Thomason v. Thomason

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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 DIVISION ONE FILED: 05/26/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Marriage of: JAMES T. THOMASON, Petitioner/Appellant, v. KATHERINE L. THOMASON, Respondent/Appellee. ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CV 10-0553 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2006-007844 The Honorable Peter C. Reinstein, Judge AFFIRMED; REMANDED Bregman Burt Feldman By Sandra Burt Attorneys for Petitioner/Appellant Scottsdale The Murray Law Offices, P.C. By Stanley D. Murray Attorneys for Respondent/Appellee Scottsdale J O H N S E N, Judge ¶1 modify James Thomason appeals the denial of his requests to child support and parenting time. For the following reasons, we affirm the superior court s order but remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND ¶2 James and Katherine Thomason and Mother ) divorced in 2007. a joint custody agreement (respectively Father At the time, they entered into that granted Father parenting time every other weekend, on alternating holidays and for four weeks during the summer. The agreement also required Father to pay $800 per month in child support. ¶3 In May 2009, asserting his financial situation had deteriorated, Father filed a petition to modify child support. He argued that the general decline in the economy affected his livelihood as the operator of a welding company and created a significant and material change in [his] financial circumstances that justified a reduction in child support. ¶4 Mother filed an objection to Father s petition and also filed a petition to enforce child support, arguing that Father was $1,600 in arrears. The court set a hearing for August 3, 2009, on Mother s petition to enforce but did not immediately set a hearing on Father s petition to modify. Our record does not include a transcript of the August 3 proceeding, but on that date a commissioner signed an Order Re: Child Support that granted judgment in Mother s favor for $2,402 in 2 arrears plus interest and ordered judgment by monthly payments of $50. Father to satisfy that The order also provided: [Father] shall continue to make monthly current CHILD SUPPORT payments in the amount of $800.00 in accordance with the Court s Order dated 5/11/2007. That an Order of Assignment should be ordered against [Father s] wages in the amount of $850.00, which constitutes $800.00 for current CHILD SUPPORT as ordered above and $50.00 towards the arrears plus fees applicable by law against [Father s] present employer or payer, and future employers or payers upon proper notice. At the end of the order was the following: Stipulation, SIGNATURE BY PETITIONER AND RESPONDENT: By signing this document, we state to the Court, under penalty of perjury, that we have read and agree to this Order and that all the information contained in it is true, correct and complete to the best of our knowledge and belief. Father and Mother each signed and dated the document. ¶5 On September 18, 2009, Father filed an amended petition to modify child support that included a request to be designated the child s primary residential parent. In the parties joint pretrial statement filed May 24, 2010, he asked that he medical receive issues final and decision-making extracurricular over [the activities. child s] As parenting time, Father asked for a 5/2/2/5 arrangement. for After an afternoon-long trial on May 26, 2010, the court entered a 3 six-page order providing, inter alia, that Mother would continue to be the primary parenting time. residential parent and increasing Father s The court declined to modify Father s child support obligation, observing: The Court finds it is somewhat disingenuous of Father to file for a modification of child support only six weeks after he had agreed to the Child Support Order. The Court further finds that the evidence is ambiguous as to whether there has been a substantial and continuing change of circumstances that would require a modification of child support pursuant to A.R.S. § 25-327. ¶6 Father timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). DISCUSSION A. ¶7 Father s Due-Process Claim. Father first argues the superior court violated his due process rights under A.R.S. § 25-327 (2007) by refusing to consider his petition to modify child support. court failed to consider his petition to He argues the modify because the court erroneously concluded either that the August 3, 2009 order resolved Father s original request to modify child support or that Father had agreed at the August continuing child-support obligation of 4 2009 $800 a hearing month. to a Father contends the August 2009 hearing addressed arrearages but did not address the amount of child support Father should have to pay. He argues that by signing the August 3, 2009 order, he meant only to acknowledge the existence of the underlying childsupport order and did not intend to agree to be bound to pay $800 a month in child support. ¶8 We do not accept Father s contention that the superior court failed to consider his petition to modify child support. At the May 26, 2010 trial, the court admitted exhibits Father offered to demonstrate his financial preclude Father from testifying that his court financial expressly situation considered situation in support had of and not his contention deteriorated. evidence did Indeed, relating to the Father s petition to modify child support, concluding the evidence is ambiguous as continuing to whether change of there has been circumstances that a substantial would require and a modification of child support. ¶9 Father next argues the superior court erred by failing pursuant to A.R.S. § 25-327 to compare his then-current circumstances with the circumstances that existed at the time of the original court erred May by 2007 child-support comparing his order. current He financial contends the circumstances with the circumstances that existed at the time of the August 3, 2009 hearing. 5 ¶10 Father, support his however, contention applied § 25-327. cites that nothing the in superior the record court to improperly In its June 4, 2010 order, quoted above, the court did not recite the financial evidence on which it based its order, and it did not explain the basis for its conclusion that the evidence is ambiguous on the continuing-change-in-circumstances issue. substantial-and- Father does not argue that the court declined a request to make findings of fact or conclusions of law that might have clarified the court s consideration of the request to modify child support; nor did Father file a motion for reconsideration or a motion for new trial on the issue. On appeal, we generally presume the superior court properly applies the law, and we do so here. See Fuentes v. Fuentes, 209 Ariz. 51, 55-56, 58, ¶¶ 18, 32, 97 P.3d 876, 880-81, 883 (App. 2004). B. ¶11 by The Court Did Not Abuse Modify Child Support. Its Discretion in Declining to Father argues the superior court abused its discretion failing to modify child support pursuant to § 25-327. Modification must be based on substantial and continuing changed circumstances. ¶12 A.R.S. § 25-327(A). [W]hether modification of [a changed circumstances child-support] discretion of the trial court. award is exist within to warrant the sound Cummings v. Cummings, 182 Ariz. 6 383, 387, 897 P.2d 685, 689 (App. 1994). Absent an abuse of discretion, we will not disturb the court s decision. In re Marriage of Robinson & Thiel, 201 Ariz. 328, 331, ¶ 5, 35 P.3d 89, 92 (App. 2001). record, trial viewed court s in An abuse of discretion exists when the the light decision, support the decision. is most devoid favorable of to upholding competent evidence the to Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) (internal quotations omitted). ¶13 The the superior record court s contains substantial decision child-support obligation. to decline evidence to supporting modify Father s Father testified at one point during the hearing that he does not pay himself through his business. Later, however, he admitted that he takes $2,440 a month from his company. Moreover, his affidavit of financial information, dated April 6, 2010, listed no housing expense. 1 ¶14 Father consider his also ability argues to pay the child court erred support. by failing Again, to however, Father cites nothing in the record to support that contention, and he does not assert that the court erred by denying a request to enter findings explaining its 1 conclusion. Moreover, the Father also argues the superior court may have erroneously imputed income to him, but he offers no support in the record for that proposition. As noted, he does not complain that the court rejected any request to make findings of fact and conclusions of law. 7 court had before it Father s signed consent to an order dated August 3, 2009 that required him to pay $850 in child-support and arrearage payments. conclude that the In view of that stipulation, we cannot superior court abused its discretion in declining to modify child support based on Father s inability to pay. 24 See Muchesko v. Muchesko, 191 Ariz. 265, 268, 955 P.2d 21, (App. 1997) ( In deciding whether [a binding agreement] exists, we look at objective evidence, not the hidden intent of the parties. ) (internal quotations omitted). 2 C. ¶15 The Court s Order Regarding Parenting Time. Father argues that the superior court abused its discretion by failing to properly adjust parenting time based on the child s best interests. Decisions about parenting time are reviewed for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). We will affirm a superior court s ruling on parenting time unless the record is devoid of competent evidence to support the decision. Borg v. Borg, 3 Ariz. App. 274, 277, 413 P.2d 784, 787 (1966). ¶16 Arizona Revised Statutes § 25-411(D) (Supp. 2010) permits a court to modify parenting time whenever modification 2 Although Father argues in his reply brief that he is not bound by the stipulation in the August 3, 2009 order, he offers no evidence to support his implied argument that even though he signed the order, he did not mean to concede the order s terms or to be bound by the order. 8 would serve the best interest of the child. Although the superior court in this case expressed concern regarding aspects of Mother s conduct, discretion in not allocation of time we cannot granting with conclude Father s the that request child. it abused for an Substantial its equal evidence supports the superior court s decision. ¶17 Father testified he lived in a mobile home in a highly industrial area and that he had left the child alone for brief periods of time during the child s visits with him. He further testified that the mobile home contains only two rooms, one bedroom and another room with a fold-out couch, and that the bathroom is in a separate structure next to his home. Moreover, Father testified, with qualifications, that as a parent, Mother is absolutely outstanding, you couldn t ask for a better mother. ¶18 Father argues the court abused its discretion by concluding that the evidence is ambiguous as to whether the child suffers from a health problem. He points out that Mother failed to offer expert testimony to rebut the opinions of two doctors that the child is failing to thrive. The court, however, ordered both parties to take all necessary steps to ensure that a medical professional is conducting regular checkups on the child and will advise the parties what, if any, steps to take to ensure that the child thrives physically. 9 As for Father s argument that Mother should be faulted for failing to seek medical attention for the child, the joint custody agreement granted Father the right and responsibility to make decisions regarding . . . [the medical] treatment of the minor child. ¶19 Father also argues the court erred in failing to make findings on the record pursuant to A.R.S. § 25-403(B) (Supp. 2010). Section 25-403(B) applies to orders entered in contested custody cases. A.R.S. § 25-403(B); In re Marriage of Diezsi, 201 526, Ariz. 524, ¶ 4, 38 P.3d 1189, 1191 (App. 2002). Assuming without deciding that the court was required to make findings on the record in this case, we conclude its detailed findings complied with that requirement. ¶20 In its order, the court acknowledged that Mother was the primary residential parent and noted that Father wanted to modify the current parenting-time arrangement to grant him more time and that Mother objected to any modification. 25-403(A)(1) (wishes of parents as to See A.R.S. § custody); -403(A)(7) (whether one parent has provided primary care of the child). As for A.R.S. § 25-403(A)(2), (3) (wishes of the child as to the custodian and relationship of child with parents and others), the court concluded Father s relationship with the child may be strained and therefore ordered joint counseling for Father and the child and warned Mother to facilitate the child attending 10 any appointments with the counselor. Father to find a more suitable The court also advised housing arrangement wanted to improve his relationship with the child. if he The court found that the child suffers from a form of Asperger s Syndrome and as a result, often does not complete his homework or turn it in at school. home, school See A.R.S. § 25-403(A)(4) (child s adjustment to and community). The court also found it had concerns about the child s health and, as noted, ordered both parties to take all necessary steps to ensure that a medical professional is conducting regular check-ups on the child so that the parties can ensure that the child will thrive. See A.R.S. § 25-403(A)(5) individuals involved). considerable concern (mental and Further, about physical it Mother s health of all that it had found supportiveness of Father s relation with the child and warned the parties that their animosity for each other could not affect either party s relationship with the child. See A.R.S. § 25-403(A)(6) (which parent allow is more likely to frequent and meaningful continuing contact with the other). D. Parenting-Time Support. Changes Require ¶21 Father also argues the reducing his child support Reassessment superior court payments in 11 Child erred by accordance expanded visitation schedule the court ordered. of with not the ¶22 [W]hen proof establishes that parenting time is or is expected to be exercised by the noncustodial parent, an adjustment shall be made to that parent s proportionate share of the Total Child Support Obligation. (2007). On appeal the parties A.R.S. § 25-320 app. § 11 assert markedly different positions with respect to the result of the court s June 4, 2010 order modifying parenting time. If and to the extent that the order significantly altered Father s parenting time, the court should consider whether Father s child-support obligation should be modified as a consequence. Id. We therefore remand this issue for further consideration by the superior court. CONCLUSION ¶23 For the reasons stated above, we affirm the superior court s order and remand so that it may consider whether the additional parenting time it granted to Father requires a reduction in the amount of his child-support obligation. ¶24 Both parties request attorney s fees pursuant to A.R.S. § 25-324 (Supp. 2010). This statute requires a court to examine the reasonableness of the parties positions and the relative financial disparity between the parties. See Magee v. Magee, 206 Ariz. 589, 593, ¶ 18, 81 P.3d 1048, 1052 (App. 2004). Mother submitted a financial affidavit that demonstrated a monthly income of approximately $2,800; Father testified to earning an estimated $2,400 per month. 12 This evidence does not demonstrate a disparity sufficient to award fees under § 25-324. See McNutt v. McNutt, 203 Ariz. 28, 34, ¶ 27, 49 P.3d 300, 306 (App. 2002) (no disparity in income sufficient to award fees when father earned $2,840 per month and mother earned $1,316 per month). Moreover, we do not conclude that either party took an unreasonable position on appeal. award fees pursuant to § Accordingly, 25-324. Father we decline to also requests attorney s fees under A.R.S. §§ 12-341 and -342 (2003). statutes relate to costs, not attorney s fees. These We grant Mother her costs on appeal, contingent on her compliance with ARCAP 21. /s/ DIANE M. JOHNSEN, Presiding Judge CONCURRING: /s/ MARGARET H. DOWNIE, Judge /s/ JON W. THOMPSON, Judge 13

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