Opinion
No. 1 CA-CV 14-0289 FC
03-26-2015
NATHAN REX UPDIKE, Petitioner/Appellant, v. GINA EAGAR UPDIKE, Respondent/Appellee.
COUNSEL Coronado Law Firm, PLLC, Lakeside By Eduardo H. Coronado, Melinda Hardy Counsel for Appellant Riggs, Ellsworth & Porter, P.L.C., Show Low By Michael Ellsworth Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Navajo County
No. S0900DO201200213
The Honorable Ralph E. Hatch, Judge
AFFIRMED
COUNSEL Coronado Law Firm, PLLC, Lakeside
By Eduardo H. Coronado, Melinda Hardy
Counsel for Appellant
Riggs, Ellsworth & Porter, P.L.C., Show Low
By Michael Ellsworth
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Michael J. Brown joined. THUMMA, Judge:
¶1 Nathan Rex Updike (Father) appeals from the Decree of Dissolution, challenging those portions of the Decree (1) granting Gina Eagar Updike (Mother) final medical decision-making authority for their minor children; (2) denying Father a "right of first refusal" for Mother's parenting time; (3) setting the amount of child support Mother is required to pay and (4) denying Father's request for spousal maintenance. Finding no error, the Decree is affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the evidence in the light most favorable to upholding the Decree. See Gutierrez v. Gutierrez, 193 Ariz. 343, 346 ¶ 5, 972 P.2d 676, 679 (App. 1998).
¶2 Father and Mother married in 1998. Mother went to school to earn a nursing degree while Father cared for their children with an understanding that Father would attend school in the future. During this time, Father earned $35,000 a year as an enrollment counselor. Three of the couple's four minor children were then diagnosed with cystic fibrosis. After Mother graduated, she worked as a nurse and Father worked for a college. After Father ended his employment at the college, he managed a car wash, mostly working part-time. Father also completed some college coursework.
¶3 Father filed a Petition for Dissolution in May 2012. A few months later, Mother elected to lower her income in exchange for employment-based insurance benefits, apparently given the medical needs of the children. At the couple's request, the superior court granted orders of protection against each other based on hostile conduct allegations. In January 2013, the court held a final hearing on the Petition as amended and received evidence, including testimony from Father and Mother, and heard argument.
¶4 In January 2013, the superior court issued an unsigned order dissolving the marriage and (1) ordering joint legal decision-making, with Mother having final medical decision-making authority; (2) denying Father a "right of first refusal" for Mother's parenting time; (3) requiring Mother to pay specified child support and (4) denying Father's request for spousal maintenance. In June 2013, the court largely denied Father's motion to reconsider these rulings, but amended the January 2013 order to award child support retroactive to June 2012. In February 2014, the court issued the signed Decree. This court has jurisdiction over Father's timely appeal from the Decree pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-2101(A)(1) and - 120.21(A)(1) (2015).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
I. The Superior Court Did Not Err In Awarding Mother Final Medical Decision-Making Authority.
¶5 Father argues the superior court erred by failing to make specific findings on the record "to evidence the factors it considered pursuant to A.R.S. § 25-403(B)," in awarding joint legal decision-making but awarding Mother final medical decision-making authority. In doing so, Father makes four arguments.
¶6 First, Father argues the superior court erred "by failing to make specific findings of all relevant factors and the reasons for which" granting Mother final medical decision-making authority was in the children's best interests in accordance with A.R.S. § 25-403(A). Contrary to this argument, however, the Decree tracks the factors listed in A.R.S. §§ 25-403(A) and 25-403.01(B). Moreover, after stating that "the past, present and potential future relationship between the parents and the children is equally good," the Decree notes that maternal grandparents "provide day care each day after school for approximately three hours until the Mother gets off work. The maternal grandfather is a retired pediatrician. The [M]other is a registered nurse. Three of the four children suffer from cystic fibrosis." These findings, which Father does not address on appeal, support awarding joint legal decision-making authority to both parents, with final medical decision-making authority resting with Mother, as being in the children's best interests.
Father repeatedly argues the superior court "over-reached its authority in considering the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making." See A.R.S. § 25-403(A)(9). The Decree, however, does not turn on the assessment of this issue. Moreover, Father has cited no evidence of such coercion or duress by Mother and has shown no error by the superior court in considering this factor.
¶7 Second, Father argues "the record is absent competent evidence" showing it is in the best interests of the children for Mother to be awarded final medical decision-making authority. The court, however, received evidence that, given her training and experience as a nurse, Mother would be in a better position to make final medical decisions given their special needs and that the children's maternal grandfather was a retired pediatrician. Similarly, Father argues the court "ignored" evidence indicating he should have been granted final medical decision-making authority. The existence of conflicting evidence, however, does not equate to reversible error on appeal, and this court does not re-weigh evidence considered by the superior court. See Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16, 219 P.3d 258, 262 (App. 2009).
¶8 Third, Father argues the superior court "abused its discretion in ignoring its own findings that determined joint decision-making is logistically possible then denying [Father] medical decision-making authority." This argument, however, ignores that the statute required the court to consider "[w]hether the joint legal decision-making arrangement is logistically possible," A.R.S. § 25-403.01(B)(4), but did not mandate a conclusion if it was. Nor has Father shown that the court found that the lack of agreement was "influenced by an issue not related to the child's best interests." See A.R.S. § 25-403.01(B)(2).
¶9 Finally, Father claims error because Mother "did not properly plead or ask for" final medical decision-making authority "until trial," meaning Father did not have proper notice. However, Mother included such a request in her amended proposed parenting plan filed two months before the January 2013 hearing, stating: "[Mother] shall have final decision making authority on medical." Although Father correctly notes that Mother's amended proposed parenting plan also references joint decision making on "[m]ajor medical decisions," and that her original parenting plan took a different position, the amended proposed parenting plan fairly put Father on notice, in a timely fashion, that Mother was seeking what ultimately was awarded in the Decree. For these reasons, Father has failed to show the superior court erred in ordering joint legal decision-making, with Mother having final medical decision-making authority. II. The Superior Court Did Not Abuse Its Discretion In Denying Father's Request For A "Right Of First Refusal" For Mother's Parenting Time.
¶10 Father challenges the superior court's denial of his request for a "right of first refusal" allowing him to care for the children during Mother's allotted parenting time when she was working and unable to personally exercise her parenting time. In claiming error, however, Father cites authority addressing legal decision-making and cites no authority indicating he had legal "right of first refusal." Although the superior court likely has discretion to award a "right of first refusal," the court is not required to do so and Father has not shown that the court abused its discretion in denying his request.
¶11 Father cites no support for his argument that the superior court "ignored" various facts, testimony or other evidence provided in rejecting his request for a "right of first refusal." In essence, Father demonstrates that he provided evidence supporting his request and asks this court to reweigh the conflicting evidence, something this court does not do. See Hurd, 223 Ariz. at 52 ¶ 16, 219 P.3d at 262.
¶12 Father also argues the superior court failed to take the children's best interests into account when denying his request for a "right of first refusal." Father cites no authority supporting this argument, and in denying Father's request, the Decree notes that "the children have such a good relationship with their maternal grandparents" who care for them when Mother is away and "the grandfather's medical expertise can be a benefit to the children." Accordingly, Father has not shown the superior court abused its discretion in denying Father's request for a "right of first refusal." III. The Superior Court Did Not Abuse Its Discretion In Setting The Amount Of Child Support Mother Is Required To Pay.
¶13 The Decree requires Mother to pay monthly child support of $401.61 for June-September 2012; $223.71 for October 2012-January 2013 and $184.62 from February 2013 on, pursuant to A.R.S. § 25-320(A). The Arizona Supreme Court has adopted Child Support Guidelines (Guidelines) to provide standards in determining the amount of child support. A.R.S. § 25-320 app. Applying the Guidelines, the superior court has "broad latitude to fashion an appropriate award of child support," Nash v. Nash, 232 Ariz. 473, 478 ¶ 16, 307 P.3d 40, 45 (App. 2013), and such determinations are reviewed for an abuse of discretion, Simpson v. Simpson, 224 Ariz. 224, 225 ¶ 4, 229 P.3d 236, 237 (App. 2010). Father raises four challenges to the child support award.
¶14 First, Father argues the court should have imputed an hourly wage of $38.00 for Mother (rather than her actual hourly wage of $28.40 per hour) in calculating child support. The Guidelines allow consideration of why a parent is working below full earning capacity, and that if the voluntary reduction is reasonable, the court must "balance that parent's decision and benefits therefrom against the impact the reduction in that parent's share of child support has on the child's best interest." Guidelines § 5(E). As applied, Mother testified that she chose to work for a reduced hourly wage but with better employer-provided insurance for the children and herself. On this record, Father has not shown that the superior court abused its discretion in using Mother's actual wage rather than imputing a higher wage.
¶15 Second, Father claims the retroactive date for child support should have been June 1, 2012, the date the couple separated. As a result of Father's motion to reconsider, the superior court altered its child support order to include retroactive child support dating back to June 2012. And the Decree requires Mother to make child support payments from and after June 2012. Accordingly, the Decree awarded child support using the proper start date.
¶16 Third, Father argues that the superior court erred in not including Mother's overtime and call-back pay. "Generally, the court should not attribute income greater than what would have been earned from full-time employment. Each parent should have the choice of working additional hours through overtime or at a second job without increasing the child support award." Guidelines § 5(A). Father cites no authority indicating the superior court was required to include Mother's overtime and call-back pay or that the court abused its discretion in addressing the issue.
¶17 Finally, Father notes the superior court imputed gross monthly income to him of $2,000 when his financial affidavit shows his monthly income is $1,600. The Guidelines state that "[i]f 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." Guidelines § 5(E). Although there was conflicting evidence, the court received evidence that Father had a higher earning capacity, and that he worked part-time by choice. In addition, imputing minimum wage to Father for the difference between the hours he worked and a 40 hour work week would appear to support the $2,000 monthly income attributed to him. Accordingly, Father has not shown that the superior court abused its discretion in the child support award. IV. The Superior Court Did Not Abuse Its Discretion In Denying Father An Award Of Spousal Maintenance.
¶18 The superior court denied Father's request for spousal maintenance, a decision within that court's sound discretion that will not be reversed absent an abuse of discretion. See Boyle v. Boyle, 231 Ariz. 63, 65 ¶ 8, 290 P.3d 456, 458 (App. 2012). The court "may grant" spousal maintenance for any one of four enumerated reasons "if it finds that" the reason relied on is satisfied. A.R.S. § 25-319(A) (emphasis added). Thus, a court may, but is not required to, award spousal maintenance. See Cullum v. Cullum, 215 Ariz. 352, 354 ¶ 11, 160 P.3d 231, 233 (App. 2007); see also Boyle, 231 Ariz. at 65 ¶¶ 8-9, 290 P.3d at 458 (award of spousal maintenance is "a discretionary ruling," and "appropriate" when spouse satisfies A.R.S. § 25-319(A)).
¶19 Father appears to argue that if one of the enumerated reasons is present, the superior court must award spousal maintenance. An award of spousal maintenance, however, is discretionary. See Cullum, 215 Ariz. at 354 ¶ 11, 160 P.3d at 233. Indeed, the cases Father cites on appeal involve awards of spousal maintenance and address whether the A.R.S. § 25-319(A) reasons cited authorized such an award. See Neal v. Neal, 116 Ariz. 590, 592, 570 P.2d 758, 760 (1977); Rainwater v. Rainwater, 177 Ariz. 500, 502, 869 P.2d 176, 178 (App. 1993); Elliott v. Elliott, 165 Ariz. 128, 130, 796 P.2d 930, 932 (App. 1990); Thomas v. Thomas, 142 Ariz. 386, 390, 690 P.2d 105, 109 (App. 1984).
¶20 Father has not shown that the superior court abused its discretion in denying his request for an award of spousal maintenance. Father cites no support for his argument that the superior court "ignored" various facts, testimony or other evidence provided in rejecting his request for spousal maintenance. As with his "right of first refusal" argument, Father argues that he provided evidence supporting his request and asks this court to reweigh the conflicting evidence, something this court does not do. See Hurd, 223 Ariz. at 52 ¶ 16, 219 P.3d at 262.
¶21 Although asserting error in finding that he does not lack sufficient property to be self-sufficient, see A.R.S. § 25-319(A)(1), the superior court received evidence that the community property was to be divided sufficiently to both parties' satisfaction. Although Father contends the court erred in finding that he can be "self-sufficient through appropriate employment" and is not the custodian of the children such that he should not be required to seek employment outside of the home, see A.R.S. § 25-319(A)(2), the evidence provided included testimony that Father was currently employed outside the home, selected a job with flexible hours so that he could care for the children and that he was able to provide for the children.
¶22 Father also argues the superior court erred in ignoring evidence that he "[c]ontributed to the educational opportunities of [Mother]," see A.R.S. § 25-319(A)(3), because he agreed to put off his own education to care for the children and support Mother while she went to nursing school. The court, however, heard testimony that Father had attended some college after Mother obtained her nursing degree, and Father admitted that his lack of current enrollment was not solely because of financial issues. Moreover, Father has not shown that the superior court ignored conflicting evidence, as opposed to considering the evidence but then, in its discretion, denying Father's request for maintenance.
¶23 Finally, Father argues the court ignored that he "had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient" under A.R.S. § 25-319(A)(4). The evidence shows that Mother and Father married in 1998 and had been married for approximately 14 years when Father filed the Petition for Dissolution. Father has not shown he is of an age that he cannot find suitable employment to be self-sufficient, is in fact currently employed and, as the superior court specifically found he has an earning capacity of $35,000. On this record, although the superior court had the discretion to issue a different ruling, Father has not shown that the court abused its discretion in denying Father's request for spousal maintenance.
To the extent Father argues the court failed to make findings in denying spousal maintenance under A.R.S. § 25-319(A), such findings are not required here. See A.R.S. § 25-319(A) (requiring findings when awarding spousal maintenance); see also Cullum, 215 Ariz. at 354 ¶ 11, 160 P.3d at 233 (even for award of spousal maintenance, specifically stated findings are not required). Similarly, A.R.S. § 25-318(R) does not require findings because the division of community property was not "in the nature of . . . spousal maintenance."
--------
CONCLUSION
¶24 The Decree is affirmed. Because Father did not prevail, his request for attorneys' fees on appeal is denied. In the exercise of the court's discretion, Mother's request for attorneys' fees on appeal pursuant to A.R.S. § 25-324(B) is denied. Mother's request for taxable costs on appeal is granted contingent upon her compliance with Arizona Rule of Civil Appellate Procedure 21.