De La Huerta v. Galvan

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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: ) ) JESSE DE LA HUERTA, ) ) Petitioner/Appellant, ) ) v. ) ) ARACELI GALVAN, ) ) Respondent/Appellee. ) ) 1 CA-CV 09-0647 DIVISION ONE FILED: 06-08-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2008-005164 The Honorable Peter C. Reinstein, Judge REVERSED AND REMANDED Jesse De La Huerta, Appellant In Propria Persona Glendale Araceli Galvan, Appellee In Propria Persona Avondale B A R K E R, Judge ¶1 Jesse De La Huerta ( Husband ) appeals from the order modifying his spousal maintenance obligation and the amount of child support Araceli Galvan ( Wife ) was ordered to pay. For the for reasons stated reconsideration of below, the we spousal reverse and maintenance and remand child support orders. Facts and Procedural History ¶2 The parties were divorced in November 2008. The decree awarded Wife $600 per month in spousal maintenance for 60 months. The resulted in child an support order that worksheet Wife pay prepared Husband by the court in child $57.72 support each month. ¶3 In May 2009, Husband filed a petition to modify the support orders. Husband claimed that his income was reduced due to mandatory work furloughs and that Wife s income had increased since trial. care costs, expenses He also argued that his expenses, including child had were evidentiary increased less than hearing and since she the trial claimed. entered and The modified that court support Wife s held an orders. Husband s spousal maintenance obligation was reduced to $450 per month, and Wife s child support obligation was increased notice appeal. to $150.76 per month. ¶4 Husband jurisdiction filed pursuant a to timely Arizona section 12-2101(C) (2003). 2 Revised of Statutes We have ( A.R.S. ) Discussion ¶5 Husband discretion in argues that denying his the family request to court abused terminate its spousal maintenance and increase the amount of child support Wife pays. A child support or spousal maintenance order may be modified or terminated only on a showing of changed circumstances that are substantial and continuing. A.R.S. § 25-327(A) (2007). We review the trial court s decision regarding the existence of changed circumstances maintenance for an warranting abuse of a modification discretion. See of Van spousal Dyke v. Steinle, 183 Ariz. 268, 273, 902 P.2d 1372, 1377 (App. 1995). Similarly, the decision to modify a child support order will not be disturbed absent an abuse of discretion. See Little Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999). v. An abuse of discretion exists when the record, viewed in the light most favorable devoid of to upholding competent the evidence trial to court s support decision, the is decision. Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App. 2007) (citation omitted). ¶6 The decree found that Husband s income as a court translator was $4041 per month, and Wife s income as a teacher s aide was $1405 per month. After the modification hearing, the court found that Husband s monthly income was $3694 and Wife s 3 was $1405. The court accepted Husband s evidence of a $347 per month reduction in his income. On the child support worksheet, the court also gave Husband a $686 credit for supporting the parties niece for whom they are legal guardians. § 25-320 app. § 6(D) (2007) ( Guidelines ). Thus, for child support purposes, Husband s income was $3008. direct the court to first determine the The Guidelines amount maintenance before calculating child support. § 2(C). See A.R.S. of spousal See Guidelines Therefore we will review the spousal maintenance award first. ¶7 Husband argues that he cannot afford to pay spousal maintenance because his child care costs expenses have increased since the trial. and other living The court found the evidence of increased child care costs and other living expenses was ambiguous. Husband claimed that his average monthly child care costs were $492. To prove this expense, Husband provided receipts from the three months prior to trial: May, June, and July. The average cost of child care for these three months was $492. Wife did not dispute that Husband actually paid this amount, but temporary. claims that the increased expense was only She also argues that three months of receipts was insufficient to prove the amount of child care had increased. 4 ¶8 At the hearing, Wife claimed that she left the children at the babysitter s longer hours because she wanted to remain available translator. to work afternoons at a second job as a Wife did not claim the second job was temporary; rather she testified that it was sporadic work depending on her employer s need for a translator on a particular day. Wife did not dispute the amount Husband was paying the sitter for the three months prior to the hearing, but claimed that these receipts were only for amounts paid during the summer months when the cost children for translator. of daycare longer was hours to higher be because available she to left work as the a Wife testified that during the school year, she picks up the children earlier, and the cost of child care is less. ¶9 Wife, Viewing the evidence in the light most favorable to the months. higher child care costs occur only in the summer See Thomas v. Thomas, 142 Ariz. 386, 390, 690 P.2d 105, 109 (App. 1984) (holding that appellate court must view evidence in the light most favorable to appellee). to annualize fluctuating expenses. The court is required See Guidelines § 2(F). The evidence showed that Husband paid an average of $492 per month in child care costs from May to mid-July 2009. The amount set forth in the prior child support order for child care was $248 5 per month. This is the only evidence of the cost of child care in non-summer months. ¶10 The court did not appear to annualize the varying child care costs, but instead, imputed $300 per month. 1 We reverse and remand for the trial court to use an annualized amount of child care costs instead of an imputed figure. ¶11 Next, Husband claims that he showed a substantial and continuing change terminating spousal in his living maintenance. expenses He claims that that warranted the prior support orders were based on his having only $1500 in living expenses. However, the decree noted that Husband s Affidavit of Financial Information ( AFI ) claimed $1500 in living expenses without any rent. The decree attributed $1000 for housing expenses, including utilities, when determining the appropriate amount for spousal maintenance. Thus, the prior spousal maintenance order is based on Husband having $2500 in living expenses. ¶12 At the hearing, Husband s updated AFI showed that his living expenses, including rent and utilities, were $1927.82. Adding in the health insurance costs, the total expenses are 1 Annualizing $248 (times nine months) and $492 (times three months) results in a monthly child care cost of $309 ($3708/12). This is not a significant difference, but because we are also remanding on other grounds, see infra ¶ 14, the court shall annualize the child care costs on reconsideration. 6 $2447.52. Husband This is not significantly different than the expenses incurred failed to show living expenses at any that the time of substantial warranted trial. and an Therefore, continuing adjustment change of his Husband in his support obligation. ¶13 Husband also argues that the court failed to consider evidence that Wife had exaggerated her living expenses on her AFI. He also claims that the court failed to take into account the additional $100 per month in income Wife earns at her second job. ¶14 The trial court did not address these claims. Wife testified that her second job as a translator was sporadic and the income was not guaranteed. Her regular job is at a school, so during the summer months Wife is able to work more hours as a translator when she is called. Even then, Wife testified that she works only two or three times a week. Wife s AFI only showed pay stubs for approximately six weeks of work as a translator. These were during the summer months when she was not working her regular job at the school. She earned $537.50 between May 16 and June 26, 2009, or about $90 per week. These earnings are not consistent, but Wife testified that she could earn this amount during the summer months. The court failed to take this additional income into consideration because it found that Wife s income was $1405, which is what she earns as a 7 teacher s aide. The court must annualize the amount Wife is able to earn during the summer months. 2 See Guidelines § 2(F). Although it is not a significant increase in Wife s income, the increase may determination affect and worksheet. We, reconsideration of must the be court s factored therefore, the child spousal into reverse support and the maintenance child and spousal support remand for maintenance orders. 3 ¶15 The trial court did not make any specific findings regarding Husband s claim that Wife s expenses were exaggerated. Wife does not respond to this argument in her answering brief. The only expense Husband has adequately challenged was Wife s claim that she pays $260 for her own medical insurance. Her pay stubs show that this is a benefit paid by her employer. did not dispute this fact. Wife Nonetheless, this does not change Wife s entitlement to spousal maintenance. The court awarded 2 Assuming a 12-week summer, Wife would earn $90 per month ($90 per week times 12 weeks = $1080/12 months = $90 per month). 3 Husband asks this court to award him the federal tax exemptions from 2009 through 2011. On remand, the trial court may consider this request, but this is only mandatory for child support obligations that are at least $1200 per year, which is not the case here. See Guidelines § 27 (in cases where child support obligation is at least $1200 per year, court is required to allocate tax exemptions to approximate as closely as possibly the percentages of child support provided by each parent). 8 Wife spousal maintenance based on a finding that Wife s expenses were approximately $2000 per month. Even without health insurance, Wife s current AFI lists living expenses of $2203.84. These expenses, coupled with her income, still entitle her to an award of spousal maintenance. (2007). See A.R.S. § 25-319 (A)(1), (2) The amount of the award does not appear to have been based on the additional cost of her health insurance because her income ($1405 or ($450) still will even not $1505 meet as Husband her claims) reasonable plus living support expenses ($2203.84). Costs on Appeal ¶16 Wife requests an award of her costs on appeal pursuant to Arizona Rule of Civil Appellate Procedure 21. Husband argues that Wife is not entitled to such award because she is not represented by counsel. Wife was not the successful party on appeal; therefore, we deny her request for costs. See A.R.S. § 12-341 (2003) (holding the successful party in a civil action is entitled to costs). 9 Conclusion ¶17 child We reverse support orders and for remand the spousal reconsideration. maintenance We deny and Wife s request for an award of costs on appeal. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ___________________________________ LAWRENCE F. WINTHROP, Judge 10

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