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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JENIFER AYCOCK NELSON, Petitioner/Appellant,

v.

STEVEN RICHARD NELSON, Respondent/Appellee.

No. 1 CA-CV 23-0098 FC

Appeal from the Superior Court in Maricopa County

No. FN2021-050782

The Honorable James Knapp, Judge

AFFIRMED

COUNSEL

Colburn Hintze Maletta, PLLC, Phoenix

By Robyn Barrett

Counsel for Petitioner/Appellant

Adam C. Rieth, PLLC, Mesa

By Adam C. Rieth

Counsel for Respondent/Appellee

FILED 1-30-2024
NELSON v. NELSON

Decision of the Court

2

MEMORANDUM DECISION

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

Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.

B A I L E Y, Judge:

¶1 Jenifer Aycock Nelson (“Wife”) appeals portions of the 

superior court’s decree of dissolution of her marriage to Steven Richard 

Nelson (“Husband”). Finding Wife’s arguments unavailing, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 The parties married in 1989 and have no minor children. They 

opened a PostNet packing and shipping store together in 2008 and a second 

one about a decade later, then closed the original location in 2018. Husband 

ran the business, and Wife worked as a teacher. 

¶3 In April 2021, Wife petitioned to dissolve the marriage. Wife 

also moved for temporary orders for Husband to pay at least half of the 

monthly household expenses or, alternatively, for the immediate sale of the 

marital home. She asserted Husband made no financial contributions 

toward the home and, to prevent foreclosure, she had to borrow money 

from her parents. 

¶4 With the court’s permission, Wife filed an amended 

dissolution petition in October 2021. In her amended petition, Wife 

contended she was the sole contributor to the shared financial obligations 

and household expenses, and that Husband “may have committed acts of 

community waste.”

¶5 After the parties sold the marital home in January 2022, Wife 

moved to freeze the proceeds from the sale and requested the funds be held 

in her attorney’s trust account. Later that month, Wife’s counsel informed

Husband that his initial disclosure statement pursuant to Arizona Rule of 

Family Law Procedure (“Rule”) 49 contained “several deficiencies” and 

1 We view the evidence in the light most favorable to upholding the 

superior court’s rulings. Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005).
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3

asked Husband to provide statements for his bank and credit card accounts. 

Husband did not respond.

¶6 In February 2022, the court granted Wife’s motion to freeze 

the home sale proceeds and ordered the funds to be held in her attorney’s 

trust until both parties provided written consent to distribute those 

proceeds. After the disclosure and discovery deadline passed, Wife moved 

to compel Husband to provide the requested financial statements. She also 

requested an award of attorneys’ fees.

¶7 After oral argument on Wife’s motion to compel, the court 

granted Wife’s motion in part, directing Husband to provide all requested 

bank account statements and “[a]ny other financial data not already 

disclosed for which disclosure is required under Rule 49.”

¶8 As to Wife’s attorneys’ fees request, the court found Husband 

failed to respond to Wife’s motions and provided no reasonable 

explanation for not responding. The court concluded Husband’s failure

was “unreasonable” and his actions merited an award of fees and costs to 

Wife. But because the litigation was ongoing, the court found it 

“appropriate to address the issue of attorneys’ fees at the conclusion of this 

case and so the Court has the benefit of considering the reasonableness of 

both parties’ positions as well as the total amount of fees incurred and any 

financial disparity between the parties’ financial resources.” The court then 

concluded Wife’s request for fees would “abide final trial.” 

¶9 In mid-November 2022, Wife asked the court to issue findings 

of fact and conclusions of law in its final decision. Later that month, the 

parties filed their joint pre-trial statement, in which Wife explained that 

Husband retained “full custody and control” over the PostNet business 

since the parties separated. Wife requested she be removed from all 

business obligations and that Husband retain the business. She further

alleged Husband “devalued the business” and committed marital waste 

through “multiple extramarital affairs and excessive spending.” Thus, she 

argued the parties’ assets should be divided equitably rather than equally. 

Finally, Wife asserted entitlement to attorneys’ fees pursuant to the court’s 

earlier finding that Husband acted unreasonably.

¶10 Later that month, the court held an evidentiary hearing. Wife

testified and asked the court to order the sale of the PostNet business. She 

also acknowledged that she knew the PostNet business was losing money 

before the parties filed the pre-trial statement. And when asked, Wife 

agreed that the business debt should be paid off by selling the business. 
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Husband testified the PostNet business was not profitable because its 

model was “antiquated,” and the parties had discussed selling it on 

multiple occasions. Husband also testified he had borrowed $10,400.00 

from his mother and brother to help keep the business afloat. 

¶11 The court issued the decree in January 2023. The court found 

the PostNet business “has not been profitable in recent years” and ordered 

its sale. The court ordered that the parties use the sale proceeds to pay off 

any debts—addressing business debts first—and then divide any net 

proceeds equally. The court also found “no evidence of significant marital 

waste” but ordered, “that Husband shall pay Wife one half of the expenses 

attributed to purchase of flowers, dating website dues, and airline tickets

relating to [Husband’s alleged paramour].” The court identified as a 

community debt a “Personal Loan” from Husband’s mother and brother 

totaling $10,400.00. And it denied both parties’ requests for attorneys’ fees 

and costs after finding that, overall, “the parties’ positions have been 

reasonable and their disagreements legitimate,” and “there isn’t a 

significant disparity in [their] income and resources.”

¶12 Wife timely appealed, and we have jurisdiction. See Ariz.

Rev. Stat. (“A.R.S.”) §§ 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶13 Wife raises numerous issues, and her arguments primarily 

rely on her assertions that the superior court erred in finding Husband’s 

testimony credible, especially when it was unsubstantiated by 

documentary evidence or contrary to Wife’s testimony.

I. Exhibit 45

¶14 Wife argues the superior court abused its discretion by 

relying on Exhibit 45, which was not in evidence. In its dissolution decree, 

the court referenced Exhibit 45 when it stated: “The Court admitted the 

balance sheets for 2011-2021 (Ex. 44) and the income statements for 2011-

2021 (Ex. 45), which corroborate Husband’s testimony” that the business 

had not been profitable in recent years due in part to an obsolete business 

model.

¶15 The record shows, as Wife correctly states, the court did not 

admit Exhibit 45 into evidence during the evidentiary hearing. She alleges, 

in effect, trial error but cites no caselaw supporting her position. We review 

the admission or exclusion of evidence for an abuse of discretion. See State 

v. Gill, 242 Ariz. 1, 3, ¶ 7 (2017) (admission); State v. Romero, 239 Ariz. 6, 9, 
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¶ 11 (2016) (exclusion). The court abuses its discretion by committing an 

error of law. Romero, 239 Ariz. at 9, ¶ 11. Even if the court erred here, we

review the court’s consideration of a report not admitted into evidence for 

harmless error. See State v. Stevens, 158 Ariz. 595, 597 (1988). In general, an 

error is harmless if the evidence is merely cumulative. State v. Williams, 133 

Ariz. 220, 226 (1982); State v. Torres, 127 Ariz. 309, 311 (App. 1980). Evidence 

is cumulative if it is more evidence of the same character and supports a 

fact already established by other evidence. See Felipe v. Theme Tech Corp., 

235 Ariz. 520, 526, ¶ 22 (App. 2014).

¶16 Husband’s testimony alone supports the court’s conclusion

that the PostNet business had not been profitable in recent years. Wife does 

not dispute that fact but disputes the cause of its unprofitability. Wife

concedes Exhibit 45 was cumulative by stating it “merely shows the 

PostNet business was not profitable.” See Williams, 133 Ariz. at 226. The 

court’s reference to Exhibit 45 was harmless. 

II. Reimbursement Claim

¶17 Wife also argues the court abused its discretion by failing to 

address her claim for reimbursement of community expenses. Wife filed a 

proposed resolution statement and a separate pre-trial statement, claiming 

entitlement to reimbursements from the net proceeds after the sale of the 

marital home pursuant to Bobrow v. Bobrow, 241 Ariz. 592 (App. 2017). She 

reasserted her claim in the parties’ joint pre-trial statement and at the 

hearing. Under Bobrow, “[a] spouse who voluntarily services community 

debt and maintains community assets with separate property should not be 

penalized when a mutual agreement cannot be reached[, and w]hen such 

payments are made, they must be accounted for in an equitable property 

distribution.” Id. at 596, ¶ 19. 

¶18 Wife made a timely request for findings of fact and 

conclusions of law. But after the court issued its decree, Wife did not move

to alter or amend the judgment, or otherwise challenge the sufficiency of 

the court’s findings before filing her appeal. “A litigant must object to 

inadequate findings of fact and conclusions of law at the trial court level so 

that the court will have an opportunity to correct them.” Elliott v. Elliott, 

165 Ariz. 128, 134 (App. 1990) (citation omitted). Because the superior court

was not given this opportunity, Wife waived any challenge to the 

sufficiency of the court’s findings.
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III. Business Valuation and Husband’s Personal Loan

¶19 Wife also contends the superior court abused its discretion in 

finding Husband’s testimony about the business and his personal loan to 

be credible. After a three-hour hearing, the court concluded Husband 

credibly testified the PostNet business had not been profitable in recent 

years due to various factors, including an obsolete business model, 

increased competition from Amazon.com and others, and the recent 

pandemic. The court also identified a “Personal Loan” “from Husband’s 

mother and brother” for $10,400.00.

¶20 We will not reweigh the evidence, and we defer to the 

superior court’s credibility determination. Hurd v. Hurd, 223 Ariz. 48, 52, 

¶ 16 (App. 2009); see also Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 

2015) (“[T]he [superior] court is in the best position to judge the credibility 

of witnesses and resolve conflicting evidence, and appellate courts 

generally defer to the findings of the [superior] court.” (citation omitted)).

¶21 Wife asks us to take judicial notice from various websites and 

outside sources “that it is public knowledge that PostNet is a highly 

successful franchise and did not go into significant decline due to COVID”

and is not an outdated business model. We rarely consider materials 

outside the record on appeal because this court does not act as a fact finder. 

See State v. Shackart, 190 Ariz. 238, 247 (1997). Accordingly, we decline

Wife’s invitation to take judicial notice of the websites she provides and the 

general statistical claims she makes in her opening brief.

¶22 The record contains substantial evidence supporting the 

superior court’s determination that the parties’ PostNet business had not 

been profitable and that Husband received a personal loan for $10,400.00 to 

help its operation. Because we defer to the superior court’s judgment on

the credibility of the witnesses and will not reweigh conflicting evidence on 

appeal, see Hurd, 223 Ariz. at 52, ¶ 16, we conclude the court did not abuse 

its discretion. 

IV. Waste Claim

¶23 Wife also argues the court abused its discretion in relying on 

Husband’s “bare assurance that he had not squandered substantial 

community assets” and by “not providing specific findings of fact 

regarding the community waste.”

¶24 After considering the parties’ conflicting testimonies and 

exhibits, the court found “no evidence of significant marital waste.” The 
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court noted that although “Wife is frustrated because she believes Husband 

squandered the business income and accrued debts on extramarital affairs

. . . [Husband] credibly explained that the bulk of the expenses Wife 

questions are actually community expenses,” and Husband agreed to 

reimburse Wife for her half of those expenses.

¶25 Even if we assume arguendo that Wife has not abandoned or 

waived her argument by failing to provide supporting record citations and 

caselaw, see State v. Moody, 208 Ariz. 424, 452, ¶ 101 n.9 (2004); Schabel v. 

Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996), Wife fails 

to show “abnormal or excessive expenditures” beyond the court’s waste 

finding, see Gutierrez v. Gutierrez, 193 Ariz. 343, 346–47, ¶¶ 6–7 (App. 1998). 

And, even if she had made such a showing, we will not disturb the superior 

court’s credibility findings as to Husband’s explanations for those 

expenditures. See Hurd, 223 Ariz. at 52, ¶ 16.

V. Attorneys’ Fees

¶26 Finally, Wife argues the “law of the case” is that Husband 

acted unreasonably during discovery, and thus, the court erred by failing 

to award Wife attorneys’ fees and costs. To support her argument, Wife 

quotes the court’s May 2022 order: “[T]he Court finds that 

Respondent/Husband has behaved unreasonably in the 

discovery/disclosure process. Accordingly, while the overall issue of fees 

will abide trial, any such award will include this Court’s finding as to 

Husband’s unreasonableness on the issue of disclosure and discovery.” But 

Wife fails to include other relevant excerpts of the court’s ruling:

[G]iven that the litigation is not yet concluded, the Court finds 

that it is appropriate to address the issue of attorneys’ fees at 

the conclusion of this case and so the Court has the benefit of 

considering the reasonableness of both parties’ positions as 

well as the total amount of fees incurred and any financial 

disparity between the parties’ financial resources.

¶27 The court ruled it would determine the parties’ 

reasonableness and Wife’s entitlement to attorneys’ fees at the end of the 

case. In its dissolution decree, the court found that Wife and Husband “did 

not act unreasonably in the litigation.” It addressed Wife’s claim that 

Husband had been unreasonable by concluding, “[t]he Court finds that the 

parties’ positions have been reasonable and their disagreements 

legitimate.” Contrary to Wife’s assertion that the court failed to make 
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factual findings supporting its attorneys’ fees conclusion, the court

addressed the issue of Husband’s reasonableness in its decree. 

¶28 The “law of the case” doctrine refers to the principle that 

when an appellate court rules on a question of law and remands the matter 

for further proceedings in the superior court, the legal questions answered 

in the appellate court’s ruling will not be disturbed in that same case below 

or on a subsequent appeal. Emps. Mut. Liab. Ins. Co. of Wis. v. Indus. Comm’n, 

115 Ariz. 439, 441 (App. 1977). The court’s factual finding that Husband 

“acted unreasonably” during discovery is not the law of the case governing 

the fees award. Thus, the doctrine does not apply. The court did not abuse 

its discretion in denying Wife’s attorneys’ fees request.

ATTORNEYS’ FEES ON APPEAL

¶29 Both parties request an award of attorneys’ fees incurred on 

appeal pursuant to A.R.S. § 25-324, which allows the court to award fees 

“after considering the financial resources of both parties and the 

reasonableness of the positions each party has taken throughout the 

proceedings.” Wife also requests fees under A.R.S. § 12-349(A)(1), arguing 

Husband has taken positions without substantial justification. Neither 

party presents any substantial argument in favor of a fee award, and in our 

discretion, having considered their financial resources, we decline both 

parties’ requests. As the successful party, Husband is awarded his taxable 

costs incurred on appeal pursuant to A.R.S. § 12-341 upon compliance with 

Rule 21, ARCAP.

CONCLUSION

¶30 We affirm the superior court’s dissolution decree.