NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Marriage of:

ARLENE NATALE, Petitioner/Appellee,

v.

PAUL NATALE, Respondent/Appellant.

No. 1 CA-CV 12-0765

Appeal from the Superior Court in Maricopa County

FN2010-090627

The Honorable Teresa A. Sanders, Judge

AFFIRMED

COUNSEL

Bishop & Martin Law Office, P.C., Phoenix

By William D. Bishop, Kristen A. Martin

Counsel for Petitioner/Appellee

The Murray Law Offices, P.C., Scottsdale

By Stanley D. Murray

Counsel for Respondent/Appellant
NATALE v. NATALE

Decision of the Court

2

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.

G E M M I L L, Judge:

¶1 Paul Natale (“Husband”) appeals the family court’s postdecree rulings regarding distribution of marital property and attorneys’

fees. In a separate, published opinion filed contemporaneously with this 

memorandum decision, we deny the motion filed by Arlene Natale 

(“Wife”) to dismiss a portion of Husband’s appeal for lack of jurisdiction. 

In this memorandum decision, we resolve the merits of Husband’s appeal 

and, for the following reasons, we affirm the rulings of the family court.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Husband and Wife were married in 1976 in New Jersey.

After their marriage, the Natales moved several times between 1976 and 

1989 to pursue Husband’s employment opportunities, until they settled in 

Scottsdale, Arizona. Husband is a pilot for Southwest Airlines. Wife has 

had part-time jobs but has primarily been a homemaker. The parties have 

no minor children together. Wife filed for dissolution in March 2010.

¶3 The former marital residence caught fire in September 2010 

and was severely damaged. Both parties were instructed to reside 

elsewhere during renovations. The insurance company agreed to pay for 

the parties’ housing during this time. The parties scheduled arbitration 

with the insurance company in April 2011 and were informed that home 

renovations would take four additional months to complete. As a result, 

the dissolution trial was continued to May 2011. At the trial, the court 

addressed issues of spousal maintenance, the parties’ Southwest Union 

Bank accounts, the disposition of parties’ three cemetery plots, the marital 

residence, and attorneys’ fees. 

¶4 The court ruled that Wife was entitled to spousal 

maintenance pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-

319, and ordered Husband to pay spousal maintenance in the amount of 

$4500 per month beginning March 1, 2011, for seven years. The court 

divided the Southwest Credit Union bank account equally between the 
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Decision of the Court

3

parties, and awarded Wife the cemetery plots. The court did not resolve 

the disposition of the marital residence because it was still under 

renovation. The court also stated that it would award Wife a portion of 

her reasonable attorneys’ fees and costs.

¶5 Husband and Wife subsequently hired an appraiser, who

valued the residence at $685,000. After subtracting the amount of the first 

and second mortgages, there was $115,000 in equity in the house, which if

split evenly equals $57,500 per person. Husband offered to purchase 

Wife’s share of the value at this price, but Wife rejected his offer because 

she believed the property was worth more. She countered by offering to 

purchase Husband’s interest for the same price if he thought it was fair 

market value. Husband declined to purchase from Wife at that price.

Since that first offer by Husband, Wife has repeatedly discounted the first 

appraisal. After the court entered a final decree which dissolved the 

marriage and divided the property, the court denied Husband’s motion to 

require Wife to sell the house at the $685,000 valuation.

¶6 Because the parties could not agree on the value of the 

marital property, the court appointed a real estate commissioner to 

conduct a market analysis and sell the home in a commercially reasonable 

manner subject to court approval. The commissioner had the home 

appraised at $760,000 and both parties submitted their offers to the 

commissioner for consideration. The commissioner subsequently 

requested that the court hold a hearing to determine which party (or 

third-party) should be entitled to purchase the property and the terms of 

such sale. The court conducted a hearing, agreed with the commissioner’s 

appraisal, and issued an order authorizing Husband to purchase the 

house at the most recent appraised price.

¶7 Wife filed a petition for contempt and to enforce court orders

in January 2012. She asked that the remaining bank accounts be divided 

and for Husband to provide an accounting for all proceeds received and 

amounts expended to renovate the house after the fire pursuant to the 

court’s May 2011 ruling. Husband had previously refused to provide an 

accounting unless he was awarded 20 percent of those proceeds as a 

“general contractor’s fee” because he spearheaded the renovations,

despite excluding Wife from participating in the renovations. Wife also 

sought attorneys’ fees in conjunction with her petition for contempt and 

for enforcement.

¶8 The court set a post-decree evidentiary hearing on Wife’s 
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petition for contempt and enforcement and all unresolved issues. After 

the hearing on July 9, the court issued a signed minute entry on August 9, 

2012, rejecting Husband’s claim that he was entitled to a 20 percent 

contractor’s fee, dividing Husband’s non-qualified retirement accounts 

and ordering Husband to pay Wife $22,000 before he retires, requiring 

Wife to reimburse Husband if Husband’s employer does not pay him a 

commensurate amount upon retirement, and finding that the current fair 

market value of the house equals $760,000. The minute entry also 

required Husband to timely purchase the house. If he failed to do so,

Wife would be entitled to purchase his interest. If neither party purchased 

the house, a new real estate commissioner would be appointed and the 

property would be sold. The court did not rule on Wife’s requests for 

attorneys’ fees at that time.

¶9 In judgments entered on August 24 and September 17, 2012, 

the court awarded attorneys’ fees to Wife for both the post-trial 

proceedings and the enforcement proceedings. Husband filed a notice of 

appeal on September 24, 2012. For the reasons explained in the opinion 

published contemporaneously with this decision, we conclude that 

Husband’s notice of appeal was timely as to all issues appealed and we 

have jurisdiction pursuant to A.R.S. § 12-2101(A). 

ANALYSIS

¶10 Husband raises four issues on appeal. First, he argues the 

court erred by not allowing him to purchase the marital residence at the 

original appraised price of $685,000. Second, he contends that the court 

did not have jurisdiction to distribute Wife’s share of his retirement 

accounts. Third, he argues that he is entitled to a 20 percent contractor’s 

fee for his efforts in renovating the marital residence. Finally, he 

challenges the award of attorneys’ fees to Wife for post-trial and 

enforcement proceedings. 

Value of the Marital Residence

¶11 Husband argues the court erred by not enforcing Wife’s 

alleged agreement to $685,000 as the value of the marital residence and by

later determining the value of residence to be the amended (and 

increased) price of $760,000. We disagree. In apportioning community 

property at dissolution, the family court has broad discretion to achieve 

an equitable division, and we will not disturb its allocation absent an 

abuse of discretion. Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13, 167 

P.3d 705, 708 (App. 2007). In reviewing the apportionment of community 
NATALE v. NATALE

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property, we consider the evidence in the light most favorable to 

upholding the court’s ruling and will sustain the ruling if it is reasonably 

supported by the evidence. Id. 

¶12 The question of whether the parties agreed to a certain 

appraised value is a factual determination the court had to resolve. We 

will not disturb the court's factual findings unless clearly erroneous.

Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App. 1995). A 

finding of fact is not clearly erroneous if substantial evidence supports it, 

even if substantial conflicting evidence exists. Kocher v. Dep't of Revenue of 

Ariz., 206 Ariz. 480, 482, ¶ 9, 80 P.3d 287, 289 (App. 2003). The family 

court did not err in declining to conclude that Wife had agreed to the 

initial valuation of $685,000.

¶13 Because the parties could not agree on the value and 

disposition of the home, a real estate commissioner was appointed and 

appraised the home at $735,000, and several months later, at $760,000. 

The family court acknowledged the commissioner’s testimony about the 

nature of the home and the changing market, and accepted the higher 

appraisal. The court confirmed that, due to the uniqueness of the marital 

residence and because there had been no agreement as to the prior 

appraised price of $685,000, it was appropriate to obtain updated

appraisals. Based on this record, we find no abuse of discretion by the 

trial court in accepting the commissioner’s testimony and setting the 

option price for Husband’s purchase of the property at $760,000.

Husband’s Non-Qualified Retirement Accounts

¶14 Husband claims the court lacked subject matter jurisdiction 

or authority over the distribution of Husband’s non-matured, nonqualified retirement accounts. We conclude otherwise. 

¶15 The family court is vested with subject matter jurisdiction 

over all domestic relations matters. In re Marriage of Dorman, 198 Ariz. 

298, 301, ¶ 7, 9 P.3d 329, 332 (App. 2000). And the Arizona Supreme Court 

made clear in Johnson v. Johnson, 131 Ariz. 38, 41, 638 P.2d 705, 708 (1981), 

that pension rights, whether vested or non-vested, are community 

property if the rights were acquired during marriage and are subject to 

equitable division upon divorce. See also Koelsch v. Koelsch, 148 Ariz. 176, 

180-81, 713 P.2d 1234, 1238-39 (1986) (holding non-mature pension 

benefits are community property subject to equitable division if acquired 

during the marriage); Boncoskey, 216 Ariz. at 451-52, ¶ 16, 167 P.3d at 708-
NATALE v. NATALE

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09 (confirming that Johnson should be applied to non-mature pensions); 

see generally Rinegar v. Rinegar, 231 Ariz. 85, 90, ¶21, 290 P.3d 1208, 1213 

(App. 2012) (explaining that the trial court has jurisdiction to equitably 

divide non-qualified pension plans acquired during the marriage). 

Husband acquired rights to his retirement accounts during the marriage 

and, as a result, the court had jurisdiction to address the division of 

Husband’s retirement accounts. 

¶16 Here, the court used the present cash value method to 

determine and distribute to Wife her share of Husband’s non-qualified 

retirement accounts. The present cash value method is one of the two 

methods recognized in Johnson, and is preferred because it prevents future 

entanglement between spouses and the court. Hetherington v. 

Hetherington, 220 Ariz. 16, 19, ¶ 11, 202 P.3d 481, 484 (App. 2008) (holding 

that the present cash value method relieves the former spouses from 

“further entanglement” with the possibility of court involvement and 

enforcement issues); Johnson, 131 Ariz. at 41-42, 638 P.2d at 708-09. The 

court noted that Husband has not followed court orders in the past and 

Husband has sufficient income to pay Wife at this time. The court also 

considered Husband’s concern that he is bearing all the risk by allowing 

Wife her share of benefits now and added an order that Wife repay 

Husband if his employer does not ultimately pay him his retirement 

benefits. On this record, we find no abuse of discretion. 

Reimbursement for Husband’s Renovation Efforts

¶17 Husband contends he is entitled to a 20 percent contractor’s 

fee for his efforts in renovating the marital home. Wife argues that 

Husband waived his right to raise this issue on appeal because he failed to 

formally plead the issue in his pre-trial statement or at trial. Generally,

issues and arguments raised for the first time on appeal are untimely and 

deemed waived. See Pro Finish USA, Ltd. v. Johnson, 204 Ariz. 257, 267, ¶

41, 63 P.3d 288, 298 (App. 2003). Wife, however, put the issue in her 

pretrial statement and Husband raised the issue at trial. Therefore, 

Husband has not waived the issue. 1

¶18 At the July 2012 trial, the court heard testimony from the 

parties, a witness who was helping Husband with the renovation, as well 

 1 Husband is precluded, however, from raising the contention that he is 

entitled to an equitable lien because he failed to raise that issue at trial.
NATALE v. NATALE

Decision of the Court

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as an accountant. It was clear that Husband was not a licensed contractor 

and that Wife was inappropriately excluded from the house during the 

renovations. It was also clear that only insurance proceeds that belonged 

to the community (and not Husband’s sole and separate property) were 

used to complete the renovations. The court explained in the dissolution 

decree and reiterated in the August 2012 ruling that the insurance 

proceeds were to be divided equally. As a result, the court rejected

Husband’s claim that he was entitled to a 20 percent contractor’s fee. The 

court did not abuse its discretion by denying Husband’s request. 

Attorneys’ Fees Award to Wife for Post-Trial

And Enforcement Proceedings

¶19 Husband argues that the court abused its discretion by 

awarding Wife attorneys’ fees for the post-trial and enforcement 

proceedings pursuant to A.R.S. § 25-324. We review an award of fees for 

an abuse of discretion. In re Marriage of Robinson and Thiel, 201 Ariz. 328, 

335, ¶ 20, 35 P.3d 89, 96 (App. 2001). 

¶20 In awarding Wife fees, the court analyzed both the financial 

resources of the parties and the reasonableness of their positions, in 

accordance with A.R.S § 25-324. The court found that: 

(1.) Husband has substantially greater earning potential than 

Wife. Despite the financial assets Wife was awarded pursuant 

to the parties’ dissolution, her part-time employment, and her 

spousal maintenance award, Husband remains the party with 

substantially greater financial resources.

 (2.) With regard to the reasonableness of the positions the 

parties have taken throughout the enforcement proceedings, 

the Court finds as follows:

 (a.) Wife took no unreasonable positions.

 (b.) Husband took the following unreasonable positions. 

(1.) His refusal to divide the non-retirement accounts, 

which required Wife to file the enforcement action. 

(2.) His refusal to appropriately account for his 

expenditures of insurance proceeds in a timely manner, 

which required Wife to file the enforcement action.

(3.) His position that he was somehow entitled to a 20% 

“contractor’s fee.”
NATALE v. NATALE

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(4.) His endorsement of Wife’s name on the insurance 

proceeds check.

(5.) His failure to sign the “QDRO” in a timely manner, 

which required Wife to file the enforcement action.

(6.) His failure to facilitate the division of the parties’ 

personal property, which remains in his exclusive 

control, which required Wife to file the enforcement 

action.

(7.) His failure to pay Wife her one-half interest in the 

parties’ 2010 federal and state income tax refunds. 

¶21 The record supports the court’s conclusions that Husband 

has substantially greater earning capacity than Wife and had taken 

unreasonable positions. Wife works as a part-time teacher’s aide with an 

income of around $400 per month and receives $4,500 per month in 

spousal maintenance. Husband is currently employed as a pilot for 

Southwest Airlines with an income of approximately $268,000 per year 

($22,333 per month), out of which he must pay the spousal maintenance. 

Although Wife received half of the parties’ community property and 

accounts, she still earns drastically less than Husband. On this record, the 

court did not abuse its discretion in awarding attorneys’ fees to Wife for

both the post-trial proceedings and enforcement proceedings. 

Attorneys’ Fees on Appeal

¶22 Wife requests an award of costs and attorneys’ fees on 

appeal pursuant to A.R.S. § 25–324 and Arizona Rule of Civil Appellate 

Procedure (ARCAP) 21. In accordance with § 25–324 and in our 

discretion, we will award Wife a reasonable amount of attorneys’ fees, as 

well as her taxable costs on appeal, upon her compliance with ARCAP 21.

CONCLUSION

¶23 We affirm the family court’s post-decree rulings challenged

herein.