Opinion
No. 2 CA-CV 2017-0170-FC
07-03-2018
IN RE THE MARRIAGE OF STACY SOSA, Petitioner/Appellee, and ALBERTO SOSA, Respondent/Appellant.
COUNSEL Hildebrand Law P.C., Scottsdale By Kip M. Micuda Counsel for Petitioner/Appellee Modern Law, Mesa By Kylie Bigelow Counsel for Respondent/Appellant
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NOT FOR PUBLICATION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 Pinal County
No. DO201600443
The Honorable Patrick K. Gard, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Hildebrand Law P.C., Scottsdale
By Kip M. Micuda
Counsel for Petitioner/Appellee Modern Law, Mesa
By Kylie Bigelow
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Respondent/appellant Alberto Sosa appeals from the decree of dissolution of marriage to petitioner/appellee Stacy Sosa. For the following reasons, we affirm in part, vacate in part, and remand.
Issues
¶2 Alberto Sosa (Alberto) contends the trial court erred in a variety of ways in its decree. Stacy Sosa (Stacy) contends that the court's orders were correct, though she concedes one error. The issues here are: Did the court correctly divide the real estate sale proceeds equally even though the down payment was made in part with Alberto's pre-marital, separate property earnings? Did the court correctly assess child support based in part on Stacy's testimony as to her childcare costs? Did the court correctly allocate the dependent child tax exemption? Did the court correctly set a parenting-time schedule which, over the calendar year, gives Alberto fewer days with the children than it gives Stacy? Did the court err in choosing the school for the children? And did the court correctly deny Alberto attorney fees?
Procedural History
¶3 Alberto and Stacy were married in 2010 and have two children. S.S. was born in 2010, and A.S. was born in 2013. Stacy petitioned to dissolve the marriage in March 2016. The trial court held a hearing in June 2016, and entered temporary orders for family support, parenting time, and legal decision-making. In September 2016, the court appointed a best-interests attorney and referred the parties to Family Services of the Conciliation Court for a Family Assessment. After evaluating the circumstances between the parties and their children, the evaluator determined that, notwithstanding significant conflict between the parents, both are capable of providing care for and making decisions regarding the children. The evaluator recommended joint legal decision-making, two different options for splitting parenting time given the children's school schedules, and that the children attend the school where Stacy teaches.
This assessment was made contingent on the best-interests attorney's findings. The best-interests attorney made her recommendation orally to the trial court on day two of trial.
¶4 A bench trial began in April 2017, and concluded in June 2017. The trial court incorporated its findings into the decree and issued a separate order for child support, with a supporting worksheet. The decree divided the parties' marital assets, allocated the remaining marital debts, determined maintenance and child support, established final orders of legal decision-making authority and parenting time, selected the school for the children for the upcoming school year, and addressed the competing attorney fees requests.
¶5 In the decree, the trial court stated that it had "considered the evidence, including the demeanor of the parties and witnesses, reviewed the exhibits as well as the case history, and considered the parties' arguments." The court found that both Alberto and Stacy had credibility issues arising from the presentation of evidence. The court also observed that some of the allegations made by them "had no further explanation and/or supporting evidence."
¶6 Alberto timely appealed the decree. We have jurisdiction under A.R.S. § 12-2101(A)(1).
Discussion
¶7 We view the evidence in the light most favorable to sustaining the trial court's findings. Manuel M. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 205, ¶ 2 (App. 2008). We will affirm unless there is no reasonable evidence to support the court's factual findings. Audra T. v. Ariz. Dep't of Econ. Sec., 194 Ariz. 376, ¶ 2 (App. 1998).
Real Estate Sale Proceeds
¶8 We review the division of marital assets for abuse of discretion. In re Marriage of Flower, 223 Ariz. 531, ¶ 14 (App. 2010). During the marriage, the parties became joint owners of a home on Costa Blanca Drive in Pinal County ("Costa Blanca home"). Alberto's uncle, Oscar, had purchased the home for the benefit of Alberto's parents, who could not qualify for a loan. Oscar bought the home after Alberto gave him $3,000 for the down payment as a gift. The gift was made during the parties' marriage. Alberto withdrew the $3,000 from his 401(k) retirement account, the funds for which included both pre-marital earnings and marital earnings. During the course of the marriage, up to as much as $3,400 in community funds were contributed to the 401(k) account.
¶9 After Oscar bought the home, he placed it in his name and in Alberto and Stacy's names as joint tenants with right of survivorship by a quitclaim deed. Oscar thereafter died and Alberto and Stacy became the owners of the home as joint tenants with right of survivorship. Alberto's mother lived in the home and paid all mortgage payments. The home was sold before the dissolution trial, and the proceeds were held in a restricted account awaiting the dissolution. The parties agree that the proceeds of the Costa Blanca home are community property.
¶10 The trial court found that, at the time the home was sold, it was titled in both Alberto and Stacy's names, and Stacy had an interest in the property. The court ordered that the proceeds from the sale, estimated to be $74,000, were to be divided between Alberto and Stacy equally after payment of marital debt. Alberto argues that the court abused its discretion in dividing the proceeds from the sale of the Costa Blanca home to him and Stacy equally rather than equitably by giving him a greater share.
¶11 "[The trial court] shall . . . divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct." A.R.S. § 25-318(A). In determining what is equitable, a court may consider the "length of the marriage[,] the contributions of each spouse . . ., the source of funds used to acquire the property to be divided[,] the allocation of debt[, and] any other factor that may affect the outcome." In re Marriage of Inboden, 223 Ariz. 542, ¶ 18 (App. 2010). "Although there is no requirement of equality, a division of the community property should be substantially equal in the absence of some reason requiring otherwise." Ivancovich v. Ivancovich, 24 Ariz. App. 592, 595 (1975) (internal citation omitted).
¶12 Alberto asked the trial court to, essentially, give him "credit" for both the $3,000 gift to Oscar used for the down payment and the mortgage payments made by his mother by giving him a 90% share of the Costa Blanca home sale proceeds. The closest Alberto comes to authority for his entitlement of a division of the proceeds other than equally is Toth v. Toth, 190 Ariz. 218 (1997). In Toth, our supreme court determined that "[i]n most cases . . . an equal distribution of joint property will be the most equitable. However, there may be sound reason to divide the property otherwise. The trial court has discretion in this decision." 190 Ariz. 218, 221. In Toth, the parties had been married a matter of weeks, not years as here. Id. at 219. Moreover, there was no evidence here that Oscar ever intended to re-pay Alberto the $3,000, regardless of its original source as community or separate property, or that any equity in the home that arose from Alberto's mother paying the mortgage payments as rent was anything other than a community asset.
¶13 "The presumption that all property acquired during the marriage is community property is 'strong.'" In re Marriage of Foster, 240 Ariz. 99, ¶ 9 (App. 2016) (internal citations omitted). In order "[t]o overcome that presumption, the spouse maintaining the property was acquired by that spouse as a 'gift, devise or descent,' A.R.S. § 25-211(A)(1), and is, thus, separate property, 'has the burden of establishing the separate character of the property by clear and convincing evidence.'" Id. (internal citations omitted). And "'where there is any doubt in the court's mind, the property will be treated as community property.'" Id. (internal citations omitted). Here, the property was first acquired by the parties as joint property, and there was no evidence presented that either the property or the rent and/or mortgage payments on the property were intended to benefit Alberto separately. The trial court found no sound reason to divide the proceeds from the jointly owned home other than equally, and the record does not clearly show one. The court did not abuse its discretion in dividing the proceeds from the home equally.
Child Support
¶14 The trial court ordered Alberto to pay Stacy $1,221.16 each month as child support for the parties' two children. This amount was memorialized in the decree and child support order. According to the worksheet attached to the child support order, the amount was based in part on the court having given Stacy credit for $650 in monthly childcare costs.
¶15 Alberto claims that there was no evidence supporting Stacy's claim for childcare or pre-school costs, apart from her own testimony and unreliable exhibits. Stacy testified that the cost for childcare for one child was $175 per week, or "about" $600 per month. She testified that she had incurred childcare costs in the past, and was currently paying childcare costs for A.S. when she works as a teacher. Evidence was admitted showing that Stacy's family members often watched the children, (for which, Alberto claims, Stacy was not charged), and on other occasions she has paid childcare. Alberto testified that his mother had and would continue to watch the children.
¶16 In making its award, the trial court stated that it had "concerns regarding what the day-care expenses actually are for the children," finding that the testimony and evidence on the subject was "very contradicting." The court determined that when the children were in Stacy's care there would be "some sort of daycare expense," and adopted the figure of $650 per month for both children.
¶17 We review child support awards for an abuse of discretion. McNutt v. McNutt, 203 Ariz. 28, ¶ 6 (App. 2002). The "'court has broad latitude to fashion an appropriate award of child support.'" Nash v. Nash, 232 Ariz. 473, ¶ 16 (App. 2013), quoting Jenkins v. Jenkins, 215 Ariz. 35, ¶ 8 (App. 2007). The court abuses its discretion when the record "is devoid of competent evidence to support the decision." State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, ¶ 14 (App. 2003). A party's testimony alone is sufficient to support the court's decision. See Pyeatte v. Pyeatte, 21 Ariz. App. 448, 453 (1974).
¶18 Given that Stacy testified to an amount of childcare for both children that exceeded the figure the trial court adopted, we cannot say that the record is "devoid of competent evidence" to support the amount of $650 per month. The court did not abuse its discretion in assessing child support based in part on Stacy's testimony as to her childcare costs.
Dependent Child Tax Exemption
¶19 As to the allocation of the dependent child tax exemption, the trial court ordered from the bench that Stacy would claim S.S. each year, and Alberto would claim A.S. Alberto's counsel objected to that order, asking that "[a]ccording to the guidelines, wouldn't [Alberto] get to claim more often than [Stacy]?" The court responded, "That's going to be my order at this time."
¶20 Consistent with its ruling from the bench, the trial court ordered in the decree that the parties would each claim one of the children as a dependent for purposes of the child tax exemption every year. The contemporaneously issued child support order, however, provides that Alberto shall claim A.S. as a dependent every year and S.S. every other year. The child support order is therefore more favorable to Alberto. Stacy has conceded in her brief that the child support order is correct and is controlling. Because Stacy concedes that the dependent child tax exemption allocation in the child support order, which is more favorable to Alberto than that in the decree, should control, we will deem the parties bound by that order and this issue moot. Legal Decision-Making, Parenting Time, and School Choice
In light of the remand of this matter for a redetermination of the issue of school choice, the trial court may address the inconsistent orders.
¶21 In the decree, as to legal decision-making and parenting time, the trial court found that both parties had made unilateral decisions and had not acted in the best interests of the children at given times. The court admonished them for this behavior. The court also found that because the parties reside far from each other, an equal parenting time schedule is "logistically difficult" and that it was "not in the best interests of the child(ren) to be spending hours in the car every day." The court further found that the children could not return to the school they had been attending.
¶22 The trial court considered the best interests of the children and their relationship with the parents, and ordered that they would share joint legal decision-making authority over the children, with neither parent having the ultimate authority to decide issues in the event of any disagreement. The court made further findings regarding the children's best interests as required by A.R.S. § 25-403(A). Relevant among those findings are that each parent had misled the court in testimony and had given "inaccurate information" and offered testimony with "little to no supporting evidence." The court also found that it was in the best interests of the children to attend the school where Stacy worked as a teacher, and ordered them to do so.
Parenting Time
¶23 As to the parenting-time schedule, the trial court found that the then-existing week-on/week-off parenting-time schedule was not in the children's best interests. Although this finding was contrary to the opinion of the best-interests attorney, the court found the existing schedule was not feasible and would require that the children be "shuttled back and forth between the parents constantly." The court expressed concerns about Alberto's work-related travel schedule, noting that Alberto provided "very vague" testimony about his work schedule. The court found that, based on Alberto's testimony, Alberto would not be able to take the children to school "at this point in time." The parenting-time schedule resulted in Alberto having less than equal time with the children over the balance of the year.
¶24 A trial court shall determine parenting time "in accordance with the best interests of the child[ren]. The court shall consider all factors that are relevant to the child[ren]'s physical and emotional well-being." § 25-403(A). "Shared legal decision-making does not necessarily mean equal parenting time." A.R.S. § 25-403.02(E). The trial court is in the best position to determine the children's best interests, and we will not disturb its findings absent a clear abuse of discretion. Earley v. Earley, 10 Ariz. App. 308, 309 (1969). A trial court abuses its discretion in awarding parenting time when its decision is not supported by the evidence. See Pridgeon v. Super. Ct., 134 Ariz. 177, 179 (1982).
¶25 Alberto argues the trial court abused its discretion in awarding an unequal parenting-time schedule and designating Stacy as the primary residential parent during the school year. He argues that the court's decisions regarding parenting time and school choice were clearly erroneous and not supported by evidence. He also contends that the court should have abided by the recommendation of the best-interests attorney that the temporary orders parenting-time schedule should remain in effect.
¶26 A best-interests attorney "may urge the court to reach a particular result based upon the evidence presented," however, the attorney's opinion is merely advisory. Aksamit v. Krahn, 224 Ariz. 68, ¶ 12 (App. 2010). Courts are not required to give more weight to the recommendations by a best-interests attorney regarding logistics and travel-time schedules than the testimony of witnesses. See id. ("[T]he argument and positions taken by the [best-interests attorney] do not themselves constitute evidence."); see also Nicaise v. Sundaram, 244 Ariz. 272, ¶ 28 (App. 2018) (With respect to a best-interests attorney, "the court is not bound by the attorney's arguments.").
¶27 The trial court is charged with adopting a parenting-time plan that is in a child's best interests; that the court adopted one plan does not necessarily mean that a competing plan would not also serve the child's interests. In such cases, it simply means that the parents did not agree to a plan. See A.R.S. § 25-403.02(A) ("If the child's parents cannot agree on a plan for legal decision-making or parenting time, each parent must submit a proposed parenting plan."). When the parents do not agree on any element of a plan, such as to "[a] practical schedule of parenting time for the child," the court must determine that element "[c]onsistent with the child's best interest" and in a manner that "maximizes" each parent's parenting time. A.R.S. § 25-403.02(B), (C)(3) and (D).
¶28 Alberto has not shown that the parenting-time schedule the trial court adopted here was not in the children's best interests. The court determined parenting time after considering the parents' testimony, the recommendation of the best-interests attorney, and other evidence. The parenting-time order is supported by the court's reasoning that the constant shuttling of the children between the parents' homes was not in the children's best interests. The court maximized each parent's time with the children in light of that concern, albeit with the consequence that, because the school-aged children will reside primarily with Stacy during the school year, Alberto's parenting time is necessarily reduced. Because the court's findings and conclusions regarding the best interests of the children are supported by the record, we cannot say the court abused its discretion and have no basis for disturbing the parenting-time portion of the court's ruling. See Earley, 10 Ariz. App. at 309.
School Choice
¶29 As to the school selection, the children were unable to return to their former school, which is the school Alberto wanted them to attend. The trial court found it was in the children's best interests to attend the school where Stacy worked as a teacher, ordering them to attend that school over Alberto's objection.
¶30 At the time of the decree, the prevailing authority on school choice was Jordan v. Rea, 221 Ariz. 581 (App. 2009). In Jordan, this court remanded the case to the trial court to "resolve [the] conflict," 221 Ariz. 581, ¶ 20, between parents who had joint legal decision-making authority as to whether it was in the children's best interests to "attend a private religious school," id. ¶ 26. However, in Nicaise, 244 Ariz. 272, ¶ 28, this court, in expressly departing from Jordan, recently determined that trial courts do not have the authority to make decisions regarding certain matters that parents should decide. Id. This court stated that § 25-403(A) gives the trial court authority to decide legal decision-making and parenting time, and to decide which parent is to make these decisions, "[b]ut nothing in the statute authorizes the court to make the legal decisions concerning a child's life," such as which school to attend. Id. ¶ 27. This court added that it "does not have plenary authority to make decisions in place of the parents when it deems them to be in [the children's] best interests." Id. ¶ 28. Although, the trial court may not select the school, the court may "consider each parent's proposed decisions when allocating decision-making authority" for that purpose, because such information is "directly relevant to the best-interests analysis." Id. ¶ 30. Although Nicaise was decided after the decree was entered, the trial court in this case did what Nicaise forbids—it chose the school rather than merely allocating that responsibility to one or both of the parents.
The trial court signed the divorce decree on June 15, 2017 (filed June 27). Nicaise was published March 1, 2018. 244 Ariz. 272. --------
¶31 "Unless otherwise specified," civil appellate opinions "operate both retroactively and prospectively." Law v. Superior Court, 157 Ariz. 147, supp. op., 157 Ariz. 160, 160 (1988); see also Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 435 (1982) ("[T]he law of the State of Arizona has always been that unless otherwise stated, a court opinion operates retroactively as well as prospectively."). A decision may be limited to prospective application only if it "establishes a new legal principle by overruling clear and reliable precedent or by deciding an issue whose resolution was not foreshadowed," and retroactive application would both frustrate "the purpose behind the new rule" and "produce substantially inequitable results." Law, supp. op., 157 Ariz. at 160.
¶32 Nicaise departed from Jordan "to the extent it held that the court may make substantive legal decisions for parents who are unable to agree," Nicaise, 244 Ariz. 272, ¶ 29, but did not state a new rule. Nicaise properly applied the rule in accord with the statute and the fundamental limits on court authority as to legal decision-making. Nonetheless, even if it had stated a new rule, when there is a change of law by judicial decision after trial but prior to appeal "the appellate court will dispose of the case according to the law prevailing at the time of the appellate disposition and not according to the law prevailing at the time of rendition of the judgment appealed." Arnold v. Knettle, 10 Ariz. App. 509, 511 (1969). For the cogent reasons stated in Nicaise, the trial court erred in choosing the children's school.
Attorney Fees
¶33 The parties also requested attorney fees below. The trial court found that both parties had acted unreasonably in the case such that an award of attorney fees to either party was unwarranted. Specifically, the court concluded that Stacy had acted unreasonably by requesting a psychological evaluation of Alberto that increased fees unnecessarily. The court found that Alberto had acted unreasonably in his arguments over the allocation of the proceeds from the Costa Blanca home. Alberto asked the court to reconsider its refusal to award him fees, given that he and his attorney were forced to come to court for an additional day because Stacy and her counsel were not prepared with exhibits on the first day.
¶34 Alberto argues that the trial court abused its discretion in not awarding him attorney fees. We review an attorney fee request made under A.R.S. § 25-324 for abuse of discretion. See In re Marriage of Berger, 140 Ariz. 156, 167 (App. 1983). We may find the trial court abused its discretion "if the record fails to provide substantial evidence to support the trial court's finding." Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456 (1982).
¶35 A court may award attorney fees to either party after determining "the reasonableness of the positions each party has taken throughout the proceedings." A.R.S. § 25-324(A). A court has discretion not to award attorney fees to a party when the party has taken unreasonable positions in the proceedings. See Myrick v. Maloney, 235 Ariz. 491, ¶ 16 (App. 2014). Here, the trial court found that both parties acted unreasonably. This court will not reweigh the evidence on appeal, we will only determine if substantial evidence supported the lower court's action. Gerow v. Covill, 192 Ariz. 9, ¶ 24 (App. 1998). Because the record supports the trial court's finding that both parties took unreasonable positions, the court did not abuse its discretion in denying Alberto attorney fees under § 25-324(A).
Disposition
¶36 We affirm the decree and child support order except as to the court's resolution of the school choice issue. The portion of the decree related to school choice is vacated, and the matter is remanded to the trial court for a redetermination of this issue consistent with Nicaise, 244 Ariz. 272, ¶ 29.
¶37 Both sides have requested an award of attorney fees and costs on appeal pursuant to Rule 21, Ariz. R. Civ. App. P., and § 25-324. Because each party prevailed in part, in our discretion we deny each party attorney fees and costs on appeal.