Opinion
2 CA-CV 2023-0106-FC
03-12-2024
In re the Marriage of Jessica McAfee, Petitioner/Appellee, and Brian McAfee, Respondent/Appellant.
Davis Miles McGuire Gardner, Mesa By Michael D. Girgenti Counsel for Petitioner/Appellee. Crider Law P.L.L.C., Mesa By Brad J. Crider Counsel for Respondent/Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in La Paz County No. S1500DO202100021 The Honorable Robert Duber II, Judge.
Davis Miles McGuire Gardner, Mesa By Michael D. Girgenti Counsel for Petitioner/Appellee.
Crider Law P.L.L.C., Mesa By Brad J. Crider Counsel for Respondent/Appellant.
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE.
¶1 Brian McAfee appeals from the decree dissolving his marriage to Jessica McAfee, challenging the trial court's decision to deviate from the child support guidelines and the calculations the court used to determine the child support award. We affirm the court's exercise of discretion to deviate from the guidelines. We remand, however, to correct an error that affected the amount of the award.
Background
¶2 Jessica filed a petition to dissolve her marriage to Brian, with whom she shares several children. After a trial, the court entered a decree providing that five of their minor children would reside primarily with Jessica, while the other two would reside primarily with Brian. The decree included awards for both spousal maintenance and child support. The court calculated child support based on the Arizona Child Support Guidelines separately for Brian's obligation to support the five children residing with Jessica and for Jessica's obligation to support the two children residing with Brian. As to Jessica's obligation, however, the court ordered "a deviation in the support order." The court detailed its findings in support of that deviation and its means of calculating the award.
¶3 This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶4 Brian argues the trial court "failed to make sufficient findings necessary to warrant a deviation" from the child support guidelines. He also asserts the court erred in certain calculations. A child support award is a matter of discretion for the trial court, Simpson v. Simpson, 224 Ariz. 224, ¶ 4 (App. 2010), but we interpret the child support guidelines de novo, see Hetherington v. Hetherington, 220 Ariz. 16, ¶ 21 (App. 2008).
I. Deviation
¶5 A trial court has discretion to deviate from the child support guidelines if it "find[s] that the strict application of the Guidelines is inappropriate or unjust," provided it "consider[s] the child's best interests when determining the amount of any deviation." A.R.S. § 25-320 app. § I(A) (Step 11); Nia v. Nia, 242 Ariz. 419, ¶ 20 (App. 2017). A deviation is warranted if the court makes written findings that "[a]pplying the guidelines is inappropriate or unjust in the particular case" and "[t]he court has considered the child's best interests in determining the amount of a deviation." § 25-320 app. § IX(B)(1)-(3). The court must show "what the Order would have been without the deviation" and "what the Order is after deviating." § 25-320 app. § IX(B)(4), (5).
¶6 The trial court here met each of the statutory criteria. In addition, the court explained the reasons for the deviation, its method for calculating the deviation, and its evaluation concerning the fairness of the resulting child support award. Brian argues the court's findings failed to adequately explain why it would "enter a deviation for [Jessica], but not [Brian]." Brian cites no authority and does not develop an argument that the court had any such obligation. See Boswell v. Fintelmann, 242 Ariz. 52, n.3 (App. 2017) (failure to develop and support argument results in waiver); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (arguments not supported by authority on appeal deemed waived). To the contrary, although a court must make express findings if it determines a deviation is warranted, it is not required to make those specific findings if it does not order a deviation. Nia, 242 Ariz. 419, ¶ 26. Regardless, the court explained that it deviated from the guidelines because Brian had been receiving a "subsidy" for the two children primarily in his care. That subsidy was not otherwise reflected in the child support calculations, and Brian does not suggest that Jessica was receiving the same subsidy for the other children. See § 25-320 app. § II(A)(2)(a)(iii).
¶7 Brian has not included a transcript as part of the record on appeal. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995) ("A party is responsible for making certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal."); see also Ariz. R. Civ. App. P. 11(c). We must presume, therefore, the record supports each of the trial court's findings. Kohler v. Kohler, 211 Ariz. 106, n.1 (App. 2005); Baker, 183 Ariz. at 73. We have no basis to conclude the court abused its discretion.
II. Calculations
¶8 Brian asserts the trial court erred by including health benefits as part of his child support income. The guidelines provide that "benefits a parent receives in the course of employment . . . are included as Child Support Income if they are significant and reduce personal living expenses." § 25-320 app. § II(A)(1)(f). The court found that Brian's benefits were "substantial" and "reduced his personal living expenses," and it therefore included those benefits as child support income. Without a transcript, we presume the record supports the court's findings. Kohler, 211 Ariz. 106, n.1.
¶9 Brian also argues the trial court erred because it "did not reduce" his final payment obligation by the amount Jessica would have been required to pay under the guidelines. Brian's argument on this issue is undeveloped and unsupported by authority. See Boswell, 242 Ariz. 52, n.3; Ritchie, 221 Ariz. 288, ¶ 62. He does not explain why the court was required to reduce his child support payments by an amount under the guidelines that the court had determined was "inappropriate or unjust." See Boswell, 242 Ariz. 52, n.3; Ritchie, 221 Ariz. 288, ¶ 62. In any event, the court examined the fairness of the resulting child support award by considering each parent's "income after adjusting for maintenance . . . and child support" in relation to the Federal Poverty Guidelines. The court did not abuse its discretion.
¶10 Finally, Brian alleges the trial court erred by failing to reduce his child support income by the amount of his spousal maintenance obligation. Indeed, spousal maintenance is included as child support income. § 25-320 app. § II(A)(1)(b). In addition, according to § 25-320 app. § II(B)(2)(a), "[i]f a parent is actually paying court-ordered spousal maintenance resulting from this marriage, the amount is deducted from that parent's Child Support Income." Here, on each of its worksheets, the court included spousal maintenance in Jessica's income but did not deduct it from Brian's income. This apparent error affected the court's calculations concerning the obligations of each parent-including the deviation, which was based on those same calculations. Jessica's answering brief is silent on this issue. We treat her failure to respond as a confession of error. See In re $26,980 U.S. Currency, 199 Ariz. 291, ¶ 20 (App. 2000) (failure to respond to argument in answering brief may be construed as confession of error); see also Bulova Watch Co. v. Super City Dep't Stores of Ariz., Inc., 4 Ariz.App. 553, 556 (1967) (confession of error principle "equally applicable" when appellee fails to address specific issue).
Disposition
¶11 Brian requests an award of attorney fees on appeal but provides no basis for his request. Ariz. R. Civ. App. P. 21 (a)(2) ("appellate court may decline to award fees" if a party fails to "specifically state . . . authority for an award of attorneys' fees"). Jessica requests an award of attorney fees under A.R.S. § 25-324. In our discretion, having considered the reasonableness of their positions on appeal and their respective resources, we decline to award attorney fees to either party. See § 25-324(A). Given that neither party has been entirely successful on appeal, we also decline to award costs under A.R.S. § 12-341; McDaniel v. Banes, 249 Ariz. 497, ¶ 24 (App. 2020).
¶12 We remand for the trial court to deduct spousal maintenance from Brian's income and recalculate the child support obligations accordingly. In all other respects, we affirm.