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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LELAND SNOOK, Petitioner/Appellee,

v.

MADALENA AGUILAR, Respondent/Appellant.

No. 1 CA-CV 17-0159 FC

Appeal from the Superior Court in Maricopa County

No. FN2016-051451

The Honorable Jennifer C. Ryan-Touhill, Judge

AFFIRMED IN PART; VACATED IN PART 

COUNSEL

Schmillen Law Firm, PLLC, Scottsdale

By James Robert Schmillen

Counsel for Petitioner/Appellee

Hawkins & Hawkins, PLLC, Mesa

By Mark W. Hawkins

Counsel for Respondent/Appellant

FILED 12-26-2017
SNOOK v. AGUILAR

Decision of the Court

2

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.

M O R S E, Judge:

¶1 Madalena Aguilar ("Wife") appeals from the decree 

dissolving her marriage to Leland Snook ("Husband"). For the following 

reasons, we vacate the orders directing Wife to reimburse Husband for 

certain separate and community expenses, but we affirm in all other 

respects.

FACTS AND PROCEDURAL HISTORY

¶2 The parties were married in January 1991. In February 2016,

Husband filed a petition for dissolution. To avoid incurring attorneys' fees 

litigating a temporary spousal maintenance order, see Ariz. Rev. Stat. 

(A.R.S.) § 25-315; Ariz. R. Fam. Law P. 47, the parties agreed that Husband 

would pay all expenses incurred during the dissolution—both community 

and separate. After a one-day trial in January 2017, the family court entered 

a decree of dissolution, dividing the community property and debt, 

awarding Wife spousal maintenance of $5,000 per month for 10 years, and 

denying Wife's request for attorneys' fees "beyond what she has already 

received."

¶3 Wife timely appealed. We have jurisdiction pursuant to 

A.R.S. § 12-2101(A)(1).

DISCUSSION1

¶4 We view the facts in the light most favorable to upholding the 

decree. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5 (App. 1998). Because 

the family court "is in the best position to judge the credibility of witnesses 

and resolve conflicting evidence," we defer to its factual findings. Vincent 

v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015); see Gutierrez, 193 Ariz. at 347, 

¶ 13. We assume the court resolved every issue of fact in a way that 

 

1 We address only those issues Wife presents in the statement of issues, 

including "every subsidiary issue fairly comprised within the statement." 

See Ariz. R. Civ. App. P. 13(a)(6).
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3

supports its judgment. Murren v. Murren, 191 Ariz. 335, 337, ¶ 8 (App. 1998) 

(quoting Crye v. Edwards, 178 Ariz. 327, 328 (App. 1993)).

I. Biscuit and Charlie

¶5 Wife argues the dogs, Biscuit and Charlie, are her separate 

property and, therefore, the family court erred by awarding them to 

Husband. "The characterization of property as separate or community is a 

question of law we review de novo." Schickner v. Schickner, 237 Ariz. 194, 

199, ¶ 22 (App. 2015).

¶6 "Property acquired by either spouse during marriage is 

presumed to be community property, and the spouse seeking to overcome 

the presumption has the burden of establishing a separate character of the 

property by clear and convincing evidence." Brebaugh v. Deane, 211 Ariz. 

95, 97–98, ¶ 6 (App. 2005) (quoting Thomas v. Thomas, 142 Ariz. 386, 392 

(App. 1984)); see A.R.S. § 25-211(A). Although Wife testified on redirect 

examination that the dogs were a gift to her from her nephews, she did not 

identify the dogs as separate property in her pretrial statement or otherwise 

satisfy her burden to raise the property status of the dogs as a contested 

issue for the family court. Leathers v. Leathers, 216 Ariz. 374, 378, ¶ 19 (App. 

2007).

¶7 In this litigation posture, the family court did not err when it 

rejected the uncontradicted testimony of an interested party. See Dumes v. 

Harold Laz Advert. Co., 2 Ariz. App. 387, 388 (1965); Graham v. Vegetable Oil 

Prods. Co., 1 Ariz. App. 237, 241 (1965). Because Wife did not demonstrate 

"the thing to be proved is highly probable or reasonably certain," see Kent K. 

v. Bobby M., 210 Ariz. 279, 284-85, ¶ 25 (2005) (defining clear and convincing 

evidence), she failed to overcome the community property presumption.

See In re Marriage of Foster, 240 Ariz. 99, 101-02, ¶¶ 10-12 (App. 2016) 

(concluding the family court did not err in rejecting evidence offered by 

Husband that he inherited guns from his brother).

II. Division of Property

¶8 In a dissolution proceeding, the family court "has broad 

discretion to achieve an equitable division" of the community property. 

Boncoskey v. Boncoskey, 216 Ariz. 448, 451 ¶ 13 (App. 2007); see Toth v. Toth,

190 Ariz. 218, 221 (1997); see also A.R.S. § 25-318(A). Again, we view the 

evidence in the light most favorable to sustaining the court's ruling, and we 

will affirm if it is reasonably supported by the evidence. Boncoskey, 216 

Ariz. at 451, ¶ 13. We presume the court found all facts necessary to support 
SNOOK v. AGUILAR

Decision of the Court

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the property division "if the evidence on any reasonable construction 

justified it." Neal v. Neal, 116 Ariz. 590, 592 (1977).

A. Reimbursement

¶9 Wife argues the family court erred by ordering her to 

reimburse Husband for (1) $10,000 in separate expenses she incurred 

during the dissolution and (2) half of the amounts paid to the attorney who 

prepared a Qualified Domestic Relations Order ("QDRO"), the mediator, 

and half the cost for an appraisal of the Greer property.

2 We agree.

¶10 The parties agreed that, in lieu of paying Wife spousal 

maintenance, Husband would pay all separate and community expenses

pending the dissolution. At trial, though, he requested reimbursement for 

some of these expenses, suggesting that Wife spent excessively and wasted 

community assets. But because there was no spousal maintenance order, 

Wife was not given a "fixed amount" each month from which to pay her 

expenses. And the family court expressly rejected Husband's accountings 

of the parties' expenses as separate or community, finding "no basis for how 

expenses are itemized other than Husband's own personal opinion."

3

Accordingly, because the record does not support the court's ruling, see 

Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012) (stating that the superior 

court abuses its discretion by making a discretionary ruling the record does 

not support), we vacate the orders directing Wife to reimburse Husband for 

$10,000 in separate expenses she incurred during the dissolution, half of the 

amounts paid to the mediator and QDRO attorney, and half the cost for the 

Greer property appraisal.

¶11 Wife also argues the family court erred by ordering her to pay

half of the 2016 tax liability. However, the order explaining how the parties 

should handle the 2016 taxes was entered on March 2, 2017, almost a month 

after Wife filed the notice of appeal that opened this appeal. Because the 

family court had no jurisdiction to issue this ruling, we vacate the order. 

See City of Phx. v. Leroy's Liquors, Inc., 177 Ariz. 375, 380-81 (App. 1993).

 

2 Per Wife's calculation, the family court improperly ordered her to pay 

$3,535 = 50% of $4,270 (QDRO attorney) + $2,000 (mediator) + $800 

(appraisal).

3 The family court relied on one such "list" (Exhibit 6) to support its finding 

that "Wife outspent Husband by almost $10,000.00."
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B. Waste

¶12 Wife argues the family court abused its discretion by not 

awarding her $21,602, which she claimed was her share of post-tax 

community assets that Husband liquidated while the dissolution was 

pending because he spent his separate income "on his girlfriend and 

alcohol."

4

¶13 The family court is authorized to "adjust the value of the 

property assigned to each spouse so that neither spouse profits by misuse 

or concealment of the commonly-held property." Martin, 156 Ariz. at 456;

see A.R.S. § 25–318(A), (C) (authorizing the family court to make an 

equitable division of community property after considering "excessive or 

abnormal expenditures, [or the] destruction, concealment or fraudulent 

disposition" of community property); see also A.R.S. § 25-319(B)(11). "[T]he 

spouse alleging abnormal or excessive expenditures by the other spouse has 

the burden of making a prima facie showing of waste." Gutierrez, 193 Ariz. 

at 346, ¶ 7.

¶14 Wife did not carry her burden of proof on this issue. The 

family court found that "neither party acted like they were getting a divorce

and instead spent money freely, without limitation, and without any 

practical restrictions. That is, both parties arguably squandered their 2015-

2016 income on many things beyond the necessities of life." (Emphasis in 

original). "In balancing such equities, courts might reach different 

conclusions in similar cases without abusing their discretion." In re 

Marriage of Flower, 223 Ariz. 531, 535, ¶ 14 (App. 2010). On this record, we 

find no error.

 

4 Wife suggests this issue "goes to the division of property, not waste." As 

she obliquely recognized in her pretrial statement, though, we use the term 

"waste" to describe excessive or abnormal expenditures from community 

property that must be accounted for when making an equitable 

distribution. See, e.g., Gutierrez, 193 Ariz. at 346, ¶ 6 (citing A.R.S. § 25–

318(A) (recodified as A.R.S. § 25–318(C)), Martin v. Martin, 156 Ariz. 452, 

458 (1988), and Hrudka v. Hrudka, 186 Ariz. 84, 93 (App. 1995), superseded in 

part by statute on other grounds as recognized in Myrick v. Maloney, 235 Ariz. 

491, 494, ¶ 8 (App. 2014)).
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III. Attorneys' Fees

¶15 Wife argues the family court erred by denying her request for 

attorneys' fees.5 The court may award reasonable attorney's 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(A). We review an attorneys' fees award for an abuse of discretion.

MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011).

¶16 Wife suggests an "extraordinary disparity of income"

mandates that she be awarded attorneys' fees. Wife is incorrect. See Myrick,

235 Ariz. at 494, ¶ 9. The family court may award fees, but it is not required 

to do so. Alley v. Stevens, 209 Ariz. 426, 429, ¶ 12 (App. 2004). Here, after 

considering the statutory factors, the court denied Wife's request beyond 

the fees Husband had already paid. We find no error. See Myrick, 235 Ariz. 

at 494, ¶ 9 (explaining that the family court has discretion to deny a fee 

request after considering a financial disparity between the parties and the 

reasonableness of the parties' positions taken throughout the proceedings, 

though no factor controls).

¶17 Wife also suggests the family court should have required the 

parties to submit China Doll affidavits before ruling on the issue of attorneys'

fees.6 Wife cites no legal authority for this suggestion, nor have we found 

any. A China Doll application allows the court to assess the reasonableness 

of the fees requested. Schweiger, 138 Ariz. at 187-88; Orfaly v. Tucson 

Symphony Soc'y, 209 Ariz. 260, 266, ¶ 23 (App. 2004). It does not assist the 

court in determining whether a party is entitled to fees under § 25-324. Cf.

Nolan v. Starlight Pines Homeowners Ass'n, 216 Ariz. 482, 490, ¶ 34 (App.

2007) (explaining that we review a trial court's application of § 12-341.01 de 

novo, but we review the amount awarded for an abuse of discretion); see id. 

at 490-91, ¶ 38 ("Once a party establishes its entitlement to fees and meets 

the minimum requirements in its application and affidavit for fees, the 

burden shifts to the party opposing the fee award to demonstrate the 

impropriety or unreasonableness of the requested fees.").

 

5 Wife does not appeal the family court's award of $7,500 in attorneys' fees 

to Husband based on her "unreasonable actions in refusing to make good 

faith efforts to settle the case . . . and pursuance of claims of waste without 

merit."

6 Schweiger v. China Doll Rest., Inc., 138 Ariz. 183 (App. 1983).
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CONCLUSION

¶18 For the foregoing reasons, we vacate the orders directing Wife 

to reimburse Husband for $10,000 in separate expenses she incurred during 

the dissolution, half of the amounts paid to the QDRO attorney and the 

mediator, and half the cost for the Greer property appraisal. In all other 

respects, we affirm.

¶19 Both parties request attorneys' fees on appeal pursuant to 

A.R.S. § 25-324. In our discretion, we deny their requests. We award costs 

to Husband as the successful party, upon compliance with Arizona Rule of 

Civil Appellate Procedure 21.