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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RONALD UTHE, Petitioner/Appellant,

v.

MINDY UTHE, Respondent/Appellee.

No. 1 CA-CV 16-0025 FC

Appeal from the Superior Court in Maricopa County

No. FC2014-096220

The Honorable Peter A. Thompson, Judge

AFFIRMED IN PART AND REMANDED IN PART

COUNSEL

Ronald Uthe, Phoenix

Petitioner/Appellant

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.

T H U M M A, Judge:

¶1 Ronald Uthe (Father) appeals from a decree of dissolution

(Decree). Because the Decree did not allocate a 401(k) retirement account 
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2

held by Mindy Uthe (Mother), but in which the community holds an 

interest, the matter is remanded to make such an allocation. In all other 

respects, because Father has shown no error, the Decree is affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 Mother and Father were married from 2004 to 2014 and had 

two minor children. For the majority of the marriage, Father ran a successful 

business that earned approximately $100,000 per month. In 2012, Father 

was convicted of a federal firearms felony offense. As a consequence, Father 

lost the business and spent time in prison.

¶3 In November 2014, Father petitioned for dissolution of 

marriage. The court entered temporary orders requiring, as relevant here, 

that Mother pay Father $2,000 in attorneys’ fees and $100 a month in child 

support. Father later filed a motion for contempt, claiming Mother failed to 

(1) comply with the temporary orders and (2) pay his attorneys’ fees; the 

court denied the motion in the Decree. Father testified he spent most of this 

time living in his car or in a long-term stay hotel. Despite living in a car or 

hotel, and although the family house was significantly “under water,”

Father obtained a $175,000 loan to refinance the house. The record does not 

contain any information about sources of income or assets that would 

enable Father to obtain such a loan. 

¶4 At an October 2015 evidentiary hearing, Mother and Father 

testified and presented exhibits and the court took the matter under 

advisement. The resulting 27-page Decree, entered in November 2015, 

awarded joint legal decision-making, with Mother having final decisionmaking authority; designated Mother as the primary residential parent, 

with Father having one day a week with the children and every other 

weekend; ordered Father to pay $200 a month in child support; denied 

Father’s claim for spousal maintenance; divided community property and 

debts equally and awarded Mother attorneys’ fees. 

¶5 This court has jurisdiction over Father’s timely appeal 

pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (2016).

2

 

1 This court construes the facts in a light most favorable to affirming the 

Decree. Cullum v. Cullum, 215 Ariz. 352, 354 ¶ 9 (App. 2007).

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
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DISCUSSION

I. The Parties’ Briefing On Appeal.

¶6 Father’s appellate brief does not comply with this court’s 

rules. See Ariz. R. Civ. App. P. (ARCAP) 13(a). In addition, although 

purporting to challenge the court’s factual findings, Father failed to provide 

this court with the transcript from the evidentiary hearing. See ARCAP

11(c). “[W]here an incomplete record is presented to an appellate court, the 

missing portions of that record are to be presumed to support the action of 

the trial court.” Cullison v. City of Peoria, 120 Ariz. 165, 168 n.2 (1978); accord 

Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).

¶7 Mother failed to file an answering brief, which can be treated 

as a confession of error. See ARCAP 15(a)(2); Thompson v. Thompson, 217 

Ariz. 524, 526 ¶ 6 n.1 (App. 2008) (citing predecessor rule). Particularly 

because the best interests of children are addressed in the Decree, however, 

this court declines to treat Mother’s failure to file an answering brief as a 

confession of error. See Thompson, 217 Ariz. at 526 ¶ 6 n.1.

II. Father Has Not Shown The Evidence Of Record Does Not Support 

The Decree Or That The Superior Court Erred In Weighing The 

Evidence Presented.

¶8 Most of Father’s arguments are premised on the assertion that 

the Decree was not properly supported by the evidence. Father’s two-page 

brief argues, for example, that the Decree improperly stated his “request for 

50/50 custody was ‘unreasonable;’” that the finding Father “has no respect 

for Mother as a parent and is very aggressive . . . is simply not true;” that 

the Decree “make[s] false accusations about [Father] every chance [it can] 

even tho[ugh] there was no evidence to support such accusations;” and that 

the Decree found Father “is not truthful and evades questions with feigned

ignorance and misunderstanding,” even though “[he] never misled the 

court ever.” Father, however, failed to provide the transcript from the 

evidentiary hearing and that transcript is “presumed to support the action 

of the trial court.” Cullison, 120 Ariz. at 168 n.2. Accordingly, on this record, 

Father’s arguments premised on a lack of evidence supporting the Decree 

fail.

¶9 Father’s arguments also ask that the trial evidence be 

reweighed on appeal, something this court will not do. Hurd v. Hurd, 223 

Ariz. 48, 52 ¶ 16 (App. 2009). “It is the function of the trial court to judge 

the credibility of the witnesses, and this court is bound by that 

determination.” Tucson Sch. Dist. No. 1 of Pima County v. Soder, 7 Ariz. App. 
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244, 246 (1968). For this additional reason, Father’s general fact-based 

arguments on appeal fail.

III. Father Has Shown No Error In The Decree’s Resolution Of 

Parenting Time, Child Support, Spousal Maintenance, Temporary 

Orders And Attorneys’ Fees.

¶10 Father makes additional specific arguments regarding 

various aspects of the Decree. Although these arguments fail because Father 

failed to provide the trial transcript, they also fail for independent reasons.

¶11 For Father’s arguments regarding parenting time (which he 

refers to as “custody”), this court reviews such a determination for an abuse 

of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420 ¶ 7 (App. 2003). In 

deciding parenting time, the superior court is required to make 

determinations “in accordance with the best interests of the child.” A.R.S. §

25-403(A). In accordance with statutory requirements, the Decree contains 

detailed factual findings addressing the statutory factors. The Decree also 

advised Father that parenting time could be reconsidered “once he has: (1) 

established a permanent residence appropriate for significantly increased 

over-night parenting time; (2) demonstrated successful participation in no 

less than 12 sessions of anger management classes and; (3) provided proof 

of successful completion of a high conflict parenting class.” On this record, 

Father has not shown the parenting time determination was an abuse of 

discretion. 

¶12 For Father’s challenges to child support, this court reviews 

such a decision for an abuse of discretion. See McNutt v. McNutt, 203 Ariz. 

28, 30 ¶ 6 (App. 2002). Father argues that the order to pay $200 a month in 

child support does not make “any sense” because he is an “unemployable 

disabled veteran.” However, the Decree found Father had previously 

earned a large income with his business and worked as a chef after losing 

that business, both of which occurred long after Father was discharged 

from the military. And the Decree does not impute income to Father. 

Instead, the Decree uses Father’s actual income that he provided in the child 

support worksheet, representing his military disability income to which no 

exemption is claimed or, from the record, applicable. Father has not shown 

the child support determination was an abuse of discretion.

¶13 Father argues he should have been awarded spousal 

maintenance, an issue this court reviews for an abuse of discretion. See 

Gutierrez v. Gutierrez, 193 Ariz. 343, 348 ¶ 14 (App. 1998). Father argues the 

court abused its discretion by not awarding him spousal maintenance and 
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alleges the court has made every decision “not to be in [his] best interest.” 

Father adds that the court went “against the legal standards” by finding he 

did not establish a statutory basis for spousal maintenance. The Decree sets 

forth detailed findings of fact in concluding Father was not entitled to an 

award of spousal maintenance. Among other things, the court found Father 

was responsible for the family’s financial problems; that Mother was having 

her pay garnished as “a direct result of Father’s criminal conviction” and, 

importantly, that the court was “not convinced that Father does not have 

the ability to provide for himself.” Father has not shown the denial of his 

spousal maintenance request was an abuse of discretion.

¶14 Father next argues error in how the Decree addressed 

temporary orders and attorneys’ fees, issues this court reviews for an abuse 

of discretion. Magee v. Magee, 206 Ariz. 589, 590 ¶ 6 (App. 2004). Father 

argues an abuse of discretion by (1) refusing to enforce a temporary order 

for Mother to pay Father’s attorneys’ fees and (2) ordering Father to pay 

Mother’s attorneys’ fees. As stated by the superior court in this case, 

temporary orders “are not permanent and are based upon limited 

information.” And the superior court “retain[ed] its authority to modify”

temporary orders, including in the Decree. Maximov v. Maximov, 220 Ariz. 

299, 301 ¶ 7 (App. 2009). The evidence presented at the October 2015 

hearing convinced the superior court that enforcing the temporary order 

for Mother to pay Father’s attorneys’ fees would be “unfair and 

inequitable.” Father has not shown how this finding was in error. And in 

ordering Father to pay Mother’s attorneys’ fees, the court has discretion to 

award fees “after considering the financial resources of both parties and the 

reasonableness of the positions each party has taken throughout the 

proceedings.” A.R.S. § 25-324. Father has not shown that it was an abuse of 

discretion for the court to find that Father’s positions throughout trial were 

unreasonable and that Mother was entitled to attorneys’ fees and, in doing 

so, deviating from the temporary order.

IV. Remand Is Required For Division Of The 401(k) Retirement 

Account Held By Mother.

¶15 Father asserts the Decree left any orders for splitting the 

401(k) “undone.” From the limited record provided, there also appears to 

be some confusion about whether this account is a 401(k) account or a 

pension account. As Father suggests, due to an apparent oversight, the 

Decree does not specify how the 401(k) (or pension account) is to be 

divided. Accordingly, in this limited respect, this matter is remanded for 

the superior court to determine the true nature of the account in question 

and to specify how the account is to be divided.
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CONCLUSION

¶16 Father’s request for attorneys’ fees on appeal pursuant to 

A.R.S. § 25-324 is denied. Because the Decree did not include an award for 

a 401(k) retirement account held by Mother, but in which the community 

holds an interest, the matter is remanded to make such an allocation. In all 

other respects, because Father has shown no error, the Decree is affirmed.