Askew v. Nunez ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DONALD LEE ASKEW, Petitioner/Appellant,
v.
DANIELLE RENAE NUNEZ, Respondent/Appellee.
No. 1 CA-CV 22-0192 FC
FILED 5-25-2023
Appeal from the Superior Court in Maricopa County
No. FC2020-001309
The Honorable Nicole M. Brickner, Judge, Pro Tempore
AFFIRMED
COUNSEL
Donald Lee Askew, PROTECTED
Petitioner/Appellant
Danielle Renae Nunez, Goodyear
Respondent/Appellee
ASKEW v. NUNEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Chief Judge Kent E. Cattani and Judge Paul J. McMurdie joined.
F U R U Y A, Judge:
¶1 Donald Lee Askew (“Father”) appeals from the superior
court’s February 17, 2022 order modifying the child support award to
Danielle Renae Nunez (“Mother”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Mother share one minor child in common. After
the parties separated in January 2020, Father filed a Petition to Establish
Legal Decision Making, Parenting Time, and Child Support. In June 2021,
the superior court conducted an evidentiary hearing and awarded Mother
$681 monthly in child support. At the hearing, the court credited Mother
with an income of $17 per hour for full-time employment, plus
approximately $975 monthly from real estate sales. Although the court
stated that it “suspects Mother may earn more than $975 per month through
the year,” it did not attribute any additional income to Mother.
¶3 In January 2022, Father petitioned to modify the child support
order alleging changed circumstances, including that Mother had “sold
over 7 homes this year,” and attaching information from a website
purporting to show her home sales. The court conducted an evidentiary
hearing on February 17, 2022, and reduced Father’s child support to $575
monthly. That same day, Father filed a “Motion to Appeal Child Support
Ruling,” alleging Mother’s failure to provide updated financial information
before the hearing led Father “to believe that [Mother’s] income
calculate[ed] [at the hearing] was completed with incorrect figures.”
Father’s motion also acknowledged he had “decided to proceed with the
[February 17] hearing without receiving an updated income affidavit from
[Mother].” The motion requested Mother provide updated financial
information so the court “can recalculate figures for the child support
modification.”
¶4 In a minute entry dated March 17, 2022, the court denied
Father’s Motion to Modify Child Support Ruling, treating it as a request for
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ASKEW v. NUNEZ
Decision of the Court
relief from a judgment pursuant to Arizona Rule of Family Law Procedure
85. Relevant to our purposes here, the court further explained:
At the February 17, 2022 Child Support Hearing, the Court
asked [Father] if he wanted to continue the hearing to receive
[Mother]’s financial information. [Father] admits in his
Motion, he decided to proceed with the hearing without
receiving [Mother]’s updated financial information. The
Court informed [Father] that it would most likely be using the
previous findings from Judge LaBianca’s previous June 22,
2021 Child Support Order as it had no objective proof of
[Mother]’s updated financial information. Again, [Father]
wanted to proceed with the hearing. After the hearing,
[Father] appears to have changed his mind.
¶5 Father timely appealed,1 as we treat his February 17 Motion
to Appeal Child Support Ruling as a Notice of Appeal pursuant to Arizona
Rule of Civil Appellate Procedure 8. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶6 On appeal, Father requests a recalculation of child support,
arguing that “[c]ompelling evidence was provided” to the court
demonstrating a “substantial increase” in Mother’s income and that the
court had erroneously calculated child support without updated financial
information from Mother.
¶7 We review the modification of a child support award for an
abuse of discretion. Nia v. Nia, 242 Ariz. 419, 422 ¶ 7 (App. 2017). “We accept
the court’s factual findings unless clearly erroneous but review de novo the
court’s conclusions of law and interpretation of the Arizona Child Support
Guidelines.” Sherman v. Sherman, 241 Ariz. 110, 113 ¶ 9 (App. 2016). We will
affirm the superior court’s decision if it is supported by the record for any
reason. Nia, 242 Ariz. at 422 ¶ 7.
1 Father filed additional documents with the superior court and with
this court on May 17, 2023, after filing this notice of appeal regarding the
February 17 evidentiary hearing and child support modification. But our
review is limited to the information presented in the superior court prior to
that court’s ruling. Any new information the parties believe is relevant to
a potential modification of the current child support award must first be
presented to the superior court.
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ASKEW v. NUNEZ
Decision of the Court
I. Father Waived Arguments by Failing to Object at the February
17 Evidentiary Hearing.
¶8 To the extent Father argues the court failed to consider
evidence of Mother’s increased income, he waived that argument by
agreeing to continue with the February 17 hearing using prior financial
information from Mother.
¶9 The Arizona Rules of Family Law Procedure require parties
to exchange Affidavits of Financial Information within 20 days after service
of a motion to modify child support and comply with other disclosure
requirements within the time established by the superior court or as agreed
to by the parties. Ariz. R. Fam. L. P. 91.1(c); 91(m); 49(e)(1)–(2). However,
the court may properly consider “evidence of income prior to the
modification petition” to determine whether a party’s income has
substantially changed since the current child support award was set.
Pearson v. Pearson, 190 Ariz. 231, 236 (App. 1997). “Evidence regarding
current or reasonably projected income, and of recent years’ income may
assist the court in determining whether an increase or decrease in income
is ‘continuing.’” Nia, 242 Ariz. at 423 ¶ 12.
¶10 The record shows Father failed to timely object to the court’s
use of Mother’s outdated financial information in modifying child support.
As reflected in the court’s Minute Entry and Father’s motion, when Father
was allowed to continue the hearing to obtain updated financial
information from Mother, he declined. He instead voluntarily agreed to
move forward with the evidentiary hearing on February 17, despite the
court’s warning it would be relying on the financial information used to
calculate a previous child support order. Father’s choice to not continue the
hearing when allowed to do so constitutes a waiver of any challenge to the
court’s use of Mother’s outdated financial information.
II. We Cannot Reweigh Evidence on Appeal.
¶11 Father further argues the court erroneously ignored evidence
of Mother’s income that he presented. As the appellant, it was Father’s
responsibility to file trial transcripts when necessary for consideration of
his arguments on appeal. Baker v. Baker, 183 Ariz. 70, 73 (App. 1995). When
an appellant fails to include transcripts in the appellate record, “we assume
they would support the [superior] court’s findings and conclusions.” Id.¶12 Here, Father attached information purportedly showing
Mother’s home sales when he filed his Petition to Modify Child Support
prior to the hearing. However, we cannot know whether or to what extent
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ASKEW v. NUNEZ
Decision of the Court
the court considered these attachments because Father failed to file
transcripts from the February 17 evidentiary hearing for inclusion in the
appellate record. Without the transcripts from the February 17 evidentiary
hearing, we presume the testimony and evidence presented at that hearing
support the court’s order. See Reeck v. Mendoza, 232 Ariz. 299, 302 ¶ 12 (App.
2013). We cannot conclude that it abused its discretion in modifying the
child support award on this incomplete record.
¶13 Moreover, we will not re-weigh the evidence the court
properly considered. See Premier Fin. Servs. v. Citibank, 185 Ariz. 80, 87 (App.
1995); Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009); C. I. T. Corp. v. First
Nat’l Bank of Winslow, 33 Ariz. 483, 486 (1928) (observing that weighing
evidence “has been uniformly held to be the province of the” fact-finder).
The court’s Minute Entry from the hearing indicates it heard the parties’
testimony and “review[ed] [] the court file.” To the extent the court did
consider the evidence Father presented, we are precluded from re-weighing
it to change the court’s child support award on appeal. See Hurd, 223 Ariz.
at 52 ¶ 16. In either case, Father’s appeal fails.
CONCLUSION
¶14 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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