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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

MARCIA ANN BONAFEDE, Petitioner/Appellant, 

v.

GARY W. GIANNANGELO, Respondent/Appellee. 

No. 1 CA-CV 14-0103 FC 

 

Appeal from the Superior Court in Maricopa County 

No. FN2004-003773 

The Honorable Thomas L. LeClaire, Judge 

AFFIRMED IN PART; VACATED AND REMANDED IN PART 

COUNSEL 

Gust Rosenfeld PLC, Phoenix 

By Charles W. Wirken 

Counsel for Petitioner/Appellant 

The Counters Firm, PC, Phoenix 

By Lisa J. Counters 

Counsel for Respondent/Appellee
BONAFEDE v. GIANNANGELO 

Decision of the Court 

2 

MEMORANDUM DECISION 

Presiding Judge Andrew W. Gould delivered the decision of the Court, in 

which Judge Maurice Portley joined and Judge Jon W. Thompson 

dissented. 

G O U L D, Judge: 

¶1 Petitioner/Appellant Marcia Ann Bonafede (“Wife”) appeals 

the family court’s judgment granting Respondent/Appellee Gary W. 

Giannangelo’s (“Husband”) petition to modify spousal maintenance. We 

affirm the family court’s determination that Husband established changed 

circumstances warranting a modification hearing, but we vacate the court’s 

determination regarding the amount of maintenance and remand for a new 

hearing. 

Factual and Procedural Background 

¶2 Wife and Husband divorced in 2005 after more than twentyfive years of marriage. The consent decree provided that Husband would 

pay Wife $1800 per month in spousal maintenance. The decree further 

provided that the award of spousal maintenance was modifiable “upon a 

showing of a substantial and continuing change of circumstances” in 

accordance with Arizona Revised Statutes (“A.R.S.”) section 25-327 (2015).1 

Specifically, the decree provided: 

Both parties acknowledge that HUSBAND’s eventual 

retirement and commencement of Social Security retirement 

benefits, upon attaining age 65, may constitute a substantial 

and continuing change of circumstances as contemplated by 

A.R.S. § 25-327. HUSBAND’s retirement and commencement 

of Social Security benefits shall be considered prima facie

reason for HUSBAND to petition the Court for a modification 

under A.R.S. § 25-327. 

 

 

1 Absent material revisions after the relevant dates, we cite the current 

version of a statute unless otherwise indicated. 
BONAFEDE v. GIANNANGELO 

Decision of the Court 

3 

 

¶3 In 2012, Husband filed a petition to terminate or modify 

spousal maintenance, claiming as changed circumstances: (1) his 

retirement to care for his elderly mother; and (2) his mother’s passing. 

¶4 Prior to the modification hearing, Wife requested the family 

court enter findings of fact and conclusions of law pursuant to Rule 52(a). 

After the hearing, the family court determined there was a substantial and 

continuing change in circumstances warranting modification and reduced 

the amount of spousal maintenance to $700 per month. Wife filed a motion 

for new trial, which was denied. Wife timely appealed. 

Discussion 

¶5 Wife argues that the family court erred in determining there 

was a substantial and continuing change in circumstances warranting 

modification of spousal maintenance. In addition, Wife contends that in 

reducing Husband’s spousal maintenance obligation, the family court 

relied upon erroneous factual findings concerning Husband’s income and 

expenses. 

¶6 We review the family court’s decision regarding the existence 

of changed circumstances and its award of spousal maintenance for an 

abuse of discretion. Van Dyke v. Steinle, 183 Ariz. 268, 273 (App. 1995) 

(applying an abuse of discretion standard to a finding of changed 

circumstances); In re Marriage of Berger, 140 Ariz. 156, 167 (App. 1983) 

(establishing that maintenance awards will not be disturbed absent an 

abuse of discretion). We will not set aside the family court’s findings of fact 

unless they are clearly erroneous. Ariz. R. Civ. Proc. 52(a); In re Marriage of 

Berger, 140 Ariz. at 161. 

I. Substantial and Continuing Change in Circumstances 

¶7 A decree awarding spousal maintenance may be modified or 

terminated only upon “a showing of changed circumstances that are 

substantial and continuing.” A.R.S. § 25-327(A). “Changed circumstances” 

are established by comparing the circumstances at the time of the petition 

with the circumstances existing at the time of the decree. Richards v. 

Richards, 137 Ariz. 225, 226 (App. 1983). “The decision as to whether there 

has been a sufficient change in circumstances to justify a modification . . . 

lies with the sound discretion of the trial court.” Nace v. Nace, 107 Ariz. 411, 

413 (1971). 
BONAFEDE v. GIANNANGELO 

Decision of the Court 

4 

¶8 At the time of the 2005 consent decree, Husband was working 

part-time. In 2006, Husband worked briefly, but later decided to assume 

full-time care of his mother. In exchange for becoming her caretaker, 

Husband’s mother agreed to assume Husband’s monthly spousal 

maintenance payment. 

¶9 In 2008, Husband began collecting $1300 per month in social 

security. Husband used his social security income to pay a portion of Wife’s 

spousal maintenance, and his mother paid the remaining $500 balance. In 

2012, Husband assumed full responsibility for Wife’s spousal maintenance 

when his mother passed away. Husband inherited the majority of his 

mother’s estate. 

¶10 Based on the record, the family court correctly determined 

that Husband’s retirement and the death of Husband’s mother constituted 

a substantial and continuing change in circumstances. Accordingly, we 

find no error. 

II. The Amount of Spousal Maintenance 

¶11 A spouse seeking an award of maintenance is required to 

satisfy one or more of the statutory requirements set forth in A.R.S. § 25-

319(A). Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 15 (App. 1998). If one or 

more of those requirements is met, a court must consider the factors set 

forth in A.R.S. § 25-319(B) in determining the amount of the award. Id.

¶12 Here, the parties dispute whether the family court made 

proper factual findings in reducing the amount of Wife’s award. 

Specifically, Wife contends that in considering “the financial needs and 

abilities of the spouse petitioning for maintenance and the financial 

resources and abilities of the spouse who is to provide maintenance” 

pursuant to A.R.S. § 25-319(B)(4), the family court relied on outdated and 

inaccurate financial information for Husband. Reeves v. Reeves, 146 Ariz. 

471, 472 (App. 1985). 

¶13 Findings of fact shall be set aside only if they are clearly 

erroneous. Ariz. R. Civ. P. 52(a). Findings are “clearly erroneous” if the 

reviewing court is “left with the definite and firm conviction that a mistake 

has been committed.” Merryweather v. Pendleton, 91 Ariz. 334, 338 (1962). 

We have a duty to set aside erroneous findings of fact. Brand v. Elledge, 101 

Ariz. 352, 358 (1966); see In re B.S., 205 Ariz. 611, 614, ¶ 5 (App. 2003) (“A 

finding is clearly erroneous if no reasonable evidence supports it.”). 
BONAFEDE v. GIANNANGELO 

Decision of the Court 

5 

¶14 In making its determination to reduce Wife’s award, the 

family court expressly held: 

The Court has considered the expenses asserted by 

[Husband]. See Exhibit 2. The Court finds that [Husband] has 

expenses of $3,628.00 per month. Despite the seemingly 

imbalance of $3,600.00 of expenses as against $1,432.00 of 

income, the Court notes that [Husband] has been able to meet 

his obligations on an ongoing basis for a significant period of 

time. 

¶15 On appeal, Husband concedes that the income and expense 

figures relied upon by the family court in making its decision were 

erroneous. Exhibit 2, upon which the family court relied, was Husband’s 

Affidavit of Financial Information (“AFI”) dated September 2004, the 

month Wife filed for divorce. Husband filed two updated AFIs since 2004, 

one with his Petition in September 2012 and another just prior to trial in 

April 2013. At trial, Husband testified consistent with his April 2013 AFI, 

stating that his monthly income was $2,067.00 and his expenses were 

$2,329.00. 

¶16 Accordingly, because the family court’s determination was 

based, in part, on erroneous financial information for Husband, we vacate 

the award and remand to the family court for further proceedings 

consistent with this decision. 

III. Attorneys’ Fees 

¶17 Wife argues the family court abused its discretion in denying 

her request for attorneys’ fees pursuant to A.R.S. § 25-324(A). Specifically, 

Wife contends the family court should have granted her request for fees 

based on the disparity of financial resources between her and Husband. 

¶18 Based on the record before us, we are unable to conclude the 

family court erred. The family court determined the parties’ “disparity of 

income is not so great as to warrant an award of fees under A.R.S. § 25-324.” 

Although the family court erred in determining the amount of Husband’s 

income and expenses, the record reflects the fact that both parties live on 

fixed incomes and are no longer of an age where they can obtain 

employment. To the extent Wife asserts Husband’s inheritance creates a 

financial disparity, we note (1) that issue is one which appears to have been 

litigated extensively in the family court, and (2) the record on appeal is 

extremely limited. Accordingly, we find no error. For the same reason, in 
BONAFEDE v. GIANNANGELO 

Decision of the Court 

6 

the exercise of our discretion, we deny Mother’s request for attorneys’ fees 

on appeal pursuant to A.R.S. § 25-324(A). 2 

Conclusion 

¶19 For the reasons discussed above, we affirm the trial court’s 

determination there were changed circumstances justifying a reassessment 

of Wife’s spousal maintenance award. However, we vacate the family 

court’s determination reducing the amount of Wife’s award, and remand 

for further proceedings consistent with this decision. 

T H O M P S O N, J., dissenting. 

¶20 The trial court acknowledged and considered that Husband 

had income from an inheritance in addition to social security income: “The 

Court determines that Respondent is sixty-seven (67) years old and retired 

and receives regular income through Social Security in the amount of 

$1,432.00. Respondent receives, or will receive, some income from the 

inheritance he received as a result of the passing of his mother in 2012.” 

However, the Judge determined: “Notwithstanding that inheritance and 

the income derived therefrom, the current spousal maintenance award in 

the amount of $1,800.00 is beyond the reach of Respondent . . . .” In my 

view, the record supports the trial court’s determination, and I would 

affirm. 

 

2 Based on our decision in this case, in our discretion, we do not find 

it necessary to reach Wife’s remaining claims regarding the family court’s 

factual findings.