Opinion
1 CA-CV 10-0527
02-14-2012
RUBEN ENRIQUE DOUGLAS, Petitioner/Appellant, v. STATE OF ARIZONA ex rel. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner/Appellee, and AMANDA GOE, Respondent/Appellee.
The Law Offices of Wendy Raquel Hernandez, P.C. By Wendy Raquel Hernandez and Ashley Blair Mercomes Attorneys for Ruben Enrique Douglas Thomas C. Horne, Arizona Attorney General By Carol A. Salvati, Assistant Attorney General Attorneys for State of Arizona Cox & Ryan, P.L.L.C. By Annette M. Cox and Kristin A. Ryan Attorneys for Amanda Goe
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2007-008537
The Honorable Veronica W. Brame, Judge Pro Tempore
AFFIRMED
The Law Offices of Wendy Raquel Hernandez, P.C.
By Wendy Raquel Hernandez and Ashley Blair Mercomes
Attorneys for Ruben Enrique Douglas
Phoenix
Thomas C. Horne, Arizona Attorney General
By Carol A. Salvati, Assistant Attorney General
Attorneys for State of Arizona
Phoenix
Cox & Ryan, P.L.L.C.
By Annette M. Cox and Kristin A. Ryan
Attorneys for Amanda Goe
Phoenix KESSLER, Judge
¶1 Ruben Enrique Douglas ("Father") appeals from the superior court's order modifying his monthly child support obligation from $5,327 to $2,427 effective May 1, 2010. He argues the court erred in calculating the reduced obligation, that the modification should have been applied retroactively, and in failing to disqualify the State from the modification proceedings. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Amanda Goe ("Mother") are the unmarried biological parents of a child ("Child") born in February 2002. In December 2007, a California court ordered Father to pay $5,372 per month in child support. At the time of the California order, Father was playing basketball in Europe and earning approximately $1,000,000 annually.
The record reflects that Father earned $808,604 in 2005, $1,096,315 in 2006, $823,549 in 2007, and $1,232,014 in 2008.
¶3 On November 30, 2009, Father petitioned the superior court to modify his child support obligation alleging he was "presently unemployed and living off his savings and investments." He eventually secured a new employment contract in February 2010, and the court held an evidentiary hearing on April 2, 2010. Father argued the monthly child support obligation to be allocated between the parents should be $1,484 pursuant to the Arizona Child Support Guidelines ("Guidelines") and based on the parties' combined monthly income of $18,073.
This was Father's third petition. The first petition was filed in April 2008. The State entered its appearance in the matter pursuant to Arizona Revised Statutes ("A.R.S.") section 25-509 (2007), and the court eventually denied the petition on procedural grounds. In May 2009, Father again petitioned the court to reduce his monthly support payments because he had since entered into a new contract with a different team. After conducting an evidentiary hearing, the court denied Father's petition finding there was no evidence of a substantial and continuing change in circumstances to justify a modification of child support. See A.R.S. § 25-327 (2007).
According to the record, Father sought reduction in his support payments to $556.45 per month.
¶4 In response, the State argued Father should be attributed a monthly income of $25,000 based on the sum of his undisputed $15,000 salary plus investment income and the value of non-cash benefits provided by his employer. Accordingly, the State requested Father's monthly support obligation be reduced to $2,427. See Guidelines at ¶ 8. Mother requested the superior court either dismiss the petition to modify, continue the current order for "one more season to see if [Father's] financial situation changes yet again," or reduce monthly support to no less than $3,000. Mother also requested that any order reducing Father's obligation not be applied retroactively.
Father's non-cash benefits include a furnished apartment, an automobile, and insurance.
In calculating the modified child support the State considered: (1) Mother and Father's combined monthly income of $28,330; (2) a proportionate share of Child's insurance and childcare costs based on Father's respective contribution to the parties' combined income; and (3) a credit to Father for sixteen days of visitation.
¶5 After considering the evidence, testimony, and pleadings, the court attributed to Father a monthly income of $25,000 and found the State had met its burden of establishing its proposed amount of support to be in Child's best interests. See Guidelines at ¶ 8. Accordingly, the court ordered on May 28, 2010, that Father's monthly child support obligation be reduced to $2,427 effective May 1, 2010. Father appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2011).
The superior court also found Mother earned $3,300 per month and that she paid $630 in monthly childcare and insurance coverage for Child. Mother's income and expenses are not in dispute.
We cite the current version of the applicable statute when no revisions material to this decision have since occurred.
DISCUSSION
¶6 An order for child support may be modified only upon a showing of a substantial and continuing change in circumstances. A.R.S. §§ 25-327(A), -503(E) (Supp. 2011); State ex rel. Dep't Econ. Sec. v. McEvoy, 191 Ariz. 350, 352, ¶ 7, 955 P.2d 988, 990 (App. 1998). Whether a change in circumstances is sufficient to warrant a modification of support is within the sound discretion of the superior court and will not be disturbed on appeal absent an abuse of that discretion. Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App. 2007). The superior court abuses its discretion if the record, viewed in the light most favorable to upholding the superior court, lacks competent evidence to support the decision. Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999). The party requesting the "modification has the burden of establishing changed circumstances with competent evidence." Jenkins, 215 Ariz, at 39, ¶ 16, 156 P.3d at 1144. We can infer the findings necessary to uphold the court's order and may affirm if the court is correct for any reason supported by the record. Forszt v. Rodriguez, 212 Ariz. 263, 265, ¶ 9, 130 P.3d 538, 540 (App. 2006); Baker v. Baker, 183 Ariz. 70, 72, 900 P.2d 764, 766 (App. 1995).
A. FATHER'S INCOME
¶7 Father argues the superior court erred in attributing to him $25,000 in monthly income. Of that amount, he does not challenge the $15,000 he earned as salary for playing professional basketball. Thus, according to Father, the task before us is to determine whether the record contains sufficient competent evidence to support an increase to his monthly income by an additional $10,000.
¶8 Father points to nothing other than his reduced income as indicative of a changed circumstance that requires a reduction in his child support obligation. Indeed, he admits that he did not provide the court with information regarding the value of non-cash benefits he receives from his employer. Father's implicit presumption—that a reduction in his income alone satisfies his burden to prove a change in circumstances sufficient to warrant a more-than 55% reduction in his initially-ordered support payment amount—incorrectly reflects Arizona law.
Father asserts that he "was forced to take out a $70,000 loan in order to meet his $5,327 per month child support obligation." The cited portions of the record do not support this statement. In any event, in light of the other evidence of Father's relatively lavish lifestyle, see infra ¶ 10, we find a
¶9 Our supreme court has noted that, particularly when the child support obligor is able to continue making the full amount of the monthly payments:
A reduction in salary does not necessarily justify a reduction in an award of [child] support payments. . . . If his earnings decrease, adjustments must be made with his expenditures as well. All of the circumstances must be taken into consideration in determining the reasonableness of an award for support, including financial and other circumstances of the parties.Ruppel v. Ruppel, 103 Ariz. 545, 547, 447 P.2d 237, 239 (1968) (citations omitted).
¶10 Father agrees that he has regularly been making the originally-ordered $5,327 child support payments. The record also reflects Father's standard of living has not decreased since the initial support order. Indeed, since then he has purchased a Maserati for $145,903 and a Range Rover for over $116,000. As of November 2009, he paid over $125,000 in loan to him does not represent such a significant change in Father's financial circumstances to compel us to find the court abused its discretion. attorneys' fees in this matter. Further, at the time of the April 2, 2010 hearing, Father retained ownership of six residential properties valued at over $2,500,000, five of which provided him with rental income.
Father used the sixth property as his personal residence.
¶11 As the State correctly argued to the superior court, "[Father] hasn't taken any steps or provided any information, either testimony or evidence, . . . that he's taken any steps to reduce his financial obligations in those other areas . . . ." Based on this record, we cannot conclude that the court abused its discretion in declining to further reduce Father's child support obligation based on a purported change in his financial circumstances.
B. ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE STATE AND MOTHER
¶12 Father next contends that the superior court erred "in failing to disqualify the State for its improper creation of an attorney-client relationship with Mother." We summarily reject this argument because A.R.S. § 25-509(A) expressly grants the State the authority to intervene in this case. In any event, Father points to nothing in the record indicating he requested the court "disqualify" the State on this basis. See ARCAP 13(a)(6) (requiring an appellant to present significant arguments, set forth his or her position on the issues raised, and include citations to relevant authorities, statutes, and portions of the record); State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App. 1990) (declining to consider matters for which party failed to comply with Rule 13(a)(6)); Modular Sys., Inc. v. Naisbitt, 114 Ariz. 582, 587, 562 P.2d 1080, 1085 (App. 1977) (finding issues abandoned when party "failed to state with any particularity why or how the trial court erred in making these rulings and simply concludes that error was committed"); see also Tanner Cos. v. Ins. Mktg. Servs., Inc., 154 Ariz. 442, 447, 743 P.2d 951, 956 (App. 1987) ("Arguments not made in the trial court cannot be asserted for the first time on appeal.").
Nevertheless, we note that the State reminded the superior court during the April 2010 hearing that it did not "speak for" Mother.
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C. EFFECTIVE DATE OF MODIFIED ORDER
¶13 Father argues the superior court erred in making the modified support obligation effective May 1, 2010. Instead, he appears to contend the order should have been applied retroactively to December 1, 2009, because he filed his petition for modification on November 30, 2009. Father cites A.R.S. § 25-327(A), which states in pertinent part: "Modifications . . . are effective on the first day of the month following notice of the petition for modification . . . unless the court, for good cause shown, orders the change to become effective at a different date . . . ."
¶14 The parties disagree on the applicable standard of review. Because we need not engage in statutory interpretation to resolve this issue, Father's reliance on Willie G. v. Arizona Department of Economic Security, 211 Ariz. 231, 233, ¶ 8, 119 P.3d 1034, 1036 (App. 2005), in urging a de novo standard is misplaced. Our review is to determine whether the record supports the superior court's implied finding that good cause existed to order the modification effective on a date other than December 1, 2009. Thus, we review for an abuse of discretion. See, e.g., Forino v. Ariz. Dep't of Transp., 191 Ariz. 77, 81, 952 P.2d 315, 319 (App. 1997) (noting factual finding is reviewed for abuse of discretion).
¶15 Here, Mother—with whom Child resides—earns significantly less income than Father. Mother's monthly income of $3,300 would render retroactive effectiveness of the modification order inequitable and not in Child's best interests. Mother in effect would be required to pay Father $2,900 per month—almost her entire monthly income—for five months of retroactive application. Further, Mother specifically requested the court apply any reduction in the support order prospectively "to give [Mother] time to significantly adjust financial allocations." On this record, the court acted within its discretion in ordering the modified support order effective May 1, 2010.
CONCLUSION
¶16 We affirm the superior court's judgment. Mother requests her attorneys' fees pursuant to A.R.S. § 25-324 (2007). Considering the relative financial resources of Father and Mother and the reasonableness of their respective positions throughout these proceedings, we grant Mother her request subject to her compliance with ARCAP 21.
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DONN KESSLER, Judge
CONCURRING:
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MARGARET H. DOWNIE, Presiding Judge
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PETER B. SWANN, Judge