Opinion
2 CA-CV 2024-0002
11-07-2024
Michael Galvez, Petitioner/Appellant, v. Jennifer Kast, Respondent/Appellee.
Rader Law Firm PLLC, Phoenix By Diana I. Rader Counsel for Petitioner/Appellant Barreda Law PLLC, Gilbert By Erin Walters and Bonnie Platter Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2021006447 The Honorable Michelle Carson, Judge
Rader Law Firm PLLC, Phoenix By Diana I. Rader Counsel for Petitioner/Appellant
Barreda Law PLLC, Gilbert By Erin Walters and Bonnie Platter Counsel for Respondent/Appellee
Judge Vasquez authored the decision of the Court, in which Presiding Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
VASQUEZ, JUDGE
¶1 In this domestic-relations action, Michael Galvez ("Father") appeals from the trial court's orders establishing legal decision-making authority, parenting time, and child support and awarding Jennifer Kast ("Mother") her attorney fees and costs. He argues the time limit the court imposed on him at trial violated his "constitutional Due Process right to cross-examine Mother and Mother's expert witness." He further argues the court erred by (1) modifying existing orders related to the parties' older child because Mother did not establish a substantial change in circumstances affecting the child's welfare, (2) "not properly considering all admitted evidence" when determining Mother would have final decision-making authority, and (3) failing to consider childcare expenses when calculating child support. He also challenges the court's civil contempt finding and its judgment regarding child support arrears. For the following reasons, we vacate and remand the child support arrears judgment. We otherwise affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the trial court's findings and orders. See Hefner v. Hefner, 248 Ariz. 54, n.2 (App. 2019). The parties were never married but have lived together intermittently since January 2017 and have two minor children in common. In January 2021, the parties moved to Arizona from California. After "separating again finally" in October 2021, Father petitioned to establish paternity, legal decision-making authority, parenting time and child support for the parties' youngest child. Custody for the older child had already been established by orders entered in California. Those orders were domesticated in Arizona after Mother responded to Father's petition and counter-petitioned to modify the California orders.
¶3 In December 2021, the trial court entered stipulated temporary orders in which the parties agreed to joint legal decision-making with "neither Party having final say authority" and equal parenting time. In her pretrial statement Mother requested that the court affirm the temporary orders and requested child support and an award of attorney fees and costs. Conversely, Father requested, in part, sole legal decision-making authority. In May 2023, Mother filed a petition for civil contempt, arguing Father violated the temporary legal decision-making orders by "unilaterally enroll[ing]" the older child at a school "without notifying Mother" or "includ[ing her] on the school application."
The parties also agreed to consolidate the petitions concerning each minor child.
¶4 After a one-day trial, the court entered its legal decision-making, parenting time, and child support orders, in which it also granted Mother's request for attorney fees and costs. Relevant here, the trial court found it would be in the children's best interests for both parents to have joint legal-decision making authority and ordered the same. It additionally ordered that if the parties were unable to reach an agreement after "making a good faith effort," Mother would "have the ability to make the final decision." The court also found Father in contempt of the temporary orders and, as a sanction, awarded Mother her "reasonable attorney fees and costs in bringing the contempt action."
¶5 During trial, Father raised the issue of past child support, to which Mother objected, stating that "it was never formally pled." The trial court allowed the parties to "submit the past child support worksheets" for its review. After the parties submitted their respective position statements regarding child support arrears, the court "enter[ed] judgment against Father for past child support for the timeframe November 1, 2021 to October 31, 2023, in the amount of $10,032."
¶6 Then, on November 20, 2023, the trial court entered judgment in favor of Mother in the amount of $43,916.50 for attorney fees and $358.50 for costs. The court signed the minute entry "as a formal written order of the Court pursuant to Rule 78(c)," Ariz. R. Fam. Law P. Father appealed and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
On January 9, 2024, we stayed the appeal until February 8, 2024 for the trial court to enter a final order in compliance with Rule 78(c). We noted that the court's November 2023 order awarding attorney fees and costs cited to "but omitted the finality language expressly required by that rule."
Discussion
I. Due Process Violation
¶7 Father argues the trial court violated his due process rights by imposing a time limit at the start of the trial and not granting him additional time after his was "spent with interruptions in his presentation including breaks and delays in playing numerous video exhibits." As Father correctly points out, procedural due process generally encompasses the right to notice and the opportunity to be heard in a meaningful manner. See Samiuddin v. Nothwehr, 243 Ariz. 204, ¶ 20 (2017). Although the court enjoys broad discretion to impose "time limits appropriate to the proceedings," those limits must nevertheless be reasonable. Ariz. R. Fam. Law P. 22(a); see Volk v. Brame, 235 Ariz. 462, ¶ 20 (App. 2014). A court violates a party's due process rights when it "does not allow for meaningful direct testimony and efficient but adequate cross-examination." Volk, 235 Ariz. 462, ¶ 21. We review the alleged due process violations de novo. Backstrand v. Backstrand, 250 Ariz. 339, ¶ 28 (App. 2020).
¶8 Father points to the 130-minute time limit imposed by the trial court to support his argument that he was "forced to choose whether to present as much of his evidence . . . as he could or forego cross examination of Mother and her expert." At the start of trial, the court made it clear that the time limit was "an inclusive time frame." Father did not raise any concerns, and the trial proceeded.
¶9 On appeal, Father maintains the trial court's time limit became unreasonable when his presentation of his case was interrupted by technical difficulties. He argues he was prejudiced by the court's "decision to prevent Father f[rom] cross examination of Mother and her expert" after he used all his time presenting his own direct testimony, which resulted in the court awarding Mother final decision-making authority based on her "one-sided and unchallenged presentation." The court entered no such final order and on August 16, 2024 we extended the stay until August 29, 2024. After receiving the fully compliant order on September 9, 2024, we vacated the stay and reinstated the existing appeal.
¶10 The record indicates Father testified for roughly 135 minutes. And Father only raised the issue of his inability to conduct cross-examination in the context of the child support calculation. After Mother used her remaining time to cross-examine Father about his income, the trial court allowed Father additional time for examination on that subject, despite him being "four minutes over" his allotted time. On appeal, Father argues this demonstrated judicial bias because only Mother was permitted to "expand the trial time" for the parties to present additional evidence on an issue that was "important to her." Father, however, did not object to the court's schedule or its management of the parties' testimony or witness examination, outside of his request to "get even a little bit of time for cross" as it concerned child support. He concedes the court's time limit "may have been reasonable" had his time not been interrupted. But contrary to Father's assertions, the record shows the court did not deduct the time it took to resolve the technical difficulties and for his counsel to briefly address another matter from his allotted time. He nonetheless argues the court did not provide him with "reasonable opportunity" to both present his evidence and conduct cross-examination. Father argues that he would have asked additional questions of Mother and her expert if given the opportunity. But the record indicates that nothing other than his case management at trial prevented him from doing so. See Backstrand, 250 Ariz. 339, ¶ 32 ("It is incumbent upon counsel to manage the time allotted and balance cross-examination's strategic value against the time necessary to present testimony and other evidence."); see also Volk, 235 Ariz. 462, ¶ 22 ("[W]e do not suggest that the court must indulge inefficient use of time by parties or their counsel.").
Of the 176 minutes between when the trial began and the noon recess, Father testified for about 135 minutes. The trial started at 9:04 a.m., and after some housekeeping matters, Father took the stand. At 9:48 a.m., the court took a twenty-one-minute recess to address "some technical issues." After the recess, the court informed Father that he was twentyeight minutes into his total time. Around 11:13 a.m., Father was given a ninety-three-minute time update. At 11:28 a.m., the court took a two-minute recess for Father's counsel to answer a phone call concerning another matter, after which he was told he had used 105 minutes. Then shortly before noon, Father notified the court that he would like to "preserve" any remaining time "for any kind of rebuttal." The court informed him that he did not "have any remaining time."
¶11 Even were we to conclude the time limits were unreasonable, Father has not shown he was prejudiced. The information Father claims he would have elicited from Mother and her expert was information he provided to the trial court during the presentation of his case. As it relates to cross-examination of Mother, Father maintains that he "would have been able to provide information to the Court regarding Mother's inaccurate statements[,] lies, refusal to co-parent, and Mother's poor judgment in parenting the minor children." Father repeatedly testified that he was unable to co-parent with Mother for those reasons, which is reflected in the court's best-interest findings. He also testified about what he described as child abuse and neglect, including Mother feeding one of their children "contaminated breast milk."
¶12 The court addressed this specific allegation, and others, in its domestic violence and substance abuse best-interest findings, noting that Father's reports have not been substantiated by the Department of Child Safety. And Father does not specify which parts of Mother's testimony were "inaccurate" or constituted "lies." To the extent his narrative on a number of issues differed from Mother's, the trial court is in the best position to assess the witnesses' credibility and weigh conflicting evidence, and we will not second guess its determinations on appeal. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13 (App. 1998) (we defer to trial court for credibility determinations and weighing conflicting evidence); Goats v. A. J. Bayless Mkts., Inc., 14 Ariz.App. 166, 171 (1971) ("The trial court is in the best position to judge the credibility of the witnesses, the weight of evidence, and also the reasonable inferences to be drawn therefrom."). The court's findings are supported by the record, especially given that Father has not provided appropriate citations to the record. We will not reweigh the court's credibility determinations on appeal. See Hurd v. Hurd, 223 Ariz. 48, ¶ 16 (App. 2009); see also Ariz. R. Civ. App. P. 13(a)(7) (argument must contain "appropriate references to the portions of the record on which the appellant relies").
¶13 Father further asserts that had he been given more time, he would have challenged the expert's testimony concerning reports provided to him by Mother in preparation for trial. He maintains the reports were provided "in violation of [the expert's] strict requirement" of not "allow[ing] the parties to submit documents to him past April 11, 2022." He further maintains the expert's "new" opinion concerning the parties' co-parenting ability was not in the expert's report and therefore "should not have been admissible evidence." Because the trial court awarded Mother final decision-making authority, Father contends he was prejudiced by his inability to "reveal[]" to the court through cross-examination that the expert's "concern" about legal decision-making was based on inadmissible evidence. We disagree.
¶14 The expert testified that he reviewed "certain exhibits" Mother had provided to him prior to trial containing communications between the parties from around November 2022. The expert "emphasize[d] they were out of context," but noted that the communication "suggested concern about co-parenting ability." Father objected, stating that this information was provided to the expert outside of the timeframe during which he "allowed the parties to provide documents." The trial court overruled the objection. The expert reiterated that if those types of communications were to continue, he "would have concern about joint decision making." Mother then asked questions about specific communication exchanges, to which Father raised foundation objections that the court sustained. Mother then directed the expert's attention to his report where he had "indicated that Father ha[d] exhibited poor communication with Mother, even with innocuous details," and asked the expert whether the "recent communications" he had reviewed indicated that the same "dynamic was continuing." Father again objected on foundation grounds, questioning "[w]hat text messages could [Mother] possibly be referring to," which the court sustained.
¶15 Mother eventually decided to "move on" by presenting the expert with a series of hypotheticals to elicit what behaviors the expert considered to be "innocuous" and whether he believed certain types of exchanges were "appropriate communication." Specifically, Mother asked the expert if he "recall[ed]" a text message that he had "reviewed in preparation for this trial" where Father told Mother that "he would never be anywhere in public with [her] again." After the expert stated that he did not recall that particular text, Mother asked him "if [Father] had said that, would that give you pause about his willingness to co-parent effectively and communicate effectively?" Father objected, which the trial court overruled, acknowledging that the question was "a hypothetical." The expert answered that "[i]f someone says, I'll never be seen with you in public again, that would create co-parenting and, quite honestly, parenting concerns for me." Ultimately, the expert stated that "if in fact there's no improvement with joint decision making" the court may want to "consider making someone a final [decision-maker]."
¶16 There is no merit to Father's argument that cross-examining the expert would have brought to the trial court's attention that the expert's opinion was based on inadmissible evidence. First, from Father's objections, the court was aware of his position concerning the expert's review of documents. Second, the expert's suggestion that the court may want to award one of the parties final decision-making authority, which Father classifies as a "'new' opinion or concern," was based on evidence that was properly admitted by both Father and Mother. And although the expert did not recall reading text messages about Father's refusal to attend a dentist appointment with Mother, or be seen anywhere in public with her, the expert's opinion derived from "if Father had said that" and was proper opinion testimony. See West v. Sundance Dev. Co., 169 Ariz. 579, 584 (App. 1991) ("While expert opinion can be based on hypothetical questions, such questions are proper so long as they are based on facts in evidence."). No error occurred.
II. Contempt Finding
¶17 Father challenges the trial court's order finding him in contempt for unilaterally enrolling one of the children in school without Mother's consent, arguing that the court's finding "amounts to judicial bias" because it "wholly ignor[ed] that Mother too unilaterally enrolled the child in the same school." We will not address the merits of Father's argument for two reasons.
¶18 First, as to Father's claim of judicial bias, the record does not reflect that he requested a change of judge for cause under Rule 6.1, Ariz. R. Fam. Law P. Absent a ruling on a properly filed request, the issue is not appropriately before this court, and an allegation of judicial bias is not one we will address in the first instance on appeal. See Pflum v. Pflum, 135 Ariz. 304, 306-07 (App. 1982); State v. Carpenter, 1 Ariz.App. 522, 527 (1965).
¶19 Second, and more critically, we do not have jurisdiction to review the trial court's finding of contempt. Civil contempt orders are not directly appealable and are instead subject to review only by special action. See In re Marriage of Chapman, 251 Ariz. 40, ¶¶ 10, 13 (App. 2021). This is because contempt orders are generally considered as part of the enforcement mechanism of the court's orders, rather than appealable final judgments. Green v. Lisa Frank, Inc., 221 Ariz. 138, ¶ 17 (App. 2009).
¶20 Father relies on Green to support his contention that appellate jurisdiction is conferred because the contempt finding is part of the trial court's "final and appealable ruling." However, in that case, we did not conclude we had jurisdiction simply because the finding of contempt was included in the final judgment, but because the contempt order "decide[d] the merits of the underlying action." Id. ¶¶ 16-17, 21 &16. Here, by contrast, Father was found in contempt of the December 2021 temporary orders. Therefore, the appropriate course for reviewing such a decision remains through the filing of a special action, not a direct appeal. Father did not file a petition for special action, and we do not see a reasoned basis for departing from the general rule. See League of Ariz. Cities &Towns v. Martin, 219 Ariz. 556, ¶ 4 (2009) ("Our decision to accept jurisdiction of a special action is highly discretionary."). Thus, we lack jurisdiction to address the court's contempt finding.
III. Awarding Mother Final Decision-Making Authority
¶21 Father contends the trial court erred by awarding Mother final decision-making authority. We review a court's legal decision-making and parenting time orders, as well as its orders modifying legal decision-making and parenting time, for an abuse of discretion. DeLuna v. Petitto, 247 Ariz. 420, ¶ 9 (App. 2019); Baker v. Meyer, 237 Ariz. 112, ¶ 10 (App. 2015). In both instances, we defer to a court's factual findings that are supported by the record and not clearly erroneous. Ariz. R. Fam. Law P. 82(a)(5); see Sholes v. Fernando, 228 Ariz. 455, ¶ 6 (App. 2011). A court abuses its discretion when it errs in applying the law. Engstrom v. McCarthy, 243 Ariz. 469, ¶ 4 (App. 2018).
¶22 Father first argues that, as it relates to the older child, L.G., who was the subject of the California order, Mother failed to meet her burden in establishing there was a change in circumstances that would permit modifying legal decision-making authority. Under A.R.S. § 25-411(A), a parent may petition to modify a legal decision-making and parenting time order after it has been in place for one year.
¶23 In deciding whether to modify the existing order, the trial court conducts a two-stage inquiry. Backstrand, 250 Ariz. 339, ¶ 14. First, it must determine whether there has been a change of circumstances materially affecting the child's welfare, and, if so, it decides whether a modification to the existing order is in the child's best interests. Id. Section 25-411(L) requires the court to deny a petition to modify "unless it finds that adequate cause for hearing the motion is established by the pleadings." Adequate cause for modification exists when "the facts alleged to constitute a change in circumstances" materially affect the welfare of the child. Pridgeon v. Superior Court, 134 Ariz. 177, 180 (1982); see Backstrand, 250 Ariz. 339, ¶ 14. "The trial court has broad discretion to determine whether a change of circumstances has occurred," and we will not disturb its determination unless there is a clear absence of supporting evidence. Pridgeon, 134 Ariz. at 179.
¶24 Father maintains, without citation to legal authority, that Arizona law required the trial court to issue findings of a substantial change in circumstances. We disagree. Section 25-411 does not obligate the court to make specific findings of changed circumstances. And Father never requested that the court make findings of fact pursuant to Rule 82, Ariz. R. Fam. Law P., or objected to the court's failure to do so. Although the court's ruling lacks the explicit finding that there has been a change in circumstances, it may be upheld if it is apparent from the court's factual determinations. See Johnson v. Elson, 192 Ariz. 486, ¶ 11 (App. 1998) (appellate court "may infer additional findings of fact and conclusions of law sufficient to sustain the trial court's order as long as those findings are reasonably supported by the evidence"); Canty v. Canty, 178 Ariz. 443, 448-49, (App. 1994) (finding sufficient evidence of changed circumstances though such findings were absent from court's minute entry).
¶25 Here, we can infer from the record that the trial court found there had been a change in circumstances that supported modifying legal decision-making for L.G. In December 2021, the parties stipulated to temporary orders in which they agreed to "joint legal decision-making" with neither party having final say authority. But by the time he filed his pretrial statement in March 2023, Father was no longer in agreement with the legal decision-making stipulation. In his statement, he instead requested sole legal-decision making authority or "at the very least [he should be] awarded final decision making in the event of an impasse," because the "parties cannot communicate." Mother requested that the parties be "permanently awarded joint legal decision-making" and noted it "may be necessary that she be awarded final say" due to her concern that Father's unprovoked hostility toward her "may continue to get worse" and impede any efforts at reaching mutual agreements concerning their children. This difference is articulated in the court's findings, wherein it also noted that Father's "lack of agreement is unreasonable and appears motivated more by his derision for Mother than the best interests of their very young children." The court's best-interest findings also reflect its concern that "Father's derision for Mother may be evident to the children and may affect his relationship with them in the future." Accordingly, it was within the court's discretion to modify legal-decision making as to L.G.
We note that, given the parties' testimony at trial, it appears the difficulty in co-parenting may not have been isolated to the timeframe after they entered the stipulated agreement. But to the extent it was a persistent dynamic in their relationship, we will not reverse based on a trial court's noncompliance with § 25-411's prehearing procedural requirements because any such technical errors "must be addressed prior to a resolution on the merits." In re Marriage of Dorman, 198 Ariz. 298, ¶ 11 (App. 2000).
¶26 Father next argues the trial court abused its discretion in awarding Mother final decision-making authority because she failed to give sufficient notice of this request. He maintains she only decided to make this request during trial after she knew the court would not be giving Father additional time for cross-examination or to present additional evidence. Whether "originally or on petition for modification," a court must determine legal decision-making and parenting time "in accordance with the best interests of the child." A.R.S. § 25-403(A). In a contested action, the court must "make specific findings on the record about all relevant factors" as set forth in § 25-403(A) that are pertinent to the child's physical and emotional well-being, and the "reasons for which the decision" is in the child's best interests. § 25-403(B); see Hart v. Hart, 220 Ariz. 183, ¶ 9 (App. 2009).
¶27 And here, after considering the evidence-including the parties' testimony and exhibits, the witnesses' demeanor, and the case history-the trial court made its "specific findings on the record" about how its "decision is in the best interests of the child," § 25-403(B), and considered the "past, present and future abilities of the parents to cooperate in decision-making," A.R.S. § 25-403.01(B)(3). The court's findings, which are supported by the record, illuminated the parties' "combative relationship." Specifically, the court agreed with Father that "he cannot co-parent with Mother." It also noted that the expert raised "significant concerns" about the parties' co-parenting abilities. Indeed, Father testified that it is "just impossible" to "come to an agreement" with Mother on parenting decisions. Even had Mother never requested final-say authority, a court does not abuse its discretion when making such an award based on the specific circumstances of the case when it is in the children's best interests. See Gish v. Greyson, 253 Ariz. 437, ¶ 39 (2022) (court's decision regarding legal decision-making can be influenced by parents' past behavior and overall dynamics between parties, which affect child's best interests); see also Downs v. Scheffler, 206 Ariz. 496, ¶ 7 (App. 2003) (best interests of child is primary consideration in legal decision-making determinations). Consequently, the court did not err in awarding Mother final decision-making authority.
Father similarly argues the trial court erred by not "properly considering all admitted evidence" when awarding Mother final decision-making authority. The court expressly stated, "While not all exhibits admitted into evidence are cited herein, the Court reviewed all exhibits admitted into evidence." His argument is essentially a request that we reweigh the evidence, which we will not do. See Hurd, 223 Ariz. 48, ¶ 16.
IV. Trial Exhibits
¶28 Father contends the trial court erred by "precluding numerous relevant exhibits contrary to the minor children's best interest[s]." Unless requested, family court proceedings do not require strict compliance with the Arizona Rules of Evidence at trial. Ariz. R. Fam. Law P. 2. While relaxed, Rule 2 does not eliminate the requirement that the party seeking to admit evidence provide some indication of reliability. See Ariz. R. Fam. Law P. 2(b). "We will not disturb a trial court's ruling on the admissibility of evidence absent a clear abuse of discretion and resulting prejudice." Jimenez v. Wal-Mart Stores, Inc., 206 Ariz. 424, ¶ 10 (App. 2003).
¶29 Father argues three exhibits were improperly excluded by the trial court which were "relevant to the issues of legal decision-making and parenting time." Exhibit 67 is a video that purportedly showed Mother providing medicine to the parties' younger child "even though she was not sick." The two other exhibits were photos of injuries a child incurred while under the care of Mother: one involving the parties' minor child and the other involving Mother's minor child of whom Father is not the parent.
¶30 As to the video, Exhibit 67, the trial court denied its admission because Father was unable to lay a proper foundation to show when he had taken it. And contrary to Father's argument on appeal, the court did not deny his "efforts to clarify the timing of the video." After the court sustained a foundation objection, Father spent several minutes attempting to lay the proper foundation. After not being able to do so, his counsel decided to move on. In any event, Father does not argue how this prejudiced him, and overlooks that he provided other testimony that his children had told him that Mother "used over the counter drugs to treat anxiety, . . . ADHD[,] and basically everything." Additionally, the court admitted a video of Father discussing with Mother his "concerns or objection to her giving the children over the counter medications," and in which she admits to doing so. The court therefore did not abuse its discretion by excluding Exhibit 67.
¶31 Similarly, Father was unable to lay proper foundation for Exhibit 52, a photo of an injury to Mother's child that is not in common with Father. He stated that "Mother was actually out with [him] when she left the kids alone" and that he witnessed the injury afterward. The trial court excluded the exhibit because Father had not laid an appropriate foundation "regarding where the injury actually came from." Father then made further attempts to lay foundation, stating he saw the injury "probably like a week" later and then got the picture "months later" off of a phone Mother provided to one of her children that Father could also access. The court sustained Mother's objection that Father was "all over the place as to what he knows."
¶32 The trial court excluded Exhibit 32, a photo of an injury to the parties' eldest child, as irrelevant. The photo showed a "bump on [the child's] head that he received from getting hit with the zipper of the pillow" by his half-sibling. Although Father argues the exhibit is relevant "on the issue of parental fitness," it is not clear how an injury caused by a sibling, without more context, is relevant to Mother's ability to parent. See Ariz. R. Evid. 401.
¶33 Moreover, as with the video, Father does not show how he was prejudiced by the exclusion of these photos. Father's argument about Mother's "inability to care" or "provide proper supervision to young children" was supported by other, properly admitted evidence of injuries the minor children incurred, and the trial court noted it would give these exhibits the "weight [they] deserve[d]." The court did not err in excluding Exhibits 32 and 52.
V. Child Support
¶34 Father argues the trial court failed to use Mother's correct income when calculating child support. He also argues that the court should have considered the childcare expenses he had paid through May 2023 in its calculation of past child support. We review the court's child support orders for an abuse of discretion. Nash v. Nash, 232 Ariz. 473, ¶ 5 (App. 2013).
¶35 Father argues that Mother's monthly income is $10,668 instead of the $7,000 figure the trial court based on a rounded average of Mother's paychecks. He argues the paystubs Mother submitted do not reflect the "thousands in cash" she receives monthly and claims that Mother has "refused to provide her income in California." He also suggests that Mother would have to make more than $7,000 per month to pay the expenses listed on her affidavit of financial information, in addition to her attorney fees and the amount she paid for her expert to testify at trial.
¶36 On appeal, Father requests that we attribute Mother's statement that she worked "once every three weeks" in California, making $4,000 to $5,000 in that week, as proof that Mother has refused to provide her California income. We decline to do so because Mother's statement was made in April 2021 and has no bearing on her 2023 income. The trial court accurately attributed Mother's income as $7,000 based on her trial testimony, paystubs, and affidavit of financial information. The court, therefore, did not abuse its discretion in calculating Father's child support obligation at $561 beginning in November 2023. See Strait v. Strait, 223 Ariz. 500, ¶¶ 8-9 (App. 2010) (court has broad discretion in determining what constitutes gross income).
¶37 The parties agree that the trial court's calculation of child support arrearages lacks clarity. The court entered a judgment against Father for past child support from November 2021 through October 2023 in the amount of $10,032. The court's child support worksheets in support of its judgment indicate that Father owed $262 per month from November 1, 2021 to May 31, 2023 and he owed $382 per month from June 1, 2023 to October 31, 2023. Based on these child support worksheets, we calculate that Father owes $6,888 ($262 x 19 months = $4,978; $382 x 5 months = $1,910). It is unclear how the $3,144 discrepancy was determined. We therefore vacate the court's November 13, 2023 judgment for past child support and remand for the court to clarify its calculations and enter its judgment accordingly.
On appeal, Father incorrectly attributes the calculation from the November 1, 2021 child support worksheet, which established a portion of the monthly amount due for past child support, as the basis for his assertion that he should owe $382 per month for ongoing child support. The trial court's October 2023 order, obligating Father to pay Mother $561 per month in ongoing child support is supported by its calculations in the worksheet filed on the same date.
Because childcare expenses "may be added" to the child support obligation at the discretion of the trial court, A.R.S. § 25-320 app. § 3(A)(4)(a), the court did not abuse its discretion by "declin[ing] to include discretionary childcare costs for either parent in its past support obligation."
VI. Attorney Fees
¶38 Father argues that the trial court erred in awarding Mother attorney fees because she did not address whether there was a change in circumstances warranting a modification of legal decision-making and parenting time as to L.G. He also contends that we should vacate the court's order for attorney fees relating to its contempt finding. He maintains we should remand for the court to consider Mother's testimony, "admitting to engaging in identical behavior for which Father was held in Contempt of Court." However, he cites no facts or legal authority to support his argument that the court abused its discretion. See Ariz. R. Civ. App. P. 13(a)(7)(A) (brief must contain "supporting reasons for each contention" and "citations of legal authorities and appropriate references to the portions of the record on which the appellant relies"). "Merely mentioning an argument in an appellate opening brief is insufficient." MacMillan v. Schwartz, 226 Ariz. 584, ¶ 33 (App. 2011). Father's failure to present a meaningful argument with supporting legal authority constitutes abandonment and waiver of the attorney fees issues. See id. We affirm the court's award of attorney fees.
VII. Attorney Fees on Appeal
¶39 Father and Mother request their attorney fees on appeal under A.R.S. § 25-324 and Rule 21, Ariz. R. Civ. App. P. Section 25-324 allows a court to award attorney fees after "considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." Mother argues that "Father has unreasonably pursued an appeal and raised unreasonable and legally flawed arguments, without supporting evidence in the appeal." Notwithstanding Father's unsuccessful arguments, we cannot say that he has taken an unreasonable position on appeal. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶¶ 34-35 (App. 1998). In our discretion, we decline both parties' requests. However, as the prevailing party, Mother is entitled to her costs upon her compliance with Rule 21. See A.R.S. § 12-342.
Disposition
¶40 For the foregoing reasons, we vacate the trial court's November 13, 2023 judgment for past child support and remand for the court to enter a judgment consistent with its supporting calculations or provide further clarity as to the amount of the entered judgment. Otherwise, we affirm the court's orders.