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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PATRICIA ANN WILSON, Petitioner/Appellee,

v.

WESLEY WILSON, Respondent/Appellant.

No. 1 CA-CV 17-0704 FC

Appeal from the Superior Court in Maricopa County

No. FN2014-094577

The Honorable Laura M. Reckart, Judge

REMANDED

COUNSEL

RD Smith Law, P.C., Scottsdale

By Roger D. Smith

Counsel for Petitioner/Appellee

Udall Shumway, P.L.C., Mesa

By Steven H. Everts

Counsel for Respondent/Appellant

FILED 11-29-2018
WILSON v. WILSON

Decision of the Court

2

MEMORANDUM DECISION

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

which Vice Chief Judge Peter B. Swann and Judge David D. Weinzweig

joined.

J O N E S, Judge:

¶1 Wesley Wilson (Husband) appeals from the family court’s 

post-decree order reducing his spousal maintenance obligation to Patricia 

Wilson (Wife) by $100 per month. For the following reasons, we remand.

FACTS AND PROCEDURAL HISTORY

¶2 Wife petitioned to dissolve her marriage to Husband in 2014

after thirty years of marriage.

1 At the time, both parties worked full-time 

with Husband earning $55,000 to $65,000 per year — more than twice as 

much as Wife’s $25,000 yearly income. After conducting an evidentiary 

hearing and considering the relevant statutory factors, see Ariz. Rev. Stat. 

(A.R.S.) § 25-319(B),2 the family court determined Wife lacked sufficient 

property, including property apportioned to her in the dissolution, to 

provide for her reasonable needs. In the decree, the court ordered Husband 

to pay spousal maintenance of $800 per month for seven years, beginning 

June 1, 2015. Neither party challenged the decree.

¶3 In September 2015, Husband petitioned to terminate his 

spousal maintenance obligation. In his petition, Husband alleged 

termination was warranted because he had retired following a recent heart 

attack, and Wife would therefore receive approximately $40,000 from his 

pension, negating her need for support. In March 2016, the family court 

found Husband’s decision to retire was elective and, therefore, he had 

failed to prove a substantial and continuing change of circumstances

 

1 We view the facts in the light most favorable to upholding the 

spousal maintenance order. McNeil v. Hoskyns, 236 Ariz. 173, 175, ¶ 2 n.1

(App. 2014) (citing Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012)).

2 Absent material changes from the relevant date, we cite a statute’s 

current version.
WILSON v. WILSON

Decision of the Court

3

warranting reduction of his maintenance obligation. See A.R.S. § 25-327(A). 

Husband did not challenge the final post-judgment order. 

¶4 In July 2016, Husband again petitioned to terminate his 

spousal maintenance obligation.

3 Husband alleged termination was 

warranted because the Social Security Administration had determined he 

was “totally disabled” and, because he was unable to work, Wife earned 

more income than he did. At the May 2017 evidentiary hearing, Husband

presented evidence indicating he became completely disabled in August 

2015. Husband testified he is otherwise unable to work, receives no income

beyond $24,432 in yearly disability benefits, and uses the entirety of his 

income to meet his monthly expenses — not counting the previously 

ordered maintenance. Wife continued to work several jobs throughout the 

year, as she “always had,” earning annual wages of approximately $32,000.

4 

Neither party requested specific findings of fact and conclusions of law 

pursuant to Arizona Rule of Family Law Procedure 82(A).

¶5 After taking the matter under advisement, the family court 

found Husband proved a substantial and continuing change of 

circumstances because he was no longer working and thus “dependent on 

disability and social security.” The court then considered the relevant 

A.R.S. § 25-319(B) factors and reduced Husband’s maintenance obligation 

by $100 per month for the remainder of the seven-year period. At the same 

time, the court ordered Husband to pay $100 per month toward spousal 

maintenance arrearages, negating any prospective decrease in his monthly 

 

3 Husband requested termination retroactive to June 1, 2015. 

However, he admitted within his petition that he was $4,096 in arrears. 

Additionally, the maintenance obligation accruing before his July 2016 

petition became vested when due and is not subject to modification. See 

A.R.S. § 25-327(A) (“[T]he provisions of any decree respecting maintenance 

or support may be modified or terminated only on a showing of changed 

circumstances that are substantial and continuing except as to any amount 

that may have accrued as an arrearage before the date of notice of the motion . . . to 

modify or terminate.”) (emphasis added); In re Marriage of Priessman, 228 

Ariz. 336, 340, ¶ 13 (App. 2011).

4 Although the family court found Mother’s income was $26,000 per 

year, or $2,167 monthly, this finding is not supported by the record.
WILSON v. WILSON

Decision of the Court

4

payments to Wife.5 Husband made several unsuccessful post-trial motions 

and then timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-

120.21(A)(2), -2101(A)(2), and -2101(A)(5)(a). 

DISCUSSION

I. Eligibility for Spousal Maintenance under A.R.S. § 25-319(A)

¶6 Husband argues the family court erred in adjusting the award 

of spousal maintenance without first determining whether Wife was 

eligible for any award under A.R.S. § 25-319(A). We disagree. 

¶7 “Spousal maintenance is not intended to serve ‘as a method 

of holding open the courtroom door for possible changes of 

circumstances.’” Sherman v. Sherman, 241 Ariz. 110, 115, ¶ 19 (App. 2016) 

(quoting Neal v. Neal, 116 Ariz. 590, 592 (1977)). A determination of general 

eligibility for maintenance under A.R.S. § 25-319(A) is made in the initial 

“proceeding for dissolution of marriage or legal separation, or a proceeding 

for maintenance following dissolution of the marriage by a court that lacked 

personal jurisdiction over the absent spouse.” A.R.S. § 25-319(A). The

determination becomes final upon entry of the decree, see A.R.S. § 25-

325(A), and may not be revisited at a later date, Sherman, 241 Ariz. at 114-

15, ¶¶ 18-19. Thereafter, collateral estoppel prevents the court from 

reconsidering a spouse’s general eligibility for spousal maintenance during 

a post-judgment modification proceeding. See Chaney Bldg. Co. v. City of 

Tucson, 148 Ariz. 571, 573 (1986) (explaining a party is precluded from 

relitigating a fact essential to a prior judgment if the fact “was actually 

litigated in a previous suit, a final judgment was entered, and the party . . . 

had a full opportunity to litigate the matter and actually did litigate it”) 

(citations omitted).

¶8 Because the family court was not required to reconsider 

Wife’s eligibility for spousal maintenance under A.R.S. § 25-319(A), it did 

not err in declining to do so. But the res judicata effect of the prior

unchallenged finding of eligibility does not, absent an agreement for nonmodifiable maintenance, alter the parties’ right to challenge the amount and 

duration of a spousal maintenance award based upon consideration of the 

 

5 Although Husband states this order “may arguably be appropriate 

or inappropriate,” he does not specifically object to the arrearage order. 

Therefore, any challenge thereto is waived. See Polanco v. Indus. Comm’n, 

214 Ariz. 489, 491, ¶ 6 n.2 (App. 2007) (declining to address the merits of 

an argument mentioned in passing in the party’s opening brief).
WILSON v. WILSON

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factors set forth in subsection (B) upon proof of a substantial and continuing 

change of circumstances. See A.R.S. § 25-327(A).

II. Amount and Duration of Maintenance under A.R.S. § 25-319(B)

¶9 Husband also challenges the amount and duration of the 

modified spousal maintenance award. On review, we consider whether the 

family court properly considered the relevant factors contained within 

A.R.S. § 25-319(B) and will affirm if the decision is supported by reasonable 

evidence. Boyle, 231 Ariz. at 65-66, ¶¶ 8, 13 (citing Gutierrez v. Gutierrez, 193 

Ariz. 343, 348, ¶ 15 (App. 1998), and Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19

(App. 2009)).

A. Adoption of Findings 

¶10 Husband argues the family court erred as a matter of law 

when it adopted findings contained in other court orders by reference.

“[T]he responsibility to make the findings is the court’s alone.” Christopher 

K. v. Markaa S., 233 Ariz. 297, 301, ¶ 20 (App. 2013) (citing DePasquale v. 

Superior Court, 181 Ariz. 333, 336 (App. 1995)). But the court may adopt the 

findings and conclusions of others so long as they are “consistent with the 

ones that it reaches independently after properly considering the facts.” 

Elliott v. Elliott, 165 Ariz. 128, 134 (App. 1990) (approving the practice of 

adopting findings proposed by a party after independent analysis) 

(citations omitted); see also Nold v. Nold, 232 Ariz. 270, 273-74, ¶ 14 (App. 

2013) (finding error where the family court “delegated its obligation to 

independently weigh the evidence” to an expert witness rather than 

making independent findings) (citing DePasquale, 181 Ariz. at 336).

¶11 Here, the family court explicitly adopted some of the findings 

from the original decree and a prior minute entry order by reference. The 

court also detailed changes and additions to those findings. These 

modifications demonstrate that the court did not merely thoughtlessly 

recite the prior findings, but rather, exercised its independent judgment 

after considering the facts. We find no error in the court’s process.

B. Sufficiency of Findings

¶12 Even absent a timely request for specific findings, the family 

court is required to provide sufficient explanation to support its decision. 

Hughes v. Hughes, 177 Ariz. 522, 525 (App. 1993). We find the court’s 

findings and explanation lacking here.
WILSON v. WILSON

Decision of the Court

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¶13 The family court found Husband was “dependent on 

disability and social security” and now earns less income than Wife. These 

explicit findings are facially inconsistent with the court’s minimal 

modification of Husband’s monthly spousal maintenance obligation and its 

implicit conclusion that Husband was capable of meeting both parties’

reasonable needs.

¶14 Nor do the remaining findings provide any obvious, 

reasonable support for the court’s decision to reduce the award of spousal 

maintenance by 12.5% when Husband’s income had decreased by more 

than half and Wife’s income had increased. [IR 133 at 2-3] Wife concedes 

error in the court’s finding that she has endured financial hardship by not 

addressing the issue in her answering brief. See Stover v. Kesmar, 84 Ariz. 

387, 388 (1958) (finding an unexcused failure to file an answering brief 

concedes error on an otherwise debatable issue) (citations omitted). Indeed, 

there is no evidence that Wife was borrowing money, seeking more 

lucrative work, or withdrawing funds from retirement to meet her 

expenses. To the contrary, Wife’s own Affidavit of Financial Information 

showed her income, without maintenance, exceeded her expenses by 

almost $7,000 per year and indicated a credit card balance of only $40.

¶15 Moreover, although the family court is directed to consider 

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

comparative earning abilities in the labor market,” which encompasses a 

spouse’s voluntary reduction in income, A.R.S. § 25-319(B)(4), a spouse has 

no obligation to preserve assets awarded as his sole and separate property 

in a dissolution proceeding for the benefit of the former spouse, see A.R.S. 

§ 25-319(B)(11) (directing the court to consider “[e]xcessive or abnormal 

expenditures, destruction, concealment or fraudulent disposition of 

community, joint tenancy and other property held in common”) (emphasis 

added). Accordingly, the court’s findings suggesting that Wife needs

maintenance to meet her reasonable needs or that Husband managed his 

separate property “unwisely” do not support the court’s modified 

maintenance award.

¶16 The constellation of factors presented here does not provide 

any obvious, reasonable basis for the ongoing award, and we have been 

unable to supply the missing explanation through independent review. See 

Hughes, 177 Ariz. at 525. In the absence of such an explanation, we cannot 

determine whether the family court abused its discretion in modifying the 

maintenance award. See id. For this reason, we remand.
WILSON v. WILSON

Decision of the Court

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III. Mathematical Basis for Award

¶17 Husband argues, for the first time within his reply brief, that 

the family court erred by failing to identify a mathematical basis for the 

award. “Arguments raised for the first time in a reply brief are deemed 

waived.” In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 25 n.5 (App. 2000) 

(citing Muchesko v. Muchesko, 191 Ariz. 265, 268 (App. 1997)). Nonetheless, 

to avoid any confusion that may arise upon remand, we note a specific

mathematical explanation for a spousal maintenance award is not required 

here because no timely request for findings of fact and conclusions of law

was made. See Stein v. Stein, 238 Ariz. 548, 551, ¶¶ 9-12 (App. 2015).

CONCLUSION

¶18 The case is remanded to the family court for further 

consideration consistent with this decision. On remand, the court may 

choose to reconsider its findings or conclusions, or it may choose to 

supplement its order in a manner that would subject it to meaningful 

appellate review. We leave to the court’s discretion whether the taking of 

additional evidence or further briefing would be necessary or helpful.

¶19 Both parties request an award of attorneys’ fees incurred on 

appeal pursuant to A.R.S. § 25-324. In our discretion, we decline both 

requests. As the successful party, however, Husband is awarded his costs 

incurred on appeal pursuant to A.R.S. § 12-341 upon compliance with 

ARCAP 21(b).