Kacir v. Kacir

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 KACIR, Petitioner/Appellant,

v.

ALICIA KACIR, Respondent/Appellee.

No. 1 CA-CV 25-0470 FC
FILED 06-08-2026

Appeal from the Superior Court in Navajo County
No. S0900DO202100364
The Honorable Michala M. Ruechel, Judge

AFFIRMED

COUNSEL

The Zickerman Law Office, PLLC, Flagstaff
By Adam Zickerman
Counsel for Petitioner/Appellant

Pangerl Law Firm, PLLC, Phoenix
By Regina M. Pangerl
Counsel for Respondent/Appellee
KACIR v. KACIR
Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge D. Andrew Gaona joined.

F O S T E R, Judge:

¶1 Petitioner John Kacir appeals the superior court’s
modification of spousal maintenance and award of attorneys’ fees to
Respondent Alicia Kacir. For the reasons below, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶2 John and Alicia1 dissolved their marriage through a consent
decree in 2022, following John’s petition for dissolution in 2021. The decree
ordered John to pay $600 in monthly spousal maintenance to Alicia until
she remarries.

¶3 Two years later, John petitioned to modify the spousal
maintenance order. He alleged a change in circumstances justified
decreasing the monthly spousal maintenance from $600 to $200. The
changed circumstances involved financial hardship based on taxes owed to
the Internal Revenue Service, diminished ability to work and increased
business expenses.

¶4 After oral argument on the petition, the court determined a
substantial and continuing change in circumstance existed and reduced
John’s spousal maintenance to $540. The court also ordered John to pay a
portion of Alicia’s attorneys’ fees and costs and ordered Alicia to file a
sworn statement supporting her fees and costs. The court entered its ruling
under Arizona Rule of Family Law Procedure (“Rule”) 78(b), noting that it
“still must decide the amount of attorney fees and costs to be awarded” and
it “expressly determines that no just reason for delay exists and directs the
entry of this minute entry as a final, appealable order.” See Ariz. R. Fam.
Law P. 78(b). Within the same week of the court’s judgment, John timely
appealed.

1 For clarity and convenience, this Court respectfully refers to the parties by

their first names.

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KACIR v. KACIR
Decision of the Court

¶5 After John filed his Notice of Appeal, Alicia then filed her
sworn statement and the parties exchanged briefs on fees and costs. The
court considered the briefs and granted Alicia a portion of her attorneys’
fees and costs. But the court’s judgment did not include final judgment
language provided in Rule 78(b) or (c). This Court stayed the appeal,
revested jurisdiction in the superior court to enter judgment with Rule 78(c)
language and ordered John to file an amended notice of appeal. This Court
noted that it “will dismiss the appeal as to the attorney fees issue” if an
amended notice of appeal is not timely filed. The superior court amended
the judgment, but John failed to file an amended notice of appeal. Because
John did not timely appeal from the Rule 78(c) judgment for attorneys’ fees,
this Court does not have jurisdiction over the attorneys’ fee issue. This
Court only has jurisdiction over the spousal maintenance award. A.R.S. §§
12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. The court properly modified the spousal maintenance amount.

¶6 John argues that the court abused its discretion by failing to
adopt a significant downward deviation in the spousal maintenance award.
He contends his physical capabilities have limited his ability to work.
Moreover, he suggests that his increased expenses, including the cost of
vehicle expenses as a truck driver have financially impacted him. This
Court reviews a spousal maintenance modification for an abuse of
discretion. McClendon v. McClendon, 243 Ariz. 399, 401, ¶ 8 (App. 2017).
Unless clearly erroneous or unsupported by substantial evidence, this
Court defers to the superior court’s factual findings. Id.

¶7 A court may modify spousal maintenance upon “a showing
of changed circumstances that are substantial and continuing.” A.R.S. § 25-
327(A); see Schroeder v. Schroeder, 161 Ariz. 316, 322 (1989). The person
requesting modification must prove changed financial circumstances after
dissolution. McClendon, 243 Ariz. at 401, ¶ 9 (citing Scott v. Scott, 121 Ariz.
492, 494 (1979)). Circumstances in existence at the time of dissolution, or
contemplated as part of a consent decree, are not sufficient to support a
change. McClendon, 243 Ariz. at 402, ¶ 11 (citing Scott, 121 Ariz. at 494–96).

¶8 After a court finds changed circumstances, the court
calculates spousal maintenance by considering numerous factors outlined

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in § 25-319(B)2. See Schroeder, 161 Ariz. at 322. The factors include: (1)
standard of living during the marriage; (2) length of marriage; (3) health,
age, work history and earning ability of the individual seeking
maintenance; (4) the paying individual’s ability to meet both parties’ needs;
(5) the parties’ contributions of earning ability; (6) sacrifices to career or
income for the marriage; (7) the receiving individual’s financial
independence and resources; (8) time and ability to gain education or
training for employment (9) misuse or concealment of shared property and
(10) health insurance costs and changes after dissolution. A.R.S. § 25-
319(B)(1)–(13).

¶9 John argued several changes in circumstances justified
modification of spousal maintenance: (1) sustained pain associated with his
differing leg lengths, (2) inability to lift heavy loads as required by his job,
(3) lack of physical stability following falls within the previous two years
and (4) limited work opportunities because of physical limitations.

¶10 The court first considered John’s alleged change in
circumstances. John testified that he suffered pain caused by his differing
leg lengths, making him unable to lift heavy loads and causing him to be
unstable on his feet. But he admitted this condition dated back to his late
teen years. A court cannot modify spousal maintenance based on
circumstances that existed before dissolution. McClendon, 243 Ariz. at 402,
¶ 12; Scott, 212 Ariz. at 494 (citation omitted). On this evidence, the court
found John provided little medical documentation concerning his claimed
inability to lift heavy loads and physical instability. And it determined he
failed to establish an inability to work at the same level as before.

¶11 John also testified, however, that since 2022, he could no
longer accept jobs to transport heavier loads, because of his physical
limitations. For that reason, he further testified that he lost approximately
$75,000 to $80,000 in wages as compared to work in 2024. On this evidence,
the court found John presented sufficient evidence that “fewer available
loads [were] available to [him] considering his current age and medical
condition.” The court reasoned that though “aging is a foreseeable event,”
its effects on a person’s ability to perform may not be foreseeable. Given
John’s physical limitations and his testimony that less work existed than
several years ago, the court determined that only his assertion of limited

2 Here, the Spousal Maintenance Guidelines do not apply and cannot “form

the basis for finding changed circumstances under A.R.S. § 25-327” because
John filed the petition for dissolution before September 2022. See A.R.S. §
25-319 app. (“Guidelines”) § I.C.2.b (modifying petitions).

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KACIR v. KACIR
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work because of physical limitations amounted to a change in circumstance.
See Chaney, 145 Ariz. at 25. This Court does not reweigh the superior court’s
discretionary findings. See Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 13
(App. 1998).

¶12 The court then applied the § 25-319(B) factors. It first
considered John’s and Alicia’s situations and determined that (1) they were
married for 17 years; (2) John was 63 years old and currently drove
commercial trucks and experienced more limitations than before with his
work; and (3) Alicia was 60 years old, did not have health insurance
expenses, received disability payments and would most likely not acquire
sufficient education or training for employment. Though John claimed
financial hardship because of tax debt and the cost to operate his
commercial vehicle, the court found John’s arguments did not support a
changed circumstance because they were considered in the parties’ consent
decree. See Chaney, 145 Ariz. at 25.

¶13 Next, the court compared the finances and found John
“makes considerably more in the labor market” and that Alicia neither
contributed to John’s earning ability nor reduced her income opportunities
for John’s benefit. The court noted that though Alicia received payment at
the time of the dissolution of marriage, she used those funds to purchase a
home which she shares with her daughter who resides with her and shares
expenses. John testified that his income declined but confirmed that he also
received income from two rental homes.

¶14 After reviewing the § 25-319(B) factors, the court reduced
John’s monthly spousal maintenance obligation by $60 per month (from
$600 to $540). It calculated this change by reducing John’s attributed income
“to account for his unreimbursed expenses necessary to continue working
as a truck driver.” But it also considered John’s monthly rental income.
Sufficient evidence supports the court’s findings and order.

II. Attorneys’ fees and costs on appeal.

¶15 Alicia requests her attorneys’ fees and costs incurred on
appeal under § 25-324 and ARCAP 21 because of John’s “unreasonable
conduct.” See A.R.S. § 25-324; ARCAP 21.

¶16 After considering the relative financial resources of the
parties and the reasonableness of the positions asserted on appeal, A.R.S. §
25-324, this Court denies Alicia’s request for attorneys’ fees. But as the
successful party on appeal, this Court grants Alicia her taxable costs
incurred on appeal upon compliance with ARCAP 21.

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KACIR v. KACIR
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CONCLUSION

¶17 This Court affirms.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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