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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PETER C. WARNER, Petitioner/Appellant,

v.

KIMBERLY DRIGGS-WARNER, Respondent/Appellee.

No. 1 CA-CV 21-0732 FC

Appeal from the Superior Court in Maricopa County

No. FC2020-003670

The Honorable Suzanne Marie Nicholls, Judge

AFFIRMED IN PART, VACATED IN PART, REVERSED IN PART, 

AND REMANDED

COUNSEL

Dickinson Wright, PLLC, Phoenix

By Marlene A. Pontrelli, Leonce A. Richard, III, James Lawson, Vail C. 

Cloar, Alexandra Crandall

Counsel for Petitioner/Appellant

Mark J. DePasquale, PC, Phoenix

Co-Counsel for Respondent/Appellee

Schmidt McElwee & Gordon, PLLC, Phoenix

By Paul G. Schmidt, Tracy Gordon

Co-Counsel for Respondent/Appellee

FILED 3-9-2023
WARNER v. DRIGGS-WARNER

Decision of the Court

2

MEMORANDUM DECISION

Judge Peter B. Swann1 delivered the decision of the court, in which 

Presiding Judge Maria Elena Cruz and Judge Angela K. Paton joined.

S W A N N, Judge:

¶1 Peter C. Warner (“Husband”) appeals from the decree 

dissolving his marriage to Kimberly Driggs-Warner (“Wife”). Husband 

challenges the superior court’s evidentiary rulings, characterization and 

valuation date of several financial accounts, spousal maintenance award, 

child support award, and attorney’s fees award. We vacate and remand the 

court’s division of Husband’s retirement accounts. We reverse Wife’s 

spousal maintenance award. We vacate and remand Husband’s child 

support obligation. In all other aspects, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife divorced after more than twenty years of 

marriage. In November 2020, the superior court set trial for June 2021. 

Husband, a retired attorney, moved unsuccessfully to continue the trial. 

After obtaining new counsel, Husband again asked the court to continue

the trial. The court granted Husband’s continuance in an order filed June 

9, 2021, and reset the date for a one-day trial in July. The June order also 

specified the new deadlines for discovery and disclosure.

¶3 On July 2, Wife moved to preclude Husband’s expert witness 

and over 1,000 pages of documents as untimely disclosed on July 1. On July 

20, the court granted Wife’s request. Husband’s expert witness had 

performed a tracing analysis concerning certain accounts, and the court 

precluded that evidence. The additional documents the court precluded 

1 Judge Peter B. Swann was a sitting member of this court when the 

matter was assigned to this panel of the court. He retired effective 

November 28, 2022. In accordance with the authority granted by Article 6, 

Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the 

Chief Justice of the Arizona Supreme Court has designated Judge Swann as 

a judge pro tempore in the Court of Appeals for the purpose of participating 

in the resolution of cases assigned to this panel during his term in office and 

for the duration of Administrative Order 2022-162.
WARNER v. DRIGGS-WARNER

Decision of the Court

3

contained some of Husband’s financial statements, tax returns, tax forms, 

and letters.

¶4 The court held a one-day trial on July 27, 2021. Three 

witnesses testified at the trial: Husband, Wife, and Wife’s father, Jerry 

Driggs. During the trial, the court denied Husband’s request to use four 

demonstrative charts during his testimony and to have additional trial time.

¶5 Two months later, the court issued its dissolution decree. The 

court adopted the parties’ agreement concerning the division of their real 

property, most personal property, and most financial accounts. The court 

also addressed the characterization of certain financial accounts, which the 

parties disputed.

¶6 At issue in this appeal are the following rulings:

The court found that Husband failed to prove that the funds 

used to start his retirement accounts, the E*Trade Roth IRA 

#3012 and the Rollover IRA #3019, were his sole and separate 

property. The court found the accounts to be community 

property and divided them equally. The court also awarded 

Husband the withdrawals of the Rollover IRA #3019 after the 

date of service as his sole and separate property and found 

any related tax liability his sole responsibility.

The court found that the Merrill Edge 529 plan account was 

community property because Husband failed to prove that

fifty percent of the original funds used to open the account 

were his sole and separate property.

The court found that the funds used to open the 

Commonwealth account x7788 were Wife’s sole and separate 

property and awarded her the account.

The court found that Wife qualified for spousal maintenance

and awarded Wife spousal maintenance of $2,000 per month 

for three years. The court attributed Husband’s income to be

$45,000 and ordered Husband to pay $1,577 per month in 

child support. 

Lastly, the court found after consideration of financial 

resources and reasonableness of positions that Husband shall 

pay a portion of Wife’s reasonable attorney’s fees and costs

pursuant to A.R.S. § 25-324(A) and A.R.S. § 25-415. The court 
WARNER v. DRIGGS-WARNER

Decision of the Court

4

issued a judgment and order requiring Husband to pay Wife 

$110,000 in attorney’s fees.

¶7 Husband appeals.

DISCUSSION

I. THE COURT DID NOT ABUSE ITS DISCRETION BY EXCLUDING 

HUSBAND’S DOCUMENTARY EVIDENCE, EXPERT WITNESS, 

AND CHARTS CREATED BY HUSBAND’S EXPERT.

A. Documentary Evidence and Husband’s Expert Witness

¶8 Husband first contends that the court erroneously precluded 

his documentary evidence and his expert witness because they were timely 

disclosed. The trial court has broad discretion in ruling on disclosure and 

discovery matters, and we do not disturb those rulings absent an abuse of 

discretion. Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013). We 

review the court’s interpretation of its own June order de novo. See Cohen 

v. Frey, 215 Ariz. 62, 66, ¶ 10 (App. 2007).

¶9 On Husband’s motion, the court continued the trial to July 27, 

2021. The court also amended the disclosure and discovery deadlines in the 

June order:

1. Both parties shall complete all disclosure requirements 

required by Rules 49, 50 and 91, Arizona Rules of Family Law 

Procedure, including an exchange of all relevant information, 

documents and exhibits at least 30 days prior to trial unless 

the Court set another discovery deadline. . . . .

2. All depositions and discovery contemplated by Rules 49 

through 65, Arizona Rules of Family Law Procedure, shall be 

completed and any motions regarding discovery shall be filed 

no later than July 2, 2021.

¶10 Husband disclosed his expert witness and over 1,000 pages of 

documents on July 1, 2021—one day before the inarguably final day for 

completion of discovery. Wife filed a motion in limine to preclude 

Husband’s documentary evidence and expert witness as untimely 

disclosures, and the court granted Wife’s motion.

¶11 Husband contends that his expert witness and documentary 

evidence were timely disclosed because he provided them by July 2, 2021. 
WARNER v. DRIGGS-WARNER

Decision of the Court

5

But the June order expressly differentiated between the “discovery” and 

“disclosure” deadlines. The first paragraph references “disclosure 

requirements”; the second paragraph references “all depositions and 

discovery.”

¶12 The court correctly found that Husband failed to meet the 

deadline for disclosure. Under any reasonable interpretation of the court’s 

order or the rules, disclosure that occurs one day before the close of 

discovery is untimely. Such last-minute disclosure provides the opposing 

party no meaningful opportunity to conduct discovery based on the 

disclosures and amounts to little more than sandbagging. Our rules 

contemplate that disclosure precedes discovery, and the court rightly found 

a violation. Husband, a retired lawyer himself, did not argue that the late 

disclosure was his counsel’s fault. And because no children’s interests were 

at stake in this case, the court acted within its discretion when it precluded 

Husband’s untimely disclosed evidence.

B. Charts Created by Husband’s Expert

¶13 Husband also contends that the court erroneously precluded 

him from presenting four demonstrative charts during his testimony. We 

review the superior court’s evidentiary rulings for abuse of discretion and 

resulting prejudice. James A. v. Dep’t of Child Safety, 244 Ariz. 319, 321, ¶ 7 

(App. 2018).

¶14 At trial, Husband did not mark the charts as exhibits,

representing instead that they were for demonstrative purposes only. 

Husband testified that the charts summarized only information contained 

in Exhibits 30 and 31, which related to his retirement accounts, but

acknowledged that he provided the data for the charts but did not prepare 

them himself. Wife objected to the use of the charts, because (1) they were 

prepared by the expert whose testimony and report the court had already 

precluded, and (2) they summarized information not contained within the 

admitted exhibits.

¶15 Arizona Rule of Evidence 1006 permits use of a summary or 

chart as an alternative to voluminous records. “The person creating a 

summary will ordinarily be required to lay the foundation and be available 

for cross-examination.” Ariz. R. Evid. 1006 cmt. to original 1977 rule. 

Though the voluminous records do not need to be placed into evidence, 

they must be admissible and made available to the opposing party for 

inspection. Rayner v. Stauffer Chem. Co., 120 Ariz. 328, 333–34 (App. 1978). 
WARNER v. DRIGGS-WARNER

Decision of the Court

6

The Rule is not an alternate means of introducing inadmissible evidence or 

evidence the court has precluded.

¶16 Husband contends that he sought to use the charts merely as

pedagogical tools to summarize already admitted Exhibits 30 and 31 in a 

visual form. But the charts clearly went beyond the scope of admitted 

Exhibits 30 and 31, containing information not admitted into evidence. See 

Standard Charted PLC v. Price Waterhouse, 190 Ariz. 6, 47–48 (App. 1996) 

(pedagogical devices may not represent nonexistent or inaccurate 

evidence); see also U.S. v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991) 

(pedagogical devices summarize documents already admitted into 

evidence). The court did not abuse its discretion by prohibiting Husband 

from referencing the charts created by Husband’s expert.

C. Due Process

¶17 Husband argues that the preclusion of his expert witness, 

documentary evidence, and charts had the cumulative effect of denying 

him due process. We review constitutional issues, including alleged 

violations of due process, de novo. Wassef v. Ariz. State Bd. of Dental Exam’rs, 

242 Ariz. 90, 93, ¶ 11 (App. 2017).

¶18 Due process requires “notice and opportunity to be heard in 

a meaningful manner and at a meaningful time.” Id. at ¶ 12 (citation 

omitted). Due process includes the “right to offer evidence.” Gaveck v. Ariz. 

Bd. of Podiatry Exam’rs, 222 Ariz. 433, 437, ¶ 14 (App. 2009). “[D]ue process 

requires the court to allow parties a reasonable opportunity to present 

testimony whenever resolution of a material contested issue hinges on 

credibility.” Volk v. Brame, 235 Ariz. 462, 466, ¶ 14 (App. 2014).

¶19 But due process does not excuse noncompliance with 

reasonable procedural rules or deadlines, and Husband’s failure to comply

with such deadlines—not lack of opportunity—deprived him of the 

opportunity to present some of his evidence. The court’s June order, the 

Arizona Rules of Family Law Procedure, and the Arizona Rules of Evidence 

placed the parties on notice about the procedural rules governing evidence 

admissibility and expert testimony. See Ariz. R. Evid. 1006; ARFLP 49(j). 

Husband forfeited his opportunity to present evidence by failing to comply

with the court’s reasonable procedural rules. The court did not deprive 

Husband of his due process rights.
WARNER v. DRIGGS-WARNER

Decision of the Court

7

II. THE COURT DID NOT ABUSE ITS DISCRETION OR COMMIT 

LEGAL ERROR BY DENYING HUSBAND’S REQUEST FOR 

ADDITIONAL TRIAL TIME.

¶20 Husband next contends that the court erred in denying his

request for additional trial time. “The court may impose reasonable time 

limits appropriate to the proceedings.” ARFLP 22(A). We review the 

enforcement of trial time limits for abuse of discretion and will not reverse 

unless a party can demonstrate that it suffered prejudice because of the time 

limits. Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 90–91, ¶¶ 29–30 (App. 

1998).

¶21 Both parties received notice multiple times before the trial, 

beginning November 12, 2020, about the one-day trial limit. The parties 

agreed before the trial on many issues, so fewer issues remained for trial. 

Also, the parties had time to prepare for trial, knowing the time constraints,

from November 2020 to July 2021.

¶22 Due process demands that “the court [ ] afford litigants 

adequate time to present their evidence.” Volk, 235 Ariz. at 468, ¶ 19. 

During the trial, the court assisted the parties with timekeeping, tracking

their time and reminding them about time remaining. There has been no 

showing that Husband lacked the opportunity to present relevant evidence 

in a proper manner, and the court did not abuse its discretion or violate due 

process by denying him additional trial time.

III. THE COURT ERRED IN ITS CLASSIFICATION OF HUSBAND’S 

RETIREMENT ACCOUNTS, AND CORRECTLY 

CHARACTERIZED THE WITHDRAWALS FROM HUSBAND’S 

ROLLOVER IRA #3019, THE 529 PLAN ACCOUNT, AND WIFE’S 

COMMONWEALTH ACCOUNT X7788.

¶23 Husband contends that the court erred in the classification of 

property in his retirement accounts, the 529 plan account, and the 

Commonwealth account x7788. 

¶24 We review the superior court’s characterization of property 

as separate or community property de novo. In re Marriage of Pownall, 197 

Ariz. 577, 581, ¶ 15 (App. 2000). We defer to the superior court’s 

“determination of witnesses’ credibility and the weight to give conflicting 

evidence.” Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998). We 

review the record in the light most favorable to affirming when examining 

the nature of the property as community or separate. Sommerfield v. 

Sommerfield, 121 Ariz. 575, 577 (1979).
WARNER v. DRIGGS-WARNER

Decision of the Court

8

¶25 Property acquired by the parties during the marriage is 

presumed to be community property, unless acquired by gift, devise, or 

descent, or after the service of a petition for dissolution of marriage. A.R.S. 

§ 25-211. The spouse contending that the property acquired after the 

marriage is his or her separate property has the “burden of establishing the 

separate character of the property by clear and convincing evidence.” 

Cockrill v. Cockrill, 124 Ariz. 50, 52 (1979). A spouse’s real and personal 

property owned before the marriage is that spouse’s separate property. 

A.R.S. § 25-213(A). Whether property is community or separate “becomes 

fixed at the time it is acquired.” Porter v. Porter, 67 Ariz. 273, 281 (1948)

(citation omitted). A mere change in form does not change the property’s 

character as community or separate. Id. at 283.

¶26 When separate and community property are commingled, 

resulting in the loss of the separate property’s identity in a combined fund, 

the character of the property can be transmuted from separate to 

community. Id. at 282–83. The court presumes the commingled funds to 

be community property unless the separate property can be explicitly 

traced. Id. at 281–82.

A. Husband’s Retirement Accounts

¶27 First, Husband contends that the court erred by

characterizing his retirement accounts as community property.

1. Husband’s E*Trade Roth IRA #3012

¶28 Husband argues that the court erred by characterizing his 

E*Trade Roth IRA #3012 account as community property. We agree. The 

court found that Husband did not prove the funds used to start the original 

account derived from his sole and separate property.

¶29 Although it is undisputed that Husband opened the E*Trade 

Roth IRA #3012 account during the marriage, the evidence demonstrates 

that Husband’s separate property funded the account. Husband’s 

accounting statements clearly show Husband had sole and separate 

property in his Rollover IRA through the Salomon Smith Barney Account 

from before the marriage. Husband had a total value of $107,447.93 in his 

Rollover IRA Salomon Smith Barney account on December 31, 1999.

¶30 Even though the record is sparse, Husband testified that he 

converted his Rollover IRA to a Roth IRA in 2012. Although the court found 

Husband to not be credible, his testimony is supported by the statement 

containing the line “Rollover Conversion” showing a deposit made in 
WARNER v. DRIGGS-WARNER

Decision of the Court

9

December 2012 to his Just 2 Trade account. Husband testified that he

contributed to the account once during the marriage, in 2012, using 

community funds. The deposit would not cause the separate property to 

lose its character because the separate property is still traceable. The court 

failed to provide any tracing analysis identifying the portion of the E*Trade 

Roth IRA #3012 that was Husband’s separate property. We therefore 

vacate that portion of the decree and remand for further proceedings.

2. Husband’s Rollover IRA #3019

¶31 Husband argues that the court erred by characterizing his 

Rollover IRA #3019 account as community property. We agree. The court 

found that Husband failed to prove the funds used to start the original

account were his sole and separate property.

¶32 Even though Husband opened the Rollover IRA #3019 during 

the marriage, once more, Husband’s accounting statements clearly show 

Husband had separate property in his money purchase plan from before 

the marriage. A.R.S. § 25-213. Husband had $110,382.97 in his money 

purchase plan as of December 31, 1999. Husband testified that he rolled 

over $115,165 from his money purchase plan to his profit-sharing plan in 

2003. Husband also testified that he then rolled over the profit-sharing plan 

in May 2013 to the Rollover IRA #3019. Again, even though the court found 

Husband to not to be credible, his tax returns corroborate that in 2003 the 

profit-sharing plan received the $115,165 from a source other than 

contributions.

¶33 Husband testified that he made six contributions throughout 

the marriage to the account from 2000 to 2009 using community funds. 

Husband provided supporting documentation of each contribution made. 

Husband also stated that he made no more contributions after 2009. The 

court did not identify and allocate any of Husband’s sole and separate 

property. Because Husband clearly has separate property from before the 

marriage that formed part of the account, we vacate the court’s order 

dividing Husband’s Rollover IRA #3019 and remand.

3. Husband’s Withdrawals from Rollover IRA #3019

¶34 Husband also argues that the court erred by finding the 

withdrawals he made after the date of service from the Rollover IRA #3019 

to be from his separate and sole property, along with any tax liability.

¶35 Husband began taking disbursements from the Rollover IRA 

#3019 in May 2020. Husband withdrew over $130,000 from the account. 
WARNER v. DRIGGS-WARNER

Decision of the Court

10

Husband testified that he used the withdrawals made after the date of 

service for community expenses.

¶36 But Husband failed to introduce any financial statements or 

documents at trial corroborating his testimony. Husband asserted he ran 

out of time at trial to introduce any trial exhibits supporting his testimony, 

but we do not perceive any lack of opportunity to refer to the exhibits. 

Finding no error, we affirm this portion of the decree.

4. QDRO Specialist

¶37 Husband also contends that the court erred by not allowing a 

QDRO specialist to perform a tracing analysis of the retirement accounts. 

But the court is not required to appoint experts to help Husband prove his 

case. On remand, if implementation of the decree would benefit from the 

services of a QDRO specialist, the parties are free to engage one.

B. 529 Plan Account

¶38 Second, Husband contends that the court erred by 

characterizing the 529 plan account as community property.

¶39 It is undisputed that the parties opened the 529 plan account 

during the marriage. The parties opened the account with $50,000 from 

Husband’s Merrill Lynch account and $50,000 from an undisputed

community property source. Husband argues that the Merrill Lynch 

account is his sole and separate property, so half of the 529 plan account 

likewise is his separate property.

¶40 Though some funds in the Merrill Lynch account may have 

been his separate property, Husband deposited a substantial amount of 

presumptively community property funds into the Merrill Lynch account

during the marriage. The deposit commingled with any separate property 

in the account, rendering the Merrill Lynch account community property. 

Porter, 67 Ariz. at 281–82. At trial, Husband failed to provide evidence to 

trace the source of this deposit. Husband asserts that he has documents to 

trace the deposit, but those were precluded as not timely disclosed, a ruling 

we have affirmed. Therefore, the Merrill Lynch funds used to open the 529

plan account are community property, so the 529 plan account is fully 

community property. The court did not err by awarding Wife one-half of 

the 529 plan account.
WARNER v. DRIGGS-WARNER

Decision of the Court

11

C. Wife’s Commonwealth Account x7788

¶41 Third, Husband also contends that the court erred by 

characterizing Wife’s Commonwealth account x7788 as her sole and 

separate property. The court found that Wife provided clear and 

convincing evidence tracing the funds used to open the Commonwealth 

account from her separate property.

¶42 It is undisputed that Wife opened the Commonwealth 

account during the marriage. Wife sold real property, undisputedly 

characterized as her separate property from before the marriage, in January 

2003 for $154,391.45. Wife deposited the proceeds from the property’s sale 

into her separate bank account on January 2, 2003. Wife deposited her 

paychecks, which were community property, into the bank account during 

2003, thereby commingling the community property with her separate 

property.

¶43 Husband contends that Wife did not trace her separate 

property after commingling her bank account. But the $100,000 from Wife’s 

bank account used to open the Commonwealth account on December 22, 

2003, can be traced to the separate property funds from her property’s sale. 

Wife opened the Commonwealth account in the same year she received the 

proceeds from her property’s sale. Wife only made about $36,000 in income 

during 2002 and 2003, so the $100,000 could not have derived from her 

income. Additionally, before Wife deposited the sale’s proceeds in her bank 

account, she only had $5,728 in the account. Thus, sufficient evidence exists 

that Wife used her separate property’s proceeds to fund the $100,000 used 

to open the Commonwealth account.

¶44 Husband also argues that the court’s failure to divide the 

Commonwealth account is inconsistent with its rulings about Husband’s 

retirement accounts and Wife’s American Funds IRA #7210. We have 

vacated and remanded with respect to the issue regarding Husband’s 

retirement accounts. Wife’s American Funds IRA #7210 is a different 

account with different evidence provided. We conclude that the court did 

not commit legal error by awarding Wife the Commonwealth account as 

her sole and separate property.

IV. THE COURT DID NOT ABUSE ITS DISCRETION BY DIVIDING 

THE COMMUNITY SHARE OF THE E*TRADE #3880 ACCOUNT 

AS OF THE DATE OF SERVICE.

¶45 Husband contends that the court erred in dividing the 

E*Trade #3880 account held in Wife’s name as of the date of service. He
WARNER v. DRIGGS-WARNER

Decision of the Court

12

argues that the account increased in value after the marital community 

terminated in June 2020, and the account should be divided as of the date 

of distribution.

¶46 We review valuation dates for abuse of discretion. Sample v. 

Sample, 152 Ariz. 239, 241–42 (App. 1986). The valuation date chosen by the 

court “rests within the wide discretion of the trial court and will be tested 

on review by the fairness of the result.” Id. at 242–43.

¶47 Before the trial, the parties agreed that the E*Trade #3880 

account was community property awarded to Wife, subject to an offset to 

Husband for his one-half community interest. Before trial, the parties 

disputed the account’s value, but they did agree to reduce the account by

$7,088 for the parties’ 2018 amended returns. Although Husband now 

argues for the account’s division as of the date of distribution, he admitted 

that he provided no evidence at trial to support his position that the account 

appreciated in value. Rather, only Wife testified about the E*Trade account, 

stating its division should be as of the date of service, when its balance was 

$125,522.

¶48 We perceive no abuse of discretion in the selection of the date 

of service as an appropriate and fair valuation date. We affirm the division 

of the account as of the date of service.

V. THE COURT ERRED IN ITS AWARD OF SPOUSAL 

MAINTENANCE.

¶49 Husband contends that the court erred by awarding Wife 

spousal maintenance. The court awarded Wife $2,000 per month for three 

years. We review spousal maintenance awards for an abuse of discretion. 

Gutierrez, 193 Ariz. at 348, ¶ 14. We review whether the court properly 

applied the law to its factual findings de novo. See Pownall, 197 Ariz. at 580, 

¶ 7.

¶50 To be eligible for spousal maintenance, the spouse must meet 

at least one of the criteria enumerated in A.R.S. § 25-319(A). At the time 

relevant to this case, the statute required that the spouse seeking spousal 

maintenance either (1) lack sufficient property to provide for that spouse’s 

reasonable needs; (2) be unable to be self-sufficient through appropriate 

employment; (3) have made a significant financial or other contribution to 

the education, training, vocational skills, career or earning ability of the 

other spouse; (4) have a marriage of long duration and is of an age that may 

preclude becoming self-sufficient; or (5) have significantly reduced his or 

her spouse’s income or career opportunities for the benefit of the other 
WARNER v. DRIGGS-WARNER

Decision of the Court

13

spouse. A.R.S. § 25-319(A). The purpose of spousal maintenance is to 

“achieve an independence for both parties and to require an effort toward 

independence by the [spouse] requesting maintenance.” Schroeder v. 

Schroeder, 161 Ariz. 316, 321 (1989).

¶51 Although the court made factual findings about all the

criteria, none of its findings support an award. First, the court found, and 

the record supports, that Wife received and has substantial assets—several 

hundred thousand dollars—not that she lacked the resources necessary to 

meet her needs. See A.R.S. § 25-319(A)(1). Second, the court found, and the 

record supports, that Wife is highly skilled and holds assets with potential 

to produce future income. The court found that Wife’s income has been 

averaging $45,000 per year over the last ten years. Wife earned $107,611 in 

2019, showing that Wife can maintain appropriate employment to be selfsufficient. See A.R.S. § 25-319(A)(2).

¶52 For the third and fifth criteria, the court found no evidence to 

suggest that Wife should receive spousal maintenance. See A.R.S. § 25-

319(A)(3), (5). Lastly, for the fourth criterion, the court did acknowledge 

that the parties had a marriage of long duration, over twenty years. But the 

court did not find that Wife’s age precludes her from gaining employment 

adequate to be self-sufficient. The court found that Wife is fifty-one years 

old, and that she can maintain employment. Although the court found that 

her income would not be at a level to meet her current lifestyle, it

established that Wife is highly skilled and consistently employed.

¶53 Based on its own factual findings, the court erred in its 

conclusion that Wife is entitled to spousal maintenance. We reverse the 

spousal maintenance award.

VI. THE COURT ERRED IN ITS CALCULATION OF HUSBAND’S

INCOME FOR PURPOSES OF CHILD SUPPORT.

¶54 Husband also contends that the court erred by finding that his 

income was $45,000 per month for purposes of child support. Husband

argues that the court erred in calculating his income by including 

unrealized gains instead of actual, realized gains from Husband’s sole and 

separate brokerage accounts.

¶55 We review a court’s award of child support for abuse of 

discretion, but we review its interpretation of the then-applicable version 

of the Arizona Child Support Guidelines (“Guidelines”), A.R.S. § 25-320 

app. (2018), de novo. Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21 

(App. 2008). When interpreting the Guidelines “we look first to their plain 
WARNER v. DRIGGS-WARNER

Decision of the Court

14

language . . . [and] strive to interpret the relevant section in conjunction 

with other provisions of the Guidelines and consistent with their overall 

purpose.” Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 10 (App. 2015).

¶56 Husband calculated his income to be somewhat over $8,000 

monthly. For her part, Wife calculated Husband’s income to be $45,000 

monthly. The difference in the parties’ calculations appears to derive from 

Husband’s monthly unrealized capital gains from his interactive brokerage 

account, as the account increased in value approximately $174,000 over the 

course of five months, or about $35,000 monthly. The court calculated child 

support using $45,000 as Husband’s income because it found Wife’s 

testimony, not Husband’s, to be credible regarding Husband’s earnings.

¶57 Gross income, for purposes of child support, includes 

“income from any source, and may include, but is not limited to . . . capital 

gains. Cash value shall be assigned to in-kind or other non-cash benefits.”

Guidelines § 5(A) (2018). The court must value unexercised, vested,

matured stock options on a case-by-case basis, and it is not required to 

follow any single valuation method. Engel v. Landman, 221 Ariz. 504, 514, 

¶¶ 40–41 (App. 2009); see also In re Marriage of Robinson, 201 Ariz. 328, 334, 

¶ 16 (App. 2001). Although vested, unexercised stocks have some value as 

income, the “investment decisions or whims of the employee parent”

should not determine child support. Robinson, 201 Ariz. at 333, ¶ 12; Engel, 

221 Ariz. at 513–14, ¶¶ 38, 40. The assumption that options will appreciate 

each year “does not comport with the realities of the market.” Engel, 221 

Ariz. at 513, ¶ 39. The valuation method selected by the court should 

consider “the nature of the stock options, market conditions, tax 

consequences, ease of application, and other facts and circumstances 

peculiar to each case.” Robinson, 201 Ariz. at 334, ¶ 16; see also Engel, 221 

Ariz. at 514, ¶ 42.

¶58 Regarding Husband’s interactive brokerage account, 

Husband asserts that he “never sold the assets in question and therefore did 

not realize any capital gains or income.” There is no evidence that he 

realized any income from these market gains. Similarly, in Engel, the court 

calculated the father’s income by including the appreciation in value of his

vested, unexercised stocks. 221 Ariz. at 513, ¶¶ 34–35. The court erred by 

using this valuation method in Engel because it relied on market 

fluctuations that did not affect funds available for child support. Id. at ¶ 39. 

Here, the court also erred by including Husband’s unrealized capital gains 

in his gross income.
WARNER v. DRIGGS-WARNER

Decision of the Court

15

¶59 The court abused its discretion by calculating Husband’s 

monthly gross income to be $45,000. We vacate and remand Husband’s

child support obligation in accordance with this decision.

VII. THE COURT DID NOT ABUSE ITS DISCRETION IN AWARDING 

WIFE ATTORNEY’S FEES.

¶60 Husband contends that the court erred by requiring him to 

pay Wife $110,000 in attorney’s fees. We review a fee award for abuse of 

discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011). The 

court may order a party to pay a reasonable amount to the other party for 

attorney’s fees after considering the financial resources and the 

reasonableness of the parties’ positions throughout the litigation process. 

A.R.S. § 25-324(A).

¶61 The court found that Husband has considerably more 

financial resources available to him than Wife, and that he acted 

unreasonably during the litigation process. The court specified how 

Husband had been unreasonable: he cancelled mediation without good 

cause; failed to participate in good faith settlement discussions; advanced 

numerous claims of community interest in properties he knew the 

community did not have an interest in; failed to provide timely disclosures 

and discovery; insisted Wife provide further disclosure; withdrew money 

from the Rollover IRA #3019 without Wife’s knowledge after the date of 

service; and tried to undo a Rule 69 agreement without good cause. The 

court also found Husband knowingly advanced a false claim under A.R.S. 

§ 25-415.

¶62 These findings are adequate to justify an award of fees, and 

the record supports them. We affirm the award.

ATTORNEY’S FEES ON APPEAL

¶63 Both Husband and Wife request attorney’s fees on appeal 

pursuant to A.R.S. § 25-324 and ARCAP 21. In the exercise of our discretion, 

we deny their requests for attorney’s fees on appeal. Husband is entitled to 

his costs on appeal, pending compliance with ARCAP 21.
WARNER v. DRIGGS-WARNER

Decision of the Court

16

CONCLUSION

¶64 We vacate and remand the court’s division of Husband’s 

retirement accounts. We reverse Wife’s spousal maintenance award. We 

vacate and remand the court’s child support calculation. In all other 

aspects, we affirm.