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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

In re the Marriage of:

NADINE BEAUMONT , Petitioner /Appellant

/Cross

- Appellee
,

v.

DAVID BEAUMONT , Respondent /Appellee /Cross

- Appellant

.
No. 1 CA

- CV 21

- 0 426 FC No. 1 CA

- CV 21

- 0642 FC (Consolidated)

Appeal from the Superior Court in Mohave County

No. L8015DO201907142 The Honorable Kenneth Gregory
, Judge Pro Temp ore
AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL
Silk Law Office, Lake Havasu City By Melinda Silk Counsel for Petitioner

/Appellant

/Cross

- Appellee

Law Office of Heather C. Wellborn PC
, Lake Havasu City By Heather C. Wellborn , Alyssa N. Oubre C ounsel for Respondent

/Appellee /Cross

- Appellant FILED 11-10-2022BEAUMONT v. BEAUMONT Decision of the Court

2 MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

M O R S E , Judge:

¶1 Nadine Beaumont ( " Wife " ) and David Beaumont ( " Husband " ) challenge several rulings in the decree dissolving their marriage

. We vacate the finding that the stocks in a joint trust account are community property
, the spousal

- maintenance award, the expert

- witness

- fee award , and the child

- support order . We remand for reconsideratio n of th e se issues but affirm all other rulings.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties married in 2003 in Pennsylvania and have one minor child, born in 2004. Wife petitioned for dissolution of marriage in 2019 and the superior court held a two

- day trial in 2020

. ¶3 Before the marriage, Husband acquired two parcels of real property in Pennsylvania that he later deeded to a community property trust. There are oil and gas lease s on these parcels that pay monthly royalties in varying amounts

. For the 17 months before the trial, the royalties paid an average of $5,000 a month

. The superior court concluded that the Pennsylvania p roperties and the royalties they generated were

comm unity property. Finding n o competent evidence of their value, the
court ordered the parties to hold the parcels as tenants in common and share equally in any royalties.

¶4 At the time of the trial, Wife was 60 years old . She r equested spousal maintenance in the form of half the royalties for life , b ut if her share of the royalties was less than $3,500 in any given month, Wife asked for Husband to make up the difference. Husband, on the other hand, opposed any award of spousal maintenance. The superior co urt awarded Wife spousal maintenance of $1,000 per month until May 2025, when she will be 65

. The court also entered a current child support order and ordered Husband to pay past child supp ort

. ¶5 T he community own ed three b usiness es : Wise Steward, Back to Basics, and Complete Accounting and Tax, Inc. During the two

- day trial,BEAUMONT v. BEAUMONT Decision of the Court

3 each party called an expert to testify to the value of the businesses. The superior court accepted the conclusion of Wife ' s expert that only Wise Steward had a ny value. The court found Wise Stewar d was worth $264,000 and awarded all three businesses and their assets and liabilities to Husband with a n equalization payment of $132,000 to Wife.

¶6 Wife asked to keep the marital home and pay Husband for his share of the equity . Husband did not oppose this if Wife could refinance the mortgage and remove his name from the debt
, but t he parties could not agree on the appropriate valuation date for determin ing Husband ' s interest in the equity. The court ordered the home sold and the equity divided equally. Further, i f the parties could not agree to a broker or sales price, the court ordered them to use Husband ' s broker and list the home for " at least $599,900. "

¶7 During the marriage
, Wife inherited stocks from her father. A few years later , she transferred some of those stocks into a joint trust account , while leaving other s in trust accounts in her name only. The parties disputed whether the stocks in the joint trust account were community or separate property

. The superior court found they were community property because Wife gift ed these stocks to the community

. Wife was awarded the joint trust account and ordered to pay Husband a n equalization payment of $151,585 , which was 50% of the account value on the date of service.

¶8 After the superior court made its rulings but before entr y of the final decree, Husband sought to hold Wife in contempt for n ot complying with the order to sell the home. The court entered the final d ecree and separately set an order to show cause hearing on the contempt petition. Wife filed a timely notice of appeal. She also moved to stay execution of the decree , which Husband opposed

. Husband then cross

appealed from the decree. We have jurisdiction under A.R.S. § 12

- 2101(A)(1).

¶9 While the appeal and cross

- appeal were pending, the parties dispute d the need for a supersedeas bond. H usband filed a second petition for contempt relating to Wife ' s alleged transfer of funds from the joint trust
account. The court addressed all these issues at an evidentiary hearing on September 1 6 , 2021

. ¶10 A t th e hearing, the parties agreed that rather than post a supersedeas bond, Wife would refinance the mortgage on the marital home into her name within 90 da ys. They agreed to hold the house as tenants inBEAUMONT v. BEAUMONT Decision of the Court

4 common until the appeal is resolved. Each party agreed to pay half the mortgage for 90 days ; after that, Wife was responsible for the mortgage payments. Husband will be reimbursed for the mortgage payments he made when he receives his share of the equity . After hearing from two real
estate brokers, the court found the fair market value of the marital home on September 16, 2021
, was $689,000
, with a mortgage balance of $312,500. The parti es agreed to determine Husband ' s share of the equity b ased on these figures , pending the outcome of the appeal. Neither party appealed from
t his post

- decree ruling.

DISCUSSION

I. Stocks in the Joint Trust Account

. ¶11 The stocks were Wife ' s separate property w hen she inherited them

. A.R.S. § 25

- 21 3(A)

. But s eparate property can be trans muted into community property by agreement, gift, or commingling. In re Marriage of Cupp , 152 Ariz. 161, 164 (App. 1986)

. The superior court found that Wife intended to gift the stocks to the community when she transferred them from her separate trust account to a joint trust account. Wife argues the stocks are her separate property. The classification of property as separa te or community is a question of law we review de novo. Bell

- Kilbourn v. Bell

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

. ¶12 When separate funds are placed into a joint account, there is no presumption that the owner of the funds intended to gift half of the funds to the other spouse. Stevenson v. Stevenson , 132 Ariz. 44, 46 (1982) (citing A.R.S. § 14

- 6103(A), now § 14

- 6211)

. Placing separa te funds into a joint account suggests , but does not conclusively prove , an intent to gift

. Grant v. Grant , 119 Ariz. 470, 4 72 (App. 1978) ; see also A .R.S. § 14

- 6211(A) ( noting funds in a joint account " belong [] to the parties in proportion to the net contribution of each to the sums on deposit unless there is clear and convincing evidence of a different intent " ( e mphasis added) )

. ¶13 The superior court found " it more likely than not " that Wife intended to gift her s eparate property stocks to the community by depositing them into a joint trust account. However, the deposit of separate funds into a joint account does not indicate a gift absent clear and convincing evidence of such an intent. Stevenson , 132 Ariz. at 4 6

. T he court did not apply the clear

- and

- convincing legal standard for finding a gift. Ordinarily, determining whether a spouse intended a gift is a question of fact subject to a clearly erroneous standard of review

. B o brow v. Bobrow
, 241 Ariz. 592, 59 5, ¶ 11 (App. 2017)

. But t he court abuses its discretion when it misappliesBEAUMONT v. BEAUMONT Decision of the Court

5 the law or relies on incorrect legal standard s

. Hammett v. Hammett , 247 Ariz. 556, 559, ¶ 13 (App. 2019)

. Here , the court applied an i ncorrect legal standard

. As a result, we vacate the finding that the stocks are community property and remand for reconsideration

.
II. Orders Regarding the Marital Home

. ¶14 The decree ordered the parties to sell the marital home and divide the net p roceeds equally. If the parties could not agree on a broker

or listing price , the court ordered the home listed with Husband ' s broker for " at least " $599,900. We review t he allocation of community property for an abuse of discretion. Bell

- Kilbourn
, 216 Ariz. at 523, ¶ 4

. ¶15 Wife concedes the superior court ha d discretion to order the sale of the home

. S he argues the court abuse d its discretion here because Husband agreed she could have the home as long as he was paid his share of the equity a nd taken off the mortgage. C ontrary to Wife ' s assertion, the parties did not reach an enforceable agreement

. At the time of trial, Wife had not yet refinanced the home ; nor did she offer conclusive evidence that she could do so

. B ased on this speculative evidence, and absent an enforceable agreement, t he court was within its discretion to order the parties to sell the home a nd divide the proceeds equally.

¶16 Although Wife apparently refinance d the mortgage after the decree
, that was not the situation at the time of trial. We review the superior
court ' s ruling based on the record at the time of trial

. See GM Dev. Corp. v. Cmty. Am. Mort

g . Corp. , 165 Ariz. 1, 4 (App. 1990) ( noting appellate court review is " limited to the record before the trial court " ). When t he superior
court made its ruling
, there was no e vidence showing that Wife had refinance d the home or demonstrat ing her ability to do so

. Moreover, Wife waived any argument related to refinancing by raising it for the first time in her reply brief. See Johnson v. Provoyeur
, 245 Ariz. 239, 243 , ¶ 13 n.5 (App. 2018) ( noting that issues first raised in a reply brief are generally considered waived)

. ¶17 Wife also argues the superior court ignored the effect of selling the marital home on the child. Any harm t o the child from t he sale of the home was for the court to weigh against the part ies ' property interests. See Dole v. Blair
, 248 Ariz. 629, 633, ¶ 14 (App. 2020) ( noting court s may consider the children in deciding which party should be awarded a piece of property , but " may not impinge on either party ' s property interests " ). We will not reweigh these considerations on appeal. Hurd v. Hurd
, 223 Ariz. 48, 52, ¶ 16 (App. 2009)

.BEAUMONT v. BEAUMONT Decision of the Court

6 ¶18 T he superior court ' s under advisement ruling ordered the parties to list the home for $599,900. Wife contends the court improperly changed that ruling when it added that the home should be listed for " at least " $599,900 in t he final decree

. The addition of this language in the final decree w as not improper . It is reasonable to infer that the court added this language so that the parties could benefit from any subsequent market increase

. In deed, Husband provided two market analyses show ing the home ' s value had increased nearly $75,000 between September 2019 and November 2020. Wife did not refute this evidence. Th e language is equitable because the court ordered the parties to pay the mortgage using funds in a community bank account so they will share equally in any increase in value

. Because the re was no agreement for Wife to buy out Husband ' s interest at a certain price, the court did not abuse its discretion by ordering the home sold for at least $599,900

. ¶19 The superior court was also within its discretion to order the parties to use Husband ' s b roker absent an agreement

. Husband ' s broker provided the only co mparative market analysis

. Wife did not provide an alternative broker or method of selecting among compet ing brokers. W e find no abuse of discretion.

III. Post

- Decree Ruling on the Marital Home

. ¶20 I n post

- decree proceedings, the parties reached several agreements about the home. They agreed t o hold title as tenants i n common pending appeal and in lieu of Wife posting a supersedeas bond

. Consistent with this agreement, Wife refinanced the mortgage into her name

. T he superior court incorporated this agreement into a post

- decree order

. After hearing from both parties ' real estate brokers, the court found the home's value was $689,000 on September 16, 2021

. ¶21 Wife cannot rel y on these post

- decree events to argue that the order to sell the home was an abuse of discretion. See supra ¶ 1 5

. At the time of trial, there was no such agreement
, and Wife had not refinanced the mortgage. And neither party appeal ed from t he post

- decree order finding the home was worth $689,000 on September 16, 2021 . The superior court issued that order in response to post

- decree agreem ents , which do not impact the issues raised in this appeal. For this reason, we do not address the " issue presented for review on consolidated appeal. "

IV. Business Valuation

. ¶22 The superior court accepted the opinion of Wife ' s exper t and found that only one of the community businesses

— Wise Steward

— had anyBEAUMONT v. BEAUMONT Decision of the Court

7 value. The court found that Wise Steward had a value of $264,000 as of March 31, 2020

. The court awarded Husband the three businesses and all business bank accounts, assets, and liabilities ; and awarded Wife an equalization payment of $132,000

. ¶23 The valuation of assets is a factual determination. See In re Marriage of Molloy
, 181 Ariz. 146, 150 (App. 1994) . We will affirm the superior court ' s determination if reasonable evidenc e supports it. I d. at 1 52

. The record supports the finding that W ife ' s expert provided a reason able valuation and sufficiently refuted the issues raised by the opposing expert.

¶24 On cross

- appeal, Husband argues the superior court ' s valuation improperly i ncluded a " bad debt " Back to Basics owed Wise Steward. Husband ' s expert would deduct this " bad debt " from Wise Steward ' s receivables , thereby lowering its value. A ccording to Wife ' s expert, this would not affect the overall valuation of both businesses. As Wife ' s expert explained, if the " bad debt " was deducted from Wise Steward ' s accounting, it would have to be added back to the accounting for Back to Basics. The court was within its discretion to weigh these competing expert opinions. See Hurd
, 223 Ariz. at 52 , ¶ 16 ( noting that appellate court s do not reweigh conflicting evidence).

¶25 Husband also argu es t hat the court abused its discretion by not ordering the business sold as he proposed. Because Husband cited no authority or facts to su pport this argument , it is waived. See ARCAP 13( a )(7) ; In re Aubuchon
, 233 Ariz. 62, 64

- 65, ¶ 6 (2013) . Similarly, Wife argues , without citations to the record, that the court did not address two bank accounts related to Complete Accounting and Tax , Inc. This argument is also waived

. Id.

V. Bank Accounts and the $10,000 Equalization Payment

. ¶26 The re were two community personal bank accounts at Wells Fargo : a checking account and a money market account. The superior court ordered the parties to close the checking account and equally divide the $1,300 remaining on deposit. The funds in the money market account came from the monthly oil and gas royalties. The court ordered the parties to continue paying the mortgage from th e money market account until they sold the home or the funds were depleted.

¶27 There was also a BBVA account Husband opened in his name after the date of service

. The on ly bank statement related to this account showed a balance of $28,500 as of October 2020. The court awarded the BBVA account to Husband. T o equalize the various bank accounts, t heBEAUMONT v. BEAUMONT Decision of the Court

8 court ordered Husband to pay Wife $10,000, finding this amount was equitable because Wife ha d exclusive use of the marital home during the proceedings, and the mortgage was paid with community funds (the royalties) during that time.

¶28 Wife argues the $10,000 equalization payment is inequitable ; conversely, Husband argues Wife was not entitled to any equalization payment. We will affirm the allocation of community property absent an abuse of discretion. Bell

- Kilbourn
, 216 Ariz. at 523, ¶ 4

. ¶29 S ince the date of service, both parties paid their p ersonal expenses from the community royalties. Husband also ran personal expenses through the businesses . A ccording to Wife, this resulted in Husband spen ding more than his share of the community income during the proceedings

. Wife also argues that Husb and kept all the business revenue and did not pay any spousal maintenance or child support during the proceedings. In contrast, Husband argue s Wife deserved no equalization payment because she spent more than her share of the royalty income.

¶30 E arnings paid to a spouse after service of the petition a re that
spouse ' s separate property. See A.R.S. § 25

- 213(B) (property acquired after service of a petition for dissolution is that party ' s separate property). The evidence showed that the funds with BBVA were Husband ' s post

- service earnings

. ¶31 Nonetheless, t he businesses were community property , so Wife may have been entitled to any profits the businesses generated in excess of Husband ' s reasonable compensation

. See Schickner v. Schickner
, 237 Ariz. 194, 199, 201, ¶¶ 22, 30 (App. 2015)

. There was, however, no evidence showing such additional profits. Thus, the record does not show that Husband improperly retain ed any community business revenue above his reasonable compensation

. ¶32 Wife argues it is impossible to determine the business revenues because Husband did not disclose all the relevant bank statements. Yet Wife relied on her expert ' s business valuation opinion despite his admission s that some statements were missing and not every personal expense Husband ran through the business was calculated . Wife cannot complain about the se limitations on one hand but ignore the m on the other. We find this issue waived.

¶33 Husband contends Wife was not entitled to $10,000 because his calculations show she spen t more than he did from th e communityBEAUMONT v. BEAUMONT Decision of the Court

9 account

. However, his calculations did not include any supporting documentation. He a lso attributed the mortgage and some of the child ' s expenses to Wife which skewed her spending

. And Husband will receive his share of the community funds that were spent on the mortgage when he is paid his share of the equity

. ¶34 On this record, we cannot find t he allocat ion of the bank accounts and $10,000 equalization payment was in equitable. When viewed as a whole and in the light most favorable to upholding the decree, we find $10, 0 00 was reasonable

. There is no evidence that Husband improperly retain ed business revenues . And Wife did not prove exact ly how much

more community funds Husband spent during the proceedings than she spent

. T herefore, Wife cannot fault the court for estimating an equitable equalization payment based on the record presented

. W e affirm the allocation of the community and business bank accounts and the equitable equalization payment

.
VI. Spousal Maintenance

. ¶35 The superior court award ed Wife $1,000 a month in spousal maintenance from May 1, 20 21 , until she turns 65 in May 2025. Husband argues that Wife was not entitled to any spousal maintenance

. Wife contends she was entitled to spousal maintenance from the start of the proceedings in June 2019, and that the amount is insufficient. We review an award of spousal maintenance for an abuse of discretion and will affirm if there is any reasonable evidence to support the award

. Helland v. Helland
, 236 Ariz. 197, 202, ¶ 22 (App. 2014)

.
A. Spousal Maintenance Eligibility

. ¶36 A party is eligible for an award of spousal mainten ance i f she qualifies under any one of the five factors listed in A.R.S. § 25

- 319(A)

. In re Marriage of Cotter
, 245 Ariz. 82, 86, ¶ 10 (App. 2018)

. The superior court found Wife eligible for spousal maintenance based on two factors: (1) the parties had a marriage of long duration and Wife is of an age that may preclude employment at a level of self

- sufficiency, A.R.S. § 25

- 319(A)( 5 )
, and (2) Wife significantly reduced her income or career opportunities for Husban d ' s benefit
, A.R.S. § 25

- 319 (A)( 4 )

. ¶37 The evidence supports the finding that Wife significantly reduced her income or career opportunities for Husband ' s benefit. See A.R.S. § 25

- 319(A)( 4 ) . Wife was 60 years old at trial and last worked as a massage therapist in 2009. When the parties moved to Arizona, s he left the workforce to care for the family while Husband travel ed extensively forBEAUMONT v. BEAUMONT Decision of the Court

10 work

. Nothing in the record showed that Wife could obtain adequate employment given he r health or the time gap since she last worked.

¶38 Because the record supports the finding that Wife qualified for spousal maintenance under § 25

- 319(A)( 4 )
, we affirm the conclusion that Wife was eligible for spousal maintenance. Cotter , 245 Ariz. at 86, ¶ 10 ( noting a party need only qualify under one factor to be eligible for spousal maintenance)

.
B. Amount and Start Date of the Award

. ¶39 Because w e vacated the ruling that the joint trust account is community property and remanded for reconsideration of this significant
asset , the superior court must reconsider the amount and duration, if any, of the spousal maintenance award . Although we express no opinion on the merits of this question, the court should reconsider the factors in § 25

- 319 (B) on remand. Accordingly, we do not address the arguments as to those factors. W e vacate the award of spousal maintenance and order the superio r court to reconsi der the appropriate spousal maintenance award , if any, on remand.

VII. Wife ' s Expert Witness Fees

. ¶40 The superior court ordered Husband to pay $8,000 of Wife ' s business valuation expert fees because Wife prevailed on this issue. The
court also found Husband ' s position on the business valuation was unreasonable and not supported by an independent and certified business appraisal. Although the court did not cite a statute, we presume it relied

on A.R.S. § 25

- 324 , which authorizes an award of " the costs and expenses of maintaining or defending " a dissolution o r custody pr oceeding

. We review this award for an abuse of discretion. See Breitbart

- Napp v. Napp , 216 Ariz. 74, 83, ¶ 3 5 (App. 2007)

. ¶41 The fact that Wife prevailed on the business valuation does

n ot support the a ward of expert witness fees. " [ Section ] 25

- 324 does not establish a prevailing party standard for awarding fees and costs. " Id

. at 84 , ¶ 39

. Because the superior court relied on an incorrect legal standard, we vacate the order . On remand, the superior court may reinstate the fee award if it determines that Husband's position was unreasonable independent of Husband's decision not to obtain an i ndependent and certified business appraisal

.BEAUMONT v. BEAUMONT Decision of the Court

11 VIII. Past Child Support

. ¶42 In addition to a prospective child support order, th e superior court ordered Husband to pay past child support from July 1, 2019
, to April 30, 2021. Husband argues this was an abuse of dis cretion because Wife used community property royalties for the child ' s expenses. We review child support awards for an abuse of discretion and accept the findings of fact unless clearly erroneous. Engel v. Landman
, 221 Ariz. 504, 510, ¶ 21 (App. 2009)

. ¶43 Under A.R.S. § 25

- 320(B) , the court must order retroactive child support if it fin ds, as here, (1) there is no previous order for child support, and (2) a current child support order is appropriate. Simpson v. Simpson
, 224 Ariz. 224, 225

- 26, ¶ ¶ 7 , 9 (App. 2010)

. Thus, the court was required by § 25

- 320(B) to order past child support

. ¶44 In determining the amount of the past child support order
, t he court c ould consider any amount Husband paid for temporary or voluntary support

. A.R.S. § 25

- 320(B)

. Husband did not pay any temporary or voluntary support directly to Wife. Nevertheless, Husband argues that past child support is not warranted because t he parties used the commu nity royalt ies for their living expenses during the proceedings

. Ac cording to Husband, he effectively paid voluntary support because Wife spent more than her half of the royalty income

. Even if we make the rather tenuous assumption t hat this constitutes a " voluntary payment " of child support by Husband
, it is not clear that Wife spent more than her share of the community funds

. See supra ¶ 32. Given the conflicting evidence, we cannot say the court abused its discretion in finding that Husband was not entitled to credit for any " voluntary support. "

¶45 Because we a re vacating and remanding for the superior court
to reconsider the appropriate spousal

- maintenance award
, we also vacate and r emand the child

- support award to allow the court to recalculate child support to account for any change in spousal maintenance. S ee Guidelines § XVII(A) (2022).

IX. Attorney Fees On Appeal

. ¶46 Both parties request attorney fees and co sts on appeal under A.R.S. § 25

- 324

. After considering the relevant factors, we decline to award attorney fees without prejudice

. T he superior court may consider any requests for fees on remand, including fees incurred o n appeal, pending the outcome of this litigation. The award of costs on appeal under A.R.S. § 12

- 342 shall also be determined pending the result on remand.BEAUMONT v. BEAUMONT Decision of the Court

12 CONCLUSION

¶47 We vacate the ruling that the joint trust account is community property and the award of Wife ' s expert witness fees and remand for reconsideration. We also va cate the award of spousal maintenance but affirm that Wife is eligible for support under § 25

- 319(A)( 5 ) . The court shall reconsider an appropriate spousal maintenance award and recalculate child support on remand. All other rulings in the decree of dissolution are affirmed.