Toruga v. Thornton

Annotate this Case

Download PDF

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 Matter of: ) ) MANUEL PAUL TORUGA, ) ) Petitioner/Appellee, ) ) v. ) ) COKE ANGELA THORNTON, ) ) Respondent/Appellant. ) ) __________________________________) No. 1 CA-CV 10-0669 DEPARTMENT E DIVISION ONE FILED: 02/09/2012 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2001-093698 The Honorable James P. Beene, Judge AFFIRMED Manuel Paul Toruga Petitioner/Appellee Mesa Coke Angela Thornton Respondent/Appellant Apache Junction O R O Z C O, Judge ¶1 court s Coke Angela order denying Thornton her (Mother) requests to appeals modify the parenting family time, child support arrearages and child support. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Mother and Manuel Paul Toruga (Father) were married in 1996 and have two minor children. of Marriage in 2001. Father filed for Dissolution The marriage was dissolved in 2002,1 at which time the family court granted Mother and Father joint legal and physical custody of the children and designated Father as the primary residential parent during the school year. The court also ordered specific parenting time and ordered Mother to pay Father current child support, plus an additional amount towards child support arrearages owed by Mother stemming from a pendente lite order, until such time as Mother s child support arrearages were paid in full. ¶3 On January 8, 2010, Mother filed a Request for Modification of Current Custody Arrangement, Child Support Order and Arrearages.2 An evidentiary hearing on Mother s Request was held on July 13, 2010. The matter was taken under advisement, and in its Order dated August 9, 2010, the family court denied Mother s Request. 1 The decree was dated December 31, 2002 but it was not filed with the Clerk of the Maricopa County Superior Court until January 7, 2003. 2 In the intervening years, Mother s child support obligation has been modified according to the child support guidelines. 2 ¶4 Mother jurisdiction filed pursuant a timely to notice Arizona of Revised appeal. We have Statutes (A.R.S.) section 12-2101.A.1 (2011).3 DISCUSSION ¶5 Mother s entire argument on appeal is a challenge to the sufficiency of the evidence supporting the family court s order and regarding a her demand for requests this to court modify to reweigh parenting the time, evidence her support obligation, and her child support arrearages.4 child We are mindful that the family court is in the best position to evaluate the sufficiency of the evidence. Acuna v. Kroack, 212 Ariz. 104, 113, ¶ 35, 128 P.3d 221, 230 (App. 2006). We must consider the evidence in the light most favorable to the non-appealing party and will sustain the judgment if any reasonable evidence supports it. In re Marriage of Pownall, 197 Ariz. 577, 583-84, ¶ 31, 5 P.3d 911, 917-18 (App. 2000). We will not reweigh the evidence 3 The Arizona Legislature recently renumbered A.R.S. § 122101. See 2011 Ariz. Sess. Laws, ch. 304, § 1 (1st Reg. Sess.) (effective July 20, 2011). We cite the current version of applicable statutes when no revisions material to this decision have since occurred. 4 Mother frames the first issue presented for review as, The best interest of the Children was not properly considered in making this decision [to deny Mother s request for modified parenting time] in accordance with A.R.S. [§] 25-403. However, she does not elaborate on this assertion and instead argues that the family court s judgment was incorrect because she presented evidence sufficient to require a modification. Nonetheless, in its order, the family court noted that it considered the factors set forth in A.R.S. §§ 25-403.A and -403.01.B. 3 on appeal. Brown v. U.S. Fid. and Guar. Co., 194 Ariz. 85, 92, ¶ 36, 977 P.2d 807, 814 (App. 1998). ¶6 When an appellant intends to argue that the family court s factual findings or conclusions are unsupported by the evidence, the appellant must include in the record a transcript of the proceedings and any other items necessary for us to review the court s order. ARCAP 11(b)(1). In this case, the record on appeal from the July 13, 2010 evidentiary hearing contains only the minute entry noting who testified and which exhibits were received in evidence and the signed Order -- Mother failed to order a copy of the transcript from the hearing. When a party fails to include necessary items, we assume they would support the court's findings and conclusions. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). Without the benefit of a transcript reasonable to review, we must assume evidence was presented at the evidentiary hearing in support of the family court s decision to affirm its prior order regarding Mother s child support obligation and denying Mother s requests to modify her parenting time and obligation to pay child support arrearages. ¶7 Moreover, neither the family court nor this court has authority to retroactively modify a child support award. State ex rel. Dep t of Econ. Sec. v. Dodd, 181 Ariz. 183, 185, 888 P.2d 1370, 1372 (App. 1994). Therefore, arrearages that accrued prior 4 to the date modification Father petition received cannot notice be of the modified. January See 8, Guerra 2010 v. Bejarano, 212 Ariz. 442, 444, ¶ 7, 133 P.3d 752, 754 (App. 2006). CONCLUSION ¶8 For the foregoing reasons, we affirm the family court s order. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ DIANE M. JOHNSEN, Presiding Judge /S/ ____________________________________ LAWRENCE F. WINTHROP, Judge 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.