Burton-Anderson v. Anderson ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
ELISA BURTON-ANDERSON,
Petitioner/Appellee,
v.
MICHAEL JAMES ANDERSON,
Respondent/Appellant.
No. 1 CA-CV 15-0214 FC
FILED 4-5-2016
Appeal from the Superior Court in Yavapai County
No. V1300DO201380045
The Honorable Mark M. Moore, Judge pro tempore
The Honorable Jeffrey G. Paupore, Judge pro tempore
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
COUNSEL
Law Office of Benjamin L. Deguire, PLLC, Flagstaff
By Benjamin L. Deguire
Counsel for Petitioner/Appellee
Linda Wallace, PLLC, Sedona
By Linda Bagley Wallace
Counsel for Respondent/Appellant
BURTON-ANDERSON v. ANDERSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Lawrence F. Winthrop and Judge Donn Kessler joined.
S W A N N, Judge:
¶1 Michael James Anderson (“Father”) appeals from the
superior court’s order establishing legal decision-making authority,
parenting time, and child support in a contested divorce. Specifically,
Father challenges the court’s adoption of a family evaluator’s
recommendation that he attend counseling, the court’s calculation of past
and present child support, and the court’s denial of his request for
attorney’s fees and costs. We reverse and remand with respect to the court’s
calculation of present child support, because the court erroneously credited
the appellee for anticipated voluntary payments toward college expenses
for her child from another relationship. We otherwise affirm -- the parties’
stipulation to adopt the family evaluator’s report reasonably encompassed
the counseling recommendation, and the evidence reasonably supports the
court’s denial of Father’s request for past child support and attorney’s fees
and costs.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Elisa Burton-Anderson (“Mother”) married in
2004; they have two minor children in common. In early 2013, Mother filed
a petition for dissolution of the marriage. The parties eventually entered an
agreement under Ariz. R. Fam. L. P. (“ARFLP”) 69 regarding division of
their property and debts. They also stipulated, in writing, that a family
evaluator’s report would be binding as to “issues of legal decision-making,
parenting time, and [Mother]’s proposed relocation” from Cornville,
Arizona, to Flagstaff, Arizona, less than one hundred miles away. In the
interim, the parties exercised equal parenting time.
¶3 In August 2013, Father filed a motion for a temporary child
support order, retroactive to the date of the petition’s filing. In support of
the motion, Father filed two child support worksheets and an affidavit of
financial information. In September, after holding a hearing on other
issues, the court stated: “Once the Court receives [the family evaluator]’s
report, it will deal with the issue of child support. Counsel will contact the
Court once the report is received to schedule further hearings.”
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BURTON-ANDERSON v. ANDERSON
Decision of the Court
¶4 The court received the family evaluator’s report in late
December. The family evaluator recommended that Mother be awarded
sole legal decision-making authority, citing “significant domestic violence
perpetrated by Father toward Mother” and “a concern that Father may still
abuse alcohol.” The evaluator further recommended two alternative
parenting-time schedules granting regular (but not equal) parenting time
to Father: one schedule to apply if Mother did not move to Flagstaff, and
one to apply if she did move. The evaluator also recommended, among
other things, that Father attend weekly counseling for one year, ideally
“focused on lessening his alcohol use and his controlling and abusive
behaviors.”
¶5 Mother lodged a proposed form of order that included the
family evaluator’s counseling recommendation. Father objected and filed
an opposing form of order, arguing that the counseling recommendation
fell outside of the scope of the parties’ stipulation to adopt the evaluator’s
report.
¶6 At trial in May 2014, the parties characterized the disputed
issues as: (1) Father’s request for past child support and Mother’s request
for present child support; and (2) the parties’ competing requests for
attorney’s fees and costs. Mother agreed at the outset of the hearing to
waive the counseling-recommendation dispute.
¶7 After considering the parties’ testimony and the evidence, the
court adopted the evaluator’s report in its entirety -- including the
counseling recommendation. The court explained that “[w]hile the report
of [the evaluator] may exceed the strict parameters of the Stipulation, the
benefit of the opinions of a professional far surpass any alleged injury to a
party.” The court also adopted Mother’s child support worksheet, which
calculated that Father was obligated to pay child support in the amount of
$94 per month. The court declined to award attorney’s fees to either party,
and ordered the parties to split the cost of the family evaluator.
¶8 Father filed a motion for reconsideration in which he
challenged the court’s orders and requested a ruling on his request for past
child support. The court reviewed the trial transcript and exhibits.1 The
court noted that the parties had failed to offer testimony regarding the issue
of past child support, and held:
1 The motion for reconsideration was decided by a judge other than
the judge who had conducted the trial.
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BURTON-ANDERSON v. ANDERSON
Decision of the Court
The parties had the opportunity to litigate the issue of Child
Support, pendent[e] lite, and to the extent evidence was offered
at Trial, a final determination was made by the Trial Court.
The issues of attorneys’ fees and Child Support, pendente lite,
have been fully adjudicated and the principle of res judicata
applies to both.
¶9 The court entered a decree dissolving the parties’ marriage,
and Father appealed. We denied Mother’s motion to dismiss the appeal on
jurisdictional grounds.
DISCUSSION
¶10 Father raises several arguments on appeal. We address each
in turn.
I. COUNSELING
¶11 Father first challenges the order requiring him to attend
counseling, arguing that the order exceeded the bounds of the parties’
stipulation to adopt the family evaluator’s report. We reject Father’s
argument. The parties stipulated that the family evaluator would
determine legal decision-making and parenting time -- determinations that
require inquiry into issues of parental mental health, substance abuse, and
domestic violence. See A.R.S. §§ 25-403(A)(5), (8), -403.02(B), -403.03,
-403.04. The family evaluator did not exceed the scope of his charge by
finding that Father had abused alcohol and perpetrated domestic violence.
And on the basis of those findings, the court did not abuse its discretion by
adopting the evaluator’s recommendation that Father attend counseling.
See A.R.S. § 25-403.03(F)(3).
II. CHILD SUPPORT
¶12 Father next challenges the court’s denial of his request for past
child support,2 and its calculation of his present child support obligation.
2 Mother points out that Father’s request was raised in a motion for a
temporary order, and that under A.R.S. § 25-315(F)(4) and ARFLP 47(M),
temporary orders terminate upon the entry of a final decree. Mother further
contends that Father failed to request a pretrial hearing. Mother assigns too
much importance to the “temporary orders” rubric. The parties agreed at
trial that past child support was a disputed issue. Retroactive child support
is not limited to the temporary-orders context, and on this record was
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BURTON-ANDERSON v. ANDERSON
Decision of the Court
The superior court has broad discretion with respect to child support
determinations, Tester v. Tester, 123 Ariz. 41, 44 (App. 1979), considering
and weighing the factors set forth in A.R.S. § 25-320 and applying the
Arizona Child Support Guidelines (“Guidelines”). But we review the
court’s interpretation of the Guidelines de novo. Hetherington v.
Hetherington, 220 Ariz. 16, 21, ¶ 21 (App. 2008).
¶13 We cannot say that the court abused its discretion by denying
Father’s request for child support for the period during which the parties
exercised equal parenting time. The court reasonably concluded that Father
presented insufficient evidence to support the award requested.
¶14 We find legal error, however, in the court’s calculation of
Father’s present child support obligation. Mother has a child from another
relationship, who was to turn eighteen years old in October 2014, five
months after the trial. In calculating Father’s child support obligation, the
court gave Mother credit for monthly payments that she anticipated
voluntarily making toward her separate child’s impending college
education. Contrary to Mother’s contention, nothing in Section 6 of the
Guidelines supports such a credit.3
properly presented as a trial issue. See A.R.S. § 25-320(B); see also Simpson v.
Simpson, 224 Ariz. 224, 225, ¶ 5 (App. 2010) (holding that motion for
temporary orders regarding child support preserved issue of retroactive
child support for purposes of decree).
We further observe that to the extent the court’s initial ruling did not
expressly address Father’s request for past child support, the ruling on the
motion for reconsideration made clear that the request was denied based
on the evidence. A.R.S. § 25-320 does not require that the court make
findings of fact on the record; the court is obligated to make specific
findings with respect to child support only upon a party’s timely request
under ARFLP 82(A). See Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990).
There was no such request in this case.
3 Section 6 of the Guidelines provides that a parent’s gross income
may be adjusted downward for court-ordered child support or other
payments that the parent makes to support a child from another
relationship. The court adjusted Mother’s gross income in such a manner.
The adjustment appears contrary to Mother’s testimony that she did not
pay -- but in fact received -- child support payments for her separate child.
Father does not, however, challenge this adjustment on appeal.
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BURTON-ANDERSON v. ANDERSON
Decision of the Court
III. ATTORNEY’S FEES AND COSTS
¶15 Father finally challenges the court’s denial of his request for
attorney’s fees and costs under A.R.S. § 25-324(A). We review the court’s
ruling for an abuse of discretion. See Magee v. Magee, 206 Ariz. 589, 590, ¶ 6
(App. 2004).
¶16 Section 25-324(A) provides that the court,
after considering the financial resources of both parties and
the reasonableness of the positions each party has taken
throughout the proceedings, may order a party to pay a
reasonable amount to the other party for the costs and
expenses of maintaining or defending any proceeding under
[the statutes governing dissolution proceedings] or [the
statutes governing legal decision-making, parenting time,
and child support].
Father contends that the court failed to consider the disparity between his
and Mother’s financial resources. But under the plain terms of the statute,
the court must consider not only the parties’ financial resources, but also
the reasonableness of their positions in the litigation. The court expressly
found that Father took an unreasonable position at trial. The court’s finding
is supported by Father’s insistence at trial that the family evaluator’s
recommendations on legal decision-making authority and parenting time
-- which he had stipulated to adopt -- did not represent the children’s best
interests. The court acted within its discretion by declining to award fees
and costs to Father.
CONCLUSION
¶17 We reverse the court’s determination of Father’s child
support obligation and remand for a redetermination consistent with this
decision. We otherwise affirm. In exercise of our discretion, we deny both
parties’ requests for attorney’s fees and costs on appeal.
:ama
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