Burkett v. Henry ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JESSICA NICOLE BURKETT, Petitioner/Appellee,
v.
JUSTIN A. HENRY, Respondent/Appellant.
No. 1 CA-CV 21-0136 FC
FILED 11-23-2021
Appeal from the Superior Court in Maricopa County
No. FC2020-070855
The Honorable Susanna C. Pineda, Judge
AFFIRMED
COUNSEL
Jessica Nicole Burkett, Tolleson
Petitioner/Appellee
S. Alan Cook PC, Phoenix
By S. Alan Cook, Sharon Ottenberg
Counsel for Respondent/Appellant
BURKETT v. HENRY
Decision of the Court
MEMORANDUM DECISION
Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.
F U R U Y A, Judge:
¶1 Justin Henry (“Father”) appeals portions of the decree
dissolving his marriage to Jessica Burkett (“Mother”) 1 regarding
community expenses and child support calculations. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The parties were married in 2010 and share two minor
children. In February 2020, Mother filed a petition to dissolve the parties’
marriage. At a July 2020 management conference, a trial was set to resolve
outstanding issues. The superior court ordered the parties to file a joint
pretrial statement and, if child support was at issue, for each party to
include a financial affidavit and a parent’s worksheet to aid in determining
child support.
¶3 Father provided a financial affidavit, and the parties
completed child support worksheets. Father also included with the joint
pretrial statement a list of community expenses he claimed to have paid
from his sole and separate funds after Mother filed the dissolution petition.
Mother initially agreed in the pretrial statement that pursuant to Bobrow v.
Bobrow, 241 Ariz. 592, 595, ¶ 10 (App. 2017), Father should be reimbursed
for his payment of the various community expenses from a portion of
Mother’s equity in the parties’ home.
¶4 At trial, Father submitted as evidence bank statements,
account statements, and a promissory note to support his claims for
reimbursement of community expenses. Mother testified that she did not
1 Mother did not file an answering brief, and we could regard her
failure to do so as a confession of reversible error. See Gonzales v. Gonzales,
134 Ariz. 437, 437 (App. 1982). We are not required to do so, however, and
in the exercise of our discretion, we address the substance of Father’s
appeal. See id.
2BURKETT v. HENRY
Decision of the Court
agree to pay for the community expenses and that she contested the amount
spent. Father testified that he did not intend for his payments of the
community expenses to be gifts. Relevant to child support, Mother testified
that she hired a babysitter to watch the children when she worked night
shifts, whom she paid $75 per child every two weeks. The court took the
matter under advisement and entered the decree of dissolution in
November 2020.
¶5 Father unsuccessfully moved to alter or amend the judgment
under Arizona Rule of Family Law Procedure (“ARFLP”) 83, contending
that the court erred by failing to include Bobrow reimbursements in the
decree and including childcare expenses in the child support calculations.
Father timely appealed the denial of his motion and the underlying
dissolution decree. We have jurisdiction pursuant Arizona Revised Statutes
(“A.R.S.”) §§ 12-120.21(A)(1) and -2101(A)(1)–(2).
DISCUSSION
¶6 Father argues the superior court erred by failing to order
reimbursements for community expenses he paid following Mother’s filing
of the dissolution petition, including car payments, internet, phone, and
mortgage payments. Father further objects to the inclusion of $325 per
month for child care expenses within his child support obligation.
¶7 The court has broad discretion to allocate individual assets
and liabilities in determining the equitable division of property. In re
Marriage of Flower, 223 Ariz. 531, 535, ¶ 14 (App. 2010). Accordingly, we will
not disturb the court’s division of property absent a clear abuse of
discretion. Id. Similarly, we review child support awards for an abuse of
discretion and accept the court’s “factual findings unless clearly
erroneous.” Sherman v. Sherman, 241 Ariz. 110, 112–13, ¶ 9 (App. 2016). The
court abuses its discretion when the record “is devoid of competent
evidence to support [its] decision.” Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8
(App. 2007) (internal quotation marks omitted).
¶8 Father argues that under Bobrow he is entitled to
reimbursement for payments made toward community debts following
Mother’s filing of the dissolution petition. However, Bobrow is inapposite to
the facts before us. In Bobrow, the superior court ruled that payments made
by a party to preserve community assets were subject to the marital
presumption that such payments are gifts to the community. 241 Ariz. at
594, ¶ 5. However, this court reversed, holding that when payments are
made by a party to preserve community assets after a petition for
3
BURKETT v. HENRY
Decision of the Court
dissolution has been served, and in the absence of an agreement to the
contrary, such payments are not presumptively gifts and must be
accounted for in an equitable property distribution when not otherwise
established to be a gift by clear and convincing evidence. Id. at 596–97, ¶¶
15, 19–20.
¶9 Here, Father argues the superior court abused its discretion
by not determining that payments on certain community debts were not
gifts, and therefore, were subject to reimbursement pursuant to Bobrow.
However, the court did not ever reach that gift analysis. Rather, the court
determined Father failed to satisfy the threshold burden of presenting
credible evidence that he had paid community expenses. See Gutierrez v.
Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998). Specifically, the court found,
“Although Father claims to have paid all costs associated with the residence
since February 2020, he has provided no credible proof.” The record in this
case reflects conflicting—and, at times, contradictory—evidence for
payment of community debts. We do not reweigh the evidence but defer to
the court’s determinations of credibility and the weight given to conflicting
evidence. Id.; Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019).
Having failed to sufficiently establish that he, as the party in question, had
made qualifying payments to preserve the community, the court did not err
in declining to incorporate those payments within its equitable division of
the community’s property.
¶10 Father further seeks reimbursement for a debt he incurred
from his father (“Grandfather”) to pay off a vehicle ultimately allocated to
Mother. However, after Father admitted the promissory note associated
with this debt during trial, the court explained, “That doesn’t mean I give
it the weight that [Father] believes it is entitled to or [Mother] believe[s] it’s
entitled to. It’s something I get to weigh.” While the court did not make
specific findings related to reimbursement under the promissory note, we
may infer that the court made findings necessary to sustain its judgment
where reasonable evidence supports such findings and does not conflict
with express findings. See Boyle v. Boyle, 231 Ariz. 63, 67, ¶ 15 (App. 2012).
¶11 Reasonable evidence supports the court’s denial of
reimbursement predicated upon the promissory note. The promissory note
was drafted and signed only two weeks before trial, well after the petition
for dissolution was served. Grandfather testified Mother had never
promised him money and had never asked for a loan. Grandfather also
testified he had never asked Mother to sign a promissory note, and he had
never entered into a financial agreement between himself, Mother, and
4
BURKETT v. HENRY
Decision of the Court
Father. Thus, reasonable evidence in this record supports the court’s
decision.
¶12 Finally, Father argues the evidence does not support the
court’s inclusion of child care expenses in the child support award. He
contends that although she gave sworn testimony during trial regarding
the same, Mother was additionally required to disclose receipts or other
documentation to establish her child care expenses under ARFLP 49. Under
ARFLP 49(e)(2)(E), a party must disclose “proof of any child care expenses
paid by the party.” By its terms, this rule does not make documentary
evidence necessary to establish child care expenses. Rather, it simply
requires disclosure of any proof that will be offered if such expenses are
paid by a party. Here, Mother testified she paid for a babysitter, $75 per
child every two weeks, so that she could work night shifts. Inasmuch as this
testimony constitutes evidence intended to prove her child care expenses,
the record contains reasonable evidence to support the court’s inclusion of
$325 per month for child care expenses in its child support calculations,
despite Father’s assertions to the contrary. While Father contests the
veracity of Mother’s testimony, we do not reweigh conflicting evidence on
appeal. Lehn, 246 Ariz. at 284, ¶ 20. Moreover, Father failed to seek
appropriate remedy pursuant to ARFLP 65. See ARFLP 49(b)(3) (permitting
a party prejudiced by a failure to disclose to seek remedies identified in
ARFLP 65). Therefore, Father has not shown the court’s inclusion of child
care expenses in the child support award was an abuse of discretion.
CONCLUSION
¶13 For the foregoing reasons, we affirm the dissolution decree
and the associated child support award.
AMY M. WOOD • Clerk of the Court
FILED: AA
5