Lavicka v. Lavicka ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
KELSEY WILLIAM LAVICKA, Petitioner/Appellee/Cross-Appellant,
v.
TAMMY THERESA LAVICKA, Respondent/Appellant/Cross-Appellee.
No. 1 CA-CV 19-0660 FC
FILED 1-12-2021
Appeal from the Superior Court in Maricopa County
No. FC2017-003984
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED IN PART, VACATED IN PART, REMANDED
COUNSEL
Tiffany & Bosco, PA, Phoenix
By Kelly L. Mendoza
Law Office of Charles Sears, PLLC, Phoenix
By Charles E. Sears
Co-Counsel for Petitioner/Appellee/Cross-Appellant
Tammy Theresa Lavicka, Phoenix
Respondent/Appellant/Cross-Appellee
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.
S W A N N, Chief Judge:
Tammy Theresa Lavicka (“Mother”) appeals several
provisions of the decree dissolving her marriage to Kelsey William Lavicka
(“Father”). Father cross-appeals the superior court’s ruling denying his
motion to amend or alter the decree and recalculate child support. For the
following reasons, we vacate the child support calculation and student loan
debt division. We remand to the superior court to recalculate child support,
and order retroactive child support, student loan reimbursement, and
division of Father’s military pension. We affirm all remaining provisions
of the decree.
FACTS AND PROCEDURAL HISTORY
The superior court issued a dissolution decree, which
included provisions for legal decision-making, parenting time, a calculation
of child support, spousal maintenance, division of community assets and
debt, and attorney’s fees. Father filed a motion to alter or amend provisions
of the decree, including an intrastate travel notice requirement and the child
support calculation. Before the court ruled on Father’s motion, Mother
appealed various provisions of the decree and filed a motion for
reconsideration. The court issued a ruling in part denying Father’s motion
and adjusted the child support calculation to correct a clerical error. The
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court denied Mother’s motion for reconsideration.1 Father cross-appealed
the denial of his motion to alter or amend.2
DISCUSSION
I. NAME CHANGE
Mother argues the superior court erred by refusing to hear
evidence regarding her request to hyphenate the minor child’s last name.
After the court stated at trial that the issue was not properly pled, Mother
informed the court that if the court would not change the child’s name she
would withdraw her request to change her own name. We view this as
tantamount to a waiver of her request to change the minor child’s name and
find no error.
II. RETROACTIVE CHILD SUPPORT
Mother asserts the superior court failed to address child
support from the date of service of the petition through the court-ordered
date for commencement of child support. Father concedes that A.R.S. § 25-
320(B) applies and the court’s order fails to order support from the date of
filing of the petition. Accordingly, we remand this issue for a determination
of the appropriate amount of child support during the pendency of the
proceedings.
1 To the extent Mother challenges the superior court’s denial of her
motion for reconsideration, we do not consider it because Mother’s notice
of appeal specified only the decree; Mother did not file an amended notice
of appeal challenging the denial of her motion. See ARCAP 8(c)(3); Ruesga
v. Kindred Nursing Ctrs., L.L.C., 215 Ariz. 589, 599, ¶ 38 (App. 2007) (limiting
appellate review to “rulings specified in the notice of appeal”).
2 Mother moves to dismiss Father’s cross-appeal because his motion
to alter or amend the decree was untimely. The superior court issued its
decree on August 6, 2019. The period for Father to file a motion to alter or
amend ended 25 days later, on August 31, 2019. Ariz. R. Fam. L. P. 83(c)(1).
But since August 31, 2019 was a Saturday, followed by a legal holiday,
Father had until September 3, 2019 to file his motion. Ariz. R. Fam. Law P.
4(a)(3). Therefore, Father’s motion on September 3, 2019 was timely.
Moreover, because Father filed his notice of cross-appeal less than thirty
days after the court ruled on his motion, we deny Mother’s request to
dismiss the cross-appeal. See ARCAP 9(b), 9(e)(1)(C), 9(e)(3).
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III. CHILD SUPPORT CALCULATION
Both Mother and Father challenge the child support
calculation. Mother argues the superior court erred by failing to include
Father’s income from rental properties, by permitting Father to deduct
various expenses, and by miscalculating the amount of the child’s
healthcare costs. Father contends the court erred in its child support
calculation by deducting the spousal-maintenance amount from Father’s
income but not simultaneously adding it to Mother’s income. Father also
contends the court failed to properly account for childcare costs in the child
support calculation.
We review a child support award for abuse of discretion.
Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994). We view the
evidence in the light most favorable to affirming the superior court’s ruling
and will affirm if the evidence reasonably supports it. See Boncoskey v.
Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007). The court abuses its
discretion if the record lacks competent evidence to support its decision or
the court made a legal error. See Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999);
Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005). We review de novo the
interpretation of the Arizona Child Support Guidelines, A.R.S. § 25-320
(2018) (“Guidelines”), governing child support calculations. Patterson v.
Patterson, 226 Ariz. 356, 358, ¶ 4 (App. 2011).
The superior court attributed $11,111.29 in gross monthly
income to Father, which was consistent with the joint pretrial statement,
affidavit of financial information, and Father’s testimony. Mother did not
provide any specific testimony about Father’s rental income. Although
Father acknowledged that the gross rental income for his rental properties
in 2014 was higher than the amount listed in his affidavit, he did list an
average rental net income from 2013–2017 and excluded expenses, which is
appropriate under Arizona law. Guidelines § 5(C). The record supports
the superior court’s calculation of Father’s gross monthly income. The
record also supports the amount of the child’s healthcare costs used in
calculating child support.3
3 Although Mother argues on appeal Father failed to enroll the child
in a dental plan in 2019, she points to no evidence in the record that she
raised this issue before the superior court; accordingly, we will not consider
it. See ARCAP 13(a)(7); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App.
2009).
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Turning to Father’s arguments, although the superior court
correctly deducted the spousal maintenance award from Father’s gross
monthly income, it erred in not simultaneously including the spousal
maintenance award in Mother’s income. Guidelines § 5(A). The court also
misinterpreted Guidelines § 9(B) by omitting childcare costs from the child
support calculation on the basis that Father was not entitled to the federal
childcare tax credit in this equal parenting-time case. But the cited
provision refers to an adjustment to childcare costs based on the federal
childcare tax credit, and neither precludes nor requires the inclusion of
childcare costs in the calculation of the support amount. See Guidelines
§ 9(B). Because the Guidelines are permissive as to the consideration of
childcare costs in the child support calculation, we vacate and remand on
this issue.
IV. COMMUNITY PROPERTY DISTRIBUTION
A. Personal Property
Mother argues the superior court inequitably divided the
community personal property. She contends the court awarded her
household furnishings that were “already” her sole and separate property.
Specifically, she requests that the court award her the guns and gun safes
allocated to Father. Mother points to no evidence in the record that she
raised the issue of classification of household furnishings as sole and
separate property below, and we cannot consider it for the first time on
appeal. See ARCAP 13(a)(7); Ritchie, 221 Ariz. at 305, ¶ 62. Mother also
offered no evidence of proposed values for items awarded to Father or for
items awarded to her in support of her argument of inequitable division of
community property. The record supports the court’s division of personal
property.
B. Mother’s Real Property
1. House Note Disclaimer
Mother asserts the superior court erred by not upholding
Father’s alleged disclaimer of his community interest in her separate real
property—the home at which the parties resided during the marriage. The
record shows that Father signed a document stating that Mother’s home
was her “property as long as [n]o claim is made against any of my
properties.” Although the court did not address this document in its ruling,
we infer any necessary supporting findings. See Wippman v. Rowe, 24 Ariz.
App. 522, 525 (1975). The court determined that the home was Mother’s
sole and separate property but that the debt on the home was paid off
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during the marriage, resulting in a community lien. The court awarded
Father his share of the community lien. Such an order is required by
Arizona law, and does not improperly transform separate property into
community property. See A.R.S. § 25-318(E)(1). The record supports the
court’s implied finding that Father did not disclaim his community lien
interest in Mother’s separate real property.
2. Appraisals
Mother argues the superior court erred by precluding the
admission of untimely disclosed appraisals of her separate real property in
support of her calculation of the community lien. We will “uphold an
evidentiary ruling absent a clear abuse of discretion and resulting
prejudice.” Johnson v. Provoyeur, 245 Ariz. 239, 241–42, ¶ 8 (App. 2018). At
trial, Mother’s attorney conceded these appraisals were untimely disclosed.
Mother testified that she thought the comparable properties included in the
appraisals that were admitted were inaccurate for various reasons. The
court permitted Mother’s expert witness to testify about why he believed
Father’s timely disclosed appraisals were inaccurate, but the witness
declined. Because the record supports a finding of untimely disclosure and
no resulting prejudice, we perceive no abuse of discretion.
3. Community Lien Calculation
Mother asserts the superior court incorrectly calculated the
amount of the community lien on her separate real property. Father
testified as to all values comprising the relevant factors set forth in Drahos
v. Rens, 149 Ariz. 248, 249–51 (App. 1985) used to calculate a community
lien on separate real property. Although the court’s ruling lists incorrect
underlying values, the court ultimately ordered Mother to pay Father
$73,489.96, which is mathematically correct using the numbers testified to
at trial by Father. Although Mother challenged Father’s testimony that the
mortgage had been paid off during the marriage and asserted that a balance
of $4,205.84 remained at the time of service of the petition, “we do not
reweigh the evidence” on appeal and instead “defer to the family court’s
determinations of witness credibility and the weight given to conflicting
evidence.” Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019).
Because the record supports the court’s award of $73,489.96 to Father for
his interest in the community lien, there was no abuse of discretion.
C. Father’s Real Property
Mother argues the superior court erred by not finding a
community interest in the increased value of Father’s inherited separate
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real properties due to spousal labor or goodwill. Although the increase in
value of a separate business may be equitably apportioned if community
efforts caused a portion of that increase, Rueschenberg v. Rueschenberg, 219
Ariz. 249, 254, ¶ 20 (App. 2008), the record supports the court’s finding that
the community expended no funds on Father’s separate real properties and
that Mother presented no credible evidence to support her claim that the
community’s efforts increased the value of these properties during the
marriage. Because we defer to the court’s credibility findings, we find no
abuse of discretion. See Lehn, 246 Ariz. at 284, ¶ 20.
D. Emergency Funds
Mother asserts the superior court erred by finding that a safe
Father admitted to removing from the marital home contained only $2,000
in emergency fund cash. Based on this finding, the court awarded Mother
$1,000 for her community interest in the cash. Father testified at trial that
the safe he took contained community funds in the amount of $2,000.
Mother testified the safe contained $12,000. We do not reweigh evidence,
and the court did not abuse its discretion in finding Father more credible
than Mother. See id.
E. Student Loan Debt
Mother argues the superior court failed to order Father to
reimburse the community for payments made during the marriage to
reduce Father’s separate, premarital student loan debt. Father
acknowledges that the community paid $3,303.83 more toward Father’s
student loans than Mother’s, and that Father owes Mother $1,651.92. The
record supports this calculation. We therefore vacate the court’s division
of student loan debt and remand for the court to determine an appropriate
offset payment to Mother.
F. Credit Card Debt
Mother asserts the superior court erroneously divided non-
community portions of Father’s credit card debt between the community.
Father testified regarding the balances on his credit cards on the date of
service of the petition and that those credit cards were used for community
expenses. Father acknowledged that his employer reimbursed him for
travel expenses and that some expenses were for items purchased post-
petition for which Mother should not be responsible, there was no
testimony or dollar amount provided at trial that would allow the court to
calculate what dollar amount should be deducted for work-reimbursed or
post-petition items. The court ultimately divided the credit card debt
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equally between the parties based upon the exhibits admitted into evidence
and testimony offered at trial. As such, the record supports the court’s
allocation of credit card debt.
G. Father’s Military Pension
Mother argues the superior court erred by not dividing the
accrual of Father’s military pension during the marriage; Father agrees.
Accordingly, we remand for division of Father’s military pension.
H. Financial Accounts
Mother asserts the superior court failed to divide a
community-owned college savings plan for the minor child and erred in
allocating certain financial accounts. Because Mother failed to develop this
argument on appeal and only states that the court failed to divide the
community-owned college savings plan, she waives this issue. See ARCAP
13(a)(7); Boswell v. Fintelmann, 242 Ariz. 52, 54, ¶ 7 n.3 (App. 2017) (noting
appellant who “fails to develop and support his conclusory arguments . . .
waives them”). Moreover, the court did not award this account to Father
on his behalf but rather to manage for the child’s benefit. The record
supports the court’s allocation of all other financial accounts. Although the
record contains some conflicting evidence, we defer to the court’s
credibility determination and find no abuse of discretion. Lehn, 246 Ariz. at
284, ¶ 20.
V. ATTORNEY’S FEES IN SUPERIOR COURT
Mother challenges the superior court’s denial of attorney’s
fees, which we review for abuse of discretion. See Democratic Party of Pima
Cnty. v. Ford, 228 Ariz. 545, 547, ¶ 6 (App. 2012). Mother challenges the
court’s findings pursuant to A.R.S. § 25-324(A) that she acted
“unreasonably in the litigation” and that the provisions of A.R.S. § 25-
324(B) do not apply. However, the record supports the court’s findings.
Moreover, because an award of attorney’s fees under A.R.S. § 25-324(A) is
permissive, even if the court found that Mother had acted reasonably, it
could have declined to award fees. The court did not abuse its discretion
by denying attorney’s fees.
VI. INTRASTATE TRAVEL NOTICE REQUIREMENT
Father challenges the superior court’s denial of his motion to
alter or amend the decree, which in part required a seven-day written notice
requirement for intrastate travel with the minor child. We review orders
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denying motions to amend or alter a judgment for an abuse of discretion.
See Mullin v. Brown, 210 Ariz. 545, 547, ¶ 2 (App. 2005). Father argues the
notice requirement amounts to an inappropriate restriction on parenting
time and precludes either parent from taking the child on a spontaneous
day trip. The provision is not a restriction on parenting time, but merely a
notice requirement. The record shows that when the parties separated,
Mother disappeared with the child for two days. Accordingly, the record
supports a reasonable notice requirement. Moreover, in its ruling, the court
explicitly permitted the parties to freely enter into agreements to modify
the requirement. We find no abuse of discretion.
CONCLUSION
For the foregoing reasons, we vacate the child support
calculation, student loan debt division, and division of Father’s military
pension. We remand to the superior court for further consideration
consistent with this decision. We affirm all remaining challenged
provisions of the decree.
Both parties request attorney’s fees and costs on appeal.
Because Mother represented herself on appeal, she is not entitled to
attorney’s fees. See Connor v. Cal–Az Props., Inc., 137 Ariz. 53, 56 (App. 1983),
disagreed with on other grounds by Am. Power Prods., Inc. v. CSK Auto, Inc., 242
Ariz. 364, 367–68, ¶¶ 13–14 (2017). We deny Father’s request for fees
pursuant to A.R.S. § 25-324 and ARCAP 25. Because neither side was
“successful” under A.R.S. § 12–341, neither is entitled to costs on appeal.
See Smith v. Pinnamaneni, 227 Ariz. 170, 179, ¶ 29 (App. 2011).
AMY M. WOOD • Clerk of the Court
FILED: AA
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