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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH L. FELDER, Petitioner/Appellant,

v.

DEBRA S. FELDER, Respondent/Appellee.

No. 1 CA-CV 19-0685 FC

Appeal from the Superior Court in Maricopa County

No. FN2005-000530

The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

S. Alan Cook, P.C., Phoenix

By S. Alan Cook, Sharon Ottenberg

Counsel for Petitioner/Appellant

FILED 6-18-2020
FELDER v. FELDER

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 Appellant Kenneth L. Felder (“Husband”) appeals the 

superior court’s order that declined to terminate his spousal maintenance

obligation to Debra S. Felder (“Wife”).1 For the following reasons, we 

affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2007, Husband and Wife divorced after about twenty-nine 

years of marriage. Wife sought spousal maintenance. Husband owned and 

operated a furniture business, the Stool & Dinette Factory (“SDF”), and the 

superior court attributed a monthly salary of about $8,000 to Husband in 

the decree of dissolution. The superior court found Wife’s monthly income 

to be $2,400 from her disability benefit and an annuity, and so the court 

ordered Husband to pay Wife $2,800 in spousal maintenance each month 

until further order.

¶3 In 2013, Husband filed a petition to modify his spousal 

maintenance obligation, claiming his income had been substantially 

reduced. Following an evidentiary hearing, the superior court reduced 

Husband’s spousal maintenance obligation to $1,500 a month plus an 

additional $500 a month until an arrearage was paid. The superior court 

noted there was testimony about SDF being in bankruptcy proceedings and

the bankruptcy court setting his monthly salary at $2,500. The superior 

court also specifically found that SDF was paying Husband’s spousal 

maintenance obligation. In 2014, the bankruptcy court approved SDF’s 

1 Wife did not file an answering brief, which we may deem a 

confession of reversible error. McDowell Mountain Ranch Cmty. Ass’n v. 

Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007). In our discretion, we decline 

to do so.
FELDER v. FELDER

Decision of the Court

3

reorganization plan. This plan allowed Husband to take a $2,600 monthly 

salary.

¶4 In 2014, Husband filed another petition to modify his spousal 

maintenance obligation, claiming as changed circumstance the bankruptcy 

court order limiting Husband’s salary. Husband also argued Wife had 

reached retirement age, so she was now able to draw from retirement funds 

to help support herself. Following trial, the superior court denied 

Husband’s petition to modify or terminate spousal maintenance, and 

Husband appealed. This court reversed and remanded the superior court’s 

order, finding there was evidence of a changed circumstance in that SDF 

was no longer paying Husband’s spousal maintenance obligation. See 

Felder v. Felder, 1 CA-CV 15-0831, 2016 WL 7093872, at *3, ¶ 13 (Ariz. App. 

Dec. 6, 2016) (mem. decision).

¶5 On remand, the superior court found that the only change to 

Husband’s income was that SDF was no longer paying his spousal support 

obligation. The superior court also found that Wife had dissipated all of 

the retirement assets she received in the divorce decree. In a June 2017 

order, the superior court reduced Husband’s spousal maintenance 

obligation to $1,000 plus $500 until his arrearage was paid. Husband did 

not appeal.

¶6 Only a few months later in October 2017, Husband filed a 

petition to terminate spousal maintenance. Husband alleged as changed 

circumstances that he suffered from multiple physical health problems. 

Husband also contended that he was unable to earn a living from his 

business. Husband for the first time also claimed he had been forced to take 

early distribution of his social security benefits, because he had not been 

able to take a salary from SDF since 2015.

¶7 The superior court held an evidentiary hearing in June 2019,

after which it denied Husband’s petition to terminate spousal maintenance. 

After an unsuccessful motion to alter/amend the order, Husband timely 

appealed. We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) 

section 12-2101(A)(2).

DISCUSSION

¶8 Husband contends the superior court erred by failing to 

terminate the spousal maintenance award to Wife. Pursuant to A.R.S. § 25-

327(A), a spousal maintenance award “may be modified or terminated only 

on a showing of changed circumstances that are substantial and 

continuing.” We review the superior court’s decision regarding the 
FELDER v. FELDER

Decision of the Court

4

existence of changed circumstances to support modification or termination

of spousal maintenance for an abuse of discretion. Nace v. Nace, 107 Ariz. 

411, 413 (1971); Kelsey v. Kelsey, 186 Ariz. 49, 53 (App. 1996). We will not set 

aside the superior court’s findings unless they are clearly erroneous or 

unsupported by substantial evidence. In re Marriage of Berger, 140 Ariz. 156, 

161 (App. 1983); Bobrow v. Bobrow, 241 Ariz. 592, 595-97, ¶¶ 11, 20 (App. 

2017). The party seeking modification bears the burden of proving a change 

in circumstances. Scott v. Scott, 121 Ariz. 492, 494 (1979).

¶9 When assessing whether a substantial and continuing change 

has occurred, the court considers the latest order modifying the spousal 

maintenance award. McClendon v. McClendon, 243 Ariz. 399, 401-02, ¶ 10 

(App. 2017). Here, Husband’s spousal maintenance obligation was 

modified in a June 2017 order. Thus, in the instant proceedings the superior 

court assessed whether there has been a continuing or substantial change 

since June 2017.

¶10 First, Husband argues the superior court made “unwarranted 

assumptions about Husband’s health, imputing fault to him for his 

substantial health issues merely because he is overweight, but doing so 

without taking any evidence from the physician who testified to support 

the court’s findings.” However, the superior court discussed Husband’s 

health—an issue raised by Husband—in the context of whether or not there 

was a substantial or continuing change that justified termination of 

Husband’s spousal support obligation; the superior court did not discuss 

Husband’s health condition merely to “impute fault” to him.

¶11 In his opening brief, Husband contended he suffers from 

eleven health conditions. However, at trial, there was testimony that 

Husband’s “medical conditions were due to years of [Husband] being 

overweight and that they did not occur recently.” The superior court never 

found, as Husband contends, that Husband’s “inability to work is his own 

fault because he is overweight.” Instead, the superior found the evidence 

showed Husband likely suffered from these health problems for many 

years, so the court was unable to find Husband’s health had substantially 

changed since June 2017.

¶12 At trial, Husband’s physician testified Husband was 

currently in remission for non-Hodgkin’s lymphoma, and the superior 

court specifically noted no evidence showed this cancer had reoccurred 

since 2001. A 2005 letter from one of Husband’s physicians indicated that 

Husband was dealing with hypertension, peripheral vascular disease of the 

lower extremities, and depression and anxiety at that time. Another letter 
FELDER v. FELDER

Decision of the Court

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from a different physician indicates that Husband had been treated for 

diabetes since at least 2011. Husband underwent knee replacement in 2015. 

A 2017 physician letter indicated Husband was “status post prostate 

cancer,” and it indicated Husband had a kidney removed, though it is 

unclear whether the kidney was removed before or after June 2017. The 

record demonstrates Husband has been dealing with these conditions prior 

to June 2017, and no evidence or testimony was presented as to how these 

health problems may have progressed or worsened.

¶13 Although the record is unclear as to when Husband was 

diagnosed with an aortic aneurysm, and whether it was before or after June 

2017, the superior court did note its concern for possible future surgery 

related to this condition. A 2019 letter from Husband’s physician stated 

that the aortic aneurysm would be closely monitored over the next several 

months for continued growth, and if it did continue to grow, Husband 

would require surgery. However, the change in circumstances must exist 

before a party may petition for modification; relying on future events is too 

“speculative.” Chaney v. Chaney, 145 Ariz. 23, 26-27 (App. 1985). At the time 

of the hearing, it was unclear when or if Husband would have surgery to 

address the aortic aneurysm, and it was unclear how such a surgery would 

affect Husband and his ability to work in the future.

¶14 Additionally, at trial, there was no testimony about 

Husband’s current job duties at SDF. Husband’s physician did not provide 

any testimony at trial about how Husband’s health conditions might 

specifically affect Husband’s ability to work. Husband’s physician could 

not state that working full-time was life-threatening to Husband or that it 

would shorten his life in any way. The superior court did note that a 

physician advised Husband to decrease his work. The superior court 

further noted that Husband had in fact decreased his work to part-time.

However, the court found that according to Husband’s most recent

affidavit of financial information (“AFI”), Husband’s monthly earnings 

were $3,352 per month. In the June 2017 order, Husband was attributed a 

salary of $2,600 per month. The superior court found Husband’s health 

conditions did not cause a substantial or continuing change in his earnings.

Husband bears the burden of proving there has been a substantial change 

in circumstances since June 2017, and the superior court did not abuse its 

discretion in finding that he failed to do so. See Scott, 121 Ariz. at 494.

¶15 Next, Husband argues the superior court erred when 

determining his income. Husband argues it “improperly consider[ed] 

Husband’s borrowing from credit cards as ‘income.’” Although Husband 

claims the $1,505 listed on his AFI was borrowing on credit cards, his AFI 
FELDER v. FELDER

Decision of the Court

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specifically states $1,505 of his income is “credit cards, sales/liquidation of 

assets & [repayment] of loans from SDF.” (Emphasis added.) Husband’s AFI 

makes clear the $1,505 is not entirely Husband’s borrowing from credit 

cards, as he now alleges on appeal. Instead, this amount includes payments 

from SDF to Husband to repay significant loans Husband has made to his 

company in previous years.

¶16 Further, in addition to Husband receiving social security

income, there was testimony at trial that SDF continues to pay many of 

Husband’s expenses, as was the case in June 2017. Testimony also showed 

SDF makes the payments for the truck Husband uses for both company and 

personal use, and SDF also pays for gas and insurance for the truck.

Husband testified that SDF paid for his cell phone bill. Although Husband 

used his dogs in SDF’s marketing, they were still his pets, and Husband 

testified that SDF paid for veterinary bills, dog food, and other supplies. 

Husband also admitted at trial to making petty cash withdrawals from SDF 

for personal use, which the superior court characterized as “substantial.”

The superior court found it was not provided with any reason that SDF was 

“not repaying [Husband] for loans and other expenses at a rate greater than 

approximately $1,500.00 per month.”

¶17 The superior court specifically noted in its 2007 decree of 

dissolution that “Husband’s income can only be described as ambiguous,”

and that statement still rings true today. Although Husband claims he has 

been unable to draw a salary from SDF since 2015, he did not raise this 

argument in his two prior modification proceedings. We repeat that

Husband has the burden of proving there has been a substantial and 

continuing change in his income in order to justify terminating his spousal 

maintenance, and looking at this record, we cannot say the superior court 

erred when it found Husband failed to do so.

¶18 Husband argues the superior court failed to properly 

consider Wife’s income, which he contends consists of social security 

payments, public assistance, and mortgage loan forgiveness. Wife denied 

receiving public assistance and loan forgiveness at trial, but in any event, 

Husband fails to explain how Wife’s income has substantially and 

continuously changed since June 2017. Wife has received disability benefits 

since the time of the divorce in 2007. Husband contends Wife has received 

the public benefits and mortgage loan forgiveness since 2014. These 

circumstances existed at the time of the 2017 modification proceedings.

“[R]es judicata prevents the party ‘from obtaining a modification . . . based 

on facts which could have been raised’ in the previous proceeding.” 

McClendon, 243 Ariz. at 402-03, ¶ 15 (second emphasis omitted) (quoting In 
FELDER v. FELDER

Decision of the Court

7

re Marriage of Rowe, 117 Ariz. 474, 475 (1978)). The superior court did not 

err.

¶19 Husband also argues that Wife has unreasonably dissipated 

the retirement assets she was awarded in the divorce decree, and Husband 

should not be penalized for such waste. At the same time, Husband 

contends “Wife has never proven at any time that she has, in fact, spent her 

retirement assets.” Husband has previously raised the issue of Wife’s 

retirement assets before the superior court and this court. As this court held

in Husband’s prior appeal:

Wife reached retirement age in December 2013; therefore, this 

circumstance existed at the time of the earlier modification 

proceeding. Wife also received the life insurance proceeds, 

sales proceeds, and the lump sum annuity payment several 

years before Husband filed his first petition to modify. 

Evidence of these circumstances existed at the time of the 

prior proceedings. Yet, Husband did not raise them in his 

first petition to modify. Husband, therefore, cannot claim 

these events constitute a change in circumstances since the 

[most recent] order.

Felder, 1 CA-CV 15-0831, at *3, ¶ 15 (footnotes omitted).

¶20 Husband claims that the superior court has impermissibly 

“forgiven” Wife’s dissipation of the retirement assets distributed to her 

from the divorce decree. But in the June 2017 modification proceedings, the 

superior court found that Wife “completely depleted” the retirement assets 

she was awarded in an unreasonable manner, and as a result, reduced

Husband’s spousal maintenance obligation. Husband did not appeal the 

June 2017 order. The superior court, therefore, already accounted for this 

dissipation in the 2017 order. It is not a changed circumstance now.

¶21 Finally, Husband argues the superior court “fail[ed] to make 

findings supported by the evidence with respect to the factors enumerated 

in A.R.S. § 25-319(B),” particularly (4), (5), and (9). The standard for 

modification or termination of a spousal maintenance obligation is whether 

there has been a substantial or continuing change in circumstances. A.R.S. 

§ 25-327(A). If a court finds a substantial and continuing change in 

circumstances exists, then the court must determine what modification is 

appropriate, in light of the changed circumstances, using the factors in

A.R.S. § 25-319(B). Ruskin v. Ruskin, 153 Ariz. 504, 506 (App. 1987); see also 

Scott, 121 Ariz. at 495 n.5 (stating that courts must consider “the same . . . 
FELDER v. FELDER

Decision of the Court

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factors taken into consideration when granting an award for support and 

maintenance” under A.R.S. § 25–319(B)). Here, the superior court did not 

find a change of circumstances, so it was not required to make express 

findings as to each factor in § 25-319(B). We find no error.

¶22 Husband requests his attorneys’ fees and costs incurred in 

this appeal under A.R.S. § 25-324. He is not the prevailing party on appeal. 

For this reason, and having also considered the relevant financial evidence 

in the record and his positions on appeal, we decline to award fees or costs.

CONCLUSION

¶23 For the foregoing reasons, we affirm.