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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KIMBERLY WEISS, 

Petitioner/Appellant,

v.

LEE WEISS,

Respondent/Appellee.

No. 1 CA-CV 16-0504 FC

Appeal from the Superior Court in Maricopa County

No. FC2009-050837

The Honorable Jennifer C. Ryan-Touhill, Judge

VACATED AND REMANDED

COUNSEL

Berkshire Law Office, PLLC, Phoenix

By Keith Berkshire, Erica L. Gadberry

Counsel for Petitioner/Appellant

Tiffany & Bosco, PA, Phoenix

By Tina M. Ezzell

Counsel for Respondent/Appellee

FILED 10-19-2017
WEISS v. WEISS

Decision of the Court

2

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

J O H N S E N, Judge:

Kimberly Weiss ("Wife") appeals the superior court's order

modifying spousal maintenance payable by Lee Weiss ("Husband"). She 

also appeals the court's summary denial of her petition for modification of 

child support and parenting time and its award of attorney's fees. For the 

following reasons, we vacate the order and remand.

FACTS AND PROCEDURAL BACKGROUND

The parties' marriage was dissolved in July 2009. The consent 

decree of dissolution provided that Husband would make two types of 

spousal maintenance payments to Wife: (1) a fixed payment of $1,000 per 

month until May 2018, and (2) a "Monthly Adjustable Payment" of 13% of 

Husband's W-2 income, adjusted annually until May 2018. The adjustable 

payment was subject to modification if Wife received "income in any form,"

other than her employment income, "that exceeds $26,000 a year." If Wife

received additional income beyond that threshold, Husband's adjustable 

payment to Wife was to be modified by the court pursuant to Arizona 

Revised Statutes ("A.R.S.") section 25-319 (2017).

1

In May 2014, Husband petitioned to modify spousal 

maintenance, alleging Wife had received an inheritance of more than 

$26,000 from her father and therefore met the qualifying condition for the 

modification of her spousal maintenance award. Husband further asserted 

Wife "colluded with her deceased father" to change his will after the decree 

was entered "in order to hide and delay payment of her inheritance" until 

after Husband's support obligation had expired. Wife then filed a petition 

for modification of child support and parenting time and allocation of 

expenses for minor children, and asked the court to consider her petition in 

conjunction with Husband's petition to modify spousal maintenance.

 

1 Absent material revision after the relevant date, we cite a statute's

current version.
WEISS v. WEISS

Decision of the Court

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The superior court sua sponte appointed a special master to 

hear the issues involved in the parties' respective petitions and make 

findings and recommendations. After ruling on pretrial motions and 

conducting a ten-hour trial, the master issued a report and recommended 

rulings that the Monthly Adjustable Payment be reduced to $3,154 from 

$3,947. The master further recommended that Wife be required to pay 

$20,000 toward Husband's attorney's fees because she "acted unreasonably 

at times regarding disclosure and discovery and . . . this unreasonable 

behavior has caused Father to incur additional attorney fees."

Wife filed an objection to the special master's report and 

requested a hearing. Without considering Husband's response, the court 

denied the request for hearing and issued a ruling further reducing the 

Monthly Adjustable Payment to $1,000 per month and increasing the 

attorney's fees award to $30,000. We have jurisdiction over Wife's timely 

appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and 

A.R.S. § 12-2101(A)(2) (2017).

DISCUSSION

A. Spousal Maintenance Modification.

1. Due-process issue.

Wife first argues that the superior court violated her dueprocess rights by appointing the special master without a request from 

either party. She also asserts that the master was not qualified to decide 

family law issues and that the court failed to "specify the particular issues" 

the master was to decide. Wife, however, waived those arguments by 

failing to raise them in the superior court. See Pflum v. Pflum, 135 Ariz. 304, 

307 (App. 1982) ("Matters not raised below will not be considered on 

appeal."). In any event, at the relevant time, Arizona Rule of Family Law 

Procedure 72(A) (2016) authorized the court to appoint a special master "on 

[its] own motion" and without a request from either party.2

2. Zale and the interpretation of a consent decree.

Wife next argues the master and the superior court both erred 

by considering evidence of the parties' intent in interpreting the dissolution 

decree's terms concerning the "Threshold Amount" of income that would 

render the adjustable payment "subject to modification." The interpretation 

 

2 See Order Amending Rule 72, Arizona Rules of Family Law 

Procedure, R-16-0037 at 3 (Dec. 14, 2016); Rule 72(M) (2017).
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of a dissolution decree is a legal issue that we review de novo. Cohen v. Frey,

215 Ariz. 62, 66, ¶ 10 (App. 2007).

Although courts may use parol evidence to determine the 

intent of the parties when interpreting a contract, a dissolution decree is not 

a contract, but a judgment. As such, a consent decree is "an independent 

resolution by the court of the issues before it and rightfully is regarded in 

that context and not according to the negotiated intent of the parties." In re 

Marriage of Zale, 193 Ariz. 246, 249, ¶ 11 (1999); see also Ariz. R. Civ. P. 54(a). 

Therefore, a court interpreting a consent decree applies general rules of 

construction but does not rely on extrinsic or parol evidence of the parties' 

intent. See Zale at 250, ¶¶ 16–17. Husband cites no case authority to the 

contrary.

At issue on Husband's petition to modify maintenance was 

the following language from the decree:

Modification of Monthly Adjustable Payment. The Monthly 

Adjustable Payment is subject to modification for the 

following reasons:

* * *

d. [Wife's] Additional Income. Upon [Wife's] receipt of 

income other than her employment income in any form

(including without limitation income from other employment,

gifts, inheritances, or direct payments by another person to 

[Wife] or to third parties on [Wife's] behalf towards the minor 

children's and [Wife's] living expenses), that exceeds $26,000 

a year (the "$26,000 Threshold Amount").

(Emphasis added.) The master and the superior court both concluded that 

Wife's inheritance from her father constituted additional income that 

exceeded the $26,000 Threshold Amount.

Wife acknowledges that the decree specifically includes 

"inheritances" as a form of income that may trigger a modification of 

spousal maintenance. She argues, however, that the decree's reference to 

"income from . . . inheritances" does not include a lump-sum inheritance, but 

instead means a recurring payment from an inheritance, or an amount 

generated from the investment of an inheritance. As support, Wife cites a 

dictionary definition of "income" as "money or other form of payment that 

one receives, [usually] periodically." Black's Law Dictionary (10th ed. 

2014). But the decree likewise refers to "income from other employment, 
WEISS v. WEISS

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gifts, . . . or direct payments by another person," a construction that 

undercuts Wife's contention that the decree does not treat an inheritance as

income subject to the $26,000 Threshold Amount.

Wife also cites cases that address whether investments or onetime capital gains or insurance settlements should be treated as income for 

purposes of child support. The cases Wife cites do not control here, when 

the decree specifically defines "income" to include "inheritances," which by 

their nature often are a one-time event. Moreover, although the parties 

dispute whether Wife as a practical matter could access money in one of the 

accounts that was to be held in trust for her until 2018, we need not 

determine that issue because Wife admitted during the hearing before the 

special master that when her father passed away in January 2014, she 

became the sole owner of a joint account containing a little more than

$76,000, which she then transferred to various accounts. As a matter of law, 

under the decree, Wife's receipt of that amount was more than sufficient to 

trigger Husband's ability to request a modification of the monthly 

adjustable payment.3

3. Redetermination of spousal maintenance.

Having concluded that Husband had demonstrated that Wife 

had "qualifying income" that exceeded the $26,000 Threshold Amount, the 

master proceeded under the decree to determine whether spousal 

maintenance should be modified pursuant to A.R.S. § 25-319 (2017). The 

master noted evidence that Wife's annual employment income had risen to 

$84,000 since the decree was entered, and Husband's income had fallen to 

$361,000. He then made the following additional findings:

• [Wife] is still in need of financial assistance to meet her 

reasonable needs. That said, the [inheritance] . . . and 

[Wife's] increased employment income make [Wife] 

 

3 In addition to the $76,000 in the joint account to which Wife 

succeeded after her father's passing, the special master also found that Wife 

received income of no less $24,667 in one trust account and an interest in 

another $185,000 held in trust for her until December 1, 2018. The master 

concluded that even though the $185,000 could not be released to Wife until 

beyond the date specified in the decree, her interest in that trust "became 

vested and was neither contingent nor speculative," meaning that she 

"could sell or encumber" her interest in the trust. According to the master, 

however, his findings with regard to the two trusts did not affect his 

recommendation that spousal maintenance be reduced to $3,154.
WEISS v. WEISS

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less in need of such financial assistance than she was 

when the Decree was entered in 2009.

• [Husband] retains the ability to meet his needs and to 

assist [Wife] in meeting her needs. That said, in light 

of his decrease in income, [Husband's] ability to do so 

has lessened somewhat since entry of the Decree.

• . . . [A]t the hearing, [Husband] contended that the 

Monthly Adjustable Payment should be decreased 

dollar for dollar for all qualifying income above the 

Threshold Amount. Had the money received and to be 

received by [Wife] been part of a stream of annuity 

payments or guaranteed annual gifts, [Husband's] 

argument would be more persuasive.

• It is true that the qualifying income relied on by 

[Husband] is in the nature of a series of one time 

events. That said, the Master finds that this income has 

changed [Wife's] financial circumstances in a 

substantial and continuing way.

• After having considered all of the factors in Section 25-

319 and based on all of the facts and circumstances 

presented, the Master finds that the Monthly

Adjustable Payment should be modified and reduced 

to $3,154.

• Assuming for the sake of discussion that [Wife's] 

portion of the trust funds does not constitute 

qualifying income, the Master's decision would not 

change. Whether or not the funds from the trust are 

deemed to be qualifying income, the above discussed 

funds that have flowed and will flow to [Wife] will 

have the same impact on [Wife's] financial 

circumstances.

4. The superior court's order.

Wife objected to the master's report. Although Husband filed 

a response to Wife's objection, the superior court ruled the response 

untimely and did not consider it. When a party objects to a special master's 

report, Rule 72(G) allows the superior court to "set oral argument on the 

objection(s), adopt the report, modify it, reject it in whole or in part or . . .
WEISS v. WEISS

Decision of the Court

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receive further evidence." In a case such as this, when the parties have not 

stipulated to accept the master's findings, the court reviews the master's 

findings of fact only for clear error, based on the record before the master. 

See Rule 72(H) ("[T]he court shall not reverse the special master's findings 

of fact unless clearly erroneous and shall review conclusions of law de 

novo.").

In ruling on Wife's objection to the master's report, the 

superior court agreed with the master's conclusion that Husband had 

established that the $26,000 Threshold Amount was established, rendering 

spousal maintenance subject to modification. The court also agreed with 

the master that Wife's monthly employment income was about $7,000. 

Together with child support of $660 and the non-modifiable spousal 

support payment of $1,000, the court noted that Wife's monthly income 

accordingly totaled about $8,660 before any modifiable component of 

spousal maintenance.

The court parted with the master, however, on the issue of 

Wife's reasonable expenses. Wife testified before the special master that her 

reasonable monthly expenses were $12,000, and Husband did not crossexamine her about that issue. Although the master made no express finding 

concerning Wife's reasonable expenses, his award of $3,154 in spousal 

maintenance suggests that he accepted Wife's testimony and found her 

reasonable monthly expenses to be on the order of $12,000 (i.e., $8,660 + 

$3,154 = $11,814). Wife objected to the master's finding, arguing that he 

should have made an express finding that she had reasonable monthly 

expenses of $12,000.

Without addressing Wife's contention that the master should 

have made such an express finding, the superior court's order extensively 

critiqued Wife's most recent affidavit of financial information ("AFI"), dated 

December 5, 2015, which listed monthly expenses, net of legal fees, of 

roughly $15,000. The court found the expenses listed in the AFI 

"overinflated" and concluded that Wife's "necessary monthly expenses total 

$10,000.00." On that basis, and without acknowledging the "clearly

erroneous" standard of review specified in Rule 72(H), the superior court 

then rejected the master's findings modifying monthly child support to 

$3,154, and instead ordered monthly spousal support reduced to $1,000.

The court's factual finding that Wife "only requires a limited 

amount of assistance from [Husband] to pay reasonable expenses in full" 

seems to have been based primarily on the court's critique of the recent AFI. 

But there is no indication from the record that the master relied on that AFI 
WEISS v. WEISS

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in making his recommendation. Although the AFI was in evidence before 

the master, it was not the subject of any substantive examination or 

argument during the master's hearing. Beyond that, the master did not 

embrace or even reference the AFI in his findings; indeed, by finding that 

spousal maintenance should be reduced commensurate with reasonable 

expenses of only about $12,000 a month, the master, like the court, 

impliedly rejected the AFI.

More generally, in rejecting the master's recommended 

award, the superior court did not identify any finding of fact by the master 

that it determined to be clearly erroneous. To the contrary, the court ruled 

that the master's report sufficiently "addresses the factors under A.R.S. § 25-

319." On this record, we cannot discern whether the superior court's 

rejection of the master's recommended modification of spousal 

maintenance was based on a finding by the court, supported by the 

evidence, that the master made a clear error. For that reason, we vacate the 

court's order rejecting the master's recommended spousal maintenance 

award and remand for reconsideration of Wife's objections to the master's 

report.4

B. Child Support and Parenting Time.

The special master recommended granting Wife's request for 

a change in parenting time and concluded that the superior court should 

decide whether a change in child support should be made. The superior 

court did not specifically address Wife's petition to modify child support 

and parenting time, but generally denied "any affirmative relief sought 

before the date of this Order that is not expressly granted above." Neither 

party objected to the master's recommended change in parenting time, and 

Husband agrees with Wife on appeal that the superior court now should 

address whether child support should be modified. We agree with both 

 

4 Wife also argues the court erred by referring in its order to a 2014 AFI 

that was not before the special master. The superior court only referred to 

the 2014 AFI in a footnote, suggesting the court did not materially rely on 

the outdated AFI in overruling the master's recommendation. Wife further

argues that the superior court's order impermissibly required her to use a 

portion of her "nest egg" to supplement her income sufficiently to meet her 

reasonable expenses. Without accepting the factual or legal premises of 

Wife's argument, we need not address that contention in view of our 

decision to grant her request to remand the matter to the superior court.
WEISS v. WEISS

Decision of the Court

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parties that, on remand, the superior court should consider whether child 

support should be modified.

C. Attorney's Fees.

The master recommended that Wife pay $20,000 of Husband's 

attorney's fees because of what the master characterized as her 

"unreasonable behavior." The superior court found that the master's report 

adequately "addresses the basis for attorney's fees" award. Nevertheless, 

and even though Husband did not object to the fees recommended by the 

master as insufficient, the superior court increased the award to $30,000, 

citing specific instances in which the court found Wife had lied or otherwise 

acted unreasonably, thereby expanding the litigation and increasing the 

associated costs. The court also stated it was "extremely cognizant of the 

disparity in income, which is the primary reason [it] has not ordered more

than $30,000.00 to [Husband]." Wife argues the superior court erred in 

overruling the master's fee award.

When the superior court referred the spousal maintenance 

issue to the special master, it granted the master the power to "make 

findings of fact, recommendations and conclusions of law on any and all 

disputes between the parties concerning (discovery) (evaluation of the 

business known as) (specify other financial issues)." Included within that 

broad grant of authority was the power to resolve the parties' respective 

attorney's fees claims arising out of Husband's petition to modify spousal 

maintenance. Therefore, under Rule 72(H), after the master recommended 

an award of fees, the superior court could overrule the award only if it 

found the master's award clearly erroneous.

The superior court made no such finding. Moreover, our 

record does not disclose whether the events that the superior court cited in 

overruling the master's award were before the master when he ruled. 

Therefore, we vacate and remand the fees award for reconsideration by the 

superior court.5

 

5 In increasing the attorney's fees award, the superior court found 

Wife lied several times to Husband about the inheritance and also found 

Wife "instructed or intimated" her father's probate lawyer to structure her 

father's estate-planning in a way that would allow her to avoid receiving 

income before the 2018 date specified in the decree. Although Wife's lies 

subject her to a fees sanction under A.R.S. § 25-324, the superior court erred 

to the extent that it sanctioned Wife merely for working with her father's 
WEISS v. WEISS

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CONCLUSION

For the foregoing reasons, we vacate the superior court's

order overturning the special master's report and recommendations and 

remand for further proceedings. Both parties have requested attorney's fees 

on appeal pursuant to A.R.S. § 25-324 (2017). In our discretion, we deny

both requests, but grant Wife her costs of appeal, contingent on compliance 

with Arizona Rule of Civil Appellate Procedure 21.

 

probate attorney to structure her father's estate in a manner that would 

avoid the $26,000 Threshold Amount.