Lynch v. Brakebill ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MARK H. LYNCH, Petitioner/Appellee,
v.
FRANCES KATHRYN BRAKEBILL, Respondent/Appellant.
No. 1 CA-CV 14-0165
FILED 2-17-2015
Appeal from the Superior Court in Maricopa County
No. FC2007-005139
The Honorable Thomas L. LeClaire, Judge
AFFIRMED IN PART; REMANDED IN PART
COUNSEL
Scott L. Patterson PLLC, Tempe
By Scott L. Patterson
Counsel for Petitioner/Appellee,
Frances Kathryn Brakebill, Phoenix
Respondent/Appellant
LYNCH v. BRAKEBILL
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Maurice Portley joined.
J O N E S, Judge:
¶1 Frances Brakebill (Mother) appeals the trial court’s order
modifying child support and denying her motions for new trial and to
amend the judgment. For the following reasons, we affirm in part and
remand in part for further findings.
FACTS1 AND PROCEDURAL HISTORY
¶2 Mother and Mark Lynch (Father) divorced in February 2008.
As part of the divorce decree, they agreed to share legal and physical
custody of their three minor children, whom they stipulated had no special
needs or extraordinary expenses. The child support worksheet, prepared
by Mother’s attorney and incorporated into the decree, attributed Mother
income of $6,000 per month, and required Father to pay $1,216 per month
in child support; however, Father agreed to an upward deviation of $2,284
for a total monthly child support amount of approximately $3,500. In May
2010, the parties stipulated to reduce Father’s child support obligation to
$2,400 per month.
¶3 In September 2012, after the parties’ oldest child turned
eighteen years old, Father filed a petition to modify his child support
obligation via the “simplified procedure” authorized by Arizona Rule of
Family Law Procedure 91(B)(2)(b) and Arizona Revised Statutes (A.R.S.)
section 25-320 app. § 24(B) (Guidelines).2 The accompanying child support
1 We view the facts in the light most favorable to sustaining the trial
court’s orders. In re Marriage of Yuro, 192 Ariz. 568, 570, ¶ 3, 968 P.2d 1053,
1055 (App. 1998).
2 Absent material revisions from the relevant date, we cite a statute’s
current version.
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worksheet reflected Father’s child support obligation as $1,327.49 per
month.3
¶4 Mother requested a hearing on Father’s petition. She then
filed her own petition, alleging Father’s income had increased, her own
income had decreased, and the children had extra education expenses,
medical expenses, and special needs, all of which supported an increase in
Father’s child support obligation to $2,598.80. She also alleged Father had
recently relocated to Florida, which affected their custody and parenting
time arrangement. She requested a modification of child support, custody
and parenting time accordingly, as well as an award of attorneys’ fees.
¶5 Mother thereafter submitted a timely request for findings of
fact and conclusions of law pursuant to Arizona Rule of Family Law
Procedure 82(A). Prior to trial, the parties entered into an agreement
affirming the majority of their prior order, which granted the parties joint
legal decision-making, Mother primary physical custody, and Father
parenting time of approximately sixty days per year, leaving only the issues
of child support and attorneys’ fees for determination by the trial court.
¶6 At trial in May 2013, Father testified he received a substantial
inheritance during the parties’ marriage, of which $250,000 was given to
Mother as part of the divorce settlement. He also originally agreed to an
upward deviation, believing it to be in his children’s best interest, but
testified the monies with which he had intended to fund those additional
sums had been exhausted, at least in part in litigating a joint debt, and he
could no longer afford to pay the increased amount. Father testified he
currently earns $90,400 per year, plus commissions, which was reflected in
his 2010 and 2011 tax returns and 2012 W-2 form. He also submitted
evidence regarding the cost of health insurance available through his
employer.
¶7 Mother testified she had earned a bachelor’s degree, would
receive her paralegal certificate within the next week, and was six to twelve
hours short of obtaining a master’s degree. Despite her high level of
education, Mother claimed monthly income of only $684 and explained her
2012 tax return, reflecting a total income of $29,790, reflected mostly
3 Father’s updated calculation resulted in a 45% variation from the
existing child support order. Pursuant to the Guidelines, the simplified
procedure may be used where “application of the guidelines results in an
order that varies 15% or more from the existing amount.” Guidelines
§ 24(B).
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dividends and capital gains. Mother submitted a child support worksheet
with her response to Father’s petition, and again at trial, estimating, as did
Father, that the cost of health insurance was $270 per month.
¶8 Mother further testified that an upward deviation was
appropriate to allow the children to maintain the lifestyle they were
accustomed to during the parties’ marriage, which included building a
custom home and taking yearly Disney cruises. She testified to having
approximately $1,000 per month in “extra education expenses” and
“extraordinary child expenses” related to past medical care and having a
thirteen-year-old “homebound student.” She provided no documentation
to support either the existence or amount of those expenses.
¶9 In its ruling, the trial court adopted Father’s income from his
2012 W-2 form and Mother’s from her 2012 federal income tax return. As
set forth in an accompanying child support worksheet, Father was credited
for fifty parenting days and $270 per month to provide health, dental and
vision insurance for the children. Using these figures, the court calculated
Father’s child support obligation for two children at $1,291.28 per month.
¶10 The trial court went on to deny Mother’s request for an
upward deviation, noting Father provided “a number of gift items not
covered by child support” to the children and “Mother has not fully
disclosed her income to the Court.” The court found Mother’s evidence
was “inadequate as it does not relate back to how the increased funds, if
they were Ordered, would enhance the life of the minor child[ren] and,
thus, be in the best interests of the minor children.” The trial court then
concluded Mother failed to establish that the presumptive child support
amount was deficient.
¶11 Finally, the trial court denied Mother’s request for attorneys’
fees based upon an alleged disparity of income between the parties because
it was unable to “reliably assess” Mother’s income. Mother timely
appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1). See
Reeck v. Mendoza, 232 Ariz. 299, 302, ¶ 10, 304 P.3d 1122, 1125 (App. 2013)
(holding “signed support order by the family court is a final decision by its
nature,” and entry thereof functions as a final, appealable judgment).
DISCUSSION
I. Findings of Fact and Conclusions of Law
¶12 Mother argues throughout her briefs that the trial court failed
to set forth specific findings to support its decision. Generally, “when a
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timely request for findings is submitted, the trial court must make findings
concerning all of the ultimate facts.” Elliott v. Elliott, 165 Ariz. 128, 134, 796
P.2d 930, 936 (App. 1990) (citing Fritts v. Ericson, 87 Ariz. 227, 234, 349 P.2d
1107, 1111 (1960)). Even where a proper request is made, the sufficiency of
the findings may still be waived where a party fails to object to their
inadequacy at the trial court level. Id. (citing Green v. Geer, 720 P.2d 656, 660
(Kan. 1986)); see also Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657,
658-59 (1994). A lack of findings may likewise be waived “where the record
is so clear that the [reviewing] court does not need the aid of findings . . .
on the ground that the error is not substantial in the particular case.” City
of Phx. v. Consol. Water Co., 101 Ariz. 43, 45, 415 P.2d 866, 868 (1966) (citing
Hurwitz v. Hurwitz, 136 F.2d 796, 799 (D.C. Cir. 1943)).
¶13 Here, Mother argued in her post-trial motions that the trial
court’s findings were insufficient only with regard to the requested upward
deviation, the basis for calculation of Father’s parenting days, and the cost
of health insurance for the children.4 However, we find the court’s
determination regarding the cost of health insurance, undoubtedly adopted
from the concurring submissions of the parties, to be so clear that we do not
need the aid of findings. See infra Part II(B)(4). Any purported error
regarding this issue is therefore not substantial in this case and waived. See
Consol. Water, 101 Ariz. at 45, 415 P.2d at 868. Moreover, because she failed
to pursue her request for specific findings on the remaining factors, “she
may not be heard to complain to this court” about their sufficiency.
Patterson v. Patterson, 63 Ariz. 499, 502, 163 P.2d 850, 851 (1945).
¶14 Accordingly, we only address the sufficiency of the trial
court’s findings with regard to Mother’s requested upward deviation and
Father’s parenting days. On the remaining matters, we presume the court
found every fact necessary to support its judgment, and must affirm its
order if any reasonable construction of the evidence justifies the decision.
Neal v. Neal, 116 Ariz. 590, 592, 570 P.2d 758, 760 (1977) (citing Porter v.
Porter, 67 Ariz. 273, 282, 195 P.2d 132, 137-38 (1948), and Myrland v. Myrland,
19 Ariz. App. 498, 504, 508 P.2d 757, 763 (1973)). We further presume that
the trial court knows the law and applies it correctly. Fuentes v. Fuentes, 209
Ariz. 51, 58, ¶ 32, 97 P.3d 876, 883 (App. 2004) (citing State v. Trostle, 191
Ariz. 4, 22, 951 P.2d 869, 887 (1997)). Where the court chooses to make
specific findings, we defer to those findings “unless clearly erroneous,
giving due regard to the opportunity of the court to judge the credibility of
4 As discussed below, the remainder of Mother’s motion simply
argues the trial court erred in its interpretation of the evidence. See infra
Parts VI and VII.
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witnesses.” In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5, 12 P.3d 1203, 1205
(App. 2000). Findings of fact are “clearly erroneous” when “‘the reviewing
court on the entire record is left with the definite and firm conviction that a
mistake has been committed.’” Park Cent. Dev. Co. v. Roberts Dry Goods, Inc.,
11 Ariz. App. 58, 60, 461 P.2d 702, 704 (1969) (quoting Merryweather v.
Pendleton, 91 Ariz. 334, 338, 372 P.2d 335, 338 (1962)). It is with these
principles in mind that we examine the substance of Mother’s arguments.
II. Child Support Order
¶15 We review an award of child support for an abuse of
discretion. Cummings v. Cummings, 182 Ariz. 383, 385, 897 P.2d 685, 687
(App. 1994). The trial court abuses its discretion if the record lacks
competent evidence to support its decision, Little v. Little, 193 Ariz. 518, 520,
¶ 5, 975 P.2d 108, 110 (1999), or the court made “an error of law in the
process of exercising its discretion.” Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2,
118 P.3d 621, 622 (App. 2005). We review de novo the interpretation of the
statutes and guidelines governing child support calculations. Patterson, 226
Ariz. at 358, ¶ 4, 248 P.3d at 206.
A. Change in Circumstances Justifying Modification
¶16 Mother argues the trial court failed to make an initial finding
of a substantial and continuing change justifying modification of the child
support order. See A.R.S. § 25-327(A) (“[A]ny decree respecting
maintenance or support may be modified or terminated only on a showing
of changed circumstances that are substantial and continuing . . . .”). She
does so despite identifying several significant changes in the parties’
circumstances within her own brief, avowing under oath within her
petition for modification that “there has been a substantial and continuing
change in financial circumstances of the parties,” and asserting
affirmatively within her pretrial memorandum that a modification of child
support was appropriate. Therefore, her argument that a substantial and
continuing change warranting modification had not occurred is wholly
unconvincing.
¶17 Moreover, “the decision whether changed circumstances exist
to warrant modification of an award is within the sound discretion of the
trial court.” Cummings, 182 Ariz. at 387, 897 P.2d at 689 (citing Brevick v.
Brevick, 129 Ariz. 51, 52, 628 P.2d 599, 600 (App. 1981)). Here, reasonable
evidence supports a finding of a substantial and continuing change. Since
the prior child support order was entered in May 2010, both parties
reported changes to their income, one of their minor children reached the
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age of majority, and Father relocated to another state. Additionally, a
fifteen percent variation between the existing child support order and the
requested amount is considered evidence of a substantial and continuing
change of circumstances, see Guidelines § 24(B), and the court’s order here
resulted in a 47% variation. Each of these changes, individually, likely
supported recalculation of the child support award, and we find no abuse
of discretion in the court’s apparent acceptance of the avowals of the parties
that their circumstances had changed.
B. Child Support Calculation
¶18 Mother next contends the trial court erred in its calculation of
the child support award. Specifically, she argues the record lacks evidence
to support the various factors used by the court to calculate the
presumptive child support obligation, including the parties’ respective
incomes, Father’s parenting time, and health insurance premium payments
for the minor children. We review these factual issues for an abuse of
discretion. Hamblen v. Hamblen, 203 Ariz. 342, 347, ¶ 25, 54 P.3d 371, 376
(App. 2002) (citing Kelsey v. Kelsey, 186 Ariz. 49, 53, 918 P.2d 1067, 1071
(App. 1996)). “The trial court is in the best position to judge the credibility
of the witnesses, the weight of evidence, and also the reasonable inferences
to be drawn therefrom.” Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166,
171, 481 P.2d 536, 541 (1971). We will therefore not reweigh the evidence or
second guess the trial court’s interpretation where reasonable evidence
supports the decision.
1. Mother’s Gross Income
¶19 The first step under the Guidelines is to determine the gross
income of each parent. Mother argues the trial court abused its discretion
by adopting the average monthly income reflected in her 2012 tax return
because it included funds she received from a one-time sale of stock.
¶20 Gross income is broadly defined to include “income from any
source, and may include, but is not limited to, income from salaries, wages,
. . . [and] capital gains . . . .” Guidelines § 5A (emphasis added); see also
Cummings, 182 Ariz. at 386, 897 P.2d at 688 (noting there is no statutory
limitation on “the items that the court may consider in determining a
parent’s ‘financial resources’”). Although we agree with Mother that “[t]he
Guidelines do not declare that every capital gain is gross income for child
support purposes,” Burnette v. Bender, 184 Ariz. 301, 304, 908 P.2d 1086, 1089
(App. 1995), superseded by statute on other grounds as recognized in Myrick v.
Maloney, 23 Ariz. 491, 494, ¶ 8, 333 P.3d 818, 821 (App. 2014), it is within the
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discretion of the trial court to make the determination on a case-by-case
basis. Id. at 305, 908 P.2d at 1090 (holding that “in some cases” a capital
gain may not be representative of gross income).
¶21 Alternatively, it is not just the non-custodial parent who has
a legal duty to support his children. See Little, 193 Ariz. at 521, ¶ 6, 975 P.2d
at 111 (“[A] parent has a legal duty to support his or her biological or
adopted children.”); see also Guidelines § 2(E) (noting even a custodial
parent may be liable for child support). Thus, the trial court is authorized
to “impute income to [a] parent, up to full earning capacity, if the parent’s
earnings are reduced voluntarily and not for reasonable cause.” Little, 193
Ariz. at 521, ¶ 6, 975 P.2d at 111; see also A.R.S. § 25-320(N) (creating
presumption “that a parent is capable of full-time employment at least at
the applicable state or federal adult minimum wage”); Guidelines § 5(E)
(discussing imputation of income where “parent is unemployed or working
below his or her full earning potential . . . voluntarily and not for reasonable
cause”). The court may attribute income based upon its assessment of a
parent’s educational level, prior work experience, and earning capacity.
See, e.g., Taliaferro v. Taliaferro, 188 Ariz. 333, 336-37, 935 P.2d 911, 914-15
(App. 1996) (affirming child support award based upon income attributed
to unemployed parent who had a college degree, prior experience in
accounting and computer programming, and fairly solid work history for
many years); Williams v. Williams, 166 Ariz. 260, 266, 801 P.2d 495, 501 (App.
1990) (“Based upon the testimony regarding the husband’s past earning
history and his future earning capacity, we do not believe that the trial court
erred in attributing income to the husband in the amount of $4,000 per
month.”).
¶22 To the extent the trial court attributed income to Mother, it
implicitly found she had not provided adequate bases for earning less than
her full income potential.5 Indeed, the court explicitly found Mother “ha[d]
not fully disclosed her income to the Court,” and identified conflicting
evidence on the issue that could support a gross monthly income of
anywhere from $684 to $6,000 per month. Implied within the court’s order
5 Although Mother suggests on appeal the children’s needs prevented
her from devoting herself to a career, it was within the court’s discretion to
reject this testimony, particularly in light of the lack of documentary
evidence to support Mother’s claims and the parties’ prior agreement that
none of their children had special needs. See State v. Estrada, 209 Ariz. 287,
288, ¶ 2, 100 P.3d 452, 453 (App. 2004) (“[T]he trial court, not this court,
determines the credibility of the witnesses.”) (citing State v. Ossana, 199
Ariz. 459, 461, ¶ 7, 18 P.3d 1258, 1260 (App. 2001)).
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is the logical conclusion that, had Mother made efforts to obtain and
maintain employment nearer her full income potential, it would have been
unnecessary to cash in the stocks and bonds that resulted in the capital
gains to her. This is a reasonable interpretation of the evidence and within
the court’s discretion.
¶23 Mother also complains the trial court abused its discretion in
considering financial information from 2008, rather than more recent
information, in determining the amount of income to attribute to her.
However, the 2008 information, contained within the court’s record, is
indicative of Mother’s historical earning capacity and highly probative in
determining how much income to attribute to her. See Williams, 166 Ariz.
at 266, 801 P.2d at 501) (finding no error in calculation of income attributed
to parent based, in part, upon “past earning history and . . . future earning
capacity”). Explicitly recognizing Mother had not fully disclosed her
income, the court gleaned from its own record Mother’s prior assertions of
her income potential. It was not error to do so.
¶24 The record reflects Mother previously admitted she had been
capable of earning $6,000 per month five years prior. She provided no
testimony or other evidence at trial to suggest this figure was inaccurate or
no longer feasible. She has a college degree, is six to twelve credits short of
obtaining a master’s degree, and testified she would receive a paralegal
certificate the week after the evidentiary hearing. The trial court was well
within its discretion, based upon Mother’s education and prior asserted
earning capacity of $6,000 per month, to assign Mother a modest income of
$2,482.50 per month. We find no abuse of discretion in the calculation of
Mother’s gross income.
2. Father’s Income
¶25 Mother also argues the trial court erred in failing to include
expense reimbursements, commissions, and “household expenses offset
through financial contributions of [his] spouse” in its calculation of Father’s
gross income. Instead, the court adopted the monthly income of $8,809.33
per month, as reported in Father’s 2012 W-2 form. Mother further contends
allowing Father to demonstrate his income through recent pay stubs
resulted in “an unequivocal and unjust mathematical/analytical method of
computation” of Father’s income, and that the computation method for
determining the parties’ income “should be similar, if not identical.”
Effectively, Mother argues that if the trial court used tax filings to decide
her income, it was required to use tax filings to decide Father’s. We find no
error.
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¶26 First, pursuant to the Guidelines, “[e]xpense reimbursements
or benefits received by a parent in the course of employment . . . shall be
counted as income if they are significant and reduce personal living
expenses.” Guidelines § 5(D). Implicit in the trial court’s ruling is a finding
that Father’s expense reimbursements are either insignificant or do not act
to reduce his personal living expenses.
¶27 Mother argues “some of F[ather’s] food costs, travel expenses,
entertainment, lodging and extra items are paid for through substantial and
consistent reimbursements from his employer,” as demonstrated by his
bank statements, which show his expenses exceeded his claimed income.
Father did testify he is sometimes reimbursed by his employer for expenses
incurred in entertaining clients. These are not personal living expenses.
The only other evidence of an employer-paid expense was an
approximately $190 per month lease on Father’s vehicle. This amount
represents only two percent of Father’s gross income, and it would not have
been unreasonable for the trial court to conclude the sum was insignificant.
Additionally, Father’s bank statements are consistent with his testimony
that he is having difficulty paying his bills, typically reflecting only a small
balance at the end of each month. Accordingly, the court did not err in
excluding additional sums from its calculation of Father’s income.
¶28 Second, there is no indication the trial court ignored Father’s
commissions in its calculation of his gross income. To the contrary, Father
testified in 2012 he was paid $90,400 per year in salary and received
approximately $11,000 in commissions. The court’s calculation of Father’s
income, when annualized, totaled $105,712 and reflected the consideration
of both salary and commissions. We find no error.
¶29 Third, Mother is correct that Arizona law permits
consideration of a third party’s contributions to household expenses in its
income calculation. See A.R.S. § 25-320(D)(2), (5) (directing consideration
of the “financial resources and needs” of both parents); In re Marriage of
Pacific, 168 Ariz. 460, 466-67, 815 P.3d 7, 13-14 (App. 1991) (“[T]he trial court
may only consider a current spouse’s income to the extent that it defrays a
parent’s expenses.”). However, while Father testified his current spouse
contributes to household expenses, the record is devoid of any evidence
regarding her income or the amount of her contributions. Without this
information, it was not possible for the trial court to reasonably determine
the amount of any appropriate offset to Father’s living expenses, and it did
not abuse its discretion on this record.
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¶30 Finally, we reject Mother’s argument that the trial court’s
“method for determining income for both parties should be similar, if not
identical” or was otherwise improper. Given the myriad of income sources
and possible financial support circumstances, “one size” does not fit all in
the course of calculating child support, and the court is thus afforded broad
discretion in these matters. See, e.g., In re Marriage of Robinson, 201 Ariz. 328,
334-35, ¶ 17, 35 P.3d 89, 95-96 (App. 2001) (acknowledging “broad
discretion accorded trial courts in ordering child support”) (citing Standage
v. Standage, 147 Ariz. 473, 476, 711 P.2d 612, 615 (App. 1985)). This includes
choosing the appropriate method to calculate income, which may
necessarily vary by the evidence and circumstances presented to the court.
See generally id. at 334, ¶ 16, 35 P.3d at 95 (acknowledging numerous
methods available to value stock options and declining “to prescribe a
single method for all cases or a particular method for this case” given the
variety of factors to be considered).
¶31 As long as the trial court’s method of calculating income is
reasonable under the circumstances, and consistent with the policies and
purposes of the Guidelines, there is no error. See id. Under the
circumstances, it was not an abuse of discretion to adopt Father’s most
recent income information from his 2012 W-2 form while adopting Mother’s
most recent income information from her 2012 federal income tax return.
3. Adjustment for Parenting Time
¶32 Mother argues the trial court abused its discretion in crediting
Father with “more parenting days per year than he actually uses” and
failing to provide a basis for attributing him fifty parenting days per year.
¶33 Although it is apparent the trial court credited Father with
parenting time somewhere between (a) that agreed upon by the parties and
memorialized in their parenting plan, and (b) that established by past
practices, see Guidelines § 11 (directing the court to “determine the total
annual amount of parenting time indicated in a court order or parenting
plan or by the expectation or historical practice of the parents”), the court
did not explain its reasoning in doing so, and we are in no position to guess
as to what the reasoning may have been. Because Mother properly
objected, and preserved her objection, to the sufficiency of the court’s
findings as to this factor, Elliott, 165 Ariz. at 135, 796 P.2d at 937, we remand
for additional findings regarding the calculation of Father’s parenting days.
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4. Adjustment for Health Insurance
¶34 Mother also argues the trial court abused its discretion in
crediting Father with $270 per month for the cost of health, dental and
vision insurance for the children because the “actual” amount paid is $99.73
per month. Despite Mother’s representation, the “actual” cost of health
insurance is far from clear, with conflicting evidence regarding the cost for
“family coverage,” whether Father is responsible for his own insurance
premiums or they are employer-sponsored, whether coverage of Father’s
wife is included within the premium amount alleged, and whether a greater
percentage of the premiums are attributable to coverage for children as
opposed to adults.
¶35 What is clear from the record, however, is that each party
prepared and admitted into evidence proposed child support worksheets,
each of which reflects a credit of $270 per month for the cost of health, dental
and vision insurance. Although Mother properly preserved and argued the
issue of the sufficiency of findings as to this factor, we do not “need the aid
of findings” in this case, Consol. Water, 101 Ariz. at 45, 415 P.2d at 868, where
it is readily apparent the court adopted the representations — and apparent
agreement of the parties — as reflected in their otherwise opposing child
support worksheets. We find no error on this basis.
III. Upward Deviation
¶36 With regard to her request for an upward deviation of the
child support award, Mother argues, without citation to legal authority,
that because “an upward deviation was already in effect, and ha[d] always
been in effect . . . it should have been F[ather’s] burden to show that these
factors were no longer valid, as opposed to being M[other’s] burden to
show that these factors were still relevant .” Therefore, she asserts, the trial
court lacked justification to reject the prior finding that deviation was
appropriate. Mother also argues the court’s findings are insufficient to
support its denial of the request for upward deviation.
¶37 By statute, “[t]he party seeking a sum greater [than the
presumptive amount] shall bear the burden of proof that the needs of the
children require a greater sum.” Guidelines § 8; Nash v. Nash, 232 Ariz. 473,
478, ¶ 18, 307 P.3d 40, 45 (App. 2013). Although Mother correctly notes the
Nash court was considering an original child support order, rather than a
modification, there is no reason to apply a different standard. Each time a
modification of child support is sought, the sum must be calculated based
upon its own, then-existing merit. Where a party must establish, as a
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prerequisite to modification, a substantial and continuing change in
circumstances, see A.R.S. § 25-327(A), the trial court appropriately considers
anew the propriety of any upward deviation. The party seeking deviation
must provide support for it, and in the absence of evidence illustrating the
propriety of a deviation, the court simply orders the presumptive amount.
¶38 Mother also argues the trial court failed to give “due
consideration” to her request for deviation, and further suggests the court
erred in basing its denial in “the[] finding that she had failed to show ‘how
enhanced funds would support the life of the minor child.’” We disagree.
An upward deviation is considered “on a case by case basis,” after
considering a variety of non-exclusive factors. Guidelines §§ 8, 20.
However, a deviation may be applied only upon a finding that strict
application of the Guidelines is inappropriate or unjust, see Guidelines §
20(A)(1), and when applying the Guidelines, the “paramount factor” a
court must consider is the best interests of the child. Engel v. Landman, 221
Ariz. 504, 513, ¶ 38, 212 P.3d 842, 851 (App. 2009) (citing Little, 193 Ariz. at
522, ¶ 12, 975 P.2d at 112)). A party’s failure to establish that increased
funds would serve the best interests of the child is therefore sufficient,
alone, to defeat a deviation request.
¶39 Here, the trial court specifically found “[Mother]’s evidence is
inadequate as it does not relate back to how the increased funds, if they
were Ordered, would enhance the life of the minor child and, thus, be in
the best interest of the minor child[ren];” “[Mother]’s evidence is
equivocal,” open to the possibility that “the minor children receive all of the
‘additional items’ that an upward deviation would provide;” and
“[Mother] failed to establish [what] is deficient with the payment of the
presumptive Basic Child Support Amount.” It further found Mother’s
evidence was “largely . . . confined to one of the approximately fifteen (15)
factors that the Court is directed to consider.” These findings are a
reasonable interpretation of Mother’s testimony, reflect careful
consideration of the appropriate factors, and are entitled to deference
where, as here, there is reasonable support in the record. See Twin City Fire
Ins. Co. v. Burke, 204 Ariz. 251, 254, ¶ 10, 63 P.3d 282, 285 (2003) (citing
Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13, 29 P.3d 870, 873 (App. 2001)).
These findings amount to an inability to determine that application of the
Guidelines was inappropriate or unjust, and are sufficient to support the
denial of Mother’s request for an upward deviation of the child support
award. We therefore find no error.
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IV. Life Insurance Information
¶40 Mother argues the trial court erred in “not ordering (and not
sanctioning) F[ather] to provide proof of continued maintenance of two life
insurance policies” intended to secure his child support obligation and
originally ordered within the decree of dissolution. Mother does not argue
the proceeds and premiums of these policies are relevant to the calculation
of Father’s child support obligation, but instead requested Father be
required to provide such proof “as part of his support obligation.”
Notably, Mother presented this issue for the first time in her pretrial
statement, and did not raise it again until her reply to her post-trial motions.
¶41 Mother apparently seeks to broaden the subject matter of the
May 2013 evidentiary hearing to include enforcement of the divorce decree
requiring Father to maintain this insurance. However, a litigant in any
action is entitled to fair notice of what is being sought of him. See Cullen v.
Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6, 189 P.3d 344, 346 (2008).
Moreover, the rules specifically provide that to enforce a prior family court
order a person “shall file a petition with the clerk of the court setting forth
with specificity all relief requested.” Ariz. R. Fam. L.P. 91(A) (“The petition
shall indicate, at a minimum, . . . the relief sought.”); see also Ariz. R. Fam.
L.P. 91(H) (requiring petition for post-decree relief not specifically
addressed elsewhere “set[] forth detailed facts supporting the requested
relief”).
¶42 Mother’s petition requested modification of child support
and parenting time, sole custody and decision-making authority of the
children, and an award of attorneys’ fees. The trial court did not have
authority to expand the scope of the hearing beyond that sought within
either party’s petition or grant relief in excess of what had been requested,
could not properly entertain evidence in regard to a matter not properly
before it, and did not err in declining her belated requests to include the
newly-raised life insurance issue into the proceedings. See, e.g., Villalba v.
Villalba, 131 Ariz. 556, 558, 642 P.2d 901, 903 (App. 1982) (vacating sua sponte
the trial court’s order dissolving marriage where petition had only
requested legal separation). Had Mother sought to enforce a provision of
the decree of dissolution, due process mandated it be properly pleaded and
served upon Father in conformity with the Arizona Rules of Family Law
Procedure, so he could prepare to address the allegations at a scheduled
hearing. In the absence of these procedural prerequisites, neither Father
nor the court could be prepared to address the issue, and due process
would give way to litigation by ambush. This is not the law and we reject
Mother’s suggestion otherwise.
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V. Attorneys’ Fee Award
¶43 Mother asserts the trial court abused its discretion in denying
her request for attorneys’ fees under A.R.S. § 25-324(A), and that she is
entitled to an award of fees based solely upon the “huge disparity of
income.” We will not disturb a trial court’s order declining a fee award
under A.R.S. § 25-324 absent an abuse of discretion. MacMillan v. Schwartz,
226 Ariz. 584, 592, ¶ 36, 250 P.3d 1213, 1221 (App. 2011) (citing In re Marriage
of Berger, 140 Ariz. 156, 167, 680 P.2d 1217, 1228 (App. 1983)).
¶44 A party may be ordered to pay the other’s attorneys’ fees and
costs “from time to time, after considering the financial resources of both
parties and the reasonableness of the positions each party has taken
through the proceedings.” A.R.S. § 25-324(A). Both Mother and the trial
court rely upon a body of case law suggesting that the sole consideration in
awarding fees in a domestic relations matter is a comparison of the parties’
resources. However, this Court recently clarified that those cases predate
the 1996 amendment to A.R.S. § 25-324, which added a second factor to
consider: the reasonableness of the parties’ positions. Myrick, 235 Ariz. at
494, ¶ 8, 333 P.3d at 821 (citing 1996 Ariz. Sess. Laws, ch. 145, § 9).
Moreover, “as the plain language of § 25-324(A) makes clear, a trial court
has the discretion to deny a fee request even after considering both
statutory factors.” Id. at ¶ 9 (citing A.R.S. § 25-324(A), and Alley v. Stevens,
209 Ariz. 426, 429, ¶ 12, 104 P.3d 157, 160 (App. 2004)).
¶45 Here, the trial court denied Mother’s request for attorneys’
fees because it “c[ould] not reliably assess [Mother]’s income.” As
previously noted, this conclusion is reasonable given the conflicting
information suggesting her income ranged anywhere from $684 to $6,000
per month. Even if this finding were in error, the ruling is further
supported by evidence that Mother was awarded a substantial cash
payment in the divorce decree, of which $160,000 remained at the time of
trial. Thus, substantial evidence supports a finding that Mother’s financial
resources “are clearly ample to pay fees” of $7,000 to her attorney. Roden v.
Roden, 190 Ariz. 407, 412, 949 P.2d 67, 72 (App. 1997), superseded by statute as
stated in Myrick, 235 Ariz. at 494, ¶ 8, 333 P.3d at 821. We find no abuse of
discretion on these facts.
VI. Motion for New Trial
¶46 Mother’s motion for new trial asserted three grounds for
relief, alleging the trial court: (1) improperly placed the burden of
establishing the need for an upward deviation on Mother; (2) erred in
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Decision of the Court
considering a one-time sale of stock as part of Mother’s gross income; and
(3) failed to make specific findings to support its calculation of parenting
days or the cost of health insurance. “We review orders denying motions
for new trial for an abuse of discretion.” Pullen v. Pullen, 223 Ariz. 293, 296,
¶ 10, 222 P.3d 909, 912 (App. 2009).
¶47 The first two issues have been addressed in Parts II(B)(1) and
III above, and we find no error. As to the third, we agree the trial court
erred in failing to set forth its reasoning as to the parenting days allotted
Father. See supra Part II(B)(3). The proper remedy is not, however, a new
trial, but rather, remand for additional findings. Miller v. McAlister, 151
Ariz. 435, 437, 728 P.2d 654, 656 (App. 1986).
VII. Motion to Amend Findings
¶48 Mother asserts the trial court erred in denying her motion to
amend the child support order to:
(1) provide credit to Father of no more than 10 parenting days;
(2) provide Father with a credit for health insurance for solely
the minor two children in the correct amount of $99.73; (3)
determine the correct amount of income for both parties; (4)
find there is a disparity in income between the parties; and (5)
find Father needs to comply with the requirements of
providing proof of life insurance to secure his child support
obligations.
She argues the court’s findings otherwise are “contrary to the actual
evidence submitted at trial.” We review denial of a motion to amend a
judgment for an abuse of discretion. See Mullin v. Brown, 210 Ariz. 545, 547,
¶ 2, 115 P.3d 139, 141 (App. 2005) (citing Hutcherson v. City of Phx., 192 Ariz.
51, 53, ¶ 12, 961 P.2d 449, 451 (1998)). Here, we find none.
¶49 Mother may disagree with the trial court’s interpretation of
the evidence, but its findings regarding the parties’ gross income and the
cost of health insurance premiums, and its inability to accurately assess a
disparity of income between the parties, are supported by substantial
evidence, and Father’s obligation to provide proof of life insurance was not
properly before the court. Although we remand for further findings
regarding the reasoning in allotting Father fifty days of parenting time, we
cannot agree upon the record before us that the court erred in refusing
Mother’s requests within her motion to amend — not for additional
findings, but that Father be allotted zero days of parenting time. A factual
dispute, perpetuated after the close of evidence, does not require
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Decision of the Court
amendment of a judgment. Kauzlarich v. Bd. of Trustees of Oak Creek Sch.
Dist. No. 16, Yavapal Cnty., 78 Ariz. 267, 272, 278 P.2d 888, 892 (1955) (“It is
an unbroken rule of this court that where the trial court renders a judgment
upon conflicting evidence . . . , if there is substantial evidence to support the
judgment, this court will not interfere therewith.”) (citation omitted).
CONCLUSION
¶50 For the foregoing reasons, we affirm the order of the trial
court, but remand for additional findings of fact regarding its allotment of
parenting days to Father. We leave to the discretion of the trial court
whether additional evidence need be taken.
¶51 Mother requests her attorneys’ fees and costs incurred on
appeal pursuant to A.R.S. §§ 12-349 and 25-324. The prerequisites to an
award of fees under A.R.S. § 12-349 are not present. Section 25-324(A) is
applicable but, in our discretion, we decline Mother’s request.
:ama
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