Pope v. Pope

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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 the Matter of: ) ) JOHN M. POPE, ) ) Petitioner/Appellant, ) ) v. ) ) MARGARET T. POPE, ) ) Respondent/Appellee. ) ________________________________) No. 1 CA-CV 10-0388 DEPARTMENT D DIVISION ONE FILED: 08/18/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. DR1998-017125 The Honorable Paul A. Katz,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) AFFIRMED Benjamin T. Wiesinger Attorneys for Petitioner/Appellant Phoenix Rose Law Firm By David L. Rose Attorneys for Respondent/Appellee Phoenix G E M M I L L, Judge ¶1 John Pope ( Father ) appeals from the family court s order denying his petition to terminate child support. argues the court erred by finding his children are Father severely disabled and by failing to consider his alternative request to modify his child support financial resources. obligation based on his children s For the reasons that follow, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 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 divorced decree, in 2001, and in the dissolution the court ordered Father to pay $3,500 per month in child support. At that time, the court declined to rule on whether child support should continue past the age of majority, finding such issue premature. 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 1 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 relevant provision. 2 per month. ¶3 On May 29, 2009, Father petitioned the court to 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 Father s petition. Father timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(C) (2003). DISCUSSION I. Standard of Review ¶4 Generally, we review child support awards for an abuse of discretion. 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 (1999). clearly We accept the family court s factual findings unless erroneous or unsupported by any credible evidence. Hrudka v. Hrudka, 186 Ariz. 84, 91, 919 P.2d 179, 186 (App. 1995) (citation omitted). Statutory interpretation application are questions of law we review de novo. 3 and Thomas v. Thomas, 203 Ariz. 34, 36, ¶ 7, 49 P.3d 306, 308 (App. 2002). II. Severely Disabled Under A.R.S. § 25-320(E)(2) ¶5 Father first argues the family court erred in 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 prescribed in subsection D of this section.[2] 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. ¶6 320(E)(2). No Arizona When cases have interpreting a interpreted statute, A.R.S. our goal § is 25to 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. 2 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). 4 ordinary meanings unless different meanings. the legislature clearly intended Bilke v. State, 206 Ariz. 462, 464-65, ¶ 11, 80 P.3d 269, 271-72 (2003). ¶7 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) and stating a court is permitted to order child support past the age of majority for a disabled child only if the disability makes the child unable to live independently and be self-supporting ). Independent means [n]ot subject to the control or influence of another or not dependent on someone else. Black s supporting, Law in Dictionary 774 context, means this (7th ed. the 1999). ability to Selfprovide oneself with sustenance including food and clothing that allow one to live accustomed. in the degree of comfort to which one is Black s Law Dictionary 1453; see also A.R.S. § 25- 320(Q)(5) ( support has the same meaning as in § 25-500); and A.R.S. § 25-500(9) (Supp. 2010) (defining support as the provision of maintenance or subsistence ). ¶8 Here, the family court correctly found the test in defining severely mentally disabled is not whether the children from a medical prospective have a mild versus severe 5 mental health disability, but whether the effect of said disability causes the child or children to be unable to live independently and be self-supporting. Accordingly, although the children in this case have been diagnosed as moderately disabled that does not prevent them from being considered severely disabled under A.R.S. § 25-320(E)(2). ¶9 There is sufficient evidence supporting the court s finding that the girls are severely disabled within the meaning of A.R.S. § 25-320(E)(2). For instance, Dorothy Fune, a 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, Fune explained they would be candidates for supported job placement in which a vocational specialist would help place the girls with employers who would accommodations for their limitations. understand and make Fune believes the girls do not have the ability to obtain and maintain employment on their own. Additionally, the girls pediatrician opined the children are unable to live independently and are not capable of self-sustaining employment. Even 3 Father testified the girls 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. 6 need some help before they will currently self-supporting. alone while Mother be independent and are not Although the girls are left home works full-time, and are able to feed themselves and clean, such evidence does not demonstrate the girls could live independently and be self-supporting. ¶10 income, Father and by self-supporting. argues the obtaining girls are employment, capable will be of able earning to an become The evidence shows the girls earning capacity is entry level wages, approximately $10,000 per year, working part-time. 4 Fune testified, however, that the girls potential income would be below the federal poverty guidelines. Thus, the 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. ¶11 Father also argues the girls potential to develop 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. ¶12 We disagree. 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 4 Fune testified the majority of supported employment positions are part-time. 7 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. Mother obtained letters of recommendation from the girls job coach and teachers in order to help find them jobs when they graduated. The girls indicated education they wanted to be aides in a special classroom, however, Mother testified due to school budget cuts many districts eliminated this position. 5 Mother explored 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. ¶13 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 enrolled in appropriate vocational and independent living programs, this Court would 5 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. 8 expect both parents to be actively involved in said education and training as may be 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 allow the situation to continue. The court set a 30-day 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 from either seeking relief in court or fostering the girls independence himself. ¶14 the Because the evidence supports the court s finding that girls are currently unable to live independently and be 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 ¶15 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. ¶16 was if In the joint prehearing statement, one contested issue child support continues, 9 how much the support amount should be. worksheets. Both parties Father s submitted worksheet proposed showed his child support child support obligation should be between $1,455 and $1,505 per month and Mother s worksheet showed Father s obligation should be $1,710 per month. 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, 588 (1966) ( When the trial court errs in favor of the 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). Father has not shown Based solely on this evidence, we agree any prejudice and thus, the court s decision not to recalculate Father s child support obligation is not reversible error. 6 ¶17 Father contends, however, the court erred by failing 6 Contrary to Father s argument, whether he suffered any prejudice is relevant to determining whether relief is appropriate. 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. ). 10 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 support obligation. 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). ¶18 Although the term financial resources is not 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 in gross income). A court may consider all aspects person s income and assets that are not part of income. of a Strait 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 Fee v. Fee, 496 A.2d 793, 796 n.6 (Pa. Super. Ct. 1985) ( Financial resources encompass the full nature and extent of 7 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. azcourts.gov/Portals/22/admorder/Orders10/2010-116.pdf. The revised guidelines contain identical language for the provisions we cite in this decision. 11 each parent's property, earning capacity, and direct earned or and indirect income from whatever source. ). ¶19 The Guidelines provide income money received by or on behalf of a person for whom child support is ordered to continue past the age of majority . credited against any child support obligation. 26(A) (emphasis added). . . may be Guidelines § Gross income includes income from any source such as salaries, wages, pensions, trust income, capital gains, social Guidelines § security 5(A). The income, and Guidelines, insurance however, benefits. specifically exclude SSI from the definition of gross income and from being considered benefits received by a child. Guidelines §§ 5(B); 26(C). ¶20 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 at large. And once individuals start 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 both of them to be involved with rehabilitation services to maximize their ability to be independent. . . . Should the girls obtain jobs, the parties stipulated they would 12 each earn $819.75 per month after taxes. ¶21 Contrary considered financial decision the to evidence resources, not Father s to argument, concerning and the attribute the evidence income or the court girls supports SSI expressly to potential the the court s girls for purposes of calculating Father s child support obligation. At 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. see also Guidelines § 5(E)(1) ( The Guidelines § 26(A); court may decline to attribute income to a parent if [a] parent is physically or mentally disabled. ). not been able to Because the girls are disabled and have find jobs, the court did discretion by not attributing income to them. not abuse its 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. See 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. 13 ¶22 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 to attribute Additionally, this the potential court monetary expressly source considered to the Fune s girls. testimony about how applying for SSI might not be in the girls best interests. Accordingly, the court did not abuse its discretion by not attributing SSI to the girls. ¶23 Father also argues appropriate findings of fact. the court failed to make This argument is waived because it is raised for the first time in Father s reply brief. See 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). Further, the court is not required to make specific findings on the A.R.S. § 25-320(D) factors, but is only required to consider them. 8 See 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. 14 A.R.S. § 25-320(E)(1) (court must consider the factors prescribed in subsection D ); accord Elliot v. Elliot, 165 Ariz. 128, 131 n.1, 796 P.2d 930, 933 n.1 (App. 1990); but see Guidelines § 22 (requiring findings on the record as to gross income, adjusted gross income, basic child support obligation, total child support obligation, each parent s share of the obligation, and the child support order). ¶24 child Accordingly, although Father did request the amount of support imputing SSI to be recalculated, or income to the his argument girls. was Because based the on court considered these items, but was not required to impute them to the girls, there was no error in not recalculating Father s child support obligation. IV. Attorneys Fees ¶25 Father requests an award of attorneys fees on appeal, but does not cite a basis for such award. his request. In re Wilcox Revocable Trust, 192 Ariz. 337, 341, ¶ 21, 965 P.2d 71, 75 (App. 1998). fees on Therefore, we deny appeal pursuant to Mother requests attorneys A.R.S. § 25-324 (Supp. 2010). 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 15 positions throughout discretion and decline these to proceedings, award fees to we exercise Mother. As our 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). CONCLUSION ¶26 For the foregoing reasons, we affirm the family court s order. _____/s/__________________________ JOHN C. GEMMILL, Judge CONCURRING: ___/s/_____________________________ PATRICK IRVINE, Presiding Judge ___/s/_____________________________ PHILIP HALL, Judge 16