Opinion
1 CA-CV 11-0342
04-12-2012
In re the Matter of: DOUGLAS W. MCCOLLUM, Plaintiff/Appellant, v. EVONNE L. EASLEY, Defendant/Appellee.
Janelle A. Mc Eachern Attorney for Plaintiff/Appellant Evonne L. Easley, In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2004-093040
The Honorable R. Jeffrey Woodburn, Commissioner
AFFIRMED
Janelle A. Mc Eachern
Attorney for Plaintiff/Appellant
Chandler
Evonne L. Easley, In Propria Persona
Lake Havasu City NORRIS, Judge
¶1 Douglas McCollum ("Father") timely appeals from the family court's modification of his child support order. Father argues the family court incorrectly attributed an income in excess of the minimum wage to him. For the reasons discussed below we disagree and affirm the family court's judgment.
FACTS AND PROCEDURAL BACKGROUND
¶2 In March 2005, Father and Evonne Easley ("Mother"), the parents of two minor children, divorced. In its dissolution order, the family court found Father had a monthly income of $4,416 and ordered Father to pay child support. In September 2007, Mother petitioned for modification of child custody and support (the "first modification"). In its modification order, the family court noted Mother's income was easily ascertainable but "Father's income is far more difficult to discern. During the marriage, the majority of [Father's] financial resources were from family business interests. Mother maintains that Father's lifestyle has apparently not changed since the divorce." The family court further explained,
Father testified that he is engaged in a business as a palm tree grower . . . [and] is not earning income at this time. He . . . anticipates it taking an additional two to three years before the trees can be marketed. . . . Clearly, the Court cannot base child support on this speculative venture. Nonetheless, income attribution of some sort is mandated.The family court declined to attribute to Father a monthly income of $7,000, as Mother had requested, noting that during the dissolution proceedings she had "attributed income to Father at approximately $3,750.00 per month." The court also declined to attribute "$2,500.00 per month, or less," as Father had requested. Rather, the court found, without additional explanation, Father's monthly income to be $3,333.
¶3 In January, 2010, Father petitioned for modification of child custody and support (the "second modification"). At a March 8, 2011 hearing, the family court ordered Father to submit copies of his 2007-2010 tax returns so it could assess his income. Father's tax returns reflected his total annual income was $711 in 2007, $3,001 in 2008, and $3,829 in 2009. At an April 12, 2011 hearing, the family court told Father
[his children] need[] money now, and child support now. We can't, just because you have decided to get into this [palm tree] business, forego and give these small . . . amounts that are showing as gross income on your tax return. So I don't see a whole lot different other than it appears that your income has actually increased some, according to your tax returns, from what was [used for the prior child support order].The family court further explained that "since we're still in the same position of [Father] getting involved in this business and saying it's going to be a while longer before these trees mature and grow," the court would "attribute the $3,333 that [the court found as Father's income] back in 2008." The family court accordingly attributed this amount as Father's income in its judgment on the second modification.
DISCUSSION
¶4 Father argues on appeal the family court "abused its discretion because it attributed to Father income above and beyond minimum wage without any finding that Father did, or was able to, earn income above federal minimum wage." We disagree.
Mother did not file an answering brief. Although we may regard the failure to file an answering brief as a confession of reversible error, we decline to do so here. See Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982).
¶5 The family court "has broad discretion in considering modification of child support. Absent an abuse of that discretion, we will not overturn its decision." Cook v. Losnegard, 228 Ariz. 202, _, ¶ 13, 265 P.3d 384, 387 (App. 2011) (citation omitted). We "will not disturb [the family] court's factual findings unless clearly erroneous." Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App. 1995) (citation omitted).
¶6 The Arizona Child Support Guidelines state, in relevant part,
If a parent is unemployed or working below full earning capacity, the court may consider the reasons. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a parent up to his or her earning capacity. . . . [I]ncome of at least minimum wage shall be attributed to a parent ordered to pay child support.Ariz. Rev. Stat. ("A.R.S.") § 25-320 app. § 5(E) (2007). This section of the Guidelines "allows a court to attribute hypothetical income and expenses to protect a working parent from paying a disproportionate amount of the total support obligation when the other parent has chosen not to earn income to the extent he or she is able." Engel v. Landman, 221 Ariz. 504, 511, ¶ 22, 212 P.3d 842, 849 (App. 2009) (citation omitted). The Guidelines also specify that "[i]f the court attributes income above minimum wage income, the court shall explain the reason for its decision." A.R.S. § 25-320 app. § 22 (emphasis added).
¶7 As discussed above, in the first modification the family court explained it was attributing additional income to Father because "the Court [could not] base child support on [Father's] speculative [palm tree] venture." See supra ¶ 2. Although the family court did not explicitly detail why it had attributed an income above minimum wage to Father, from the court's discussion of Father's financial situation we infer it was attempting to attribute an income to Father that was reasonable in light of his past earnings and the income amounts suggested by both parties. See Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998) ("[W]e may infer additional findings of fact . . . sufficient to sustain the [family] court's order as long as those findings are reasonably supported by the evidence.") (citation omitted). The $3,333 monthly income attributed to Father by the family court was well within Father's earning capacity, as established by his monthly income of $4,416 at the time of the dissolution. See supra ¶ 2. In the second modification, the family court found Father was "still in the same position of . . . saying it's going to be a while longer before these trees mature and grow" and, therefore, expressly adopted the income attributed to Father in the first modification. See supra ¶ 3. In sum, the available evidence in the record both supports the family court's decision to attribute an income above minimum wage to Father and reflects the family court adequately explained its reasons for doing so. We therefore reject Father's argument the family court's findings "were devoid of competent evidence to support its decision," and hold the court did not abuse its discretion in attributing a monthly income of $3,333 to him.
CONCLUSION
¶8 For the foregoing reasons, we affirm the order of the family court.
________________________
PATRICIA K. NORRIS, Presiding Judge
CONCURRING: ________________________
PETER B. SWANN, Judge
________________________
MAURICE PORTLEY, Judge