Opinion
1 CA-CV 11-0595
04-18-2013
In re the marriage of: KRIS M. MORRISON Petitioner/Appellee, v. MATTHEW MORRISON, Respondent/Appellant.
Law Offices of John R. Zarzynski By John R. Zarzynski Attorneys for Petitioner/Appellee Jeffrey M. Zurbriggen, PC By Jeffrey M. Zurbriggen Attorneys for Respondent/Appellant
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(Not for Publication -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. FC2001-092903
The Honorable James P. Beene, Judge
AFFIRMED
Law Offices of John R. Zarzynski
By John R. Zarzynski
Attorneys for Petitioner/Appellee
Phoenix Jeffrey M. Zurbriggen, PC
By Jeffrey M. Zurbriggen
Attorneys for Respondent/Appellant
Phoenix GEMMILL, Judge ¶1 Appellant Matthew Morrison (Father) appeals the superior court's order modifying his child support obligation and awarding Appellee Kris Morrison (Mother) her reasonable attorneys' fees and costs. For the following reasons, we affirm.
The appellate record contains two different spellings of Mr. Morrison's first name. We have chosen to use "Matthew" for this decision.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The court entered a consent decree dissolving the parties' marriage on July 30, 2002. As ordered in the decree, they shared joint custody of their two minor children. Thereafter, in October 2006, pursuant to Father's request for modification, the court reduced Father's child support obligation. ¶3 In February 2010, Mother filed a petition to modify child custody and child support. She alleged the parties could no longer co-parent the minor children and sought sole legal custody. In addition, she asked the court to find Father in contempt for his failure to pay court-ordered child support and to award her the reasonable attorneys' fees and costs she had incurred to enforce Father's obligation. Mother also asked the court to order Father to reimburse her for one-half of the costs she had incurred for the children's orthodontic treatment. ¶4 On the date of the evidentiary hearing, the parties informed the court they had reached agreements regarding child custody and parenting issues, which were placed on the record in accordance with Arizona Rule of Family Law Procedure 69(A)(2). They also agreed that Father's child support arrearage totaled $20,337.54, but disagreed regarding the amount of Father's ongoing support obligation. The parties stipulated that the court could proceed by avowal on the remaining contested issues: the calculation of ongoing child support, Father's contempt of the court's prior orders regarding child support, reimbursement of orthodontic expenses, and attorneys' fees. ¶5 The court found Father in contempt for his failure to pay his child support obligation and ordered him to pay a purge amount of $5,000 within thirty days and no less than $350 per month toward the arrearage. For purposes of calculating Father's ongoing child support obligation, the court found that Father earned $4,000 per month, Mother earned $2,200 per month, and Mother was entitled to a credit of $325 for her payment of the children's health insurance premium. The court also ordered Father to pay Mother $3,463.25 for his portion of the cost of the children's orthodontic treatment. ¶6 At the court's direction, Mother submitted an affidavit for attorneys' fees and costs regarding the contempt issue, seeking over $11,000. The court ordered Father to pay Mother $4,800 of those expenses. ¶7 Father timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2) (Supp. 2012).
Although Father did not submit a petition to modify child support, the parties appear to have proceeded by consent on this issue.
On February 7, 2012, we suspended the appeal to allow Father to file an objection to Mother's proposed form of order in the superior court. The court denied the objection, and it is not at issue in this appeal.
DISCUSSION
¶8 Father argues the superior court erred in granting child support modification and ordering him to reimburse Mother for the children's orthodontic treatment. He also contends the court erred by awarding Mother attorneys' fees.
A. Child Support Modification ¶9 Father argues the court's child support calculation is erroneous because it improperly attributed $4,000 per month of income to him and miscalculated Mother's health insurance credit. We generally review a child support award for an abuse of discretion. McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6, 49 P.3d 300, 302 (App. 2002). We accept the family court's findings of fact unless they are clearly erroneous. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21, 212 P.3d 842, 848 (App. 2009). We draw our own legal conclusions from the facts and review de novo the court's interpretation of the Arizona Child Support Guidelines, A.R.S. § 25-320 app. (Supp. 2012) ("Guidelines"). Id.
1. Father's Income ¶10 Father argues the court erred by determining his income was $4,000 per month for purposes of calculating his child support obligation. He alleged his income had not exceeded $2,000 for the preceding 18 months. ¶11 Father's gross income for the years 2008 through 2010 was $48,000, $54,000, and $42,000, respectively, an average of $4,000 per month. And despite Father's argument that he had averaged less than $2,000 in income, the evidence showed that he averaged $3,507 in monthly income in 2010. Father's income fluctuated from year to year and the court did not err by considering Father's average income for the three years preceding the hearing to determine his income for purposes of calculating child support. ¶12 Father also contends he presented evidence that in October 2010 he had begun working solely for commission and received no salary. He alleged his income had further declined in "the last few months," when he lost his biggest client. Although Father had only earned $6,340 in the first four months of 2011, the evidence of his earnings in 2008 through 2010 showed that his income fluctuated throughout the year and annually. The court was not required to adopt Father's reduced 2011 earnings as representative of his overall gross income. The court did not err in calculating that Father earned $4,000 per month.
Father also notes the court attributed a $2,200 monthly income to Mother, even though Mother offered evidence that she earned no income and asked the court to attribute a monthly income of $1,500 to her. Mother has not cross-appealed on this issue and we do not find it relevant to Father's argument that the court erred in determining his monthly income. Accordingly, we do not address it.
2. Health Insurance Credit ¶13 At the evidentiary hearing, Mother presented evidence that she provided health insurance for the children as part of a family policy that also covered her, her husband, and his children. The total premium for the policy was $980 per month. The superior court awarded Mother a credit for $325, which corresponds to the total cost of the policy ($980), divided by the total number of persons covered (6), multiplied by the number of the parties' minor children (2). ¶14 Father claims the court erred because the Guidelines provide that "only the amount of the insurance cost attributable to the children subject to the child support order" may be included in determining a credit for health insurance. Guidelines § 9(A). He argues that because Mother did not present any evidence of the per-person cost of the health insurance policy, the court's proration method was improper. He contends the court cannot simply guess as to the amount of the cost of health insurance for the children. ¶15 Father ignores, however, that the Guidelines also state that when health insurance coverage is "applicable to other persons, the total cost shall be prorated by the number of persons covered." Id. Father relies on the Example provided under § 9 of the Guidelines, which sets forth a more detailed analysis of a family insurance policy. The Example simply supplements the general rule that the insurance coverage should be probated by the number of persons covered. Id. Although the evidence was limited on this subject, it was sufficient to support the family court's exercise of discretion in determining the health care credit.
B. Orthodontia Expenses ¶16 Father argues the court erred by granting Mother's request and ordering him to reimburse her for one-half of the cost of the children's orthodontic treatment. We review the family court's awards of child support for an abuse of discretion, and accept the court's findings of fact unless they are clearly erroneous. Engel, 221 Ariz. at 510, ¶ 21, 212 P.3d at 848. ¶17 Father denied that he had agreed to pay for any portion of the orthodontic treatment. He argued the treatment was not necessary and claimed Mother had pursued the treatment unilaterally without his consent. The court found, however, that Mother had presented evidence that the children's orthodontic treatment was necessary and that Father had agreed to pay one- half of the cost, but had not done so. The record reflects that although Father subsequently disagreed with the orthodontic treatment, he initially agreed to pay half the expenses. We accept the court's finding on this issue because it is not clearly erroneous. See Engel, 221 Ariz. at 510, ¶ 21, 212 P.3d at 848. We conclude the court did not abuse its discretion in ordering reimbursement of the orthodontic treatment.
The court also noted that Father was responsible for 50% of the children's uncovered medical and dental expenses. The consent decree ordered Father to pay 60% of all non-covered medical expenses, and Father's proportional share of the parties' combined income was 63%, but Mother only sought reimbursement of one-half of the orthodontia expenses, the percentage she claimed Father had agreed to pay.
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C. Award of Attorneys' Fees to Mother ¶18 Finally, Father argues the superior court erred by awarding Mother the attorneys' fees and costs she incurred in connection with her motion for contempt pursuant to A.R.S. § 25-324 (Supp. 2012). ¶19 Section 25-324 allows the family court to order one party to pay the other's attorneys' fees and costs after the court "consider[s] the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." We will not disturb an award of attorneys' fees 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). ¶20 Father complains the court erred by failing to make specific findings to support its award. He did not request those findings, however, and there is no obligation for the family court to make them under A.R.S. § 25-324(A). A party is required "to object to inadequate findings at the trial court level so that the court will have an opportunity to correct them, and failure to do so constitutes a waiver." MacMillan, 226 Ariz. at 592, ¶ 39, 250 P.3d at 1221 (citation omitted). Moreover, by reciting the considerations required by § 25-324 in its ruling, the court indicated that it was aware of the factors relevant to its determination and, implicitly, that it had considered them. ¶21 Furthermore, the record supports an award of attorneys' fees to Mother pursuant to § 24-324 based on either the parties' financial disparity or Father's unreasonable conduct. The court was well-acquainted with the parties' finances in connection with the dispute concerning Father's on-going child support obligation. Because the court determined for child support purposes that Father's monthly income exceeded Mother's by $1,800, it is clear that the parties have a financial disparity. Magee v. Magee, 206 Ariz. 589, 591, ¶ 12, 81 P.3d 1048, 1050 (App. 2004) (stating that to qualify for consideration under § 25-324, a spouse must establish only some level of financial disparity). ¶22 The record also contains evidence that Father did not act reasonably. Although he admitted he had not honored his obligation to pay child support and was substantially in arrears, he did not begin making payments, but instead required Mother to petition the court to establish his contempt. Father made no attempt to show an excusable inability to pay the ordered child support. Indeed, the evidence showed he had earned in excess of $42,000 in each year since 2008, but made only three child support payments during that time, each immediately prior to a court hearing. The only excuse Father offered for his behavior was that he was unhappy with the amount of the court's 2006 child support order and had ceased paying as part of a "power struggle" with Mother over that issue. ¶23 We find no abuse of discretion in the court's award to Mother, pursuant to A.R.S. § 25-324, of the reasonable attorneys' fees she incurred in connection with the contempt issue.
DISPOSITION
¶24 For the foregoing reasons, we affirm. ¶25 Both Father and Mother request an award of attorneys' fees and costs on appeal. Father bases his request on A.R.S. §§ 12-341 (2003) and -341.01 (Supp. 2012). Regarding fees, § 12-341.01 is not applicable. Regarding costs, Father is not the successful party on appeal. We therefore deny Father's request for fees and costs. ¶26 Mother seeks an award of attorneys' fees in accordance with A.R.S. § 25-324. Having considered the relevant factors under § 25-324, and in the exercise of our discretion, we deny Mother's request for an award of fees. As the prevailing party on appeal, however, Mother is entitled to recover costs upon her compliance with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. §§ 12-341, -342(A) (2003).
______________________________
JOHN C. GEMMILL, Presiding Judge
CONCURRING: _______________
JON W. THOMPSON, Judge
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DONN KESSLER, Judge