Estes v. Estes

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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 DIVISION ONE IN RE THE MARRIAGE OF: ) ) KATHY LYNN ESTES, ) ) Petitioner/Appellee, ) ) v. ) ) TRACY EUGENE ESTES, ) ) Respondent/Appellant. ) ) DIVISION ONE FILED: 05-18-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 09-0443 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC 2008-003484 The Honorable Daniel G. Martin, Judge AFFIRMED Kathy Lynn Estes, Petitioner/Appellee In Propria Persona Tracy Eugene Estes, Respondent/Appellant In Propria Persona Phoenix Fresno, CA B A R K E R, Judge ¶1 Tracy Eugene Estes ( Husband ) appeals from a decree of dissolution. He argues that the family court attributed an incorrect income to him and, as a result, abused its discretion in the amount of child support and spousal maintenance awarded to Kathy Lynn Estes ( Wife ). Husband also argues that the judgment for child support and spousal maintenance arrearages and the award discretion. of attorneys fees to Wife were abuses of For the reasons stated below, we affirm. Facts and Procedural Background ¶2 The parties were married in 1985 and have two minor children. the Wife works as a school teacher, and Husband works in wholesale dissolution temporary car of industry. marriage child support in Wife May and 2008. spousal filed a Wife petition for also requested maintenance payments beginning May 2008. ¶3 The family court held an evidentiary hearing on Wife s request for temporary support orders in September 2008. The parties stipulated that Wife s income was $3,100 per month but disputed Husband s earning ability. After the temporary orders hearing, the family court attributed a monthly income of $6,000 to Husband and ordered him to pay $1,000 per month in temporary spousal maintenance. Based on these income figures and the application of the Child Support Guidelines, Husband s temporary child support obligation was ordered to be $688.19 per month beginning October 1, 2008. See 2 Arizona Revised Statutes ( A.R.S. ) § 25-320 app. (2007). The family court held that Wife s request for retroactive support would abide the trial. ¶4 After the trial, the court found Husband s monthly income was $8,333 and Wife s monthly income was $3,100. The court awarded Wife $1,750 a month in spousal maintenance for ten years. This payment was ordered to be effective retroactive to June 1, 2008. Husband was ordered to pay child support of $1,015.63 per month, also effective June 1, 2008. ¶5 The court awarded Wife a child support arrearages judgment of $11,171.93, which consisted of: (1) $4,062.52 in arrearages based on the retroactive application of [Husband s] child support obligation (June 1, 2008 through September 30, 2008), and failure (2) to $7,109.41 have paid in child arrearages support based pursuant on to [Husband s] the Court s temporary orders for the period October 1, 2008 through April 30, 2009. . Similarly, the court found Husband failed to pay temporary spousal maintenance and awarded Wife a judgment for spousal maintenance arrearages of $19,250, which included (1) $7,000.00 in arrearages based on the retroactive application of [Husband s] spousal maintenance obligation (June 1, 2008 through September 30, 2008), (2) $12,250.00 in arrearages based on [Husband s] failure to have paid spousal maintenance pursuant to the Court s temporary orders for 3 the period October 1, 2008 through April 30, 2009. The court also awarded Wife $13,832.50 in attorneys fees and costs. ¶6 Husband filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003). 1 Discussion 1. Husband s Income ¶7 Husband argues that the evidence does not support the amount of income that the family court attributed to him. In the of decree the court concluded that Husband was earning $100,000 per year, or $8,333 per month. capable We will affirm the court s conclusions regarding Husband s income if they are supported by sufficient evidence. Pearson v. Pearson, 190 Ariz. 231, 235, 946 P.2d 1291, 1295 (App. 1997). We will not set aside the trial court s findings of fact unless they are clearly erroneous. Id. (quoting Van Dyke v. Steinle, 183 Ariz. 268, 273, 902 P.2d 1372, 1377 (App. 1995)). ¶8 Wife testified that between earned as much as $120,000 a year. 2005 and 2008, Husband She could not estimate his income for 2008 because he had not disclosed his pay stubs or 1 Wife did not file an answering brief. Although we may treat this as a confession of error, see ARCAP 15(c), in our discretion, we decline to do so. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994) ( [N]ot fil[ing] an answering brief in this court . . . could constitute confession of reversible error. ). 4 tax returns. At the September 2008 temporary orders hearing, Husband testified that he was earning about $4,500 per month in commissions. Husband s resolution statement filed just one month earlier, in August 2008, stated that income was $5,833 per month. Husband offered no other evidence of his income at the temporary orders hearing. ¶9 Husband argues that the downturn in the economy had further reduced his income by the time of trial. Husband claimed he was earning $2,000 per month. At trial, There was no new documentary evidence regarding Husband s income introduced at trial other than Husband s updated affidavit of financial information, which reflected a $2,000 monthly income. ¶10 At trial, Lee Birdsong, an expert in the auto wholesale industry, testified that the car business in general was presently very tough and was down from five years ago. did not offer any opinion as to Husband s earning He capacity. Husband argues that the court ignored Birdsong s testimony and failed to take judicial notice of the poor condition of the overall economy. The family court noted the general evidence of a recent downturn in the wholesale auto industry but found that Husband failed to present direct documentary evidence of his income. 5 ¶11 Accordingly, the evidence regarding Husband s income consisted exclusively of the parties conflicting testimony. We will defer to the trial court s determination of witnesses credibility and the weight to give conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998). conclusion year. that Wife s testimony supported the family court s Husband was capable of earning $100,000 per Therefore, we affirm the attribution of this income to Husband. ¶12 Husband next claims the spousal maintenance and child support orders based on this income were abuses of discretion. Having affirmed capacity, it the follows finding that the regarding support finding were not an abuse of discretion. 2 Husband s orders based earning on this See In re Marriage of Robinson & Thiel, 201 Ariz. 328, 334, ¶ 17, 35 P.3d 89, 95 (App. 2001) (holding that trial courts have broad discretion in ordering child support); In re Marriage of Berger, 140 Ariz. 156, 167, 680 P.2d 1217, 1228 (App. 1983) (holding that award of spousal maintenance is reviewed under abuse of discretion standard). 2 Husband also raises whether the court followed the Maricopa County Spousal Maintenance Guidelines. The trial court has no obligation to do so. To the extent Husband contends in passing that there were other factors in awarding spousal maintenance, we discern no abuse of discretion. 6 2. Retroactive Support Orders ¶13 The decree awarded Wife arrearage judgments for both spousal maintenance and child support. The decree ordered retroactive payments for child support of $1,015.63 per month and $1,750 per month for spousal maintenance beginning June 1, 2008 to April 30, 2009. The temporary orders for child support had been $688.19 and $1,000 for spousal maintenance each month. ¶14 Husband argues that the court abused its discretion by ordering that he pay a higher amount retroactively to June 2008. He claims the retroactively. v. Maximov, temporary support orders cannot be modified This court addressed a similar issue in Maximov 220 Ariz. 299, 205 P.3d 1146 (App. 2009). In Maximov, the husband was ordered to pay $7,500 per month in temporary support effective April 1, 2006. P.3d at obligation 1147. to The $1,826.34 decree, per however, month, Id. at 300, ¶ 3, 205 reduced finding that the support the husband could not afford the higher temporary support order when it was entered. Id. at ¶ 4. The decree held that this lower support obligation was effective December 1, 2005. retroactively modified the temporary support Id. The decree order, and the husband was obligated to pay the lower amount commencing on the earlier date. Id. 7 ¶15 Like Husband in this case, the wife in Maximov argued that A.R.S. § 25-327 (2007) precludes retroactive modification of support orders. Id. at 300-01, ¶ 5, 205 P.3d at 1147-48. Maximov held that § 25-327(A) 3 applies only to decrees and not to pre-decree temporary orders. Id. at 301, ¶ 6, 205 P.3d at 1148. The statute governing temporary support orders, A.R.S. § 25-315 (Supp. 2009), 4 does not prohibit the court from setting the effective date of a modification to temporary family support to a date prior to the date of filing a petition for modification. Id. at ¶ 7. modified. ¶16 Thus, temporary support orders may be retroactively Id. Although modify, Wife this case requested that does not support involve begin in a petition May 2008, to five months earlier than the period included in the temporary orders (October 1, 2008 through April 30, 2009). 3 Therefore, the court Section 25-327(A) provides, in relevant part: Except as otherwise provided in § 25-317, subsections F and G, the provisions of any decree respecting maintenance or support may be modified or terminated only on a showing of changed circumstances that are substantial and continuing except as to any amount that may have accrued as an arrearage before the date of notice of the motion or order to show cause to modify or terminate. 4 We cite to the current statute because no revisions material to this decision have occurred. 8 properly ordered support to begin June 1, 2008, which was the month after Wife filed a request for support. Maximov also supports the court s decision to modify the amount of Husband s support obligations. Id.; see also A.R.S. § 25-315(F) (stating that temporary orders do not prejudice rights of party to be adjudicated at a later hearing and may be revoked or modified prior to decree). 3. We affirm the arrearage judgments. Attorneys Fees at Trial ¶17 Husband was ordered attorneys fees and costs. of discretion standard. to pay Wife $13,832.50 in We review this award under an abuse See Gutierrez, 193 Ariz. at 351, ¶ 32, 972 P.2d at 684. ¶18 Husband claims that the family court failed to make a proper comparison of the parties relative financial resources. The family greater court earning awarded capacity attorneys and fees based unreasonable on Husband s positions. As discussed above, the evidence established that Husband has a greater indicate earning that capacity Wife was than Wife. awarded an The unequal decree amount does of not assets. With the exception of one $6,600 debt, the debts were equally divided; the parties took separate responsibility for the credit card in their responsible for names, the and tax Husband lien. 9 The and Wife evidence were equally supports the implicit conclusion that Wife did not have greater resources than Husband. ¶19 The court also found that Husband took unreasonable positions throughout the litigation by failing to comply with the temporary foreclosure, orders, and allowing failing to the marital provide Husband does not dispute these findings. was not an abuse of discretion. 4. ¶20 home pre-trial to go into disclosure. The award, therefore, We affirm the fee award. Attorneys Fees and Costs on Appeal Husband requests an award of his attorneys fees and costs on appeal. Based on Husband s greater earning ability, we deny his request. Conclusion ¶21 We affirm the child support order, spousal maintenance order, arrearage judgments, and the award of attorneys fees and costs to Wife. We deny Husband s request for attorneys fees and costs on appeal. /s/ _________________________________ DANIEL A. BARKER, Presiding Judge CONCURRING: /s ____________________________ LAWRENCE F. WINTHROP, Judge /s/ _________________________________ DIANE M. JOHNSEN, Judge 10

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