Opinion
1 CA-CV 20-0668 FC
09-30-2021
In re the Marriage of: TIFFANY SOLOMON, Petitioner/Appellee, v. ROGER SOLOMON, Respondent/Appellant.
Davis Miles McGuire Gardner PLLC, Tempe By Spencer T. Schiefer Counsel for Respondent/Appellant Udall Shumway PLC, Mesa By Steven H. Everts Counsel for Petitioner/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC 2018-093441 The Honorable Adele Ponce, Judge
Davis Miles McGuire Gardner PLLC, Tempe By Spencer T. Schiefer Counsel for Respondent/Appellant
Udall Shumway PLC, Mesa By Steven H. Everts Counsel for Petitioner/Appellee
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.
MEMORANDUM DECISION
BROWN, JUDGE
¶1 Roger Solomon ("Father") appeals from a decree dissolving his marriage to Tiffany Solomon ("Mother"). Because the superior court erred in calculating Father's annual gross income, we vacate the court's child support and spousal maintenance awards, and we remand for further proceedings.
BACKGROUND
¶2 The parties married in 2003 and share four minor children. In 2018, Mother filed for dissolution in Arizona. After the couple reached agreements on several property issues, the superior court held a trial to determine, among other things, legal decision-making, parenting time, child support, and spousal maintenance.
¶3 Father is a sergeant in the Army Special Forces and lives on base in North Carolina. He testified to the military's multifaceted compensation system, including his basic pay and entitlements. He described special pay and incentives, and how they could fluctuate depending on duty station. When asked why he did not submit a 2020 affidavit of financial information or pay stub, Father stated his income "ha[d] not changed much."
¶4 The superior court ordered joint legal decision-making, with Mother as the primary residential parent. The court attributed income to Father of $11,000 per month, or approximately $120,000 per year, reasoning in part:
Father did not provide his most recent pay stubs, and his testimony about his current pay was imprecise. Father alleged his pay was comparable to that he previously received, but that he had received a raise, and no longer received certain additions above his base pay. Father's pay stub from September 2019, showed that he earned $105,225 up to that point in 2019.
The court ordered Father to pay monthly child support of $1,935 and monthly spousal maintenance of $1,000 for five years. Father unsuccessfully moved to amend the decree, asserting his total annual compensation was approximately $82,000. Father timely appealed, and we have jurisdiction pursuant A.R.S. § 12-2101(A)(1).
DISCUSSION
¶5 Father argues the superior court double-counted various aspects of his military compensation, resulting in erroneous child support and spousal maintenance awards. Mother contends that Father waived the issue by failing to raise it in the superior court. See Medlin v. Medlin, 194 Ariz. 306, 308, ¶ 6 (App. 1999). However, Father testified at trial about the military's compensation system and specifically raised double-counting in his motion to amend. Thus, we decline to apply waiver.
A. Child Support
¶6 The superior court is required to consider the financial resources of both parents when determining child support. A.R.S. § 25-320(D). The court abuses its discretion when the record is devoid of competent evidence to support its decision or when it commits an error of law in the process of exercising its discretion. See Nash v. Nash, 232 Ariz. 473, 476, ¶ 5 (App. 2013).
¶7 At trial, Mother did not opine on Father's specific monthly or annual income. Instead, she urged the court to use Father's September 30, 2019 leave and earnings statement as the basis to determine his gross annual income. Specifically, Mother asked the court to add two amounts from the statement together―the "Wage YTD" and the "YTD Entitle"―to calculate Father's annual income. The statement lists the Wage YTD as $43,831.30 and the YTD Entitle as $61,393.76.
¶8 The court appears to have followed Mother's recommended approach to reach its conclusion that Father had earned approximately $105,255 by the end of September 2019. The court then used that figure to estimate that Father earned $120,000 for the entire year. As Father asserts, however, the YTD Entitle included the value of all forms of direct compensation, including his basic pay, special pay, allowances, and other entitlements. Mother does not dispute that the YTD Entitle amount of $61,393.76 already included the smaller Wage YTD amount of $43,831.30. Instead, she contends there was still a basis for the court to find that, "Father's income was, with all income from all sources, $120,000.00 or more per year."
Although the trial transcript states that the YTD Entitle income was $16,393.76, the parties do not dispute that the correct figure is $61,393.76, as reflected in Exhibit 3.
¶9 Under the Arizona child support guidelines, gross income is broadly defined to include "income from any source," including "in-kind" and "non-cash benefits." A.R.S. § 25-320 app. ("Guidelines") § 5(A); Patterson v. Patterson, 226 Ariz. 356, 359, ¶ 10 (App. 2011). Thus, we agree with Mother that the superior court had discretion to consider Father's benefits and other entitlements. But before a parent's in-kind and non-cash benefits can be included as gross income, the court must assign them a "cash value." Guidelines § 5(A). Without specific findings addressing the cash value of Father's in-kind and non-cash benefits, the court abused its discretion because it essentially double-counted Father's wages. We therefore remand for further proceedings, including an evidentiary hearing if necessary. If the court determines that Father receives non-cash and in-kind benefits, the court shall assign them specific cash values and recalculate his child support obligation.
B. Spousal Maintenance
¶10 The superior court also awarded Mother $1,000 in spousal maintenance per month for five years. Based on the same double-counting error, Father argues Mother is not entitled to any spousal maintenance. We review awards of spousal maintenance for an abuse of discretion. Cullum v. Cullum, 215 Ariz. 325, 354, ¶ 9 (App. 2007).
¶11 The amount and duration of spousal maintenance is determined pursuant to A.R.S. § 25-319(B). One of the factors the court must consider when deciding the amount of an award is" [t]he comparative financial resources of the spouses, including their comparative earning abilities in the labor market." A.R.S. § 25-319(B)(5). As explained above, the court abused its discretion when it found that "Father earns essentially twice as much as Mother does." Thus, the court must make a new determination of spousal maintenance on remand.
CONCLUSION
¶12 We vacate the portions of the decree awarding child support and spousal maintenance and remand for further proceedings consistent with this decision. We affirm the remainder of the decree. In our discretion, we deny both parties' requests for attorneys' fees on appeal under A.R.S. § 25-324, but we award Father taxable costs subject to compliance with ARCAP 21.