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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN STEVEN WIRTJES, Petitioner/Appellant,

v.

LISA DIANE WIRTJES, Respondent/Appellee.

No. 1 CA-CV 22-0591 FC

Appeal from the Superior Court in Maricopa County

No. FN2013-000799

The Honorable Michael Z. Rassas, Judge

AFFIRMED IN PART, VACATED IN PART, REMANDED

COUNSEL

Lorona Mead PLC, Phoenix

By Frank R. Mead

Counsel for Petitioner/Appellant

Scott L. Patterson PLLC, Tempe

By Scott L. Patterson

Counsel for Respondent/Appellee

FILED 7-27-2023
WIRTJES v. WIRTJES

Decision of the Court

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MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which Vice 

Chief Judge Randall M. Howe and Judge Daniel J. Kiley joined.

P E R K I N S, Judge:

¶1 John Wirtjes appeals the superior court’s order denying his 

petition to terminate/modify spousal maintenance and awarding 

attorney’s fees to his former wife, Lisa Wirtjes. We affirm as to spousal 

maintenance, vacate and remand as to attorney’s fees, and decline to award 

either party attorney’s fees or costs on appeal.

FACTS AND PROCEDURAL BACKGROUND

¶2 Because John and Lisa Wirtjes share the same last name, we

willreferto them by theirfirst names for clarity. The parties married in 1986 

and divorced in 2014. Their decree of dissolution of marriage (“Decree”)

awarded Lisa spousal maintenance of $1,600 per month for 48 months 

starting in February 2014 and then $1,000 per month for an indefinite term. 

¶3 The superior court explained the reason for its award of 

spousal maintenance:

[T]his Court is unable to find that [Lisa] has or will have the 

ability to achieve long term financial independence. She will 

be able to do better than she is doing now, but she will still 

struggle with financial independence. Therefore, an award 

for an indefinite term is appropriate. 

The award was modifiable as to the amount and duration and would 

terminate upon Lisa’s death or remarriage. 

¶4 In July 2021, John petitioned to terminate/modify spousal 

maintenance (“Petition”). He alleged that “Lisa has achieved financial 

independence with her full-time employment with the Peoria School 

District and other work as a nail technician since the entry of the [Decree].” 

He also alleged that she “has established a consistent standard of living 

similar to what the parties enjoyed during the marriage.” Before trial, he

requested the superior court make separate findings of fact and conclusions 

of law under Arizona Rule of Family Law Procedure (“Rule”) 82(a). 
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¶5 The superior court held trial in April 2022. After closing 

arguments, the court explained to the parties that the Decree awarded Lisa 

indefinite spousal maintenance because the court, at that time, believed she 

would struggle to be self-sufficient. The court also acknowledged that

although Lisa was now working full time and had two part-time jobs, her 

income was still insufficient to support a substantial and continuing change 

in circumstances. Despite John’s suggestion that Lisa earned more than she 

disclosed, the court observed that Lisa did not live lavishly, had a modest 

car and home, and only took a vacation when she received funds from the 

settlement of a lawsuit. The court then took the matter under advisement. 

¶6 Two months later, the superior court issued its ruling denying 

John’s Petition and authorizing Lisa’s counsel to apply for an award of 

attorney’s fees and costs. After full briefing on the issue, the court awarded 

attorney’s fees in August 2022. 

¶7 John timely appealed and we have jurisdiction under 

Section 12-2101(A)(1) and (2).

DISCUSSION

I. Sufficiency of the Factual Findings

¶8 We review the sufficiency of findings of fact de novo as a 

mixed question of fact and law. Murphy Farrell Dev., LLLP. v. Sourant, 229 

Ariz. 124, 128, ¶ 13 (App. 2012) (as amended). Findings of fact are sufficient 

when “pertinent to the issues and comprehensive enough to provide a basis 

for the decision.” Miller v. Board of Supervisors of Pinal Cty., 175 Ariz. 296, 

299 (1993) (citation omitted). But the superior court need not detail every 

fact that supports its ruling. Francine C. v. Dep’t of Child Safety, 249 Ariz. 289, 

296, ¶ 14 (App. 2020). Instead, it must make findings on the “ultimate facts” 

or at least those “essential and determinative facts on which the conclusion 

was reached.” Id.

¶9 John argues that the superior court had to make findings on 

all the “ultimate facts” necessary to resolve the disputed issue because he 

invoked Rule 82 in a pretrial statement. See id. John argues this required the 

superior court to make findings on Lisa’s credibility about her income,

before it could determine whether there was a substantial and continuing 

change in her financial circumstances.

¶10 Under Rule 82(b), a party has 25 days after the entry of a

judgment to request additional findings of fact and conclusions of law. In

Tandor v. Fredrickson, our supreme court explained that challenges to the
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sufficiency of factual findings are waived when a party fails to request

factual findings at the superior court. See 179 Ariz. 299, 301 (1994) (“But by 

failing to [request factual findings], a litigant is not in the position to 

complain about how helpful findings would have been on appeal.”); see also 

Elliott v. Elliott, 165 Ariz. 128, 134 (App. 1990) (“A litigant must object to 

inadequate findings of fact . . . at the trial court level so that the court will 

have an opportunity to correct them.”). 

¶11 John argues Elliott and Tandor are distinguishable, citing

Murphy Farrell to argue that no post-trial motion was needed to preserve 

this issue for appeal because he requested these findings of fact in his 

pretrial statement. But in Murphy Farrell, the plaintiff requested findings of 

fact and conclusions of law in a post-trial motion, preserving the issue for 

appeal. 229 Ariz. at 129, ¶ 15. Thus, John waived this argument because he 

failed to request findings of fact in a post-trial motion. 

II. Spousal Maintenance Modification

¶12 The party seeking a modification of spousal maintenance has 

the burden of proving changed circumstances by a preponderance of the 

evidence. Van Dyke v. Steinle, 183 Ariz. 268, 278 (App. 1995); A.R.S. 

§ 25-327(A). The court must first look to the decree to assess the 

circumstances at the time of the divorce when the current spousal 

maintenance order was established. MacMillan v. Schwartz, 226 Ariz. 584, 

588, ¶ 12 (App. 2011). Without any finding of changed circumstances, the 

court cannot modify the spousal maintenance award in a dissolution 

decree. In re the Marriage of Rowe, 117 Ariz. 474, 475 (1978). 

¶13 The superior court has the discretion to determine whether a

substantial and continuing change in circumstances merits a modification 

of spousal maintenance. Schroeder v. Schroeder, 161 Ariz. 316, 323 (1989). The

court abuses its discretion when the record fails to substantially support its 

decision or when the court commits an error of law in reaching its decision. 

In re Marriage of Robinson, 201 Ariz. 328, 331, ¶ 5 (App. 2001). 

¶14 John cites Huey v. Huey, 253 Ariz. 560 (App. 2022) to argue

that the superior court abused its discretion by not modifying the spousal 

maintenance order to at least a fixed term. In Huey, we considered whether 

the court was authorized to award indefinite spousal maintenance when

the receiving spouse could not be self-sufficient due to a temporary 

disability. Id. at 564, ¶ 18. At trial, the wife’s expert witness testified that 

although the duration of her disability remained unclear, her disability was 
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not permanent, and we held that a temporary illness did not support an 

indefinite spousal maintenance award. Id. at 563, ¶ 10.

¶15 Rainwater v. Rainwater provides a better analogy. In Rainwater,

we affirmed the superior court’s award of indefinite spousal maintenance 

based on the receiving spouse’s earning power in relation to the standard 

of living established during the marriage. 177 Ariz. 500, 504 (App. 1993). 

We reasoned that wife had contributed financially to the husband’s 

education, supported him in his career, and was the primary caretaker for 

the parties’ two children. Id. And at the time of divorce the parties had 

significantly different incomes—the husband earned more than five times 

what the wife was earning. Id. at 502. Under those facts, we affirmed the 

indefinite spousal maintenance award for a term sufficient for the wife to 

obtain her bachelor’s degree and a reduced award indefinitely. Id. at 504.

¶16 The record here similarly established that Lisa supported 

John’s career, was the primary caretaker for the parties’ children, and 

would continue to struggle to meet her reasonable needs. Unlike Huey, the 

indefinite spousal maintenance award did not result from a temporary 

disability but was based on Lisa’s financial circumstances and earning 

capacity at the time of the Decree. 

¶17 The record supports the superior court’s finding that, at the 

time of trial: Lisa’s gross monthly income only increased $200 since the 

dissolution; she was living within her means and did not have extravagant 

expenses; and without continuing spousal maintenance, Lisa would be 

unable to meet her modest monthly expenses. Based on this record, the 

court did not abuse its discretion by not modifying spousal maintenance to 

a fixed term.

III. Sufficiency of Attorney’s Fees Findings

¶18 John argues the superior court abused its discretion by 

awarding Lisa attorney’s fees based on its findings of a financial disparity 

between the parties. We review the award of attorney’s fees for an abuse of 

discretion. Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014); Macmillan, 

226 Ariz. at 584, ¶ 36. The court must consider the parties’ relative financial 

resources and the reasonableness of their positions. A.R.S. § 25-324. To 

qualify for an award of attorney’s fees from a financial perspective, an 

applicant must establish some level of disparity, not that he or she is poor. 

Magee v. Magee, 206 Ariz. 589, 591, ¶ 12 (App. 2004).
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¶19 The record supports the court’s findings that John earned 

around $9,000 per month and Lisa earned $2,000 per month. These findings 

alone establish a financial disparity between the parties. See id.

¶20 John next argues that the superior court abused its discretion 

by finding that he had acted unreasonably in the litigation. Noting that the 

court faulted him for “fil[ing] this [P]etition without first having a true and 

accurate understanding of Wife’s income, expenses and standard of living,” 

John argues that the court’s ruling forced him to challenge Lisa’s financial 

condition without granting access to her financial records. 

¶21 Similarly, in Huey we observed father lacked information to 

determine whether he could challenge the basis of the spousal maintenance 

award. Huey, 253 Ariz. at 563, ¶ 11. Our reasoning in Huey applies equally 

to this case, in which John had only limited access to Lisa’s financial 

information. And in this context, John’s decision to challenge the spousal 

maintenance award without a full understanding of Lisa’s finances is not in 

itself unreasonable.

¶22 John testified that he knew Lisa had a permanent position at 

the school, was working as an auctions clerk, had bought a home and a car 

after their divorce, had a long-term domestic partner, and had eight years 

to find a higher paying job. This record does not support the court’s finding

that he acted unreasonably in seeking to terminate or modify spousal 

maintenance. 

¶23 A party need not show both a financial disparity and an 

unreasonable opponent to qualify for consideration for an award of 

attorney’s fees. Magee, 206 Ariz. at 591, ¶ 8 n. 1. But because the superior 

court did not apportion its attorney’s fees award between these two 

grounds, we cannot determine whether the court would have awarded fees 

in the same amount based on the parties’ financial disparity alone. See, e.g.,

id. at 593, ¶¶ 19–22 (upholding an award of attorney’s fees to the party with 

fewer financial resources despite the other party having taken reasonable 

positions during the litigation); Mangan v. Mangan, 227 Ariz. 346, 352–53, 

¶¶ 26–28 (App. 2011) (upholding an award of attorney’s fees to the party 

with greater financial resources because the other party took unreasonable 

positions during the litigation). Thus, we vacate the award of attorney’s fees 

and remand for the court to reconsider Lisa’s request for an award of 

attorney’s fees consistent with this decision.
WIRTJES v. WIRTJES

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Attorney’s Fees and Costs on Appeal

¶24 Lisa requests her attorney’s fees on appeal under Section

25-324(A), and John requests his attorney fees and costs under ARCAP 21.

After considering their financial resources and the reasonableness of their

positions, we exercise our discretion to decline to award attorney’s fees or

costs on appeal. A.R.S. § 25-324(A); ARCAP 21.

CONCLUSION

¶25 We affirm the superior court’s order on spousal maintenance. 

But vacate and remand for the court to determine attorney’s fees consistent 

with this decision.