgment within 180 days from the date of the decree of dissolution.
9. Because Flores's opening brief merely mentioned the inequity of crediting garnished funds and not interest, and did not directly challenge the part of the trial court's order providing Martinez with a credit for his garnished funds, we do not address the trial court's findings in that regard. See Ariz. R. Civ. App. P. 13(a)(6); Polanco v. Indus. Comm'n., 214 Ariz. 489, n.2, 154 P.3d 391, 393-94 n.2 (App. 2007) (failure to develop argument and cite relevant authority constitutes waiver); Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143, 750 P.2d 898, 901 (App. 1987) ("It is not incumbent upon the court to develop an argument for a party.").
10. Although the parties debated the purpose for which this evidence was introduced, neither party presented evidence contrary to the $289,500 valuation or presented evidence that the property still was worth the valuations at the time of the decree.
11. Flores testified that Martinez, in violation of the court's order, had removed cash and supplies from the restaurant, improperly surrendered the business's liquor license, used business proceeds for personal expenses and attorney fees, and used the business's credit cards and funds to benefit himself and his new restaurant. Flores further alleged Martinez had taken clients away from the business in favor of his new restaurant and had intimidated, harassed, or enticed her employees into leaving the business. She testified she had paid his employees for periods they were under his care, paid taxes Martinez was liable for, and presented evidence showing the business had been left in a dilapidated state. Martinez argued that Flores had not established she had actually paid the debts, and thus was not entitled to reimbursement.

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