Opinion
No. 2 CA-CV 2017-0130-FC
03-26-2018
JAMES DREXLER, Petitioner/Appellant, v. LISA WILSON, Respondent/Appellee.
Pahl & Associates, Tucson By Danette R. Pahl Counsel for Petitioner/Appellant The Higgins Law Group, Tucson By Maggie Higgins Schmidt Counsel for Respondent/Appellee
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NOT FOR PUBLICATION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 Pima County
No. SP20070995
The Honorable Ken Sanders, Judge Pro Tempore
AFFIRMED
Pahl & Associates, Tucson
By Danette R. Pahl
Counsel for Petitioner/Appellant The Higgins Law Group, Tucson
By Maggie Higgins Schmidt
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 James Drexler, father of minor J.D., appeals from the trial court's child-support order, alleging it erred by imputing income to him, reducing to zero the support obligation of J.D.'s mother, Lisa Wilson, and failing to account for increased travel expenses caused by her out-of-state move. For the reasons that follow, we affirm.
Factual and Procedural History
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 5 (App. 1998). In 2006, J.D. was born to Drexler and Wilson, who have never been married to each other. During all relevant times, Drexler has been voluntarily unemployed, performing the role of a stay-at-home parent for J.D. and his other, older children, while his wife, a non-party, has supported the household. In a 2014 order, the court set the support obligation for both parties at zero dollars. Until July 2016, the parties shared joint custody of J.D., dividing parenting time equally. When Wilson moved to Indiana, J.D. remained with Drexler.
¶3 In September 2016, Drexler petitioned the trial court to modify Wilson's support obligation based on changed circumstances, among other requests. In response, Wilson asked the court to keep the child support obligation at zero for both parties, among other requests. Following multiple evidentiary hearings, the court affirmed the 2014 order keeping both parties' obligation at zero dollars and ordered that each would be responsible for fifty percent of J.D.'s travel costs. After the court denied his motion for reconsideration, Drexler appealed. We have jurisdiction. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(2); Ariz. R. Fam. Law P. 78(B).
Attributed Income
¶4 Drexler argues the trial court erred by attributing income to him without balancing the "reduction in his available income against the benefits that his stay-at-home status imparts to [J.D.]" "Generally, we review child support awards for abuse of discretion." Engel v. Landman, 221 Ariz. 504, ¶ 21 (App. 2009), quoting McNutt v. McNutt, 203 Ariz. 28, ¶ 6 (App. 2002). Unless clearly erroneous, we accept the trial court's findings of fact, but draw our own legal conclusions therefrom. Id.
Drexler also argues his unemployment does not solely result from his choice, but also from "a brain injury leaving residual effects on his ability to be employed full time." However, the trial court did not consider the injury in its analysis because Drexler failed to produce medical documentation concerning his brain surgery or its lasting effects. To the extent Drexler asks us to reweigh the evidence, we decline because the trial court is in the best position to evaluate the credibility of testimony. See Clark v. Kreamer, 243 Ariz. 272, ¶ 14 (App. 2017).
¶5 The broad policy behind the Arizona Child Support Guidelines is that parents, regardless of their employment status, have a duty to provide for their children's reasonable needs. Engel, 221 Ariz. 504, ¶ 22. If the court determines a parent's voluntary unemployment is reasonable, it "shall balance that parent's decision and benefits therefrom against the impact the reduction in that parent's share of child support has on the children's best interest." A.R.S. § 25-320 app. § 5(E). However, when a parent is unemployed "as a matter of choice and not for reasonable cause," the Guidelines permit the trial court to attribute income "up to his . . . earning capacity." Id.
¶6 Here, the trial court determined that Drexler's initial decision not to work was reasonable because "his children were younger and likely benefited from having a parent more readily available to them." However, it reasoned, his decision to remain unemployed became "increasingly less reasonable" as they grew older. The court further stated, "[J.D.] is now nearly eleven (11) years old and does not necessarily require a stay-at-home parent." It then determined Drexler was "essentially shirking his paramount obligation" to personally provide financial support for J.D., contrary to J.D.'s best interests. Accordingly, the court attributed to Drexler an income of twenty dollars per hour, double the then-current minimum wage.
¶7 In doing so, however, the court did not expressly determine whether Drexler's decision to remain unemployed was reasonable. To the extent the court's language indicates Drexler's decision to stay at home is no longer reasonable, any failure to specifically enumerate potential benefits accruing to J.D. is not error because the Guidelines do not require balancing when a parent's decision is unreasonable. See § 25-320 app. § 5(E).
¶8 Insofar as the court's language indicates Drexler's decision was "voluntary but reasonable," the court was required to "balance [his] decision and benefits therefrom against the impact the reduction in that parent's share of child support has on the child[]'s best interest." § 25-320 app. § 5(E). Here, the order acknowledged that Drexler's decision initially made him "readily available" to the children and nothing suggests that benefit does not continue into the present. Nevertheless, in light of J.D.'s age, the court found his need for financial support outweighed his decreasing need for ready availability.
¶9 Drexler argues that, notwithstanding the fact that the Guidelines do not require balancing when a parent's decision is deemed "unreasonable," such a finding necessarily requires "probing into existing factors indicating otherwise." Accordingly, he insists the trial court was required to consider the benefits of his decision to remain unemployed whether it determined that decision was reasonable or unreasonable. To that end, he asserts a number of benefits the trial court should have considered, including: his stable, daily presence; transportation to and from school, activities, and appointments; availability during illness; and his practice of taking J.D. on a month-long vacation every summer. But Drexler cites no authority that the court must specifically evaluate the benefits a party asserts or that it must conjure potential benefits before determining a parent's decision to remain unemployed is not in his child's best interests. See § 25-320 app. § 5(E).
¶10 Although the court's ruling does not clearly determine whether Drexler's decision to remain unemployed was reasonable or unreasonable, the record makes clear that the court nevertheless considered the relevant benefits and impacts of Drexler's decision. Thus, Drexler asks us to reweigh the evidence, which we will not do. See Reeck v. Mendoza, 232 Ariz. 299, ¶ 14 (App. 2013). Accordingly, we cannot say the court abused its discretion by attributing income to Drexler.
Drexler argues the trial court might have ruled otherwise had the stay-at-home parent been a mother. But nothing in the record indicates the court considered his sex or traditional gender roles.
Drexler also suggests the court's decision infringes on his fundamental liberty interest protecting his "[c]hoices concerning familial relationships, procreation and child rearing." See U.S. Const. amend. XIV; Obergefell v. Hodges, ___ U.S. ___, ___, 135 S. Ct. 2584, 2599 (2015). However, he did not raise this argument before the trial court and therefore has waived it on appeal. Davis v. Davis, 230 Ariz. 333, ¶ 28 (App. 2012).
Deviation from Guidelines
¶11 Drexler next complains the trial court improperly deviated from the Guidelines by reducing Wilson's support obligation to zero. We review rulings on a petition to modify child support for an abuse of discretion. Milinovich v. Womack, 236 Ariz. 612, ¶ 7 (App. 2015). "An abuse of discretion exists when the record, viewed in the light most favorable to upholding the trial court's decision, is 'devoid of competent evidence to support the decision.'" Id., quoting Little v. Little, 193 Ariz. 518, ¶ 5 (1999).
¶12 Section 20(A) of the Guidelines requires,
The court shall deviate from the guidelines . . . after considering all relevant factors . . . only if all of the following criteria are met:§ 25-320 app. § 20(A) (emphasis omitted).
1. Application of the guidelines is inappropriate or unjust in the particular case,
2. The court has considered the best interests of the child in determining the amount of a deviation. . . .
3. The court makes written findings regarding 1. and 2. above in the Child Support Order . . . ,
4. The court shows what the order would have been without the deviation, and
5. The court shows what the order is after deviating.
¶13 Here, the trial court's written order expressly found that applying the Guidelines would be inappropriate because Drexler himself "contributes nothing to the financial support of [J.D.]" The court further considered J.D.'s best interests and found deviation "[was] not contrary to those interests." The court's order stated both that Wilson's obligation under the Guidelines would have been $736.51 per month and that it was setting her obligation to zero. Finally, in its order denying Drexler's motion for reconsideration, the court expressed it had considered, "as it was required to do, 'all relevant factors, including those set forth in [§] 25-320, and applicable case law.'" See §§ 25-320(D), 25-320 app. § 20(E); Elliott v. Elliott, 165 Ariz. 128, 131 n.1 (App. 1990) (court must consider factors but specific findings not required).
¶14 Drexler argues, as he did below, that none of the eight relevant factors, properly considered, "provide a cogent basis for reducing [Wilson]'s child support obligation to $0.00." He especially argues that Wilson's out-of-state move created "excessive or abnormal expenditures" that resulted in a significant decrease in her parenting time, left him with an increased share of day-to-day expenses, and significantly increased J.D.'s travel expenses. Drexler also urges the trial court erroneously credited Wilson with 104 days of parenting time, rather than sixty-five and, accordingly, her obligation under the Guidelines should have been $836.91 before deviation.
¶15 But the trial court has broad discretion in considering modification of monthly child support and "we cannot substitute our discretion for that of the trial judge." Cook v. Losnegard, 228 Ariz. 202, ¶¶ 9-11, 13 (App. 2011), quoting Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571 (1985). And even assuming the court so erred in its calculation, its findings and reasoning would equally apply under both sets of facts. Specifically, the court reasoned that as a result of his decision to remain unemployed, Drexler had been "essentially shirking" his obligation to financially support J.D.'s needs by "living solely off his spouse's income." Further, although Drexler asserts the court erred in determining the number of days Wilson had J.D. in her care, he has not identified an evidentiary basis establishing either the correct number or that the court's determination was clearly erroneous. Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 1996) ("We will uphold the court's findings of fact absent clear error."). But even if Drexler could have established such error, we cannot say the court committed reversible error because the court would have been within its discretion to set Wilson's obligation at zero in either case.
¶16 Drexler also argues the court erred because it "effectively relieved" Wilson of her entire legal obligation to financially support J.D. We disagree with this characterization, in particular because the court ordered Wilson to provide for J.D. when he is in her care in addition to paying fifty percent of his travel expenses and any uninsured medical, dental, and vision expenses. Accordingly, we cannot say the court abused its discretion by deviating from the Guidelines.
Travel Expenses
¶17 Finally, Drexler complains the trial court erred by ordering him to share J.D.'s substantially increased travel expenses caused by Wilson's unilateral decision to move out of state. But the trial court has broad discretion in allocating travel expenses, which we review for abuse. Cook, 228 Ariz. 202, ¶¶ 9-11, 13.
¶18 Section 18 of the Guidelines permits the trial court to allocate costs associated with parenting time after first considering "the means of the parents." § 25-320 app. § 18; In re Marriage of Robinson & Theil, 201 Ariz. 328, ¶ 19 (App. 2001). Although the court, in its discretion, may also consider how a change in residence has affected those costs, it is not required to do so. § 25-320 app. § 18. Even though the court did not expressly consider the parents' means in the narrow context of allocating visitation expenses, it very clearly considered the parties' financial resources globally. Because the court reflected these considerations throughout its order, we cannot say the court failed to account for them in allocating travel expenses and, accordingly, cannot say it abused its discretion.
Attorney Fees
¶19 Both parties request their attorney fees on appeal. See A.R.S. § 25-324. Because the parties are relatively equal in financial status, see Cummings v. Cummings, 182 Ariz. 383, 388 (App. 1994), and because we determine Drexler filed his petition in good faith, that it was grounded in fact and based on law, and was not filed for an improper purpose, see § 25-324(B), we deny both requests for fees. However, because Wilson prevailed on appeal, we award her costs pending compliance with Rule 21(b), Ariz. R. Civ. App. P. See A.R.S. § 12-342(A).
Disposition
¶20 For the foregoing reasons, we affirm the decision of the trial court.