Opinion
1 CA-CV 11-0799
03-19-2013
In re the Marriage of: PAUL WALTER NOLAN, Petitioner/Appellant, v. TARA GRIFFITH JACKMAN NOLAN, Respondent/Appellee.
Wilenchik & Larson PLLC By Gregory A. Larson Attorneys for Petitioner/Appellant Collins & Collins LLP By Joseph E. Collins Attorneys for Respondent/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 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(Not for Publication -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. DR2000-017964
The Honorable Mina E. Mendez, Judge
AFFIRMED
Wilenchik & Larson PLLC
By Gregory A. Larson
Attorneys for Petitioner/Appellant
Scottsdale Collins & Collins LLP
By Joseph E. Collins
Attorneys for Respondent/Appellee
Phoenix HOWE, Judge ¶1 Paul Walter Nolan ("Father") appeals the denial of his motion for relief from a child support order. For the following reasons, we affirm. We award Tara Griffith Jackman Nolan ("Mother") attorneys' fees and costs on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In 2009, Father filed a petition to modify his child support obligation. After an evidentiary hearing on August 27, 2010, the trial court found that "the parties have also agreed in prior proceedings, that the tuition costs which are paid by Mother should be factored into the child support worksheet." The total tuition cost of $18,500—or $1,545 per month,—was allocated between the parties based on their proportionate share of the total child support obligation. The trial court ordered Father to pay $2,322.56 per month in child support as of December 1, 2009. ¶3 Father subsequently filed three petitions to modify the child support order. The trial court denied the first two petitions without a hearing. On the third petition, the trial court set an evidentiary hearing to narrowly address Father's argument that certain tax-deductible scholarship donations, which Mother's clients made to the children's tuition, should be included in Mother's income. After the evidentiary hearing, the trial court found that the total child support obligation should be reduced by $1,545 a month because the children were no longer enrolled in private school. It thus reduced Father's child support obligation to $1,250.57 per month beginning August 1, 2011. ¶4 Meanwhile, Father moved for relief from the same child support order, requesting that private-school tuition be deducted from the child support order for the period of December 2009 through July 2011. Due to some procedural confusion, a different court commissioner held an evidentiary hearing on Father's motion two months after the evidentiary hearing on his petition to modify. ¶5 At the second evidentiary hearing, Mother testified that she solicited donations from her clients through Arizona's tax credit program to help her pay the children's tuition. After taking the matter under advisement, the same commissioner who entered the child support order and heard the petition to modify, found that Mother did not provide fraudulent testimony at the child support hearing and denied Father's motion for relief. Father filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2) (West 2013).
We cite the current version of the applicable statutes because no revisions material to this decision have since occurred.
DISCUSSION
¶6 Father argues that the trial court should have granted his motion for relief because the child support order included private school tuition that Mother did not pay. He contends that the court erred by relying on Mother's false testimony that she had paid the tuition, and that her income was less than reported because Mother failed to include tuition donations that her clients made in lieu of paying her directly for her services. We review the denial of a motion for relief from a final order under an abuse of discretion standard. See Birt v. Birt, 208 Ariz. 546, 549, ¶ 9, 96 P.3d 544, 547 (App. 2004). On these facts, we find no abuse of discretion. ¶7 A party may be entitled to relief from an order based on the fraud, misrepresentation or other misconduct of the other party. See Ariz. R. Fam. L. P. 85(C)(1)(c). To prevail, the moving party must show clear and convincing evidence that the misconduct substantially interfered "with the full and fair preparation or presentation of the case." Estate of Page v. Litzenburg, 177 Ariz. 84, 93-94, 865 P.2d 128, 137-38 (App. 1993) (citations omitted). ¶8 Father has not shown that he is entitled to relief based on Mother's misrepresentations about having paid the children's tuition from client donations and failing to report those donations as income because he has not provided a transcript of the child-support hearing. Pursuant to Arizona Rules of Civil Appellate Procedure ("ARCAP") 11(b), an appellant has the duty to order and include the entire transcript in the record to support his claims. When a complete transcript is not provided on appeal, the reviewing court will assume that the missing record supports the trial court's ruling. See State ex rel Dept. of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73 (App. 2003). ¶9 Father has provided only an excerpt of Mother's testimony from the child support hearing that she "paid the tuition for this year in full[,]" in addition to extra school expenses such as books, school trips, and athletic fees. At the subsequent hearing, Mother explained exactly how she paid a portion of the children's tuition by soliciting tax deductible donations from friends and bartering her services. Mother also testified that she herself paid $8,688.60 in May 2010 for tuition, as well as $1,337 in other school expenses. The evidence showed that the children received over $32,000 in scholarships from the tax credit donation program between 2009 and 2011. A portion of these funds, however, were refunded to the organization distributing donations after the children withdrew from private school. ¶10 Although Mother admitted that she did not discuss the tax credit donation program at the child support hearing, she maintained that her testimony was not untruthful because she generated the funds used for tuition. Without a complete transcript we do not know Mother's actual testimony at the hearing and are unable to determine whether she made false statements. See e.g., Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998) (finding no abuse of discretion in denying modification of child support because [Father] failed to provide a transcript of the hearing). ¶11 The trial court specifically stated, however, that it had reviewed the transcript of the child support hearing and found that Mother did not provide false testimony. The same commissioner also heard Mother's testimony at the hearing on the motion for relief and found her credible. In the absence of a transcript, we defer to the trial court's finding in this regard. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (holding that "the [trial] court, as the trier of fact . . ., is in the best position to weigh the evidence, observe the parties, [and] judge the credibility of witnesses . . . ."). ¶12 Moreover, the record shows that Mother paid $8,688 towards the children's tuition and made a $500 tax credit donation in the year Father claimed the children on his tax return. Because some client donations were refunded when the children withdrew from private school, the record is also unclear exactly how much Mother's clients contributed toward the children's tuition and what amount, if any, should have been attributed to her as income. Under these circumstances, Father has not shown that Mother's testimony about the tuition was false and that the court erred by denying his motion for relief on that ground. ¶13 Father also argues that Mother provided false and misleading testimony regarding her income. Although Mother admitted that she did not mention at the child support hearing that she bartered her services in exchange for donations to the scholarship program, Father has not shown that he is entitled to relief based on any failure to include the donations as income. Even if the court had attributed the client donations to Mother's income, the child support order anticipated that tuition would be paid from that income. Mother testified that a portion of the donations was refunded when the children withdrew from private school, so determining how much income should be attributed to Mother from the donations was not possible. ¶14 On this record, Father has not shown clear and convincing evidence that Mother's testimony about the tuition and her income entitled him to relief. See Estate of Page, 177 Ariz. at 93-94, 865 P.2d at 137-38. We thus find no abuse of discretion in denying Father's motion for relief from the child support order.
ATTORNEYS' FEES AND COSTS ON APPEAL
¶15 Both parties request an award of attorneys' fees and costs on appeal. Because Father has not prevailed, we deny his requests. See A.R.S. §§ 12-342 (authorizing an award of costs to the prevailing party on appeal); 25-503(E) (authorizing an award of fees and costs to the prevailing party on a motion to modify child support). Mother requests attorneys' fees and costs on appeal under § 25-324, based on the reasonableness of Father's position and disparity between their incomes. After considering the requirements, we grant Mother's request upon her compliance with ARCAP 21.
CONCLUSION
¶16 We affirm the order denying Father relief from the child support order.
______________
RANDALL M. HOWE, Judge
CONCURRING: ______________
MAURICE PORTLEY, Presiding Judge
______________
PATRICIA A. OROZCO, Judge