Opinion
No. 1 CA-CV 12-0633
02-18-2014
In re the Matter of: WILLIAM ALRIC KUNITZ, Petitioner/Appellee, v. KATHERINE F. MACDONALD, Respondent/Appellant.
William Alric Kunitz, Mesa Petitioner/Appellee Katherine F. MacDonald, Tempe Respondent/Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. DR1997-093410
The Honorable Veronica Brame, Judge Pro Tempore
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
COUNSEL
William Alric Kunitz, Mesa
Petitioner/Appellee
Katherine F. MacDonald, Tempe
Respondent/Appellant
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined. PORTLEY, Judge:
¶1 Katherine F. MacDonald ("Mother") was ordered to reimburse William Alric Kunitz ("Father") for her share of the uncovered medical and extracurricular expenses Father incurred on behalf of their child. She challenges the order on appeal. Based on the following, we affirm the allocation of extracurricular expenses, vacate the order as it pertains to uncovered medical expenses, and remand the case for entry of a new child support order and reconsideration of Mother's objections to the reimbursement requests.
FACTUAL AND PROCEDURAL BACKGROUND
Father contends the transcript Mother filed did not comply with ARCAP 11(b) but does not explain how the transcript is noncompliant. We find no violation of ARCAP 11(b).
¶2 The parties entered into a stipulation in 2008 to share joint custody and equal parenting time of their child. The resulting stipulated order provided that neither party would pay child support and the parties would equally share all uncovered medical and extracurricular expenses.
¶3 Father sought to have the child live with him full-time and filed a petition to modify custody in 2009 and asked for child support. He also sought reimbursement for one-half of the child's uncovered medical and extracurricular expenses. Mother objected to the petition to modify custody. She also argued that uncovered medical expenses should be paid based on the parties' proportionate share of income, but did not otherwise respond to the reimbursement requests.
¶4 The family court continued joint custody, but ordered the child to live exclusively with Father and ordered Mother to pay $262.52 monthly for child support. The family court did not, however, address the payment of future uncovered medical expenses and other expenses. The court then ordered Mother to pay one-half of $1,069.78 in "un-reimbursed expenses," which was less than the requested reimbursement, but did not specify what portion was for uncovered medical expenses and what portion was for extracurricular expenses.
Father objected three times to the amount of the reimbursement ordered, but the family court denied all three motions.
¶5 Two years later, Father filed a motion to enforce the 2008 stipulated order because Mother had not paid one-half of the uncovered medical or extracurricular expenses incurred since the 2010 order. Mother responded, argued that the 2010 order superseded the 2008 order, and that it did not order Mother to pay a portion of uncovered medical or extracurricular expenses.
The pleading included a spreadsheet claiming medical expenses totaling $1,797.02 and extracurricular expenses totaling $3,084.09 from February 18, 2010 to January 7, 2012.
¶6 After a hearing, the family court found that the 2010 order superseded the 2008 stipulation only to the extent that it created the proportionate share of income that would be used to determine each parent's percentage of responsibility to pay the uncovered medical expenses. The court also determined that because the 2010 order did not address allocation of extracurricular expenses, the 2008 order therefore continued to require the parties to be equally responsible to share the extracurricular expenses. Then, after discovering that the 2010 child support worksheet was not in the file, the court unsuccessfully attempted to recreate it to determine the parties' proportionate share of income. The court then ordered Mother to pay thirty-four percent of the uncovered medical expenses. This appeal followed.
Father argues that Mother's notice of appeal failed to cite any statutory authority for the appeal and thus failed to establish the basis for this court's jurisdiction. We have an independent duty to determine whether we have jurisdiction over an appeal. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). The failure to cite to the statutory authority does not deprive us of jurisdiction.
DISCUSSION
¶7 We review modification of a child support order for an abuse of discretion. Strait v. Strait, 223 Ariz. 500, 502, ¶ 6, 224 P.3d 997, 999 (App. 2010). We review any legal issue, however, de novo. See Guerra v. Bejarano, 212 Ariz. 442, 443, ¶ 6, 133 P.3d 752, 753 (App. 2006). I. Allocation of Extracurricular Expenses
¶8 Mother contends the family court erred by finding that the 2010 order did not supersede the 2008 stipulated order regarding extracurricular expenses. She specifically argues that because the circumstances supporting the parties' 2008 stipulation changed after the 2010 order, she could not be held to the earlier stipulation. We review the legal issue de novo. Id.
¶9 The petition Father filed leading to the 2010 order did not seek to modify the stipulated allocation of the extracurricular activities. He only sought to recover one-half of the extracurricular expenses he had incurred. Moreover, Mother never sought to modify the extracurricular expense provision in the 2008 order and never argued that the allocation had to be changed in 2010 when the court modified the child's living arrangement and ordered Mother to pay child support. If she thought that changed circumstances warranted a reduction of her obligation to pay one-half of the extracurricular expenses, she was required to ask the court to modify the provision. See Ariz. Rev. Stat. ("A.R.S.") § 25-327(A) (West 2014) (stating that support may be modified only by a showing of changed circumstances). Although she argues that Father was required to ask the court to continue the extracurricular expense allocation, she has cited no authority for her proposition and we have found none.
We cite to the current version of the applicable statute unless revisions material to this decision have since occurred.
¶10 Because neither parent requested a modification of the division of the extracurricular expenses, it was not an issue that the court needed to address as a matter of law in its 2010 order. As a result, the family court correctly did not address the issue and Mother remained obligated to pay one-half of the child's extracurricular expenses.
¶11 Mother also contends that the family court did not consider her response to Father's 2012 motion to compel and request to enforce the 2008 order. We disagree.
¶12 In her response and at the hearing, Mother argued that the 2008 order was no longer in effect because it was replaced by the 2010 order. At the hearing, the family court addressed the argument by telling Mother that the division of extracurricular expenses would remain as agreed to in the 2008 order unless one of the parties sought to modify the provision and proved that a modification was statutorily required. Consequently, the family court did not err by determining that the 2008 division of extracurricular expenses remained unchanged and Mother was responsible for one-half of those expenses. II. Evidence Supporting Father's Reimbursement Claims
¶13 Mother next contends the court abused its discretion at the 2012 hearing by failing to review receipts in support of Father's reimbursement claims. She also argues that the receipts Father relied on were never admitted into evidence and were insufficient to establish the amounts he claimed.
¶14 When Father filed his petition it included a list of uncovered medical expenses and extracurricular expenses. No receipts were offered at the hearing. Mother did not argue that Father failed to disclose the receipts that supported his claim. Instead, she conceded that she may have received documentation supporting Father's list, but never reviewed the documents. The family court noted that Mother had the burden to demonstrate which extracurricular expense, if any, was not appropriate for reimbursement. Given the list, the testimony at the hearing, and the absence of any controverting evidence, the family court did not abuse its discretion in accepting Father's list of extracurricular expenses. III. Non-Prescription Medication Not Eligible For Reimbursement
¶15 Mother also objected to the inclusion of over-the-counter medications as an uncovered medical expense subject to reimbursement. We agree.
¶16 After hearing Father's testimony that the child's doctor ordered the non-prescription medications, the court determined that reimbursement should occur because the allergy medication was necessary and could only be purchased from a pharmacy because it contained restricted ingredients. The court, however, did not consider that non-prescription medication was not a reimbursable medical cost. See A.R.S. § 25-320 app. § 9(A) (West 2014) ("Guidelines") ((citing IRS, Publication 502 Medical and Dental Expenses, 2012 WL 6599508, *16, *22) (stating that "medical expenses" excludes any drug, except insulin, which is not prescribed by a doctor)). Accordingly, because the Guidelines preclude reimbursement for nonprescription medicine, we vacate the award of medical expenses to Father and remand the issue to the family court to recalculate what, if any, uncovered medical expenses Mother should have to reimburse Father consistent with Guidelines § 9(A). IV. Mother's Objections to Extracurricular Expenses
¶17 Mother contends that Father failed to consult her before incurring extracurricular expenses that she could not afford. The family court rejected the argument and informed Mother that she needed to file a pleading to prevent Father from incurring extracurricular expenses that she could not afford. The court's position, however, was inaccurate.
¶18 Although there was a change in physical custody in 2010, both parents continued to share joint legal custody. Joint legal custody entitled Mother to an equal right in decisions concerning the child. See A.R.S. § 25-402(2) (2007) ("'Joint legal custody' means the condition under which both parents share legal custody and neither parent's rights are superior, except with respect to specified decisions as set forth by the court or the parents in the final judgment or order."). Mother objected to any reimbursement requested for extracurricular expenses if Father did not first consult with her. Her objection was appropriate given her role as a joint custodian — if Father did not consult her in advance on an extracurricular expense, she was not obligated to reimburse him for that expense.
Section 25-402(B) was in effect at the time of the hearing, but was later repealed. See 2012 Ariz. Sess. Laws, ch. 309, § 3 (2d Reg. Sess.).
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¶19 Mother did not state which extracurricular expenses she was challenging. She, however, was denied the opportunity because the family court refused to consider Mother's objection absent a cross-petition or separate filing. The court should have given her the opportunity as the child's joint custodian to explain which expenses she wanted to challenge. Accordingly, we vacate the order requiring Mother to reimburse Father for the extracurricular expenses and remand the issue to allow the family court to consider Mother's objections that she should not have to reimburse Father for any extracurricular expenses he incurred without first consulting with her. V. Recreation of the Child Support Order
¶20 Finally, Mother argues that the family court abused its discretion in attempting to recreate the missing 2010 child support order with incorrect information to determine the parties' share of uncovered medical expenses. We agree.
¶21 The family court created a child support worksheet at the 2010 hearing that required Mother to pay $262.52 per month in child support. The worksheet, however, was not in the file for the 2012 hearing. As a result, the family court unsuccessfully attempted to recreate the 2010 child support worksheet in order to determine the parties' proportionate share of uncovered medical expenses. See A.R.S. § 25-320(J) (West 2014) (noting that child support orders shall assign responsibility for payment of uncovered medical expenses according to the Guidelines); see also Guidelines § 9(A) ("The court shall also specify the percentage that each parent shall pay for any medical, dental and/or vision costs of the child[] which are not covered by insurance.").
¶22 When attempting to recreate the worksheet, the court did not consider that Mother had two other children that needed to be considered in the child support calculation; a mistake that had also occurred in 2010. Instead, the court suggested that Mother file a petition for modification if there were any changed circumstances.
¶23 The family court should have recalculated the child support obligation and considered Mother's two children in 2012. The court had the authority pursuant to Arizona Rule of Family Law Procedure 85, which allows the court to correct clerical mistakes at any time. Accordingly, on remand, and in the absence of changed financial circumstances, the court should recalculate child support based on the 2010 financial information plus Mother's two other children before determining the percentages each parent will have to pay for uncovered medical expenses.
CONCLUSION
¶24 Based on the foregoing, we affirm the family court's ruling in 2012 that the stipulated 2008 order regarding extracurricular expenses remains in effect, but vacate the remainder of the order and remand for appropriate action consistent with this decision.