Opinion
No. 1 CA-CV 15-0449 FC
03-01-2016
In re the Marriage of: BLAIR BALLARD, Petitioner/Appellee, v. DAVID ALAN BALLARD, Respondent/Appellant.
COUNSEL Suzette Lorrey-Wiggs PC, Tempe By Suzette Belle Lorrey-Wiggs Counsel for Petitioner/Appellee David Alan Ballard, Middletown, OH Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. FC2007-093912
The Honorable Boyd W. Dunn, Judge (Retired)
AFFIRMED
COUNSEL
Suzette Lorrey-Wiggs PC, Tempe
By Suzette Belle Lorrey-Wiggs
Counsel for Petitioner/Appellee
David Alan Ballard, Middletown, OH
Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge John C. Gemmill and Judge Margaret H. Downie joined.
GOULD, Judge:
¶1 David Alan Ballard ("Father") appeals the family court's order granting Blair Ballard's ("Mother") petition to modify child support. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Mother were divorced in 2008 and have been co-parenting their nine-year-old child since that time. In September 2014, Father left his full-time employment in Arizona to pursue a part-time job opportunity in Ohio. Based on Father's relocation, in October 2014, Mother petitioned the court to modify the existing parenting time and child support order. The court set an evidentiary hearing for May 2015.
¶3 Prior to the evidentiary hearing, Mother and Father entered into a written Joint Decision-Making Agreement and Parenting Plan (the "Parenting Agreement"). Under the Parenting Agreement, Father agreed to pay 100% of the travel costs associated with the child traveling to and from Arizona and Ohio. The family court subsequently approved the parties' Parenting Agreement.
¶4 The sole issue at the evidentiary hearing was Mother's request to modify Father's child support obligation. Both Mother and Father testified about Father's income, his decision to relocate, Mother's child-care expenses and child's travel costs. Following the hearing, the family court issued a written order directing Father to pay Mother $232.04 in monthly child support. Father timely appealed.
DISCUSSION
¶5 Father's sole argument on appeal is that the family court abused its discretion in calculating the amount of his current monthly child support obligation.
¶6 We review a child support award for an abuse of discretion. McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6 (App. 2002). In doing so, we "accept the trial court's findings of fact unless they are clearly erroneous, but draw our own legal conclusions from facts found or implied in the judgment." Id. (citations omitted).
I. Father's Income
¶7 Father argues the family court erred in using his historical income rather than his current income to calculate his child support obligation. We disagree.
¶8 In calculating child support, a family court has discretion to impute income to a parent when he "is unemployed or working below" his "full earning potential." Little v. Little, 193 Ariz. 518, 521, ¶ 6 (1999) (citing Appendix to Arizona Revised Statutes ("A.R.S.") section 25-320, Child Support Guidelines (Guidelines) § 5(E)). If a non-custodial parent voluntarily reduces his employment income, the family court must determine whether to use the party's current income or a higher income associated with his earning capacity. Id. at 522, ¶ 11. In making this determination, the court considers the reasonableness of the parent's decision to reduce his income, whether the decision was made in good faith, and the financial impact the decision has on the child. Id. at 522-23, ¶¶ 12-14.
¶9 The record supports the family court's decision. Here, the court imputed income to Father because (1) he voluntarily left his employment in Arizona, and (2) the resulting reduction was not reasonable. Specifically, the record shows that when Father quit his full-time employment in Arizona and obtained part-time employment in Ohio, he reduced his annual income from approximately $33,000 per year to approximately $19,000 per year. Mother testified that Father's decision to accept part-time employment in Ohio had an adverse financial impact on their child.
¶10 Father also argues the family court erred when, in determining the amount of his earning capacity, it imputed $2,662.29 to him for income earned from a second job.
¶11 "Generally, the court should not attribute income greater than what would have been earned from full-time employment," because "[e]ach parent should have the choice of working additional hours through overtime or at a second job without increasing the child support award." A.R.S. § 25-320 app. Guideline § 5(A) (2015). However, the family court
has discretion to include income from a second job if it has been historically earned, is anticipated to continue in the future, and it does not require an extraordinary work regimen. Id.
¶12 We conclude the family court did not err in imputing income Father earned from his second job. The record shows that Father earned between $2162.93 and $4934.79 per year from his second job at ManageStaff, Inc., in the years 2011 through 2014. This income constituted roughly eight percent of the total income Father earned during this period. There is no evidence showing that this second job required Father to work an extraordinary work regimen. In addition, Father worked at this second job for four years; absent his voluntary, and, as the court determined, unreasonable decision to reduce his income and move to Ohio, it was reasonable for the family court to infer this employment would have continued.
II. July 2015 Child Support Guidelines
¶13 Father argues the family court erred because, in issuing its May 2015 support order, it used the child support guidelines that were not effective until July 1, 2015.
¶14 We find no error. Here, the current monthly support order awarded child support prospectively, commencing in May 2015, and continuing past July 1, 2015. "[N]either party has a vested substantive right to have [earlier] version[s] of the guidelines applied . . . guidelines are not law; they are merely aids to application of the law in accordance with current economic and social facts." In re Marriage of Pacific, 168 Ariz. 460, 466 (App. 1991). As such, the family court was within its discretion to apply the July 2015 child support guidelines in determining Father's monthly child support obligation.
III. Child-Care Expenses
¶15 Father next argues the family court erred when it credited Mother $175 for child-care expenses in making its child support obligation calculation.
¶16 The child support guidelines permit the court to include child-care expenses when calculating child support. Guideline § 9(B). Here, Mother testified her child care expenses averaged $175 per month. In support of this testimony, Mother provided her 2014 tax return which included her 2014 VIK and Boys and Girls club child-care expenses. She also provided the court with a current VIK statement and testified her child
care expenses had increased from 2014 because her parenting time had increased.
¶17 Based on the evidence, the court did not abuse its discretion in crediting Mother $175 in monthly child-care expenses.
IV. Travel Expenses
¶18 Finally, Father argues the family court erred when it did not credit him for paying child's travel expenses in calculating his child support obligation.
¶19 The child support guidelines allow a family court to allocate travel costs associated with visitation, but it is not required to do so. In re Marriage of Robinson & Thiel, 201 Ariz. 328, 335, ¶ 19 (App. 2001); Guideline § 18.
¶20 The record supports the family court's decision. The family court noted that pursuant to the Parenting Agreement, Father agreed to pay one hundred percent of the travel costs associated with transporting child to and from Ohio for scheduled parenting time. Additionally, Father testified that he had agreed to shoulder the burden of travel expenses.
CONCLUSION
¶21 For the reasons stated above, we affirm the child support order issued by the family court. Further, we grant Mother's request for an amount of attorneys' fees under A.R.S. § 25-324, and direct her to file an application in support of her fee request in compliance with Arizona Rules of Civil Appellate Procedure 21.