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
IN THE COURT OF APPEALS
STATE OF ARIZONA
In the Matter of:
JOHN M. POPE,
MARGARET T. POPE,
No. 1 CA-CV 10-0388
RUTH A. WILLINGHAM,
Not for Publication
(Rule 28, Arizona Rules
of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. DR1998-017125
The Honorable Paul A. Katz, Judge (Retired)
Benjamin T. Wiesinger
Attorneys for Petitioner/Appellant
Rose Law Firm
David L. Rose
Attorneys for Respondent/Appellee
G E M M I L L, Judge
John Pope (“Father”) appeals from the family court’s
order denying his petition to terminate child support.
disabled and by failing to consider his alternative request to
For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Father and Margaret Pope (“Mother”) are the parents of
twin daughters born in 1990.
The children have mild cerebral
palsy, developmental delays, attention deficit disorder, anxiety
disorder, and nonverbal learning disorder.
Father and Mother
ordered Father to pay $3,500 per month in child support.
that time, the court declined to rule on whether child support
should continue past the age of majority, finding such issue
See Arizona Revised Statutes (“A.R.S.”) section 25-
320(E) (Supp. 2010) 1 (a family court can order child support to
continue past the age of majority for mentally or physically
disabled children provided certain criteria are met); and Ferrer
v. Ferrer, 138 Ariz. 138, 139-40, 673 P.2d 336, 337-38 (App.
1983) (whether child support should continue past the age of
majority should be determined at a time when the issue can be
properly evaluated based on the extent of the disability and how
it affects the child’s life after high school).
In June 2002,
the court reduced Father’s child support obligation to $1,219
We cite to the current version of A.R.S. § 25-320(E) because
the statute has not been amended in any way that changes the
terminate child support because the girls attained the age of
majority and graduated from high school.
Mother responded that
child support should continue based on the girls being severely
disabled and unable to live independently or be self-supporting.
After an evidentiary hearing, the family court issued a detailed
minute entry order concluding the girls qualified for continued
child support under A.R.S. § 25-320(E) and therefore, denied
jurisdiction pursuant to A.R.S. § 12-2101(C) (2003).
I. Standard of Review
Generally, we review child support awards for an abuse
Fuentes v. Fuentes, 209 Ariz. 51, 54, ¶ 10, 97
P.3d 876, 879 (App. 2004).
A court abuses its discretion if
there is no competent evidence to support its decision or if the
court commits an error of law.
Id. at 56, ¶ 23, 97 P.3d at 881;
Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110
We accept the family court’s factual findings unless
Hrudka v. Hrudka, 186 Ariz. 84, 91, 919 P.2d 179, 186 (App.
application are questions of law we review de novo.
Thomas, 203 Ariz. 34, 36, ¶ 7, 49 P.3d 306, 308 (App. 2002).
II. Severely Disabled Under A.R.S. § 25-320(E)(2)
interpreting and applying A.R.S. § 25-320(E)(2) by finding the
girls are severely disabled.
Section 25-320(E) (2010) gives a
court authority to order child support past the age of majority
if all of the following are true:
1. The court has considered the factors
2. The child is severely mentally or
physically disabled as demonstrated by the
fact that the child is unable to live
independently and be self-supporting.
3. The child’s disability began before
the child reached the age of majority.
determine the legislature’s intent by first looking at the plain
language of the statute as the best indicator of that intent.
Bither v. Country Mut. Ins. Co., 226 Ariz. 198, 200, ¶ 8, 245
P.3d 883, 885 (App. 2010).
If the language of a statute is
unambiguous, we give effect to the language without turning to
other methods of statutory construction.
54-55, ¶ 12, 97 P.3d at 879-80.
Fuentes, 209 Ariz. at
We give terms their usual and
Subsection D requires the Arizona Supreme Court to
establish guidelines based on eight relevant factors for
determining the amount of child support. A.R.S. § 25-320(D).
Bilke v. State, 206 Ariz. 462, 464-65, ¶
11, 80 P.3d 269, 271-72 (2003).
By its plain language, A.R.S. § 25-320(E)(2) defines
“severely mentally or physically disabled” as being unable to
live independently or be self-supporting due to such disability.
See also Ariz. Sen. Fact Sheet, House Bill 2249, 47th Leg., 1st
Reg. Sess. (2005) (adopting the present version of A.R.S. § 25320(E)(2)
support past the age of majority for a disabled child only if
the disability makes the child unable to live independently and
“Independent” means “[n]ot subject to the
control or influence of another” or not dependent on someone
oneself with sustenance including “food and clothing that allow
Black’s Law Dictionary 1453; see also A.R.S. § 25-
320(Q)(5) (“support” has the same meaning as in § 25-500); and
provision of maintenance or subsistence”).
Here, the family court correctly found “the test in
children from a medical prospective have a mild versus severe
disability causes the child or children to be unable to live
the children in this case have been diagnosed as “moderately
“severely disabled” under A.R.S. § 25-320(E)(2).
finding that the girls are severely disabled within the meaning
vocational counselor and life care planner, opined the girls
could not live independently, nor could they be self-supporting. 3
Based on the vocational testing and interviews with the girls,
placement in which a vocational specialist would help place the
accommodations for their limitations.
Fune believes the girls
do not have the ability to obtain and maintain employment on
Additionally, the girls’ pediatrician opined the
children are unable to live independently and are not capable of
Contrary to Father’s argument, the court did not accept
this testimony as a legal conclusion.
In fact, the court
sustained Father’s objections to questions concerning whether
the girls were considered severely disabled within the meaning
of A.R.S. § 25-320(E)(2) and stated Fune’s opinion would not be
beneficial in that area.
Although the girls are left home
themselves and clean, such evidence does not demonstrate the
girls could live independently and be self-supporting.
The evidence shows the girls’ earning capacity
is entry level wages, approximately $10,000 per year, working
Fune testified, however, that the girls’ potential
income would be below the federal poverty guidelines.
girls’ potential earning ability does not show how they can be
self-supporting and live independently.
Moreover, at the time
of the hearing the girls did not earn any income and thus,
cannot be considered self-supporting at this time.
their abilities to live independently and be self-supporting is
hindered by Mother’s refusal to apply for available resources,
and the court’s order allows this to continue.
Although Mother has not enrolled the girls in any job
placement programs, the record shows she is interested in the
girls obtaining employment.
One year prior to their graduation
Fune testified the majority of supported employment positions
from high school, Mother enrolled the girls in a “transitional
plan” to help them get jobs when they graduated in hopes of them
obtaining long-term positions with benefits.
letters of recommendation from the girls’ job coach and teachers
in order to help find them jobs when they graduated.
classroom, however, Mother testified due to school budget cuts
vocational rehabilitation with the girls in 2009, but due to the
waiting periods involved, did not pursue it because she thought
she could help the girls find jobs.
could not find them jobs.
Ultimately, however, Mother
Mother inquired about whether the
girls could work at a school they previously volunteered at, but
transportation was an issue because the girls do not drive, and
Mother is concerned about them taking the bus.
In its ruling, the court ordered that within 30 days:
Mother and Father shall arrange a joint
meeting or appointment with Ms. Fune for
purposes of working out with her a plan for
the children to become enrolled as quickly as
possible in a proper program or programs of
vocational rehabilitation, job development/job
coaching, life skills training and possible
future placement in a supervised independent
or group living situation. Once properly
independent living programs, this Court would
During their senior year, the girls volunteered as
teacher’s aides in a kindergarten class, and also worked for two
summers at Vacation Bible School.
expect both parents to be actively involved in
requested by Ms. Fune or the persons and
organizations with whom the children may
become enrolled to provide them each with the
best opportunities for independent living.
Thus, contrary to Father’s argument, the court’s order does not
deadline for the parties to meet with Fune in order to develop a
plan to enroll the girls in some type of job placement program.
If Mother does not cooperate, there is nothing preventing Father
Because the evidence supports the court’s finding that
self-supporting, the family court correctly concluded the girls
were severely disabled under A.R.S. § 25-320(E)(2).
III. Financial Resources of the Children
Father argues the court erred as a matter of law by
not considering his alternative request to modify child support
in light of the girls’ financial resources.
In its order, the
court stated it did “not believe that either party has requested
that the amount of child support be recomputed, and accordingly
. . . has not ruled on this issue at this time.”
In the joint prehearing statement, one contested issue
obligation should be between $1,455 and $1,505 per month and
Mother’s worksheet showed Father’s obligation should be $1,710
Mother argues any error in failing to recalculate
Father’s child support obligation was harmless because Father
suffered no prejudice in that his child support obligation would
have increased from the previously ordered $1,219 per month.
See, e.g., Nichols v. Baker, 101 Ariz. 151, 155, 416 P.2d 584,
complaining party, this court will consider such error harmless
and insufficient to require reversal.”); accord Graham County
Elec. Coop., Inc. v. Town of Safford, 95 Ariz. 174, 182, 388
P.2d 169, 174 (1963).
Based solely on this evidence, we agree
decision not to recalculate Father’s child support obligation is
not reversible error. 6
Father contends, however, the court erred by failing
Contrary to Father’s argument, whether he suffered any
See Ariz. Dep’t of Econ. Sec. v. Valentine, 190
Ariz. 107, 110, 945 P.2d 828, 831 (App. 1997) (to justify
reversal, an error must be prejudicial to the appealing party’s
substantial rights, and any harmless error will not warrant
reversal); and Arizona Rule of Family Law Procedure 86 (The
court “must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”).
to consider the girls’ financial resources, specifically, their
eligibility for Supplemental Security Income (“SSI”) and their
ability to earn income, which would have decreased his child
In considering whether to order continued
child support after a child reaches the age of majority, the
court must consider the factors listed in A.R.S. § 25-320(D),
including “[t]he financial resources and needs of the child.”
A.R.S. § 25-320(D)(1); A.R.S. § 25-320(E)(1).
specifically defined, our case law and the Arizona Child Support
Guidelines indicate a court is not strictly limited in the items
it may consider as financial resources.
Cummings v. Cummings,
182 Ariz. 383, 386, 897 P.2d 685, 688 (App. 1994); A.R.S. § 25320 app. (“Guidelines”) § 5 (2007) 7 (listing many items included
person’s income and assets that are not part of income.
v. Strait, 223 Ariz. 500, 502, ¶ 8, 224 Ariz. 997, 999 (App.
2010); Fuentes, 209 Ariz. at 55, ¶ 14, 97 P.3d at 880; see also
(“Financial resources encompass the full nature and extent of
The Arizona Supreme Court adopted revised child-support
guidelines to take effect on June 1, 2011. Ariz. Sup.Ct. Admin.
Order No. 2010–116 (Nov. 15, 2010), available at http://www.
revised guidelines contain identical language for the provisions
we cite in this decision.
indirect income from whatever source.”).
received by or on behalf of a person for whom child support is
credited against any child support obligation.”
26(A) (emphasis added).
“Gross income includes income from any
source” such as salaries, wages, pensions, trust income, capital
exclude SSI from the definition of gross income and from being
considered “benefits” received by a child.
Guidelines §§ 5(B);
The record shows the girls may qualify for SSI, but
have not applied for such benefits.
Fune testified it is not in
the girls’ best interests to apply for SSI because
an individual who receives SSI benefits is
basically determined to be unemployable and
is relegated to a category where they are
completely unable to function in the world
receiving those benefits, they tend to stay
on the dull, so to speak. Which does not
really serve a constructive purpose for the
girls who are at the beginning of their
lives. It would be much more beneficial for
rehabilitation services to maximize their
ability to be independent. . . .
Should the girls obtain jobs, the parties stipulated they would
each earn $819.75 per month after taxes.
purposes of calculating Father’s child support obligation.
the time of the hearing, the girls were not employed and thus,
not earning any income.
It is within the court’s discretion
whether to attribute income to a person.
Guidelines § 26(A);
attribute income” to a parent if “[a] parent is physically or
Because the girls are disabled and have
discretion by not attributing income to them.
See Little, 193
Ariz. at 521, 975 P.2d at 111 (A court may impute income up to
full earning capacity if the “earnings are reduced voluntarily
and not for reasonable cause.”).
Additionally, as previously
noted, the court ordered the parties to enroll the girls in
vocational rehabilitation or a job development program.
supra ¶ 13.
Thus, going forward, it is not entirely within
Mother’s control whether the girls will take advantage of their
potential to earn income.
Should the girls earn income in the
future, it might be appropriate for the court to recalculate
child support at that time.
Likewise, regarding SSI, at the time of the hearing,
the girls did not receive SSI. 8
Moreover, because the Guidelines
specifically exclude SSI from the definition of income and from
benefits received, the court was well within its discretion not
about how applying for SSI might not be in the girls’ best
Accordingly, the court did not abuse its discretion
by not attributing SSI to the girls.
appropriate findings of fact.
This argument is waived because
it is raised for the first time in Father’s reply brief.
Wasserman v. Low, 143 Ariz. 4, 9 n.4, 691 P.2d 716, 721 n.4
(App. 1984) (“An issue first raised in a reply brief will not be
considered on appeal.”).
Additionally, Reid v. Reid, 222 Ariz.
204, 213 P.3d 353 (App. 2009) is distinguishable because that
case involved child custody, not child support.
See Reid, 222
Ariz. at 209-10, ¶¶ 19-20, 213 P.3d at 358-59 (declining to find
waiver despite a party’s failure to raise lack of A.R.S. § 25403 findings in the family court proceedings).
court is not required to make specific findings on the A.R.S. §
25-320(D) factors, but is only required to consider them.
The evidence showed, however, the girls received approximately
$45 to $50 per month from Social Security while they were
minors, which Mother put into a savings account for the girls.
prescribed in subsection D”); accord Elliot v. Elliot, 165 Ariz.
Guidelines § 22 (requiring findings on the record as to gross
income, adjusted gross income, basic child support obligation,
obligation, and the child support order).
Accordingly, although Father did request the amount of
considered these items, but was not required to impute them to
child support obligation.
IV. Attorneys’ Fees
Father requests an award of attorneys’ fees on appeal,
but does not cite a basis for such award.
In re Wilcox Revocable Trust, 192 Ariz. 337, 341,
¶ 21, 965 P.2d 71, 75 (App. 1998).
Therefore, we deny
Mother requests attorneys’
Section 25-324(A) gives a court discretion to award reasonable
attorneys' fees “after considering the financial resources of
both parties and the reasonableness of the positions each party
has taken throughout the proceedings.”
After considering the
financial resources of the parties and the reasonableness of the
prevailing party, however, we award Mother her costs on appeal.
See A.R.S. § 12-341 (2003) (successful party in a civil action
shall recover costs).
JOHN C. GEMMILL, Judge
PATRICK IRVINE, Presiding Judge
PHILIP HALL, Judge