Opinion
No. 1 CA-CV 15-0365 FC
02-25-2016
In re the Matter of: MARCELINA BRAVO, Petitioner/Appellee, v. CARLOS BRAVO, Respondent/Appellant.
COUNSEL Liszewski Law Group PLLC, Mesa By Matthew Douglas Liszewski Counsel for Petitioner/Appellee Kirk Smith Attorney at Law, Chandler By Kirk D. Smith Counsel for Respondent/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2014-090700
The Honorable Shellie F. Smith, Judge Pro Tempore
AFFIRMED
COUNSEL Liszewski Law Group PLLC, Mesa
By Matthew Douglas Liszewski
Counsel for Petitioner/Appellee Kirk Smith Attorney at Law, Chandler
By Kirk D. Smith
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Lawrence F. Winthrop joined. KESSLER, Judge:
¶1 Carlos Bravo ("Father") appeals portions of the decree dissolving his marriage to Marcelina Bravo ("Mother"). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The parties married in 2001 and have two minor children. Mother filed a petition for dissolution in 2014. After a trial in 2015, the family court dissolved the marriage.
¶3 The family court found "by a preponderance of the evidence that Father . . . engaged in 'significant domestic violence' such that the prohibition on awarding joint legal decision-making authority applie[d]." It awarded Mother sole legal-decision making authority, child support, and spousal maintenance and awarded Father unsupervised parenting time every other weekend. It also awarded each party "their own interest, if any, in the retirement accounts in their name."
¶4 Father timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (Supp. 2015).
Father also filed a motion for reconsideration, which the family court denied.
We cite the current version of applicable statutes when no revisions material to this decision have since occurred.
LEGAL DISCUSSION
I. Legal Decision-Making Authority
¶5 Father argues the family court erred in awarding sole legal decision-making authority to Mother. We review the court's decision regarding legal decision-making authority for an abuse of discretion. See Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003). On appeal, we will not reweigh the evidence and will construe the evidence in the light most favorable to affirming the court. Hurd v. Hurd, 223 Ariz. 48, 52, ¶¶ 16, 19 (App. 2009). We will affirm the court's ruling if there is substantial evidence in the record supporting that ruling. Id. at ¶ 16. We accept the family court's factual findings unless clearly erroneous. Carrasco v. Carrasco, 4 Ariz. App. 580, 582 (1967).
¶6 When determining legal decision-making authority, the family court shall consider all factors relevant to a child's well-being, including "[w]hether there has been domestic violence or child abuse pursuant to § 25-403.03." A.R.S. § 25-403(A)(8) (Supp. 2015). However, the court shall not award joint legal decision-making to a party "if the court makes a finding of the existence of significant domestic violence pursuant to § 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence" by that party. A.R.S. § 25-403.03(A). If the family court determines that a parent seeking "joint legal decision-making authority has committed an act of domestic violence against the other parent, there is a rebuttable presumption that an award of sole or joint legal decision-making to the parent who committed the act of domestic violence is contrary to the child's best interests." A.R.S. § 25-403.03(D) (Supp. 2015). Ultimately, a family court's "finding of significant domestic violence or a history of significant domestic violence precludes an award of joint [legal decision-making authority] under A.R.S. § 25-403.03.A." Hurd, 223 Ariz. at 51, ¶ 12.
¶7 Before trial, Mother sought sole legal decision-making authority based on Father's alleged significant history of domestic violence, and Father requested joint legal decision-making authority. The court found "by a preponderance of the evidence that Father . . . engaged in 'significant domestic violence' such that the prohibition on awarding joint legal decision-making authority applied" and awarded Mother sole legal-decision-making authority. The family court further found that an award of joint legal decision-making authority was contrary to the best interests of the child "because Father committed at least one act of domestic violence against Mother, and the other parent has not committed domestic violence."
¶8 Father contends no domestic violence occurred and essentially asks us to reweigh the evidence on appeal, which we cannot do. See id. at 52, ¶ 16. The record supports the family court's factual findings. During trial, Mother testified about several specific acts of domestic violence Father committed against her. The court also admitted in evidence a police report documenting domestic violence committed by Father against Mother for which Father was arrested; an incident history report documenting phone calls to the police concerning domestic violence allegations by Mother against Father; and an order of protection prohibiting Father from having any contact with Mother. On this record, we find no abuse of discretion in the family court awarding sole legal decision-making authority to Mother based on Father's domestic violence against Mother. We therefore affirm the award of sole legal decision-making authority to Mother.
Although the protective order was dismissed for Mother's failure to appear despite notice, Mother testified she had not received notice and believed Father had "grabbed [Mother's copy of the notice with the hearing date for the order of protection] from the door."
II. Parenting Time
¶9 Father argues the family court erred in evaluating the facts and law regarding its parenting time decision. We review the family court's decision regarding parenting time for an abuse of discretion. Owen, 206 Ariz. at 420, ¶ 7.
¶10 The court shall determine parenting time in accordance with the best interests of the child. A.R.S. § 25-403(A). It is in the child's best interests "[t]o have substantial, frequent, meaningful and continuing parenting time with both parents." A.R.S. § 25-103(B) (Supp. 2015).
¶11 In determining the best interest of the child, the family court shall consider all factors relevant to the child's well-being including whether there has been domestic violence. A.R.S. § 25-403(A)(8). "The court shall consider evidence of domestic violence as being contrary to the best interests of the child." A.R.S. § 25-403.03(B). If the family court finds that a parent has "committed an act of domestic violence, that parent has the burden of proving to the court's satisfaction that parenting time will not endanger the child or significantly impair the child's emotional development." A.R.S. § 25-403.03(F). "If the parent meets this burden to the court's satisfaction, the court shall place conditions on parenting time that best protect the child and the other parent from further harm," including ordering supervised parenting time, exchange of the child in a protected setting, and attendance of a domestic violence intervention program, among other things. Id.
¶12 If a parent is not awarded sole or joint legal decision-making authority, that parent is "entitled to reasonable parenting time to ensure that the minor child has substantial, frequent, meaningful and continuing contact with the parent unless the court finds, after a hearing, that parenting time would endanger the child's physical, mental, moral or emotional health." A.R.S. § 25-403.01(D) (Supp. 2015).
¶13 Before trial, Father requested that Mother have parenting time with the couple's older son every other weekend and that he have parenting time with the couple's younger son every other weekend. At trial, Father said he requested this because there was a "disconnect" between Mother and the older son, the older son had asked to leave Mother's care, and Mother had said to Father, "you can keep" the older son. In contrast, Mother had requested to be the primary parent for both children with Father having parenting time with the children every other weekend. Mother testified that the younger son lived with her and that he had called her crying and requested to be picked up from Father's house due to a dispute with Father.
¶14 In its best-interests analysis, the family court found that "[t]he children have a bonded and loving relationship with Mother. The party's [sic] oldest son has a good relationship with Father; the younger son appears to be estranged from Father and is reluctant to spend time with him." Because Father had not been awarded sole or joint legal decision-making authority, the court recognized that pursuant to A.R.S. § 25-403.01(D), Father was entitled to "reasonable parenting time" to ensure the children had "substantial, frequent, meaningful and continuing contact" with Father. It determined that "Father's parenting time did not need to be supervised to protect the children's physical, mental, moral or emotional health" and ordered that "[t]he children . . . live with Mother at all times subject to Father's parenting time. Father shall have parenting time with the children every other weekend . . . ." The court also awarded Father holiday time and found that the plan maximized parenting time "to the extent it is in the children's best interests."
¶15 On appeal, Father argues that his proposed parenting time is in the children's best interests because the older son was having difficulty living with Mother and Mother did not dispute she had a "difficult relationship" with the older son.
¶16 The family court recognized Father's entitlement to reasonable parenting time in the absence of sole or joint legal decision-making authority pursuant to A.R.S. § 25-403.01(D). Given the family court's finding of domestic violence, it was required to consider that finding as contrary to the best interests of the children. See A.R.S. § 25-403.03(B). The family court impliedly found that Father met his burden that, despite evidence of domestic violence, his parenting time would not endanger the children's physical, mental, moral or emotional health pursuant to A.R.S. § 25-403.03(F). Further, although it had the ability to place limits on Father's parenting time, the family court's finding that Father's alternating weekend parenting time need not be supervised was an appropriate exercise of its discretion. Because of our deference to the family court's factual findings and our inability to reweigh evidence on appeal, we find the family court did not abuse its discretion in awarding Father parenting time on alternating weekends. See Carrasco, 4 Ariz. App. at 582; Hurd, 223 Ariz. at 52, ¶ 16. We therefore affirm the parenting time order.
III.Child Support
¶17 Father argues the family court erred in awarding child support to Mother in the amount of $650 per month. We review the family court's decision to award child support for an abuse of discretion. Williams v. Williams, 19 Ariz. App. 544, 546 (1973).
¶18 If the family court deems child support appropriate, it is required to direct the amount of child support to be paid according to the Arizona Child Support Guidelines ("Guidelines"), "unless a written finding is made, based on criteria approved by the supreme court, that application of the guidelines would be inappropriate or unjust in a particular case." A.R.S. § 25-320(A), (D) (Supp. 2015).
A. Alleged Waiver
¶19 Father argues the family court erred in not following the parties' stipulation to waive child support. Although parents can waive child support payments, an agreement to waive child support "is not binding on the court and will be enforced only so long as the interest of the child is not adversely affected." Albins v. Elovitz, 164 Ariz. 99, 101-02 (App. 1990).
In her pretrial statement, Mother said the parties agreed that neither would request child support. In his pretrial statement, Father requested that child support be calculated based on the Guidelines, but stated he would waive any child support if Mother had to pay Father under the Guidelines. At trial, the attorneys for both parties stated the parties were willing to waive child support.
¶20 The family court here made findings as to income and adjustments pursuant to the Guidelines and found that "in applying these findings under the . . . Guidelines, no deviation is appropriate regarding the obligation to pay child support." Further, the court made no written finding pursuant to A.R.S. § 25-320(D) that "application of the guidelines would be inappropriate or unjust." We conclude the court impliedly found that enforcement of the parties' agreement to waive child support would be contrary to the best interests of the children and thus was not binding. Id.
B. Amount of Child Support
¶21 Father also argues the family court did not properly calculate the amount of child support. The court ordered Father to pay Mother child support commencing retroactively on March 1, 2014, and included in its findings a parenting time adjustment of 57 days. Father argues that because the older son was living with Father before trial, "there should be a difference in the child support calculation for back support versus prospective support. The Trial Court did not differentiate [between] the two and therefore the back support should have been calculated differently."
¶22 The family court is required to use a retroactive application of the Guidelines to the date of filing a dissolution of marriage, which in this case was January 31, 2014. A.R.S. § 25-320(B); Simpson v. Simpson, 224 Ariz. 224, 225-26, ¶¶ 7-9 (App. 2010). "A retroactive application of the child support guidelines requires the court to apply the guidelines to circumstances as they existed during the time for which past child support is being ordered." Simpson, 224 Ariz. at 226, ¶ 9. The record supports Father's argument that the older son was living with Father at the time of the trial in 2015. However, there is no evidence in the record suggesting when the older son began living with Father to warrant a reversal of the child support calculation based on the retroactive application of the Guidelines. Thus, we find no abuse of discretion in the court's calculation of child support and affirm the child support order.
Thus, the award of child support commencing March 1, 2014, versus January 31, 2014, was in Father's favor.
IV.Spousal Maintenance
¶23 Father argues the family court erred in awarding Mother spousal maintenance. We review the family court's award of spousal maintenance for an abuse of discretion. Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9 (App. 2007). We must first determine if the family court abused its discretion in determining entitlement to spousal maintenance pursuant to factors set forth in A.R.S. § 25-319(A) (2007), and then determine the propriety of the family court's award as to amount and duration pursuant to A.R.S. § 25-319(B). Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 15 (App. 1998). We view the evidence in the light most favorable to Mother, to whom spousal maintenance was awarded, and will affirm if the record contains any reasonable supporting evidence. See id. at ¶ 14.
A. Entitlement
¶24 The family court found that Mother is entitled to spousal maintenance "because she lacks sufficient property including property apportioned to her to provide for her own reasonable needs and she presently is unable to be self-sufficient through appropriate employment." See A.R.S. § 25-319(A).
¶25 Father purports to challenge the family court's finding that Mother lacks sufficient property to provide for her own reasonable needs, arguing that the court divided everything other than the retirement accounts equitably. However, an equitable distribution of property does not automatically provide Mother with sufficient property to provide for her own reasonable needs. Father provides no evidence that Mother was awarded any income-producing assets. And although Mother was awarded a community interest in residential real property, which the court ordered the parties to sell, there was no evidence as to the value of the home and thus no evidence that Mother's community interest in any of the sale proceeds could provide for her reasonable needs. The remainder of Father's challenge regarding Mother's insufficient property focuses on the family court's findings regarding destruction and concealment or fraudulent disposition of community property, both of which are factors relevant to amount and duration of spousal maintenance, not entitlement. See A.R.S. § 25-319(B)(11).
¶26 Next, Father challenges the family court's finding that Mother is unable to be self-sufficient through appropriate employment, arguing that her recent annual income and recent monthly income showed that Mother was self-sufficient. However, the record supports the family court's finding that Mother is unable to be self-sufficient through appropriate employment. Father also claims the family court erred in awarding spousal maintenance so that Mother could receive a higher education or training, given that "there is no underlying evidence that [Mother] wished to pursue such goals." The family court's findings as to "time necessary to acquire sufficient education or training" to be self-sufficient, however, are also factors bearing on amount and duration of spousal maintenance, not entitlement. See A.R.S. § 25-319(B)(10). We find Father's challenges to Mother's entitlement to spousal maintenance to be without merit.
B. Amount and Duration
¶27 Father's arguments seems to be more properly directed at the amount and duration of the spousal maintenance award pursuant to A.R.S. § 25-319(B), which requires analyzing each of thirteen factors, including standard of living during the marriage, duration of the marriage, age, employment history, earning ability, financial resources, time necessary to acquire sufficient education/skills, and destruction of community property. After analyzing each of these factors, the family court awarded Mother spousal maintenance in the amount of $250 for sixty months. The record reflects that Father had been earning $2600 per month at his previous occupation, and Mother had been earning $2234 per month at the time of trial.
Father had been discharged "other than honorably" from the military then obtained a job as a youth counselor, from which he was terminated. --------
¶28 Father challenges the family court's findings regarding destruction of community property based on (1) Father's intentional conduct resulting in an "other than honorable" discharge from the military and subsequent ineligibility for military benefits, and (2) fraudulent attempts to relinquish Mother's community interest in real property. As to his military discharge, Father himself testified that as a result of his "other than honorable" discharge, he was denied all his benefits including his pension. We find no error in the court construing this as a destruction of community property. As to the real property, Mother testified that Father asked her to sign a disclaimer deed to the real property, but Father told her she would still own the property. Father argued that because Mother "signed a waiver of her interest in this property, and her name was never on the mortgage . . . her connection to the property is tenuous." We do not reweigh conflicting evidence on appeal and defer to the "court's opportunity to judge the credibility of the witnesses." Hurd, 223 Ariz. at 52, ¶ 16.
¶29 Next, Father argues the family court erred in finding Mother "did not work outside the home" during their marriage because she testified that she had worked as a cafeteria manager since 2007 and had previously worked as a medical assistant. Even if the family court erred in finding Mother did not work outside the home during their marriage, that finding was only part of the family court's analysis of Mother's "age, employment history, earning ability and physical and emotional condition" pursuant to A.R.S. § 25-319(B)(3). The record supports the family court's remaining findings as to this element, including that Mother attended high school through tenth grade, was currently employed with a school district as a cafeteria supervisor, and worked part-time as a restaurant server.
¶30 Father also challenges the family court's finding that he has a much greater earning ability than Mother, arguing that he was unemployed at the time of trial and at a disadvantage in looking for a job due to his discharge status in the competitive field as an "F-18 mechanic." However, the family court did not find that Father would find a job as an F-18 mechanic, only that Father, who has a GED, had a greater earning ability than Mother given his military experience. Although Father was unemployed at the time of trial, the family court's finding that Father has "sufficient education and skills to obtain a full time job and earn a salary sufficient to pay Mother spousal maintenance and meet his own reasonable needs" is supported by the evidence. After being discharged other than honorably from the military, Father got a job as youth counselor, earning enough to pay his bills and to afford to pay Mother $250 per month in spousal maintenance. After Father was terminated from that position, he got a seasonal position with UPS and was looking for employment at the time of trial. Father also argues that the family court should have attributed minimum wage income to Father rather than the income he previously earned at his job as a youth counselor. However, courts may look at earning capacity and prior work experience in attributing income for purposes of child support. See A.R.S. § 25-320 app. § 5; see also Willliams v. Williams, 166 Ariz. 260, 266 (App. 1990) (stating that the court had not erred in attributing income to husband based on his past earning capacity and previous work experience).
¶31 Father also argues that the family court did not give reasons why it awarded spousal maintenance for sixty months, given that Mother had the "approximate same earning power" as Father and did not testify she had a "specific plan to change her current educational or career circumstances." The family court expressly found that Father had a "much greater earning ability than Mother given the skills and experience he acquired while serving in the military." Moreover, the family court found that "sixty months is sufficient for [Mother] to accomplish any further education or skills training she may need in order to achieve financial independence." We find the record supports the family court's award of spousal maintenance for five years given that Mother had not completed high school, had very little skills training, and could not support herself despite working two jobs.
¶32 Ultimately, we defer to the family court's determination as to the weight to give the evidence. Gutierrez, 193 Ariz. at 347, ¶ 13. Finding no abuse of discretion, we affirm the award of spousal maintenance.
V. Mother's Retirement Account
¶33 Father argues the family court erred in failing to award Father his community interest in Mother's retirement account.
¶34 Section § 25-318(A) (Supp. 2015) governs the division of marital property in dissolution proceedings and provides that courts shall divide community property "equitably, though not necessarily in kind, without regard to marital misconduct." We review the equitable distribution of property pursuant to A.R.S. § 25-318(A) for an abuse of discretion. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523, ¶ 4 (App. 2007). We accept the family court's factual findings unless clearly erroneous. Carrasco, 4 Ariz. App. at 582. We consider the evidence in the light most favorable to upholding the court's ruling and will uphold that ruling if reasonably supported by the evidence. Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005). An abuse of discretion occurs when the court commits an error of law in exercising its discretion. Id.
¶35 Father had served in the military for approximately twelve years but was discharged "other than honorably." Father testified that as a result of his discharge, he was denied all his benefits including his pension. Mother subpoenaed the Department of the Navy seeking documents stating which military benefits Father was entitled to upon discharge, but was still awaiting the requested information at the time of trial. Father requested that the family court order Mother's retirement account be divided by Qualified Domestic Relations Order.
¶36 The family court found that Mother has a retirement account with her employer and that "Father may have had a retirement account or savings plan with the United States Marine Corp prior to his discharge," but that "[b]ecause Father has failed to disclose his military records despite Mother's reasonable requests to obtain them, the Court finds it difficult to equitably allocate the accounts" and thus awarded each party "their own interest, if any, in the retirement accounts in their name."
¶37 Father argues the family court's finding is inconsistent with its finding as to destruction of community property that "as a result of Father's intentional misconduct, Mother (and the children) is no longer eligible to receive military benefits, including but not limited to, Mother's community interest in Father's military pension."
¶38 There is tension between the family court's finding that Father was no longer eligible to receive military benefits, including a military pension, and its finding that, although Father may have had a retirement account, his failure to produce his military records made it difficult to equitably allocate the retirement accounts. However, we "determine whether the judgment, not the reasoning, of the superior court was correct." Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, 181, ¶ 9 (2007). Despite the tension in the family court's findings, there was no evidence of value as to Mother's retirement account. Thus, there is no evidence that there was an inequitable division of property. Finding no abuse of discretion, we affirm that portion of the dissolution decree regarding the distribution of the retirement accounts.
CONCLUSION
¶39 For the foregoing reasons, we affirm. Mother requests attorneys' fees on appeal. We decline to award Mother's attorneys' fees on appeal, but we grant Mother her taxable costs subject to her compliance with Arizona Rule of Civil Appellate Procedure 21(b).