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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JENNIFER VOREIS WETHE, Petitioner/Appellee,

v.

TROY BURTON WETHE, Respondent/Appellant.

No. 1 CA-CV 19-0185 FC

Appeal from the Superior Court in Maricopa County

No. FC2017-054836

The Honorable Jennifer C. Ryan-Touhill, Judge

AFFIRMED

COUNSEL

Hildebrand Law, P.C., Scottsdale

By Kent Millward

Counsel for Petitioner/Appellee

Sirlin Law Firm, LLC, Phoenix

By Randi S. Sirlin

Counsel for Respondent/Appellant

FILED 1-28-2020
WETHE v. WETHE

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 Troy Burton Wethe (“Husband”) appeals from the family 

court’s award of spousal maintenance in the decree of dissolution and the 

court’s denial of his request for attorneys’ fees. For the following reasons, 

we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Husband married Jennifer Voreis Wethe (“Wife”) in 2000. 

Husband and Wife had two children during the marriage. The parties later 

separated and attempted mediation, but were unable to resolve their 

dispute, and Wife petitioned for dissolution of the marriage in 2017.

¶3 The parties reached an agreement pursuant to Rule 69 of the 

Rules of Family Law Procedure resolving issues regarding legal decisionmaking authority, parenting time, and asset distribution. The court held a 

trial to decide spousal maintenance and Husband’s request for attorneys’ 

fees and costs, among other issues not relevant to this appeal. Husband

requested spousal maintenance of $2,500 per month for eight years.

¶4 At trial, the court heard testimony from both parties 

regarding their respective careers and their standard of living during the 

marriage. Wife is a neuropsychologist, and at the time of trial, she earned 

approximately $170,000 a year. Husband testified at trial that he had 

recently taken a position as a career coach at Grand Canyon University 

earning $50,000 a year, and he supplemented that income as a tennis 

instructor. Husband has a master’s degree in education, specializing in 

counseling psychology, but he testified that prior to his current 

employment, the last time he had a job applying those skills “would have 

been 2006.” He testified that he spent significant time at home caring for 

his children and his ailing father.

¶5 The court awarded Husband spousal maintenance of $1,000 

per month for two years and denied Husband’s request for attorneys’ fees 

and costs. Husband timely appealed, and we have jurisdiction pursuant to 
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Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and

-2101(A)(1).

DISCUSSION

I. Spousal Maintenance

¶6 Husband argues the court abused its discretion in awarding 

him only $1,000 in monthly spousal maintenance for two years. We review 

court orders on spousal maintenance for an abuse of discretion. Boyle v. 

Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012). The court abuses its discretion if it 

makes an error of law in reaching a discretionary conclusion or if the record 

does not support a discretionary ruling. Id. We do not reweigh evidence 

on appeal, and we will affirm the court’s ruling if substantial evidence 

supports it. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).

¶7 In reviewing the amount and duration of an award of spousal 

maintenance, we consider whether the court properly considered the 

factors set out in A.R.S. § 25-319(B). Thomas v. Thomas, 142 Ariz. 386, 390 

(App. 1984). The court need not apply every factor listed in § 25-319(B), as 

some factors may not apply. Cullum v. Cullum, 215 Ariz. 352, 355, ¶ 15 (App. 

2007). Fixed-term maintenance promotes the receiving spouse’s “diligent 

effort to become self-sustaining,” but a court should balance this goal 

against a “realistic appraisal of the probabilities” that the receiving spouse 

can actually become self-sustaining to a “reasonable approximation of the 

standard of living” the spouses enjoyed during the marriage. Rainwater v. 

Rainwater, 177 Ariz. 500, 503 (App. 1993) (citation omitted) (internal 

quotation marks omitted).

¶8 As to the first factor under A.R.S. § 25-319(B), Husband 

contends the court erred in finding the parties enjoyed a “nice, middle-class 

standard of living.” He insists that the parties instead enjoyed a higher 

standard of living, or “an upper, middle class standard of living,” citing 

“expensive wine clubs,” trips, timeshares, late-model cars, and camps for 

one child. In separate pretrial statements, Wife described the parties’ 

standard of living as “average for a 4-person household,” and Husband 

described “an upper middle-class standard of living” with “a nice home in 

Scottsdale” and both parties belonging to “expensive health clubs.” 

Husband testified that the family lived in “a nice house,” had timeshares, 

“went on trips,” and enjoyed “Wine of the Month Clubs.” But the court 

noted that the parties rented, and did not own, the marital home in which 

the family lived prior to separation, and that neither party presented 

credible evidence “the parties took multiple vacations, repeatedly 
WETHE v. WETHE

Decision of the Court

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purchased new vehicles, incurred substantial debt for which they still owe, 

or lived an upper class lifestyle.” That the court found it received “no 

credible evidence” regarding a lifestyle above middle class indicates the 

court considered Husband’s testimony and weighed the credibility of his 

characterization of the parties’ standard of living. We generally defer to the 

findings of the court because “the family court is in the best position to 

judge the credibility of witnesses and resolve conflicting evidence.” Vincent 

v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015). On this record, the court did 

not abuse its discretion in determining the parties’ standard of living.

¶9 Husband also cites health issues that he argues prevent him 

from maintaining appropriate employment: a prior stroke, “CADASIL, an 

early onset dementia disease,” and he was issued “a permanent handicap 

placard.” The court found “no credible evidence” that demonstrated 

Husband “has any physical or mental health issues” impacting his ability

to seek or maintain employment. See A.R.S. § 25-319(B)(3). The record 

supports this finding. Husband’s separate pretrial statement does not 

mention either medical condition, and Husband did not testify that he had 

been diagnosed with CADASIL, that he had any ongoing effects from a 

stroke, or that he faced any other health limitations. Because Husband did 

not raise these arguments before the court, they are deemed waived, and

we do not consider them here. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 

530, 535, ¶ 18 (App. 2007). We find no error in the court’s finding that 

Husband does not have physical or mental issues affecting his ability to find 

and maintain employment.

¶10 Husband raises other arguments contesting the court’s 

findings under A.R.S. § 25-319(B).1 He argues that the court’s spousal 

maintenance award did not adequately account for his contributions to 

Wife’s career, did not address the disparity in the parties’ salaries, and did 

not consider sufficiently the reasonableness of the community property 

division in relation to his “reasonable needs.” Husband also contests the 

court’s finding, under A.R.S. § 25-319(B)(11), that it received “no credible 

evidence” of concealment of property held in common. He argues instead 

that he presented evidence of Wife’s concealment of community funds. 

However, the court’s finding makes it clear that it did not find “credible” 

evidence on concealment of community funds. The key is that the court did 

not find whatever evidence it heard to be credible. As such, Husband’s 

1 In his appellate brief, Husband describes the spousal maintenance 

award as “non-modifiable.” However, the court explicitly ordered that 

“the award shall be modifiable as to amount and duration in accordance 

with A.R.S. § 25-327.”
WETHE v. WETHE

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additional arguments essentially ask us to reweigh evidence presented to 

the court; we will not do so. Hurd, 223 Ariz. at 52, ¶ 16. The court, in its 

fact-finding role, is tasked with making credibility determinations. Here, 

the record supports the court’s findings as to each factor under § 25-319(B) 

and its credibility determinations. In fact, the record is replete with 

evidence which contradicts Husband’s position at trial. For instance, 

having heard the parties’ testimony, the court found that “[i]f [Wife] is 

correct, [Husband] was not a stay-at-home parent from 2007 to 2013,” that 

“[Wife] testified that [Husband] was underemployed during the recent 

years in their marriage,” and that “[Wife] testified the parties hired a nanny 

who worked with the family almost fulltime and actually moved with the 

family to Indianapolis.” On this record, there is a sufficient basis to hold 

the court did not abuse its discretion in determining the amount and 

duration of the spousal maintenance award.

II. Attorneys’ Fees

¶11 Husband argues that the court should have granted his 

request for attorneys’ fees and costs. Husband contends that the court 

abused its discretion in considering how much each party paid toward the 

mediation and argues that the funds were community property. We review 

a ruling on a fee request for abuse of discretion. Myrick v. Maloney, 235 Ariz. 

491, 494, ¶ 6 (App. 2014).

¶12 A court may, in its discretion, award attorneys’ fees after 

considering the financial resources of each party and the reasonableness of 

the parties’ positions. A.R.S. § 25-324(A); Myrick, 235 Ariz. at 494, ¶ 9. Here, 

the court expressly addressed each. Despite finding a “substantial” 

disparity in financial resources, the court denied Husband’s request for 

attorneys’ fees and costs because he “acted unreasonably” during the 

litigation and in ultimately entering agreements “strikingly similar” to 

those he had rejected over a year prior. The court also found Wife’s 

testimony regarding the ineffective mediation more credible than 

Husband’s testimony. See Vincent, 238 Ariz. at 155, ¶ 18 (noting “the family 

court is in the best position to judge the credibility of witnesses” and that 

appellate courts generally defer to the family court’s findings). As to his 

generalized argument that the court improperly characterized the 

payments for mediation, Husband fails to articulate clearly which 

payments were improperly attributed. Finding sufficient support on the 

record for the court’s findings that Wife paid the majority of the fees 

associated with the parties’ pre-decree mediation, we find no error.
WETHE v. WETHE

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¶13 Both parties request attorneys’ fees and costs pursuant to 

A.R.S. § 25-324, and Wife requests fees and costs pursuant to ARCAP 25. In 

our discretion, we deny both requests for attorneys’ fees. As the prevailing 

party, however, Wife is awarded her taxable costs on appeal upon 

compliance with ARCAP 21(b).

CONCLUSION

¶14 For the foregoing reasons, we affirm the court’s award of 

spousal maintenance and its decision to deny Husband’s request for 

attorneys’ fees, and we award Wife her taxable costs on appeal.