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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

GLORIA AGUILAR, Petitioner/Appellant, 

v.

JUAN AGUILAR, JR., Respondent/Appellee. 

No. 1 CA-CV 21-0052 FC 

Appeal from the Superior Court in Maricopa County

No. FC2019-004813 

The Honorable Monica Edelstein, Judge

REVERSED AND REMANDED IN PART; AFFIRMED IN PART

COUNSEL

Alongi Law Firm PLLC, Phoenix

By Thomas P. Alongi

Counsel for Petitioner/Appellant 

The Sobampo Law Firm PLLC, Phoenix

By F. Javier Sobampo

Counsel for Respondent/Appellee

FILED 10-14-2021
AGUILAR v. AGUILAR

Decision of the Court

2 

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in 

which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 Gloria Aguilar (“Wife”) appeals several rulings in the decree 

dissolving her marriage to Juan Aguilar, Jr., (“Husband”). For the 

following reasons, we reverse the denial of spousal maintenance, the 

allocation of Husband’s MBMINC retirement account and the $5,500 

student loan debt, and remand for further proceedings. In all other 

respects, we affirm the decree. 

FACTS AND PROCEDURAL HISTORY

¶2 The parties were married in 2001, and Wife petitioned for 

dissolution in 2019. The parties appeared pro per for the one-hour trial. In 

the decree, the court found that Wife did not qualify for spousal 

maintenance and divided the community property equally, implicitly 

rejecting Wife’s claim that Husband’s excessive gambling constituted 

waste. The court awarded each party the bank accounts in their name but

awarded Husband 100% of all three retirement accounts. The court ordered 

the parties to sell the marital home and divide the proceeds equally. The 

court also found that both parties were responsible for the nearly $17,000 

student loan debt used for their adult daughter’s college expenses, but the

second $5,500 student loan was Wife’s separate debt. 

¶3 Wife moved to amend the judgment under Arizona Rule of 

Family Law Procedure (“Rule”) 83. The superior court denied the motion 

without comment, and Wife timely appealed. We have jurisdiction under 

A.R.S. § 12-2101(A)(1) and (5)(a). 

DISCUSSION

I. Spousal Maintenance

¶4 Wife argues the superior court erred by finding that she was 

disabled and could not work but did not qualify for spousal maintenance 

under A.R.S. § 25-319(A). We review a ruling on spousal maintenance for 
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3 

an abuse of discretion and will affirm if reasonable evidence supports it. 

Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14 (App. 1998). 

¶5 When considering a request for spousal maintenance, the 

superior court must first determine whether the spouse is eligible for an 

award. See A.R.S. § 25-319(A); see also In re Marriage of Cotter, 245 Ariz. 82, 

85, ¶ 7 (App. 2018). In making this threshold eligibility determination, “the 

court considers only the circumstances of the requesting spouse.” Cotter, 

245 Ariz. at 87, ¶ 7. If the court finds the requesting spouse is eligible for 

spousal maintenance, it then determines the amount and duration of any 

award. Id.; see also A.R.S. § 25-319(B). 

¶6 The superior court considers five factors when determining 

whether a spouse is eligible for spousal maintenance. See A.R.S. § 25-

319(A). A spouse is eligible for an award if any one of the five factors is 

present. See Gutierrez, 193 Ariz. at 348, ¶ 17; A.R.S. § 25-319(A). Under § 

25-319(A)(2), a spouse qualifies for spousal maintenance if they are “unable 

to be self-sufficient through appropriate employment . . . or lack[] earning 

ability in the labor market adequate to be self-sufficient.” The court found 

that Wife was unable to work and was receiving disability benefits. 

Although Husband now disputes the extent of Wife’s disability, he did not 

raise this argument at trial. Therefore, it is waived. See Noriega v. Town of 

Miami, 243 Ariz. 320, 326, ¶ 27 (App. 2017) (generally, arguments not raised 

below are considered waived). Husband’s argument also contradicts the 

court’s express finding that Wife is unable to work. This finding entitles 

Wife to spousal maintenance. See A.R.S. § 25-319(A)(2); Gutierrez, 193 Ariz. 

at 348, ¶ 17. 

¶7 The superior court’s finding that Wife qualified for “multiple 

public assistance programs” does not establish that she is able to be selfsufficient for purposes of § 25-319(A)(2). The statute directs the court to 

consider whether a spouse can be self-sufficient through “appropriate 

employment” or “earning ability in the labor market[,]” not public 

assistance. A.R.S. § 25-319(A)(2). Although the financial resources 

available to Wife, including public assistance, may be considered in 

determining the amount of any award, those resources do not necessarily 

preclude a finding of eligibility for maintenance. See A.R.S. § 25-319(B)(9) 

(court shall consider “[t]he financial resources of the party seeking 

maintenance, including marital property apportioned to that spouse, and 

that spouse’s ability to meet that spouse’s own needs independently.”).

¶8 Contrary to Husband’s contention, his lack of income and 

financial resources have no bearing on whether Wife qualifies for spousal 
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maintenance under § 25-319(A). See Cotter, 245 Ariz. at 85, ¶ 7. That 

evidence, like public assistance, is relevant when considering the amount 

and duration of any award. See A.R.S. § 25-319(B)(4) (“The ability of the 

spouse from whom maintenance is sought to meet that spouse’s needs 

while meeting those of the spouse seeking maintenance.”), and (5) (“The 

comparative financial resources of the spouses, including their comparative 

earning abilities in the labor market.”). Because Wife qualified for spousal 

maintenance under § 25-319(A)(2), we reverse the denial of spousal 

maintenance and remand for the court to determine the amount and 

duration of any award. 

II. Husband’s Retirement Accounts 

¶9 The superior court found that an equal division of community 

property was equitable. However, the court awarded Husband 100% of the 

three retirement accounts in his name with no offset or equalization 

payment to Wife. Wife argues this was error. We review the allocation of 

community property for an abuse of discretion, but the classification of 

property as separate or community is a question of law we review de novo. 

Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523, ¶ 4 (App. 2007). 

¶10 It is unclear why the superior court awarded the retirement 

accounts to Husband with no offset to Wife. Because neither party 

requested findings of fact or conclusions of law under Rule 82, we

“presume that the [superior] court found every fact necessary to support 

the judgment.” Berryhill v. Moore, 180 Ariz. 77, 82 (App. 1994). But we only 

infer findings of fact and conclusions of law that are reasonably supported 

by the evidence and do not conflict with any express findings. Johnson v. 

Elson, 192 Ariz. 486, 489, ¶ 11 (App. 1998). 

¶11 Husband had an Arizona state employee retirement account 

but spent those funds on living expenses while he was unemployed 

between September 2019 and December 2020. Husband contributed $1,270 

to a retirement account while working at Southwest Key, but he no longer 

had access to those funds for reasons that are unclear from the record. 

Husband also contributed $1,177 to a third retirement account while 

working part-time at MBMINC. 

¶12 The parties seem to agree that Husband’s state retirement 

account was community property and that he used those funds to pay 

living expenses such as the mortgage and homeowner association dues on 

the community home. Wife argues that even though Husband used these 

community funds for a community purpose, she is entitled to one-half of 
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those funds. We disagree. Husband spent these community funds to 

preserve a community asset (the home). This is allowed by statute and does 

not constitute waste. Compare A.R.S. § 25-315(A)(1)(a) (parties may 

continue to use community property to provide for the necessities of life) 

with § 25-318(C) (in allocating community property, courts may consider a 

spouse’s excessive or abnormal expenditures). 

¶13 To the extent that Wife alleges that Husband used those funds 

for an improper purpose, she failed to make a prima facie showing that he 

wasted the funds in the state retirement account. See Gutierrez, 193 Ariz. at 

346, ¶ 7 (“the spouse alleging abnormal or excessive expenditures by the 

other spouse has the burden of making a prima facie showing of waste.”). 

Thus, Wife was not entitled to an offset for her share of the now nonexistent 

state retirement account.

¶14 Husband argues that the Southwest Key retirement account 

is his separate property because he started working there in December 2019, 

after the petition for dissolution was served. By statute, property acquired 

after the date a petition for dissolution is served is the separate property of 

the spouse acquiring it. See A.R.S. §§ 25-211(A)(2); 25-213(B). The date of 

service is unclear. But Wife concedes that it is appropriate to consider the 

community terminated as of the date Husband responded to the petition, 

October 31, 2019. Based on Husband’s testimony, he began working at 

Southwest Key after the community terminated, so that retirement account 

is his separate property. We affirm the ruling awarding Husband 100% of 

the Southwest Key retirement account. 

¶15 The record, however, does not show when Husband worked 

at MBMINC and contributed to that retirement account. If he worked at 

MBMINC and contributed to that retirement account during the marriage, 

those funds are community property. See Johnson v. Johnson, 131 Ariz. 38, 

41 (1981) (retirement benefits acquired during the marriage are community 

property subject to equitable division upon dissolution). Because no 

evidence supports the finding that this account was Husband’s separate 

property, we reverse that ruling and remand for the court to reconsider the 

MBMINC retirement account. 

III. The Student Loans 

¶16 During the marriage, the parties took out two student loans 

for their adult daughter’s college expenses. The superior court found that 

the $16,958.77 student loan was a community debt and ordered each party 

to pay half. In contrast, the court found the $5,500 student loan was Wife’s 
AGUILAR v. AGUILAR

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separate debt. Wife argues that both loans were community debts. We 

review the allocation of community debts for an abuse of discretion, but the 

classification of the debt as separate or community is a question of law we 

review de novo. See Bell-Kilbourn, 216 Ariz. at 523, ¶ 4. 

¶17 The superior court found the $5,500 student loan was Wife’s 

separate debt because it was in her name alone and Husband was unaware 

of it. These facts do not establish that the loan was Wife’s separate debt. A 

debt incurred during marriage for the benefit of the community is 

presumed to be a community debt. Johnson, 131 Ariz. at 44. Husband had 

the burden of overcoming this presumption by clear and convincing 

evidence. Lorenz-Auxier Fin. Grp. v. Bidewell, 160 Ariz. 218, 220 (App. 1989).

¶18 Husband did not show how this debt, unlike the larger 

student loan, was not a community obligation. Additionally, either spouse 

can bind the community except in the case of a guaranty or other exceptions 

not applicable here. See A.R.S. §§ 25-214(C); -215(D). Husband did not 

show that Wife signed the loan as a guarantor. See A.R.S. § 25-214(C)(2). 

Husband also waived his contention that the loan did not benefit the 

community by raising it for the first time on appeal. See Noriega, 243 Ariz. 

at 326, ¶ 27 (arguments not raised below are generally treated as waived). 

Thus, the court erred as a matter of law in characterizing this loan as Wife’s 

separate debt. It was a community obligation. Accordingly, we reverse the 

ruling that the $5,500 student loan was Wife’s separate debt and remand for 

reconsideration.

IV. The Marital Home

¶19 The superior court ordered the parties to sell the marital home 

and divide the remaining equity equally. Wife asked to keep the marital 

home and pay Husband his share of the equity. The court has broad 

discretion in allocating community property, and we will not disturb that 

allocation absent an abuse of discretion. Boncoskey v. Boncoskey, 216 Ariz. 

448, 451, ¶ 13 (App. 2007). In reviewing the court’s allocation, we view the 

evidence in the light most favorable to upholding the decree and will affirm 

if reasonable evidence supports it. Id. 

¶20 Wife argues the superior court abused its discretion by 

ordering the sale because she could have qualified for a loan that would

have allowed her to buy out Husband’s interest in the marital home and 

Husband did not oppose this. Wife, however, had no significant assets and 

her only source of income was $960 a month in disability benefits, which 

she conceded would not cover the mortgage and her living expenses. In 
AGUILAR v. AGUILAR

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fact, the mortgage and homeowner association dues totaled $718 per 

month, and the utilities were over $300 per month. Despite Husband’s 

apparent agreement that Wife could buy out his interest in the marital 

home, the parties did not reach a binding agreement to that effect under 

Rule 69. Regardless, the court need not accept an agreement that it finds 

unfair after it considers the economic circumstances of the parties. See 

A.R.S. § 25-317(B). The court did not abuse its discretion by ordering the 

sale of the marital home given Wife’s limited financial resources. We affirm 

the order to sell the marital home and divide the equity equally. 

V. Waste of Community Property

¶21 Wife contends the superior court erred by rejecting her 

allegation that Husband’s gambling constituted waste of community 

property. The court may consider a spouse’s excessive or abnormal 

expenditures or destruction of community property when apportioning 

community property. See A.R.S. § 25-318(C); Gutierrez, 193 Ariz. at 346, ¶ 6. 

Although the decree did not address Wife’s waste allegation specifically, it 

implicitly rejected this argument when it found that an equal division of 

community property was equitable.

¶22 Because neither party requested findings of fact or 

conclusions of law, we presume the court found every fact necessary to 

support the decree. Berryhill, 180 Ariz. at 82. The evidence showed that 

Husband had a significant gambling habit. Wife also gambled during the 

marriage—perhaps less than Husband, but she too gambled regularly. On 

appeal, we do not reweigh the evidence and affirm the superior court’s 

ruling if substantial evidence supports it. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 

16 (App. 2009). Given the evidence that both parties gambled regularly, we 

cannot say the court abused its discretion by implicitly rejecting Wife’s 

claim for waste.

VI. Attorneys’ Fees and Costs on Appeal

¶23 Both parties request attorneys’ fees and costs on appeal under 

A.R.S. § 25-324(A). In the exercise of our discretion, we order each party to 

pay their own attorneys’ fees. Neither party is entitled to an award of costs 

under A.R.S. § 12-342. 

CONCLUSION

¶24 We reverse the rulings in the decree finding that Wife was not 

eligible for spousal maintenance, awarding Husband 100% of the MBMINC 

retirement account, and finding the $5,500 student loan was Wife’s separate 
AGUILAR v. AGUILAR

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debt. We remand for further proceedings on these issues. In all other 

respects, we affirm the decree.