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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT RUBENS, Petitioner/Appellant/Cross-Appellee,

v.

KIMBERLY RUBENS, Respondent/Appellee/Cross-Appellant.

No. 1 CA-CV 18-0361

Appeal from the Superior Court in Maricopa County

No. FN2015-094833

The Honorable Stephen M. Hopkins, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Rubin & Ansel, P.L.L.C., Scottsdale

By Yvette D. Ansel

Counsel for Petitioner/Appellant/Cross-Appellee

Mandel Young, P.L.C., Phoenix

By Taylor C. Young

Counsel for Respondent/Appellee/Cross-Appellant

FILED 12-19-2019
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2

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Vice Chief Judge Kent E. Cattani 

joined.

J O N E S, Judge:

¶1 Robert Rubens (Husband) appeals the family court’s 

apportionment of marital assets and debts and award of spousal 

maintenance in its decree dissolving his marriage to Kimberly Rubens 

(Wife). Wife cross-appeals from the court’s decision to adopt a property 

valuation prepared by an expert who was not available for crossexamination.1 For the following reasons, we affirm in part, vacate in part, 

and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife were married in 2002.2 During the 

marriage, the couple purchased and maintained multiple properties, 

accumulated significant assets, and opened a wine bar (the business).

¶3 Husband filed for divorce in December 2015. The couple 

entered into a Rule 69 agreement in June 2016 that required Husband to pay 

Wife temporary spousal maintenance in the amount of $3,000 per month. 

The parties also agreed Husband was responsible to pay the mortgage and 

utilities for their main residence in Chandler (the Chandlerresidence). Wife

was responsible to pay for the Chandler residence’s pool loan and a Home 

Depot loan. Finally, the parties agreed they would maintain the business 

together, with equal access to the business itself and its financial 

information. In a separate Rule 69 agreement, the parties agreed to share 

1 Wife filed a motion to strike Husband’s reply brief, or, in the 

alternative, a motion for leave to file a sur-reply. In our discretion, we deny 

both requests.

2 We view the facts in the light most favorable to sustaining the family 

court’s orders. Lehn v. Al-Thanayyan, 246 Ariz. 277, 283, ¶ 14 (App. 2019) 

(citing Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007)).
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equally in certain restricted stock units (RSUs) and an anticipated 2016 tax 

refund.3

¶4 The family court held a three-day evidentiary hearing on the 

remaining issues in September 2017. Prior to trial, Wife requested findings 

of facts and conclusions of law pursuant to Arizona Rule of Family Law 

Procedure 82(a). In December, the court entered a decree of dissolution (the 

Decree) dividing the remainder of the marital assets and debts and 

awarding Wife spousal maintenance of $8,000 per month for seven years. 

In response to multiple motions to amend and for reconsideration, the court 

issued an order amending, clarifying, and affirming various issues. 

Husband timely appealed, Wife timely cross-appealed, and we have 

jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-

120.21(A)(1),4 -2101(A)(1), and (A)(2). See In re Marriage of Dorman, 198 Ariz. 

298, 300-01, ¶¶ 3-4 (App. 2000) (explaining when resolution of a postjudgment motion results in an appealable “special order made after final 

judgment”).

DISCUSSION

I. Property and Debts

¶5 When dividing community property at dissolution, the 

family court must divide the property and debts “equitably, though not 

necessarily in kind.” A.R.S. § 25-318(A). The court has broad discretion 

when apportioning community property between parties at dissolution, 

and we will not disturb its allocation absent an abuse of discretion. 

Boncoskey, 216 Ariz. at 451, ¶ 13 (citations omitted). The court abuses its

discretion if it “commits an error of law in the process of exercising its 

discretion.” Id. (quoting Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)).

We will sustain the ruling if it is reasonably supported by the evidence, id., 

bearing in mind that the court, as the fact-finder, is in the best position to 

weigh the evidence and judge the credibility of the parties. See In re Gen. 

Adjudication of All Rights to Use Water in Gila River Sys. & Source, 198 Ariz. 

330, 340, ¶ 25 (2000) (“The trial court, not this court, weighs the evidence 

and resolves any conflicting facts, expert opinions, and inferences 

3 Although the dissolution proceedings were initiated in 2015 and the 

couple had lived separately for all of 2016, the parties agreed to file jointly 

in 2016, resulting in an anticipated refund of approximately $100,000.

4 Absent material changes from the relevant date, we cite the current 

version of rules and statutes.
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therefrom.”). But, where, as here, a party requests findings of fact and 

conclusions of law, “[i]t must be clear from the findings how the court 

actually did arrive at its conclusions.” Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 

1996) (citing Elliot v. Elliot, 165 Ariz. 128, 135 (App. 1990)).

A. Credit/Offset Payments Pending Dissolution

¶6 Husband first argues the family court abused its discretion 

when it declined to give him credit for payments he made toward 

community property and spousal maintenance during the pendency of the 

divorce. Husband cites to Bobrow v. Bobrow, 241 Ariz. 592 (App. 2017), for 

the proposition that Wife was obligated to prove the payments for 

community expenses were meant to be a gift and, absent that proof, he was 

entitled to reimbursement for his payments. We disagree.

¶7 In Bobrow, the parties had entered into a premarital agreement 

in which the husband would not be required to pay spousal maintenance 

once a petition for divorce had been served. Id. at 596. The husband 

therefore had no obligation to make payments to or on behalf of the wife 

but chose to do so in order to keep the marital residence from falling into 

foreclosure. Id. Under those circumstances, the husband was entitled to 

reimbursement. Id.

¶8 Here, however, Husband agreed to pay certain community 

debts and spousal maintenance during the pendency of the proceedings. 

Wife also made payments toward community debts during this time and 

funded the business in excess of what was required by the Rule 69 

agreement. Meanwhile, Husband paid less than half the amount of spousal 

maintenance ultimately awarded by the family court and was found in 

contempt for failing to contribute to the business as agreed. The court also 

determined certain expenses were improperly sought by Husband, 

including those related to Colorado properties which Wife had no access to 

during the proceedings. On this record, we cannot say the court abused its 

discretion by declining to credit Husband for his pre-decree payments.

B. Allocation of Business Debt

¶9 Husband next argues the family court erred by allocating half

of the business debt to him because he did not know about, and did not 

consent to, additional debt incurred after the petition for dissolution was 

filed and “was never afforded equal management and control over [the 

business].” Husband’s claims are not supported by the record.

¶10 Here, the parties agreed that:
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With respect to the business . . . Husband shall be entitled to 

receive information regarding the business’s income and 

expenses on a “real time” basis (no less than monthly) from 

Wife. Husband may communicate directly with the 

bookkeeper for the business if he has questions or if Wife does 

not timely supply the information.

Each party shall contribute $5,000.00 per month toward the 

business’s operating expenses, unless notified that the 

business has turned a profit in the prior month, no later than 

the first of each month. This contribution shall be without 

prejudice to either party on any business-related issue. Each 

party understands that additional moneys are expected to be 

requested or required.

. . .

Wife shall ensure that the business consultant . . . has been 

instructed to provide his recommendations to both parties.

With respect to the construction lien against the business, 

Husband shall be authorized and responsible to handle the 

strategic decisions and negotiations for the resolution of the 

lien. The parties’ business attorney is in possession of all 

relevant information.

The agreement thus affords Husband equal access to and control over the 

business. Indeed, Husband contacted the business consultant for 

information at least one time in 2017. The agreement anticipates additional 

monies, beyond the $5,000 monthly payments, would be necessary to 

maintain the business. Yet, Husband did not make the monthly payments. 

¶11 Husband also argues he should not be responsible for the debt 

incurred after service of the petition because it did not benefit the 

community. We again disagree. “Generally, all debts incurred during 

marriage are presumed to be community obligations unless there is clear 

and convincing evidence to the contrary.” Cardinal & Stachel, P.C. v. Curtiss, 

225 Ariz. 381, 383, ¶ 6 (App. 2010) (quoting Schlaefer v. Fin. Mgmt. Serv., Inc., 

196 Ariz. 336, 339, ¶ 10 (App. 2000)). “[A]ll that is required is that some 

benefit was intended for the community[;] . . . no actual pecuniary benefit 

need be received.” Id. at 384, ¶ 10 (internal quotation and citation omitted).

Although the community asset — the business — was not profitable, 

Husband does not present clear and convincing evidence that the debt 
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incurred to maintain a community asset at the same level it performed 

during the marriage was not intended to benefit the community.

¶12 On this record, we cannot say the family court abused its 

discretion in rejecting Husband’s claims that he did not have access to the 

business or that allocation of a portion of the business debt to him was 

inequitable.

C. Schedule for Payment of Business Debt

¶13 Husband argues the family court abused its discretion when 

it amended the Decree to require the business debts be paid in accordance 

with the schedule included in Wife’s response to Husband’s motion for 

reconsideration. Husband first argues the court erred because Wife’s 

schedule is inconsistent with the Decree in that some of the debts identified 

therein were not included on a list of business debts submitted to the court 

at the evidentiary hearing.

¶14 The Decree states: “debt to the shareholders and all external 

debt that exists as of the date of this Decree shall be paid via sale of the 

Chandler residence.” The emphasis in the language of the Decree indicates 

the family court considered and recognized that additional debt may have 

been incurred between the September evidentiary hearing and entry of the 

Decree in December. Thus, the court correctly contemplated that some 

post-hearing debt would be incurred prior to entry of the Decree.

¶15 Husband also asserts Wife’s schedule contradicted the Decree 

because line items 2500 through 2800 were not included within the Decree. 

On this point, the Decree defines the debt to “include current liabilities 

(accounts 2210-2350) but shall be exclusive of payroll (2100) and shall 

include shareholder notes payable (account 2400).” Although line items 

2500 through 2800 were not specifically included in the family court’s 

description, nor were they specifically excluded. Accordingly, Husband 

has not established a contradiction or abuse of discretion in the decision to

include line items 2500 through 2800 as payables in the order amending the 

Decree.

D. Allocation of Financial Accounts

¶16 Husband next argues the family court erred in its division of 

the parties’ financial accounts. The court awarded certain accounts to 

Husband with an equalization payment to Wife of $16,787.47. Husband 

argues the total value of the accounts was $9,200.70, and Wife should have 

been awarded only $4,600.35. However, Husband’s calculation recognizes 
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some of the amounts identified in the Decree but omits others. In her 

answering brief, Wife attempts to explain the court’s order by referring to 

amounts not referenced in the Decree. Still, she does not reach the same 

calculation. Because the basis for the equalization payment is unclear, we 

reverse the court’s division of the financial accounts and remand for further 

proceedings. See Kelsey, 186 Ariz. at 51 (“If the trial court’s basis for a 

conclusion is unclear, this Court may not affirm simply because we find 

some possible basis for that conclusion in the record.”) (citing Elliott, 165 

Ariz. at 135).

E. Allocation of 2016 Tax Refund

¶17 Husband argues the trial court erred in amending the Decree 

that originally awarded him the entirety of the 2016 tax refund, to allocate 

the refund equally between the parties. See supra ¶ 3. Husband concedes 

that the parties had previously agreed to split the refund equally but argues 

the initial ruling was intended to serve as an equalization for expenses 

incurred during the pendency of the divorce. The record does not support 

this assertion. The Decree originally stated: “Husband shall be solely 

entitled to any tax refunds and will be solely responsible for any tax liability 

in connection with 2016 taxes.” If the family court was not certain whether 

the 2016 taxes would result in a refund or liability, it could not have 

intended the refund to serve as a credit. Husband fails to show any abuse 

of discretion here.

II. Spousal Maintenance

¶18 Husband next argues the family court erred in setting the 

amount of spousal maintenance. We review the award of spousal 

maintenance for an abuse of discretion. Cullum v. Cullum, 215 Ariz. 352, 

354, ¶ 9 (App. 2007) (citing Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14 

(App. 1998)).

¶19 Husband first argues the family court erred in concluding he 

had the ability to meet his needs while paying $8,000 in monthly spousal 

maintenance to Wife. See A.R.S. § 25-319(B)(4) (directing consideration of 

“[t]he ability of the spouse from whom maintenance is sought to meet that 

spouse’s needs while meeting those of the spouse seeking maintenance”). 

Citing an unpublished memorandum decision, Husband suggests the court 

is required to review his net income and expenses when evaluating this 

factor, and then suggests the court failed to consider this evidence because

his financial disclosure reflects monthly expenses in excess of his net 

income. Husband’s trial testimony, however, reflects he shares the 
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expenses listed on the financial disclosure with his girlfriend. Additionally,

many of the expenses relate only to his girlfriend’s children. On this record, 

Husband has not established an abuse of discretion in the consideration of 

Husband’s financial needs.

¶20 Husband next argues the family court failed to consider

Wife’s historic income when determining she “would need to obtain some 

type of degree or certification to realistically obtain anything other than a 

minimum wage job.” See A.R.S. § 25-319(B)(5) (directing consideration of 

“[t]he comparative financial resources of the spouses, including their 

comparative earning abilities in the labor market”). Substantial evidence 

supports the court’s finding. Although the record reflects Wife had earned 

significantly more than minimum wage periodically between 2007 and 

2015, she testified she had been compensated far above her “experience and 

skill set.” Additionally, some of that income resulted from the purchase 

and sale of jointly owned real estate. Finally, Husband is a medical doctor, 

while Wife’s highest level of education is a high school equivalency 

diploma. We find no error.

¶21 Finally, Husband argues the family court erred by failing to 

take into account the value of the assets Wife was awarded in the Decree 

before setting the award of spousal maintenance. See A.R.S. § 25-319(B)(9) 

(directing consideration of “[t]he financial resources of the party seeking 

maintenance, including marital property apportioned to that spouse, and 

that spouse’s ability to meet that spouse’s own needs independently”). 

Husband specifically contends the court failed to consider Wife’s interest in 

RSUs. Although the court did not make a specific finding as to this asset, it 

did find that “both parties have received significant assets as part of the 

divorce. But, [W]ife has also received a community business that has 

historically hemorrhaged money.” The finding is supported by the record 

and indicates the court considered the nature and extent of Wife’s financial 

resources, including the property she received in the Decree, before 

exercising its discretion to set an amount of maintenance. The spousal 

maintenance order is affirmed.

III. Valuation of Red Cliff Property

¶22 Wife cross-appeals the family court’s order valuing real 

property in Colorado (the Red Cliff property) at $442,000, arguing the only 

evidence supporting this value was “an expert report where there was no 

expert to testify.” She argues her due process rights were violated because 

the expert was not available to lay foundation for the basis of his opinions 

and was not available to be cross-examined. When the objection was raised 
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at trial, the court found Husband laid sufficient foundation to admit the 

report into evidence through his own testimony and that Wife had had 

sufficient opportunity to question its author, either via deposition or by 

subpoenaing him for trial, had she so desired. We review an evidentiary 

ruling for a clear abuse of discretion and will reverse only if the ruling is 

erroneous or unfairly prejudicial. Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6 

(App. 2000).

¶23 Husband does not have the qualifications in real estate or 

property valuation necessary to lay the foundation for the expert opinion 

on the value of the Red Cliff property. The family court erred in admitting 

the report based on his testimony.

¶24 Regarding prejudice, the record reflects that Husband 

testified the property was worth $500,000. Wife testified consistently with 

a second valuation report that the property was worth $555,000. Because 

the properly admitted evidence suggests the Red Cliff property was worth 

significantly more than the valuation in the report that was erroneously

admitted, Wife was prejudiced by the family court’s consideration of it. On 

remand, the court should determine the value of the Red Cliff property 

based upon evidence properly admitted.

CONCLUSION

¶25 The family court’s orders dividing the parties’ financial 

accounts and setting a value for the Red Cliff property are vacated. The 

case is remanded to address the value of the financial accounts and the 

value of the Red Cliff property, and for equitable distribution of those 

assets. The court retains discretion to determine whether additional 

evidence or briefing is necessary to decide the issues. The remaining orders 

regarding the allocation of property and debt and spousal maintenance are 

affirmed.

¶26 Wife requests an award of attorneys’ fees and costs incurred 

on appeal pursuant to A.R.S. § 25-324(A). In our discretion, we decline the 

request. We further find that neither party is entitled to costs pursuant to 

A.R.S. § 12-341.