Opinion
No. 1 CA-CV 11-0825
01-28-2014
In re the Matter of: JESSICA WOOTTON, Petitioner/Appellee, v. CHRISTOPHER MICHAEL BLAIR, Respondent/Appellant
Christopher Michael Blair, Scottsdale Respondent/Appellant In Propria Persona The Cavanagh Law Firm, P.A., Phoenix By Christina S. Hamilton Counsel for Petitioner/Appellee
NOTICE: NOT FOR PUBLICATION.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. FC2009-000863
The Honorable Wendy S. Morton, Judge Pro Tempore
AFFIRMED
COUNSEL
Christopher Michael Blair, Scottsdale
Respondent/Appellant In Propria Persona
The Cavanagh Law Firm, P.A., Phoenix
By Christina S. Hamilton
Counsel for Petitioner/Appellee
MEMORANDUM DECISION
Presiding Judge Maurice Portley delivered the decision of the Court, in which Judge John C. Gemmill and Judge Kent E. Cattani joined. PORTLEY, Judge:
¶1 Christopher Blair ("Father") appeals the order increasing his monthly child support payment to $704 and the denial of his request for attorneys' fees. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Jessica White ("Mother") were divorced in October 2009. Mother was awarded sole legal custody of their two children, and Father, pursuant to his agreement at an alternative dispute resolution conference, was ordered to pay $494 a month in child support.
¶3 Father, a teacher, lost his job after he was jailed for violating an order of protection Mother had secured against him. He subsequently filed a request to modify child support, which was dismissed by the family court for improper service.
¶4 Father filed another modification petition in March 2011. The family court held a hearing seven months later and, after receiving testimony from the parties, Mother's father, John White, and reviewing the exhibits, the court increased Father's monthly child support obligation to $704 and denied his request for attorneys' fees. Father filed a timely appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(1) (West 2014).
Father appealed the October minute entry in November 2011. We extended time to allow him the opportunity to get a signed order finalizing the hearing. The family court signed an order in April 2012, but we dismissed the appeal in May 2012 because the docket of the clerk of the superior court did not show that Father had applied for a signed order. Father moved to reinstate the appeal in September 2012; we found the April 2012 order and ordered Father to file his opening brief on or before October 9, 2012. He did and we accepted his amended opening brief on December 11, 2012.
We cite to the current version of applicable statutes unless there has been a material revision.
DISCUSSION
Standard of Review
¶5 We review the decision to modify a child support award for an abuse of discretion, Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999), and the "interpretation of the [Arizona Child Support] Guidelines de novo as a question of law." Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21, 202 P.3d 481, 486 (App. 2008) (quoting Mead v. Holzmann, 198 Ariz. 219, 220, ¶ 4, 8 P.3d 407, 408 (App. 2000)). We view the evidence in the light most favorable to affirming the award. Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App. 2007). And there is only an abuse of discretion if the record is "devoid of competent evidence to support the decision." Little, 193 Ariz. at 520, ¶ 5, 975 P.2d at 110 (internal quotation marks omitted).
I. Deficient Opening Brief
¶6 An appellate brief must contain "[a] statement of facts relevant to the issues presented for review, with appropriate references to the record" and "reference shall be made to the record or page of the certified transcript where such evidence appears." ARCAP 13(a)(4). We disregard statements of fact in opening briefs that lack appropriate references to the record and for which we cannot find record support. Flood Control Dist. of Maricopa Cnty. v. Conlin, 148 Ariz. 66, 68, 712 P.2d 979, 981 (App. 1985). The brief must also cite relevant authority, statutes and the relevant parts of the record, ARCAP 13(a)(6), and the failure to do so can result in the waiver of the issue on appeal. See Joel Erik Thompson, Ltd. v. Holder, 192 Ariz. 348, 351, ¶ 20, 965 P.2d 82, 85 (App. 1998); see also AMERCO v. Shoen, 184 Ariz. 150, 154 n.4, 907 P.2d 536, 540 n.4 (App. 1995).
¶7 Here, Father's opening brief is deficient. The statement of facts and argument lack citations to the record and authority. Instead of dismissing his appeal, we exercise our discretion, Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966); Lederman v. Phelps Dodge Corp., 19 Ariz. App. 107, 108, 505 P.2d 275, 276 (1973), and shall "summarize the facts from the record and the answering brief." Ziegelbauer v. Ziegelbauer, 189 Ariz. 313, 314 n.1, 942 P.2d 472, 473 n.1 (App. 1997); accord ARCAP 11(a)(1) (noting that the record on appeal consists of "official documents, exhibits, minute entries, and other objects filed with the clerk of the superior court, and a certified transcript or narrative or agreed statement, or if authorized by the appellate court, the electronic recording of the proceeding").
II. Mother's Income
¶8 Mother, a stay-at-home mom, is not employed outside the home. Her father pays her an average of $1525 per month, and allows her to live in a house that either he or one of his LLCs purchased. She is also the beneficiary of a trust and can access the annual interest of $8000 that the trust earns. As a result, the family court determined that her monthly income for child support purposes was $2191.
¶9 Father contends that the family court abused its discretion in determining Mother's income. Specifically, he argues that the court erred by not considering (1) that Mother has been able to live rent-free and mortgage-free in a house owned by her parents or one of their LLCs; (2) the cost of house renovations and furniture purchased by Mother's parents; and (3) payments Mother's parents have made to her new husband for Mother's alleged benefit.
¶10 To determine whether the family court should have included other amounts in calculating Mother's monthly income is a question of law we review de novo. Patterson v. Patterson, 226 Ariz. 356, 358, ¶ 4, 248 P.3d 204, 206 (App. 2011). Gross income for child support calculation is different than for tax purposes, and includes actual money or cash-like benefits the household receives and can spend. Strait v. Strait, 223 Ariz. 500, 502, ¶ 8, 224 P.3d 997, 999 (App. 2010) (citing Cummings v. Cummings, 182 Ariz. 383, 385, 897 P.2d 685, 687 (App. 1994)). The Arizona Child Support Guidelines define "gross income" broadly as follows:
Gross income includes income from any source, and may include, but is not limited to, income from salaries . . . interest, trust income. . . recurring gifts, prizes, and spousal maintenance. Cash value shall be assigned to in-kind or other non-cash benefits. . . . Income from any source which is not continuing or recurring in nature need not necessarily beA.R.S. § 25-320 app. § 5(A) (West 2014) ("Guidelines"). The determination of a parents' gross income is the first step in the Guidelines formula to determine monthly child support. See Mead, 198 Ariz. at 220 n.3, ¶ 5, 8 P.3d at 408 n.3.
deemed gross income for child support purposes.
A. Rent and Mortgage
¶11 A family court has the discretion to consider a continuous gift a spouse receives from his or her parents when calculating the spouse's gross income. Cummings, 182 Ariz. at 384-85, 897 P.2d at 686-87. In Cummings, mother's parents provided her with the use of a home that they owned and paid the monthly mortgage payments, as well as giving her monthly cash gifts. Id. at 384-85, 897 P.2d 686-87. Because the parents had paid the mortgage for more than eighteen months, the trial court considered the payments as recurring gifts and included them in Mother's gross income. Id. at 385, 897 P.2d at 687.
¶12 Here, although there is some similarity to Cummings, there was no evidence that there was a mortgage on the house or that Mother's parents paid any mortgage on the house or any rent. Additionally, in his opening brief, Father contends that the rental value of the house was $2500-$2800, and the sum should be included in Mother's gross income. He, however, did not produce any evidence supporting the current rental value of the house or a comparable house at trial. As a result, the family court was not required to add the rental value of the house to Mother's gross income for child support purposes. Consequently, the family court did not abuse its discretion by not attributing additional income to Mother because there was no evidence that she was receiving directly or indirectly the benefit of any monthly rental or mortgage payment.
B. Renovations to the House and Furniture Purchases
¶13 Father next contends that any home renovations or furniture purchased by Mother's parents should have been included in her gross income. Father, however, did not raise the issue with the family court and we will not address it for the first time on appeal. Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386, ¶ 12, 258 P.3d 200, 204 (App. 2011). Accordingly, the issue is waived.
C. Cash Gifts to Husband
¶14 Father next argues that the family court erred by not including in Mother's gross income the cash gifts her husband received from Mother's parents. He presented evidence that the joint banking account Mother shared with her husband had some $150,000 deposited into that account over a six-month period. Mr. White testified that he provided money to Mother's husband after he lost his job and Father stopped paying child support. Because the source of funds had been redacted from the bank deposit exhibit and there was testimony that some of the funds were severance funds that the husband deposited into the account, the court, as the trier of fact, had to weigh the evidence to determine whether there was any proof that any of the sums were given directly to Mother and should be included in her gross income.
¶15 Income from a new spouse cannot be considered gross income for the remarried parent. In re Marriage of Pacific, 168 Ariz. 460, 466-67, 815 P.2d 7, 13-14 (App. 1991); Guidelines § 5(F) ("Only income of persons having a legal duty of support shall be treated as income under the guidelines. For example, income of a parent's new spouse is not treated as income of that parent."). A spouse's income can be considered only to the extent that it defrays a parent's expenses, In re Marriage of Pacific, 168 Ariz. at 464, 815 P.2d at 11, and only to the extent that there are any "regular and substantial benefits a parent receives from remarriage." Cummings, 182 Ariz. at 387, 897 P.2d at 689. Father did not demonstrate that Mother receives a regular and substantial benefit from her husband that should have been included in her gross income. As a result, the court did not abuse its discretion by not increasing Mother's gross income beyond the amount the court found supported by the evidence.
There was no evidence that Mother's monthly expenses were reduced by her husband's income.
III. Imputation of Father's Income
¶16 Although Father is currently unemployed, the family court attributed his gross monthly income to be $2166.66, which is less than the $2750 he averaged monthly as a teacher. He argues that the court abused its discretion because the court should have only attributed to him monthly minimum wage because he no longer has a teaching certificate and is seeking occupational training.
¶17 A parent who is unemployed or working below full earning capacity imputes an income of at least minimum wage. State ex rel. Dep't of Econ. Sec. v. Ayala, 185 Ariz. 314, 316, 916 P.2d 504, 506 (App. 1996) (citing Guidelines § 5(E); A.R.S. § 25-320(H) (Supp. 1995)). If a parent's income is voluntarily reduced, the court can attribute wages up to earning capacity. Guidelines § 5(E). The court can, however, decline to attribute income to a parent if that parent "is engaged in reasonable career or occupational training to establish basic skills or reasonably calculated to enhance earning capacity." Id. at § 5(E)(2).
¶18 Here, Father concedes in his opening brief that the family court could have attributed as much as $2750 per month to him, the monthly amount of his annual teacher's salary of $34,000. His concession is a recognition that his actions led to his firing and the loss of his teacher's salary. Moreover, although his affidavit of financial information stated that he made $1100 in 2011, he deposited some $32,140 into his bank account, which is about $4017 monthly. The court, however, exercised its discretion and imputed a monthly income to him of $2166.66 after considering all the evidence. We find no abuse of discretion.
¶19 Moreover, although Father is enrolled in occupational training, the court was not required to reduce his gross monthly income to the minimum wage. See Little, 193 Ariz. at 524, ¶ 18, 975 P.2d at 114. In Little, our supreme court rejected the father's argument that his voluntary decision to resign from his commission in the Air Force and attend law school supported a reduction in his child support obligation. Id. Instead, the court outlined factors for the trial court to consider, but the "primary task for a trial court is to decide each case based upon the best interests of the child, not the convenience or personal preference of a parent." Id. at 523, ¶ 14, 975 P.2d at 113 (citation omitted) (internal quotation marks omitted).
¶20 Here, Father chose to attend school instead of using his business degree or his teaching certificate. There is nothing in the record to indicate that he tried but was unable to find employment. The family court, as a result, did not have to impute minimum wage to Father. The court, as guided by Little, was free to consider all the evidence to determine the gross monthly income to impute to Father to ensure that the case was decided on the best interests of the child. As a result, the court did not abuse its discretion in imputing gross monthly income to Father.
In his appellate briefing, Father relates that he cannot teach because he lost his teaching certificate after being convicted for violating the order of protection. He, however, did not provide the information to the family court and we will not consider it. See ARCAP 11(a)(1); see also Flood Control Dist. of Maricopa Cnty., 148 Ariz. at 68, 712 P.2d at 981.
IV. Deviation from the Guidelines
¶21 Finally, Father contends that the family court erred by not deviating from the Guidelines in determining his child support obligation. Although he asked not to pay any child support in an attachment to his modification petition, he did not argue at the evidentiary hearing that he was entitled to a downward deviation. Father merely asked the court to grant his petition.
¶22 Generally, a family court "shall" deviate from the Guidelines if it would be "inappropriate or unjust in a particular case" to follow the Guidelines and a deviation would be in the best interest of the children. Guidelines §§ 3, 20. The factors for a court to consider are outlined at A.R.S. § 25-320(D) (West 2011).
The statute has been amended since Father filed his petition for modification, but we apply the Guidelines in effect at the time the petition was filed.
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¶23 Although Father requested the court to stop his child support obligation, he presented no evidence that a deviation would be in the best interests of his children. But, to the extent that any of the evidence presented could support a deviation, we can presume that the court considered it and found the evidence unconvincing. Fuentes v. Fuentes, 209 Ariz. 51, 55-56, ¶¶ 17-18, 97 P.3d 876, 880-81 (App. 2004). Consequently, because the court properly determined the gross income for each parent and there was no evidence that a deviation was in the children's best interest, the court did not abuse its discretion by refusing to deviate downward from the calculated support obligation.
V. Family Court Attorneys' Fees
¶24 Father also argues that the family court abused its discretion when it denied his request for attorneys' fees. We review the ruling for an abuse of discretion. See Hrudka v. Hrudka, 186 Ariz. 84, 94-95, 919 P.2d 179, 189-90 (App. 1995).
¶25 Father argues that he was entitled to fees at the hearing because Mother abused discovery. If true, he needed to have requested sanctions from the family court pursuant to Arizona Rule of Family Law Procedure 65(A)(2). He did not and we will not examine the issue for the first time on appeal. See Cont'l Lighting & Contracting, Inc., 227 Ariz. at 386, ¶ 12, 258 P.3d at 204. Consequently, the court did not abuse its discretion in denying his request for attorneys' fees.
VI. Attorneys' Fees on Appeal
¶26 Mother requests attorneys' fees and costs on appeal pursuant to A.R.S. § 25-324 (West 2014) and Arizona Rule of Family Law Procedure 31. Although the finances of the parties are relatively comparable, Father filed a procedurally deficient brief and made new arguments he had not raised to the family court. Accordingly, we exercise our discretion and award Mother a reasonable portion of her attorneys' fees on appeal, as well as her costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶27 Based on the foregoing, we affirm the ruling of the family court.