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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

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IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

In re the Marriage of :

VERONICA B. WOOD WARD , P etitioner/Appellee
,

v.

TIMOTHY G. WOODWARD
, Respondent /Ap pellant

.
No. 1 CA

- CV 19

- 0626 FC

Appeal from the Superior Court in Maricopa County

No. FC2010

- 000789 FC2010

- 090409 (Consolidated) The Honorable Bradley H. Astrowsky
, Judge

AFF IRMED

COUNSEL

Donaldson Steward, P.C.
, Chandler By Heather N. Peláez Counsel for P etitioner

/Appell ee FILED 6-2-20202

Jaburg & Wilk, P.C.
, Phoenix By Kathi Mann Sandweiss Co

- C ounsel for Respondent/Appellant

Law Offices of Mathew S. Schultz, P.C., Tempe By Mathew S. Sch ultz Co

- Counsel for Respondent/Appellant

MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani joined.

M c M U R D I E , Judge:

¶1 Timothy Woodward (“Husband”) appeals from the supe rior court’s order modifying the spousal

- maintenance award to Veronica Woodward (“Wife”). For the following reasons, we affirm

.

FACTS AND PROCEDURAL BACKGROUND

¶2 Wife p etitioned for the d issolution of the couple ’s
t wenty

- year marria ge in February 2010. Before the trial, Husband moved to compel disc losure and request ed sa n ctions

— a sking that the court preclude Wife from using evidence at trial she ha d not disclosed during discovery

. The c ourt granted the motion s , stating Wife “shall not be allowed to use as evidence at trial or hearing the information not disclosed to [Husband] and his attorney

. ” Thereafter, Husband moved to preclude Wife from testifying or submitting evidence to support a spousal

- maintenance award

. The court excluded Wife’s witness and documents but allow ed her to testi f y regarding maintenance

. ¶3 After the trial
, in January 2011, t he court issued a “ Decree of Dissolution of Marriage ” (“Dec ree”) that included an award of spousal maintenance with findings as listed in Arizona Revised Statutes (“ A.R.S. ”) section 25

- 319

. The court found : Wife worked from home during the marriage as a freelance graphic artist. Wife attributes her inability to work outside the home to health problems, i ncluding depression, anxiety, andWOODWARD v. WOODWARD Decision of the Court

3 diabet es. But she has provided no medical records or opinion

or ev i dence from medical providers to indicate she cannot work full time or work outside the home

. (Emp h asis added

. ) Further, t he Decree provided Husband was “able to meet his own needs and at least some of Wife’s needs as well

. ” The court expect ed him to maintain his current level of income of “approximately $97,827 per year

. ” The cou rt also found Wife had “ not worked outside the home during the marriage
, but . . . should at least be able to earn the equivalent of minimum wage.” Further, the court found Wife had “ a Bachelor’s degree and experience in her field, ” and did “not need ad ditional training or education to find appropriat e employment.” The court then ordered Husband to pay Wife $1500 per month for 96 months , beginning February 1, 2011

. ¶4 I n October 2018, Wife p etition ed to modify spousal maintenance , argu ing that a substantial and continuing change in circumstances had occurred since the time of the Decree because Husband’s income had increased substantially
, and her health had deteriorated. Specifically, W ife alleged that at the time of the Decree , she had

“ depression, anxiety, and diabetes
, ” and that since that time
, her challenges ha d increased in frequency and severity . S he also developed “ agoraphobia, a panic disorder, ulcerative colitis, gastric ulcers, hiatal hernia, urinary frequ ency , hypoglycemia, arthritis, unc ontrollable heart rhythm disturbances, and insomnia

. ” Based on her deteriorating health, Wife asserted that she should no longer be attributed income. Husband contested Wife’s allegations , arguing his income had not substantially or continua lly changed
, and Wife ’s purportedly new health conditions predated the Decree

. ¶5 The court held an evidentiary hearing
, where Wife pr esented evidence that she could not work , including her testimony, testi mony of Dr. Mary Oakley , and various exhibits

. Husband presented evidence of hi s income during the years 2010 to 2018

. After the hearing , the court issued an

o rder (“2019 orde r”) f inding Wife demonstrated a substantial and continuing change in circumstances and extend ed the spousal maintenance award through January 31, 2029 , based on “Wife’s inability to obtain employment and Husband’s substantial increase in income.” Specifically, the court used the prior finding that Wife could work as the “circumstance” that was the “baseline” upon which it assessed changes
, stating “to demonstrate a change in circumstances exists at present, [Wife] must demonstrate that the re ha s been a change in her ability to work and support herself at present as compared to the prior trial court ’s finding that she wasWOODWARD v. WOODWARD Decision of the Court

4 able to work and earn her own income. ” Finding Dr. Oakley’s testimony credible, the court found Wife cou ld not obtain em pl oyment at the time of the 2019 order, and therefore her circumstances were “different from what the trial court found them to be.” The court also found Husband earned substantially more income in 2019 than found by the court in the D ecree

. ¶6 Husband moved to amend the 2019 order , arguing the court should den y Wife’s petition to modify spousal maintenance

. The court dismissed the motion. Husband appealed
, and we have juris diction under A.R.S. § 12

- 2101(A)(2 )

.

D ISCUSSION

¶7 Husband argues the court erred as a matter of law by : (1) failing to apply res judicata to Wife’s claims, (2) refusing to bind Wife to her prior attorney’s actions, and (3) modif ying spousal main tenance based only on Husband’s purported increase in income. Husband argues
, alternatively
, that the court abused its discretion by finding a substantial and continuing change in circumstances suffic ient to modify spousal maintenance.

¶8 W e review questions of law, such as application of res judicata and statutory interpretation, de novo

. A. Miner Contracting, Inc. v. Toho

- Tolani C oun ty Imp. Dist. , 233 Ariz. 249, 253, ¶ 11 (App. 2013). However, w e review the superior court ’ s ruling of the suf ficiency of chang ed circumstances for abuse of discretion. Scott v. Scott , 121 Ariz. 492, 495 (1979) ; McClendon v. McClendon , 243 Ariz. 399, 401, ¶ 8 (App. 2017) . W e defer to the court ’ s factual findings when any reasonable evidence supports them

. Roberts v. Malott , 80 Ari z. 66, 68 (1956) ; Bobrow v. Bobrow , 241 Ariz. 592, 595

– 9 7 , ¶¶ 11, 20 (App. 2017) (deferring to the court’s factual findings unless they are clearly erroneous or unsupporte d by substantial evidence )

.

A

. Res Judicata is Inapplicable

.
¶9 Res judi cata “ preclude[s] a claim when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties or their privities was, or might have been, determined in the former action .” Hall v. Lall i , 194 Ariz. 54, 57, ¶ 7 (1999) . We do not apply the doctrine rigidly if it contravenes public policy or results in manifest injustice. In re Marriage of Gibbs , 227 Ariz. 403, 407 , ¶ 8 (App. 2011)

.WOODWARD v. WOODWARD Decision of the Court

5 ¶10 R es judicata prevent s modification of a spousal

- maintenanc e award based on facts that could have been raised at a previous hearing. In re Marriage of Rowe , 117 Ariz. 474, 475 (1978); McClendon
, 243 Ariz. at 402

- 03, ¶ 15

. However, the doctrine of res judicata does not prevent a person from introducing ev idence sho wing a change of circumstances since the dissolution. A.R.S. § 25

- 327 (A) ; Rowe , 117 Ariz. at 475

– 76; McClendon
, 243 Ariz. at 403, ¶ 16 ( t he moving party h as the “burden to prove changed circumstances arising after” the last order )

. “Otherwise, a person could

never s atisfy the pre req uisites needed to modify a support order, as set forth in A.R.S. § 25

- 327. ” Rowe , 117 Ariz. at 476.

¶11 Thus, although res judicat a would have prevented Wife from presenting evidence to challeng e the finding in the Decree that she could work for min imum wage at the time of the Decree , it did not prevent her from produc ing evidence arising after the Decree to show that she currently

can not work

. Likewise, Wife could present evidence to prove that Husband’s income ha d increase d after the Decree. Theref ore, the court di d not err as a matter of law by failing to apply res judicata

.
B. T he C ourt Correctly Applied t he Laws o f Agency t o Wife’s Original Attorney’s Conduct

. ¶12 Contrary to Husband’s arguments, whether Wife’s or her attorney’s conduct led the origi nal superior cour t to determine Wife could work for minimum wage is irrelevant because that court’s determination that Wife could wor k constituted the evidence from which Wife had to show circumstances had changed. The court correctly compared the circumst ances found in th e D e cree with those presented at the time of the 2019 order.

C. We Find Sheeley I napplicable Because the Court D id Not Consider Husband’s Income Alone in Making its Determination.

¶13 In Sheeley v. Sheeley
, this court noted that when determining wheth er to modify a spousal

- maintenance order , a court “is governed by the same factors as are required in determining the reasonableness of an award for

. . . maintenance at the time of the original decree and in determining these questions [i t] should conside r any change in the circumstances of the parties since the original decree.” 10 Ariz. App. 318, 32 0 (1969) . A change in the financial circumstances of the parties is “one of the totality of circumstances which should be considered by the t rial court in con sidering a modification of a divorce decree.” Id . at 321. However, an increase in the earning capa city of one spouse , standing alone
, is notWOODWARD v. WOODWARD Decision of the Court

6 sufficient to modify spousal maintenance. Id

. ; Linton v. Linton, 17 Ariz. App. 560, 563

– 6 4 (1972) ( “T he mere fact of r eduction of income in and of itself is not a sufficient basis to justify modification of the decree.”) ; Platt v. Platt
, 17 Ariz. App. 458, 459 ( 1972) (change in income “becomes significant when the totality of the circumstances is consider ed”)

. ¶14 Here, the c ourt factored into its decision not only evidence of Husband’s purported increased income, bu t also evidence showing Wife could not obtain employment. Because we hold the court’s finding of substantial and continuing changed circumstances regarding Wife’s ability to obtain employment was supported by substantial evidence
, the court did
not err by then considering Husband’s increased income

.

D. The Court Did Not Abuse Its Discretion by Finding a Substantial Change o f Circumstances Sufficient t o Modify Spousa l Maintenance

. ¶15 The party seeking modification under A.R.S. § 25

- 327(A) has the burden of pro ving changed circumstances that are substantial and continuing

. Scott , 121 Ariz. at 494. The moving party must prove circumstances have sufficientl y changed by a co mpari son with either the circumstances existin g at dissolution
, MacMillan v. Schwartz , 226 Ariz. 584, 588 , ¶ 12 (App. 2011) , or, if the court has modified the original decree, the circumstances existing at the issuance of “the latest court order,” McClendo n , 243 at 402, ¶ 10.

¶16 Here, reasonable evidence support ed the court’s finding that substantial and continuing changed circumstances occurred from the time of the dissolution to the time of the 2019 order. The court found two substantial and continuing chang es: (1 ) while the Decree found Wife could work and earn an income
, Wife could not obtain employment at the time of the 2019 order , and (2) Husband’s income increased by nearly $33,000. Reasonable evidence supported the cou rt’s first findin g of substanti al and continuing change because Wife presented evidence of the circumstances at the time of the dissolution (the Decree finding she could work for minimum wage), and evidence showing that she could not obtain employment at t he time of the 20 19 order (Wife ’s testimony and testimony from Dr. Oakley who opined Wife could not work).

¶17 Further, reasonable evidence supported the court’s second finding

. T he Decree finding was that Husband’s level of income was $97,827 per year

. At the modification evidentiary hearing, the court admitted into evidence Husband’s W

- 2 statements and tax returns
,WOODWARD v. WOODWARD Decision of the Court

7 showing Husband’s income during the years 2010 to 2018 fluctuated between $113,706.00 and $132 ,925.00

. Because reasonable evidence
supp ort ed the court’s finding that substantial and continuing changed circumstances existed based on Wife’s change in the ability to work and Husband’s increase in income , we conclude that the court did not abuse its discretio n by modifying the spousal

- mainte nance award

.

ATTORNEY ’ S FEES AND COSTS

¶18 Both parties request an award of attorney ’ s fees and costs on appeal. See A.R.S

. § 25

- 324. We decline to award Husband his fees. We award Wife her reasonable attorney’s fees and cost s upon compliance with Arizona Rule of Civil Appella te Procedure 21

.
CONCLUSION

¶19 We affirm the superior court’s judgment

.