Opinion
No. 2 CA-CV 2014-0158
08-13-2015
IN RE THE MARRIAGE OF: ROGER H. CONTRERAS, Petitioner/Appellant, v. NANCY L. BOURKE, Respondent/Appellee.
Roger H. Contreras, Sierra Vista In Propria Persona Nancy Bourke, Naco In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the Superior Court in Cochise County
Nos. DO200901390 and OV20141390
The Honorable Dean Christoffel, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART; REMANDED
Roger H. Contreras, Sierra Vista
In Propria Persona
Nancy Bourke, Naco
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 In this domestic-relations case, appellant Roger Contreras appeals from the trial court's post-decree-of-dissolution orders in favor of appellee Nancy Bourke. Roger contends the court erred in modifying child support, denying his request for attorney fees and costs, and adopting the parenting coordinator's recommendation for vacation parenting time. He also argues the court exceeded its jurisdiction by entering orders after he had initiated this appeal. For the reasons stated below, we affirm in part, vacate in part, and remand for further proceedings.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the trial court's orders. See In re Marriage of Yuro, 192 Ariz. 568, ¶ 3, 968 P.2d 1053, 1055 (App. 1998). Roger filed for divorce in December 2009, ninety-seven days after the parties had married. While the divorce was pending, Nancy gave birth to the parties' son, X., in March 2010. After a contested custody hearing and dissolution trial, the court awarded Roger sole legal and primary physical custody of X., subject to Nancy's parenting time. Nancy's parenting time consisted of two overnight visits per week but was to increase upon X.'s third birthday. On appeal, this court affirmed. Contreras v. Bourke, No. 2 CA-CV 2011-0103 (memorandum decision filed Mar. 30, 2012).
As of January 1, 2013, the legislature changed the references in our statutes from "legal custody" and "physical custody" to "legal decision-making and parenting time." See 2012 Ariz. Sess. Laws, ch. 309, §§ 1-26; see also A.R.S. § 25-401.
¶3 In November 2012, the trial court appointed a parenting coordinator "to resolve the day to day parenting time matters of the parties." An issue over parenting time arose as X.'s third birthday approached, and the parenting coordinator issued her fifth report and recommendation in February 2013, suggesting a new schedule. That same month, Nancy filed a "motion to terminate income withholding order." She argued she had "paid all current and past support" and "neither party ow[ed] child support to the other going forward." Roger objected to the parenting coordinator's fifth report and recommendation and Nancy's motion.
¶4 At a hearing in March 2013, the trial court suggested Nancy's motion was "not a proper motion to modify child support" and should be refiled in the proper form, to which Nancy agreed. The court also noted it would be beneficial to wait until parenting time was fully resolved before modifying child support. Roger requested attorney fees and costs related to Nancy's motion, and the court directed him to file an affidavit detailing his expenses. As to the parenting coordinator's fifth report and recommendation, the court approved the proposed parenting time schedule in part and modified it in part, effectively eliminating one of Nancy's biweekly overnights with X. On appeal, this court vacated that order, finding Nancy had not received adequate notice or an opportunity to be heard before the trial court modified her parenting time. Contreras v. Bourke, No. 2 CA-CV 2013-0092 (memorandum decision filed Feb. 24, 2014).
Although Roger represents himself on appeal, he was represented by counsel in the proceedings below. See Munger Chadwick, P.L.C. v. Farwest Dev. & Constr. of the Sw., LLC, 235 Ariz. 125, ¶ 5, 329 P.3d 229, 230 (App. 2014) ("In Arizona, it is the rule that parties who represent themselves in a legal action are not entitled to recover attorney fees.").
¶5 After our mandate issued, the parenting coordinator issued her eleventh report and recommendation on the parenting time schedule moving forward. She recommended the parties return to the schedule she had suggested in February 2013. Roger objected. At a hearing in September 2014, the trial court addressed Roger's objection, Nancy's "motion to terminate income withholding order"—which she had retitled as a "motion for modification of child support order" in her reply to Roger's response—and Roger's related request for attorney fees and costs. During that hearing, with the agreement of the parties, the court set another hearing for March 2015 to modify legal decision-making and parenting time and suggested appointing an evaluator to help with that process.
¶6 Later that month, the trial court issued its under-advisement ruling, which adopted the parenting coordinator's recommendation on parenting time until the March 2015 hearing; modified child support retroactive to March 2013, ordering Nancy to pay $90 per month; and denied Roger's request for attorney fees and costs. Roger filed a notice of appeal from that ruling.
¶7 The trial court subsequently appointed an evaluator to assist in the legal decision-making and parenting time determination. It also issued a "repayment plan" order, in which it determined Nancy had overpaid child support and suspended her current obligation, reasoning that "[t]he overpayment amount . . . shall constitute a credit against" Nancy's current child support. Roger filed a motion to vacate those orders, arguing they "were issued after [the trial court] had been deprived of jurisdiction" by the filing of his notice of appeal.
¶8 While Roger's motion to vacate was pending, the parenting coordinator issued her thirteenth report and recommendation, addressing a dispute between the parties as to vacation parenting time for 2014. Roger objected. The trial court held an expedited hearing and adopted the parenting coordinator's recommendation. The court summarily denied Roger's motion for reconsideration. It also denied his motion to vacate. Roger filed amended notices of appeal from the orders adopting the parenting coordinator's thirteenth recommendation and denying his motion to vacate. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(2).
Child Support
¶9 Roger contends the trial court erred in "calculating child support and ordering it retroactive to March 1, 2013." We review child support awards for an abuse of discretion. McNutt v. McNutt, 203 Ariz. 28, ¶ 6, 49 P.3d 300, 302 (App. 2002). In doing so, we defer to the trial court's factual findings and will overturn them only if they are clearly erroneous. Danielson v. Evans, 201 Ariz. 401, ¶ 13, 36 P.3d 749, 754 (App. 2001). A factual finding is not clearly erroneous if substantial evidence supports it, even if conflicting evidence exists. Castro v. Ballesteros-Suarez, 222 Ariz. 48, ¶ 11, 213 P.3d 197, 200-01 (App. 2009).
Although Roger also contends the trial court violated his rights to due process and equal protection in its child support determination, we reject this argument. First, Roger failed to raise these constitutional arguments below. See Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000) ("[W]e generally do not consider issues, even constitutional issues, raised for the first time on appeal."). Second, he fails to adequately explain in his opening brief how his constitutional rights were violated. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62, 211 P.3d 1272, 1289 (App. 2009) (failure to present significant argument on appeal constitutes abandonment and waiver of claim); see also Dawson v. Withycombe, 216 Ariz. 84, ¶ 91, 163 P.3d 1034, 1061 (App. 2007) ("We will not consider arguments made for the first time in a reply brief."). Third, we previously have determined that, as long as the Arizona Child Support Guidelines "'are equitably applied and provide for discretion to suit the particular circumstances of each case, . . . they pass constitutional muster.'" McNutt v. McNutt, 203 Ariz. 28, ¶ 23, 49 P.3d 300, 305 (App. 2002), quoting Schenek v. Schenek, 161 Ariz. 580, 580, 780 P.2d 413, 413 (App. 1989).
¶10 Although the Arizona Child Support Guidelines "are not a source of law," they are "a source of guidance to the trial courts in the application of the law embodied in the statutes and recorded cases." In re Marriage of Pacific, 168 Ariz. 460, 463, 815 P.2d 7, 10 (App. 1991); see also A.R.S. § 25-320 app. § 1(C). Here, the trial court "adopt[ed] the findings and conclusions regarding child support as set forth in [its] child support worksheet," based on the Guidelines. Specifically, the court found "the parents share substantially equal [parenting] time with [X.]" and Roger pays $515 per month in childcare costs. The court also concluded the "modified amount of child support will be effective March 1, 2013." Roger disputes each of these determinations, which we address in turn.
Parenting Time
¶11 Roger argues "parenting time exercised by these parties has never been equal, or even substantially equal." He contends, prior to April 5, 2013, Nancy exercised 107 days of parenting time per year, between April 5, 2013 and April 10, 2014, she exercised 132 days of parenting time per year, and, from April 10, 2014 through April 1, 2015, she exercised 157 days of parenting time per year. Therefore, he maintains the court's determination that they share substantially equal parenting time with X. is "clearly erroneous."
¶12 Nancy seems to agree that, after this court issued its mandate in the last appeal, she was exercising 157 days of parenting time per year. However, she reasons that, pursuant to § 25-320 app. § 11(C), 157 days is substantially equal parenting time. But Nancy has misconstrued that section's meaning. Under the Guidelines, a noncustodial parent is entitled to an adjustment for costs associated with his or her parenting time if it is between four and 182 days per year. See § 25-320 app. § 11. Section 11(C) of the Guidelines provides: "As the number of parenting time days approaches equal time sharing (143 days and above), certain costs usually incurred only in the custodial household are assumed to be substantially or equally shared by both parents." It explains further that a different adjustment percentage should be used when there is proof that the costs are not shared. See § 25-320 app. § 11(C). This section does not suggest parenting time is substantially equal whenever the noncustodial parent has more than 143 days of parenting time.
¶13 In fact, rather than using the "substantially equal" language employed by the trial court, the Guidelines make clear that, if the time spent with each parent is "essentially equal," no adjustment for parenting time is necessary. § 25-320 app. § 12. However, regardless of which phrase is used, we cannot say the record contains substantial evidence supporting the court's finding that the parties' parenting time is—or has been—substantially or essentially equal. See Castro, 222 Ariz. 48, ¶ 11, 213 P.3d at 200-01.
¶14 In Nancy's proposed child support calculations submitted to the trial court, she acknowledged Roger was the custodial parent and attributed herself with between 149 and 156 days of parenting time per year. The parenting coordinator's eleventh report and recommendation, which was addressed at the same hearing as the modification of child support, also notes X. "shall continue to reside primarily with [Roger], subject to [Nancy's] parenting time." Consistent with that report and recommendation, the evidence presented at the hearing established that Nancy's current parenting time consisted of an alternating weekly schedule of Wednesday evening to Friday morning for one week and Thursday evening through Monday morning for the next—a total of six overnights every two weeks. Roger explained this schedule was an increase from what Nancy's parenting time had been previously.
Nancy's Exhibit H at the September 2014 hearing was a child support worksheet that was based on "essentially equal" parenting time. However, Exhibit H was discussed only briefly at the hearing and, importantly, not at all in the context of parenting time. Moreover, it was not admitted into evidence. We therefore do not consider it on appeal. See Varsity Gold, Inc. v. Porzio, 202 Ariz. 355, ¶ 23, 45 P.3d 352, 360 (App. 2002).
¶15 Even assuming Nancy exercises 157 days of parenting time per year, as she seems to concede on appeal, we cannot say the parties' time with X. is substantially or essentially equal. If Nancy has 157 days of parenting time, Roger would have 208 days—a 43-percent to 57-percent split. See The American Heritage Dictionary 601-02 (5th ed. 2011) ("equal" means "[h]aving the same quantity, measure, or value as another"; "equivalent" means "[b]eing essentially equal").
In addition, we cannot agree with Nancy that the trial court used the "substantially equal" parenting time calculation to, in essence, rectify "her unconstitutional loss of parenting time during the approximately 13 months it took for the mandate to issue" in the last appeal. Nothing in the record indicates the court had that intention. And, even if we construe the court's action as a deviation from the Guidelines, the court failed to comply with § 25-320 app. § 20 (enumerating criteria for deviation from Guidelines).
¶16 Accordingly, the trial court abused its discretion by attributing equal parenting time in the child support calculation. See McNutt, 203 Ariz. 28, ¶ 6, 49 P.3d at 302. We thus vacate the child support calculation entered in September 2014 and remand for further proceedings. Because the remaining child support issues are capable of recurring on remand, we address them.
Childcare Costs
¶17 Roger contends the trial court erred by attributing him with only $515 in monthly childcare costs. He asserts he pays $628.33 per month. Because substantial evidence supports the court's finding, we reject this argument. See Castro, 222 Ariz. 48, ¶ 11, 213 P.3d at 200-01.
¶18 At the September 2014 hearing, Roger testified he paid $628 per month in childcare for X. However, Nancy testified X. was eligible for a ten-percent discount because she had enrolled a second child in the program. Roger admitted he had been offered the discount but said he declined it because it was "basically a scholarship" and he did not think they were "entitled" to it. Taking into consideration the discount, Nancy testified that Roger should be paying $565 per month in childcare for X.
¶19 The trial court accepted Nancy's testimony on the childcare costs, even directing Roger to "apply[] for the discount." The court further explained it had reduced the $565 monthly total by the "$50 federal tax credit allowed to [Roger]." That deduction is consistent with the Guidelines. See § 25-320 app. § 9(B)(1) ("Before adding childcare costs to the Basic Child Support Obligation, the court may adjust this cost in order to apportion the benefit that the dependent tax credit will have to the parent incurring the childcare costs.").
¶20 Roger nevertheless asserts the "discount could only have applied after July 2014," when Nancy's second child started the program. But he did not present this argument to the trial court, and it is therefore waived on appeal. See Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 7, 119 P.3d 467, 471 (App. 2005) (issues not presented to trial court waived on appeal); Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000) (we generally do not consider issues raised for first time on appeal). We therefore cannot say the court abused its discretion by attributing Roger with $515 in monthly childcare costs. See McNutt, 203 Ariz. 28, ¶ 6, 49 P.3d at 302.
In his opening brief, Roger directs us to two July 2014 letters that were admitted as exhibits at the September 2014 hearing, indicating that Nancy was planning to enroll a second child in the program. But those letters do not establish Roger raised this argument below. Roger used the letters to explain why he had refused the discount.
Effective Date
¶21 Roger also contends "the trial court erred in determining that its modification of child support should be retroactive to March 1, 2013." He argues Nancy's "motion to terminate income withholding order" was not a proper motion to modify child support and the proper motion—the reply—was not filed until April 15, 2013, making May 1, 2013 "the earliest date upon which the trial court could have effected a modification."
¶22 Modification of child support is "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 but not earlier than the date of filing the petition for modification." A.R.S. § 25-503(E). Nancy's initial motion, filed in February 2013, was titled a "motion to terminate income withholding order," rather than a "petition for modification of child support." It nonetheless provided notice to Roger and the trial court that Nancy sought to modify child support. Her motion detailed the relevant child support considerations and included a child support worksheet. Roger received the motion in February 2013. See id. (modification effective month following notice of petition). Moreover, in his response, Roger referred to Nancy's motion as a "petition to modify child support." And, Nancy explained that she had titled the motion as she did because she thought the child support would be "zeroed out." We cannot say the court abused its discretion by making the modification retroactive to March 1, 2013, based upon Nancy's "motion to terminate income withholding order." See McNutt, 203 Ariz. 28, ¶ 6, 49 P.3d at 302.
Attorney Fees and Costs
¶23 Roger argues the trial court erred by denying his request for attorney fees and costs associated with Nancy's "motion to terminate income withholding order." We review a court's ruling on an award of attorney fees and costs for an abuse of discretion. In re Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 20, 35 P.3d 89, 96 (App. 2001).
¶24 Roger maintains that, at the March 2013 hearing, the trial court determined Nancy's "motion to terminate income withholding order" was "improper and premature." He points to A.R.S. § 25-324(B)(2), which provides that a court "shall award reasonable costs and attorney fees to the other party" if it finds a party filed a petition that "was not grounded in fact or based on law," and he construes "improper and premature" to fit within that language. Thus, he reasons the court "had no discretion to deny an award of reasonable costs and attorney's fees to [him]."
¶25 Although the trial court suggested Nancy's motion was "not a proper motion to modify child support" and any modification of child support should "wait until a [parenting time] decision is made," the court did not determine that Nancy's motion "was not grounded in fact or based on law." § 25-324(B)(2). Indeed, the issues identified by the court are non-substantive. Roger has not pointed us to any authority—and we are aware of none—establishing that an improperly titled and prematurely filed motion necessarily falls within the scope of § 25-324(B)(2). Moreover, the court was aware of the circumstances that gave rise to Nancy's motion and Roger's related request for attorney fees and costs at the time of its ruling. Consequently, we cannot say the court abused its discretion by denying Roger's request based upon § 25-324(B)(2). See Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 20, 35 P.3d at 96.
Thirteenth Report and Recommendation
¶26 Roger also argues the trial court erred by adopting the parenting coordinator's thirteenth report and recommendation, which addressed his vacation parenting time for 2014. We review a court's orders establishing parenting time for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, ¶ 11, 304 P.3d 1093, 1096 (App. 2013).
¶27 Under their current arrangement, both parties are entitled to seven days of vacation parenting time per year with X. However, because Nancy attached her vacation days to her regular parenting time, she essentially had a total of twelve days of vacation time from July 23, 2014 through August 4, 2014. Accordingly, under the parenting coordinator's twelfth report and recommendation, which the trial court adopted when neither party objected, Roger also was entitled to twelve days of vacation time for 2014, to be taken "consecutively or non-consecutively but . . . not [to] adjoin regular/holiday parenting time so as to exceed the 12 days." The parenting coordinator further explained: "If vacation parenting time adjoin[s] regular or holiday parenting time, then the regular or holiday parenting time shall also be counted as vacation parenting time."
¶28 Roger sought to exercise his right to vacation parenting time from December 11, 2014 through December 19, 2014. In her thirteenth report and recommendation, however, the parenting coordinator determined Roger was not entitled to do so because he already had utilized vacation parenting time from October 24, 2014 through November 5, 2014—"a 12-day vacation." Roger objected, arguing he had taken only two vacation days on October 30-31, which "were adjacent to regular and/or holiday parenting time to which [he] was already entitled." He maintained the parenting coordinator "unjustifiably counted [his] regular parenting time as vacation parenting time." After an expedited hearing, the trial court found Roger "ha[d] already exercised his vacation parenting time for 2014" and adopted the parenting coordinator's recommendation.
On appeal, Roger concedes that November 3 should also have been counted as a vacation day.
¶29 Roger contends the trial court's ruling violated his rights to due process and equal protection. However, he did not raise his constitutional arguments below. We therefore deem them waived on appeal. See Romero, 211 Ariz. 200, ¶ 7, 119 P.3d at 471; Englert, 199 Ariz. 21, ¶ 13, 13 P.3d at 768. We note, however, due process generally "requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Huck v. Haralambie, 122 Ariz. 63, 65, 593 P.2d 286, 288 (1979). Roger does not suggest he was denied either of these protections. Rather, he maintains he was entitled to "ascertainable standards" in the determination of his vacation parenting time, pursuant to Herrera v. Jamieson, 124 Ariz. 133, 134, 602 P.2d 514, 515 (App. 1979). But that case is distinguishable. In Herrera, the appellant's welfare benefits had been terminated, and we explained that due process required the decision to grant or withhold benefits to be based on "ascertainable standards." 124 Ariz. at 134, 602 P.2d at 515.
Suggesting he raised this argument below, Roger points to his request for "fundamental fairness" at the hearing. However, that request cannot be construed as a due process or equal protection argument. See Romero, 211 Ariz. 200, ¶ 6, 119 P.3d at 470-71 (objection on one ground does not preserve the issue for appeal on another). In addition, although Roger mentioned his constitutional arguments in his motion for reconsideration, that was too late to raise the issues. See Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, ¶ 18, 235 P.3d 285, 290-91 (App. 2010) (issue raised for first time in motion for reconsideration generally waived).
¶30 Here, the parenting coordinator provided limitations on Roger's increased vacation parenting time, to be consistent with Nancy's. Contrary to Roger's assertion, the option that the twelve vacation days be taken "consecutively or non-consecutively" can "be reconciled with the requirement that such day not adjoin regular or holiday parenting time." In other words, Roger could take his twelve vacation days all at once or at different times, but, to the extent they abutted his regular or holiday parenting time, that time properly could be counted toward his vacation.
¶31 Consistent with the parenting coordinator's twelfth report and recommendation, the trial court found Roger "d[id] not have nine days of vacation parenting time left" to use from December 11 through December 19 because he had used vacation time coupled with Halloween holiday time in October. Testimony from the December 2014 hearing, including Roger's own admissions, supports that conclusion. See Rowe v. Rowe, 154 Ariz. 616, 620, 744 P.2d 717, 721 (App. 1987) ("We will not weigh the conflicting evidence; rather, we limit our inquiry to a determination of whether substantial evidence exists to support the trial court's action.").
¶32 In addition, the trial court pointed out that Roger "d[id] not satisfactorily explain why he waited 30 days between making arrangements for [his December] trip and notifying [Nancy] of the trip." And, it further noted that Nancy had "set up an appointment with the custody evaluator [during Roger's proposed vacation] before receiving notice . . . of his intention to take this vacation time." We thus cannot say the court abused its discretion by adopting the parenting coordinator's recommendation on vacation parenting time for 2014. See Nold, 232 Ariz. 270, ¶ 11, 304 P.3d at 1096.
Motion to Vacate
¶33 Roger lastly contends the trial court "erred and exceeded its jurisdiction" by denying his motion to vacate the post-appeal orders. Specifically, he contends the court "was without jurisdiction" to enter its "repayment plan" order, in which it suspended Nancy's current child support obligation. Because we are vacating the court's September 2014 child support order, upon which its "repayment plan" order was based, we also find it necessary to vacate the "repayment plan" order. Accordingly, we need not address this argument further. See Contempo-Tempe Mobile Home Owners Ass'n v. Steinert, 144 Ariz. 227, 229, 696 P.2d 1376, 1378 (App. 1985) ("The court is not empowered to decide moot questions . . . .").
Below, Roger also argued the trial court lacked jurisdiction to appoint a legal decision-making and parenting time evaluator. He has not, however, raised this argument on appeal. --------
Disposition
¶34 For the reasons stated above, we affirm in part, vacate in part, and remand for further proceedings. Both parties have requested their costs on appeal. However, we deny both requests as both parties partially prevailed. See Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, ¶ 22, 330 P.3d 961, 966 (App. 2014).