Green v. Rhoads ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHANNON NOELLE GREEN, Petitioner/Appellee,
v.
DOUGLAS C. RHOADS, Respondent/Appellant.
No. 1 CA-CV 20-0078 FC
FILED 10-27-2020
Appeal from the Superior Court in Maricopa County
No. FC 2014-001581
The Honorable Bradley H. Astrowsky, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Andersen PLLC, Scottsdale
By Mark Hawkins
Counsel for Respondent/Appellant
Law Offices of Michael and Casey, Phoenix
By Sarah J. Michael, Robert I. Casey
Counsel for Petitioner/Appellee
GREEN v. RHOADS
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.
B R O W N, Judge:
¶1 Douglas Rhoads (“Father”) challenges the superior court’s
order granting $14,369.86 in child support arrearages to Shannon Green
(“Mother”). He also asks us to vacate (1) the court’s subsequent ruling
granting Mother’s motion for reconsideration on the issue of attorneys’ fees
and (2) an order allocating costs to hire a therapeutic interventionist. For
the following reasons, we affirm the arrearages calculation but we decline
to address the motion for reconsideration for lack of jurisdiction. We
vacate the order addressing therapeutic interventionist costs, and remand
for further proceedings.
BACKGROUND
¶2 Father and Mother divorced in 2016. The decree ordered
Father to pay child support for their two children. Both the decree and the
related child support order stated that all payments for child support must
be paid through the Support Payment Clearinghouse.
¶3 After the divorce, Father declared bankruptcy. The
bankruptcy trustee issued Mother a check for $12,000 and the trustee’s
report indicated that the check was a priority payment.
¶4 Mother filed a petition to modify parenting time and child
support. In his response, Father claimed the $12,000 check was for child
support and asked the court to credit him that amount when it calculated
arrearages. At the evidentiary hearing, Father testified the payment’s
priority status meant it was for child support, as child support “gets paid
first and in full.” But neither the check nor the trustee report specifically
stated the payment was for child support.
¶5 On November 13, 2019, the superior court filed its ruling
(“November Ruling”) on Mother’s petition. The court did not rule on child
support, noting the issue would be addressed in a separate order. The court
nonetheless certified the ruling as a final judgment under Arizona Rules of
Family Law Procedure (“Rule”) 78(c) final order. The court also stated each
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party would be responsible for their own attorneys’ fees and costs. Finally,
the court found that use of a therapeutic interventionist was necessary and
both parties would share equally in those costs.
¶6 On December 5, 2019, the superior court filed its order
addressing child support (“December Order”). Rejecting Father’s
argument about the purpose of the $12,000 check, the court awarded
Mother an arrearage judgment of $14,369.86, which matched the amount
Father reportedly owed. The court certified the December Order as a final
judgment under Rule 78(c).
¶7 Mother filed a motion for reconsideration of both the
November Ruling and December Order. Among other things, Mother
asked the superior court to revisit her request for attorneys’ fees and costs.
Father filed a response, together with a “counter-motion for clarification, or
for relief from judgment,” under Rules 84 and 85. Father opposed Mother’s
request for attorneys’ fees and costs and again asked the court to credit the
$12,000 priority payment as child support. On the same day, Father filed a
notice of appeal of the November Ruling and December Order.
¶8 Despite the pending appeal, the superior court ruled on the
motion for reconsideration. In relevant part, the court stated it would
award Mother attorneys’ fees and costs subject to filing an affidavit. The
court denied Father’s request to credit the $12,000 as child support,
reasoning that Father failed to provide sufficient evidence at the evidentiary
hearing to support his claim, and the $12,000 payment was statutorily
precluded from arrearage calculations because it was not paid through the
clearinghouse. See A.R.S. § 46-441(H).
¶9 After Mother submitted her fee affidavit, Father argued the
superior court erroneously ruled on the motion for reconsideration while
this appeal was pending. Over Father’s objection, the court entered its May
2020 order awarding Mother $4,075 in attorneys’ fees and costs.
DISCUSSION
¶10 Father argues (1) the superior court erred when it failed to
credit the $12,000 priority payment as child support, (2) the court erred by
ruling on the motion for reconsideration during the pendency of this
appeal, and (3) the court should be ordered to clarify the cost allocation for
the therapeutic interventionist.
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A. Jurisdiction Issues
¶11 “This court has an independent duty to examine whether we
have jurisdiction over matters on appeal.” Camasura v. Camasura, 238 Ariz.
179, 181, ¶ 5 (App. 2015). While we generally disfavor dismissal on
hypertechnical grounds, Schwab v. Ames Construction, 207 Ariz. 56, 59, ¶ 11
(App. 2004), we must dismiss a matter if we lack jurisdiction, Robinson v.
Kay, 225 Ariz. 191, 192, ¶ 4 (App. 2010).
¶12 Father appeals from both the November Ruling and
December Order. Although the November Ruling was signed under Rule
78(c), it cannot be considered a final appealable order because it did not
resolve all pending matters. See Rule 78(b). In fact, the court specifically
stated that the issue of child support would be determined in a future order.
For this partial disposition to be appealable, it would need to be signed as
a Rule 78(b) order.
¶13 The remaining issue of child support was resolved in the
December Order. The court entered the judgment as a Rule 78(c) final order
and stated there were no further issues or claims remaining for the court to
decide. Thus, the December Order is the baseline ruling for this appeal.
Because Father filed a timely notice of appeal, we have jurisdiction to
consider issues relating to the November Ruling and the December Order.
See ARCAP 5(a), 8(a); Ariz. R. Civ. P. 6(a).
¶14 As to the matters raised after the December Order, including
Mother’s motion for reconsideration, Father did not amend his notice of
appeal to include the court’s final ruling granting fees, nor did he file a
second notice of appeal from that ruling. See A.R.S. § 12-2101(A)(2)
(recognizing that a “special order made after final judgment” is appealable).
Thus, Father’s notice of appeal challenging the November Ruling and
December Order did not encompass the superior court’s ruling on Mother’s
motion for reconsideration. See ARCAP 8(c)(3) (stating that the notice of
appeal must “designate the judgment or portion of the judgment from
which the party is appealing”). We lack jurisdiction, therefore, to address
the merits of that ruling, including whether the court erred by entering the
judgment for attorneys’ fees and costs while this appeal was pending. See
In re Marriage of Thorn, 235 Ariz. 216, 218, ¶ 5 (App. 2014) (“[T]his court only
acquires jurisdiction over those matters identified in a timely filed notice of
appeal.”); see also Lee v. Lee, 133 Ariz. 118, 124 (App. 1982).
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B. Child Support Arrearage
¶15 We review the superior court’s ruling on arrearages for an
abuse of discretion. Ferrer v. Ferrer, 138 Ariz. 138, 140 (App. 1983). We
accept the court’s factual findings unless clearly erroneous. Alley v. Stevens,
209 Ariz. 426, 428, ¶ 6 (App. 2004). We review conclusions of law de novo.
Hughes v. Creighton, 165 Ariz. 265, 267 (App. 1990).
¶16 At trial, Father argued the $12,000 check’s priority status
meant it was for child support and testified that $12,000 was a reasonable
approximation for how much he owed at the time. Mother did not dispute
that she received the $12,000 check. However, she asserted that because the
check and trustee’s report do not identify the payment as child support, it
was not made for that purpose. Nothing in the record contradicts Mother’s
assertion.
¶17 On appeal, Father argues that the $12,000 priority payment,
as a matter of law, could only have been for child support. Father points to
the bankruptcy code, which lists domestic support obligations as a type of
priority payment. 11 U.S.C. § 507(a)(1)(A). Because Father owed no spousal
support, he argues that this payment could only have been for child
support. Father also notes that the Bankruptcy Code requires a debtor be
current on child support before the debtor’s debt can be discharged. 11
U.S.C. § 1328(a).
¶18 First, Father has waived his reliance on the Bankruptcy Code.
Although he asserted that the check’s priority status meant it was for child
support, and testified that $12,000 was a reasonable approximation for what
he owed at the time, Father never cited any provision in the Bankruptcy
Code in the superior court. Generally, issues raised for the first time on
appeal are waived. Henderson v. Henderson, 241 Ariz. 580, 586, ¶ 13 (App.
2017).
¶19 Waiver aside, we are not persuaded by Father’s argument.
Child support is not the only debt that can be designated as a priority
payment. Other priority payments include administrative expenses,
unsecured claims under 503(f) (business expenses before trustee
appointment), employee earnings, employee benefit plans, taxes, and
deposits related to real property. See 11 U.S.C. § 507. Importantly, the
trustee report only differentiates between Mother’s priority claim for
$12,000, and her general unsecured claim which was discharged. The
report does not break down how the trustee computed the $12,000 priority
payment or explain what the payment covers. Though it is not readily
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apparent how any of these other kinds of priority claims would apply to
Mother, Father has not established that child support is the only potential
priority payment under the Bankruptcy Code as a matter of law.
¶20 Second, the fact that a debtor is generally required to become
current on support obligations before bankruptcy discharge is not
conclusive evidence that this $12,000 priority payment could only have
been for child support. Even assuming Father is correct that $12,000 is a
reasonable estimate for child support owed at the time the priority payment
was issued, this fact alone—or when taken with the other issues discussed
above—is not enough to show the superior court abused its discretion.
¶21 Finally, the superior court’s refusal to credit the $12,000
payment as child support is supported by statute: “[p]ayment of any money
directly to an obligee or to a person other than the support payment
clearinghouse shall not be credited against the support obligation unless
the direct payments were ordered by the court, or made pursuant to a
written support agreement by the parties.” A.R.S. § 46-441(H). Nothing in
the record indicates any authorization or agreement for child support
payments to be made outside the clearinghouse. Indeed, the decree and
related child support order both require that all payments be processed
through the clearinghouse. Although neither party addressed this statute
in the superior court or on appeal, and it was only referenced for the first
time in the ruling on Mother’s motion for reconsideration, we may affirm
the superior court’s decision “if it is correct for any reason.” Glaze v. Marcus,
151 Ariz. 538, 540 (App. 1986).
C. Therapeutic Intervention
¶22 In the November Ruling, the superior court ordered that both
“parties shall equally share in the costs of the [therapeutic intervention].”
Without explanation, however, the court‘s later order appointing the
therapeutic interventionist required Father to pay 100% of the fees and
costs. Citing Rule 85(a), Father suggests the discrepancy was a clerical
mistake, but that it could not be corrected while this appeal is pending.
Mother believes the order is correct as it stands; however, she does not
object to remanding the issue for clarification. Given the conflict between
the two orders, we vacate the order requiring Father to pay all the costs of
therapeutic intervention and remand for entry of a new order as the court
deems appropriate.
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Decision of the Court
CONCLUSION
¶23 We affirm the December Order, but we vacate the order
holding Father responsible for payment for the therapeutic interventionist
and remand for further proceedings. We lack jurisdiction to address
Father’s argument relating to the court’s award of fees and costs to Mother.
Both parties seek attorneys’ fees and costs pursuant to A.R.S. § 25-324,
which authorizes a court to award fees after consideration of the parties’
financial resources and the reasonableness of their positions. In our
discretion, we deny both requests for fees and costs.
AMY M. WOOD • Clerk of the Court
FILED: AA
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