Failure to Include an Issue in a Pretrial Statement in Arizona

We have seen a situation where there is a failure to include an issue in a pretrial statement in Arizona divorce or family law cases. So, we wanted to share information on the effect of failing to include an issue in a pretrial statement can have upon an Arizona family law case.

In Arizona, a divorced individual with a spousal maintenance obligation can ask the court for a modification if there are significant changes to their circumstances and their ability to cover the agreed-upon amount financially. If the individual responsible for paying spousal maintenance obtains a court order for modification, the former spouse can appeal the court’s decision.

Appeals regarding court-ordered spousal maintenance changes in Arizona should be based upon apparent errors in interpreting the law in regard to the situation at hand. Lanny D. Leathers and Carol A. Leathers were married in May of 1962. They divorced after forty-three years of marriage in July 2005. The husband, Lanny, was the breadwinner and the wife, Carol, was a homemaker and stay-at-home mother.

Both parties are of similar age – early sixties. The wife, Carol, experienced a stroke five years prior to the couple’s divorce. The husband, Lanny, testified as to his own health stating, he should start “slowing down” and that traveling for his work was beginning to become more difficult.

He also noted that he had recently experienced accelerated heart rate and issues with his breathing that took him to the emergency room. Before the trial, the two parties were able to reach an agreement settling the division of property including a division of their home, their personal property, and three separate pieces of real estate that were valued at approximately $125,000-135,000.

The agreement was to sell the home and real property allowing them to divide the proceeds from the sale equally. Issues considered by the trial court, in this case, included spousal maintenance, a life insurance policy on husband in which wife was the named beneficiary, attorney fees and distribution of additional assets and debts.

Upon receiving the trial court’s ruling, Lanny D. Leathers (husband) filed an appeal. Lanny D. Leathers (husband) asserts on appeal that the trial court abused its discretion when determining spousal maintenance due to the wife; both in the amount and the duration. He also asserts that there was an error on the part of the trial court in regard to the order that he pay his wife 50% of his future Social Security benefits.

Leathers also stated that the trial court abused its discretion when ordering him to be held solely responsible for a line of credit and not requiring the wife to divide the $24,000 that she withdrew from a joint money market account prior to the proceedings. Leathers feels that the trial court exceeded its own authority by ordering him to maintain a life insurance policy benefiting his former wife.

Lastly, Leathers insists that the trial court abused its discretion by ordering the husband to pay attorneys’ fees on behalf of the wife in relation to the case.

In regards to the amount and duration of spousal maintenance, the appellate court finds that the trial court did not abuse its discretion in ordering that spousal maintenance last indefinitely or in determining that any potential income wife could be expected to earn would be minimal.

However, the appellate court did find that the trial court abused its discretion in determining the amount of spousal maintenance.

In determining the amount of the spousal maintenance, the nature of the husband’s work must be considered in addition to the financial statements submitted and testimony provided by the parties involved. The estimated annual income the trial court arrived at and used for spousal maintenance calculations was higher than the estimates of income provided by both the husband and the wife involved in the case.

The variability of the husband’s income and the unavoidable lags between jobs must be taken into account when calculating the spousal maintenance. The award was reversed for further proceedings.

The appellate court found no error in the portion of the order requiring the husband to provide the wife with half of his Social Security earnings, so long as the wife’s potential Social Security earnings were also taken into consideration. The trial court should reconsider the issue during the recalculation of the spousal maintenance award.

Ruling on the Failure to Include the Life Insurance Issue in the Pretrial Statement

The trial court was reversed on the matter of life insurance due to the fact the failure to include the life insurance issue in the pretrial statement. It was simply included in the post-trial proposed decree provided by the wife and, as such, the trial court was reversed on the issue of life insurance policy ordered maintained for benefit of the wife.

In regards to property settlement, the appellate court supports the trial court’s decision. In regards to attorney’s fees, in consideration of the decision regarding spousal maintenance above the trial court should reconsider their decision on this matter.

Per the discussion above, the Court of Appeals of Arizona reversed and remanded on issues of spousal maintenance, Social Security, attorney’s fees and life insurance. They affirmed the distribution and division of community assets and debts.

Defense to Waiver of a Claim in a Pretrial Statement

The Arizona Court of Appeals in an unpublished decision (Richardson vs. Richardson) issued a ruling addressing whether a spouse waived a community lien claim by failing to include the claim in a pretrial statement.

The court ruled a party failing to raise a community property lien claim before trial typically waives that issue, relying on the prior decision in Nold vs. Nold.

However, the court in the Richardson case indicated the doctrine of waiver is discretionary, not mandatory.

The Richardson court noted the Superior Court is required to equitably divide community property.
As a result, waiver of a community property issue is not automatic even when a party fails to include the issue in a Pretrial Statement, so long as evidence is presented on the issue at trial. The implication is that waiver of a community lien claim may result in an inequitable division of community property.

The Richardson case did not discuss any Due Process claims relating to a court permitting a person to present evidence on a claim not included in the pretrial statement.

It would likely be the best course of action to request a continuance if you run into a litigant who attempts to present evidence at trial on an issue that was not included in a Pretrial Statement.

If things are getting missed in your Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce and family law attorneys have over 100 years of combined experience successfully representing clients in divorce and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona divorce or family law case around today.

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Chris Hildebrand Arizona Attorney

About the Author: Chris Hildebrand has over 26 years of Arizona family law experience and received awards from US News and World Report, Phoenix Magazine, Arizona Foothills Magazine and others.

Failure to Include an Issue in a Pretrial Statement in Arizona

Failure to Include an Issue in a Pretrial Statement in Arizona

Ruling on the Failure to Include the Life Insurance Issue in the Pretrial Statement

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