POTTER v. GIL

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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: 10/1/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA ex rel. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, ) ) ) Petitioner/Appellee, ) ) and ) ) MINNIE MYLINA POTTER, ) ) Petitioner/Appellant, ) ) v. ) ) ALEXIS DE JESUS GIL, ) ) Respondent/Appellee. ) __________________________________) No. 1 CA-CV 12-0529 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2007-004913 The Honorable Casey J. Newcomb, Judge Pro Tempore AFFIRMED Minne Mylina Potter Petitioner/Appellant In Propria Persona Phoenix B R O W N, Judge ¶1 Minnie Mylina Potter ( Mother ) appeals the trial court s order modifying Alexis Gil s ( Father ) child support obligation. For the following reasons, we affirm. ¶2 Mother and Father are the unmarried parents of a child born in 2003. In June 2007, Mother filed a petition in the trial court to establish paternity, parenting time, and child support. After a hearing, the court awarded sole legal custody to Mother and ordered Father to pay child support in the amount of $811.54 per month. The court determined that for child support calculation purposes, Mother s income was $36,000 per year and Father s income was $64,000 per year. ¶3 of In November 2011, Father petitioned for modification his child support obligation substantial reduction in his income. to $278.27 based on a Following an evidentiary hearing in June 2012, the court reduced Father s obligation from $811.54 to $608.00. In doing so, the court found it appropriate to attribute annual income to Mother of $38,000, notwithstanding she had recently changed to a lower-paying job. The court explained that insufficient time had passed to determine whether Mother s underemployment was sufficiently permanent in nature to warrant a change in her support obligations. The court also noted that if Mother was unable to find employment in the near future that paid a salary comparable to her previous salary, she could petition for modification based on a substantial and continuing change of circumstances. 2 Mother appealed and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) § 12-2101. 1 ¶4 A prerequisite to the modification of an award of child support is a showing of changed circumstances that are substantial and continuing. seeking modification of A.R.S. § 25-327. child support has The individual the burden establishing changed circumstances with competent evidence. of See Scott v. Scott, 121 Ariz. 492, 494, 591 P.2d 980, 982 (1979). The question whether there has been a sufficient change in circumstances to modify an award of child support lies within the sound discretion of the trial court and interfered with absent an abuse of discretion. will not be See MacMillan v. Schwartz, 226 Ariz. 584, 588, ¶ 12, 250 P.3d 1213, 1217 (App. 2011). the An abuse of discretion exists when the record, viewed in light most favorable to upholding 1 the trial court s Mother filed her notice of appeal after the trial court issued its unsigned minute entry dated June 26, 2012 but before the signed order dated July 2, 2012. As a general rule, a notice of appeal filed in the absence of a final judgment is premature. Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 (1981). However, in Barassi, the Arizona supreme court held that a premature appeal from a minute entry order in which no appellee was prejudiced and in which a subsequent final judgment was entered over which jurisdiction may be exercised need not be dismissed. Id. at 422, 636 P.2d at 1204. Subsequently, in Baker v. Bradley, we held that jurisdiction existed when a notice of appeal was filed prior to entry of a signed judgment but no substantive motions or issues were pending or subsequently filed. 231 Ariz. 475, 481, ¶ 19, 296 P.3d 1011, 1017 (App. 2013). Therefore, pursuant to Barassi and Baker, we have jurisdiction over Mother s appeal. 3 decision, decision. is devoid of competent evidence to support the Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App. 2007) (internal quotation omitted). ¶5 Mother asserts that the trial court erred when it declined to reduce the amount of income attributed to her for purposes of calculating child support. 2 She argues that the court should have used a lower amount because she was unable to continue working at her prior job due to health reasons and her income dropped when she took a new job as a food server. Mother has failed, however, to provide us with a transcript of the modification hearing. See ARCAP 11(b) (explaining an appellant is responsible for making certain that the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal). to ensure a complete record, we assume the When a party fails missing portions would support the trial court s findings and conclusions. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). As such, we conclude the trial court did not abuse its discretion 2 We note that Father failed to file an answering brief, which may constitute a confession of reversible error. Bugh v. Bugh, 125 Ariz. 190, 191, 608 P.2d 329, 330 (App. 1980). We are reluctant, however, to reverse a decision based on an implied confession of error. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994). Therefore, in our discretion, we decline to regard this as a confession of error; instead, we review the merits of Mother s arguments based on the record and the proper standard of review. See Thompson v. Thompson, 217 Ariz. 524, 526 n.1, ¶ 6, 176 P.3d 722, 724 n.1 (App. 2008). 4 in attributing income to Mother in the amount of $38,000 per year. ¶6 Accordingly, we affirm the court s order modifying Father s child support obligation. 3 _______________/s/_______________ MICHAEL J. BROWN, Judge CONCURRING: _____________/s/___________________ ANDREW W. GOULD, Presiding Judge ____________/s/____________________ DONN KESSLER, Judge 3 Consistent with the trial court s ruling, nothing in our decision precludes Mother from filing a new petition to modify child support if there is a substantial change in circumstances and she is still underemployed. See A.R.S. § 25-327. 5

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