Opinion
No. 1 CA-CV 13-0074
04-08-2014
In re the Marriage of: KIYOMI S. COOPER, Petitioner/Appellee, v. JOHN J. FEWER, Respondent/Appellant.
Law Offices of Matthew S. Schultz, P.C., Tempe By Matthew S. Schultz Counsel for Respondent/Appellant M. Wayne Lewis Attorney at Law, Chandler By M. Wayne Lewis Counsel for Petitioner/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. FC2008-094254
The Honorable Benjamin R. Norris, Judge
REVERSED
COUNSEL
Law Offices of Matthew S. Schultz, P.C., Tempe
By Matthew S. Schultz
Counsel for Respondent/Appellant
M. Wayne Lewis Attorney at Law, Chandler
By M. Wayne Lewis
Counsel for Petitioner/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 Respondent/appellant John Fewer (Father) appeals from a family court order directing him to pay for six round-trip tickets every three years for the extended family of petitioner/appellee Kiyomi Cooper (Mother) to travel from Japan to visit. Father had argued that Mother intended to abscond to Japan with their child (the Child) and that, once in Japan, the Child would be difficult to retrieve because the Japanese government was uncooperative in such matters. The court had ordered that neither parent could obtain a passport for the Child, expressing concern that Japanese courts would not enforce its orders, and further ordered Father to purchase the round-trip tickets so Mother's family could visit the Child. We find that the court lacked authority under the child support statutes and guidelines to impose such an obligation on Father. We therefore reverse the court's decision and vacate that portion of the court's order.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father and Mother were married July 7, 2002, and have one minor child in common, born February 13, 2003. A decree of dissolution of marriage was entered March 11, 2010. The court awarded the parents joint legal custody and noted "conflict," "dysfunction," and "struggles" between the parents. The court recognized that Father was concerned that Mother would take the child and move permanently to Japan, where Mother, a United States citizen, has resident status and strong family ties. The court found those concerns rational, noting that mother had taken the child to Japan in 2008 without Father's knowledge and had threatened to leave with the Child. Mother denied any intention to permanently remove the child from the jurisdiction, noting that she had a disabled son in Tempe who she would not leave behind. The court did not preclude Mother from traveling to Japan with the Child, but ordered that when such travel was contemplated, it should include reasonable safeguards. The court ordered the parents to present the issue to the parenting coordinator at that time and then, if unresolved, to the court.
¶3 On May 21, 2012, Father filed a post-decree petition to modify the parenting plan. In the petition, Father again raised his concerns that Mother would take the Child to Japan permanently. Father explained that Japan was not a signatory to the Hague Convention on the International Aspects of Child Abduction and has the worst record regarding returning children abducted to that country, noting that until recently no kidnapped American child had been returned to the United States by legal or diplomatic means. He argued that Japan refuses to even allow contact between an abducted child and the left-behind parent. Father claimed that Mother was forcing the Child to attend the Gakuen School to study Japanese at a level designed for those planning to move to Japan. He argued that Mother was not working and her spousal maintenance would be terminating, which would leave her with no option but to return to Japan where her family has substantial financial resources. He also noted that she was going to school and taking classes that would permit her to work at the company owned by her family in Japan. Father sought an order that neither party apply for a passport for the Child, that Mother not take the Child out of Arizona without a court order, that both parents sign up for the U.S. State Department's Children's Passport Issuance Alert Program, and that Mother place herself on the U.S. State Department Office of Children's Issues DHS Prevent Departure list.
¶4 In both her Resolution Management Conference Memorandum and her response to Father's petition to modify parenting time, Mother denied any intent to take the Child permanently to Japan. She asserted that the matter had already been litigated, that no new evidence supported Father's concerns, and that Father's objection to the Child's attendance at the Gakuen School was unjustified. Mother suggested that Father could complete a "Request for Entry Into Children's Passport Issuance Alert Program," which would cause him to be notified if a passport was requested for the Child. In her separate pretrial statement, Mother stated she would like permission to take the Child to visit relatives in Japan at least once or twice in the next few years.
¶5 The court conducted a bench trial on October 18, 2012. Before taking testimony, the court asked the parties to state their positions. Mother for the first time asserted that in the event Mother were precluded from taking the Child to visit relatives in Japan, then Mother's relatives should be able to travel to the United States to see the Child at Father's expense. Father noted that the issue was being raised for the first time and suggested that Mother should file a petition at some later time. Mother asserted that requesting some accommodation for Mother's relatives to have contact with the Child did not need to be pleaded. She asked that Father be ordered to purchase six round-trip tickets from Japan to Phoenix every three years for Mother's relatives to come to Phoenix. The court indicated that it would consider Mother's request as a remedy for Father's request for travel restrictions.
¶6 At trial, Father reiterated his concerns that Mother would take the Child to Japan and not return. He testified that she was not employed, her spousal support was ending soon and she had no other income, she had no strong family ties in Arizona, she owned no property in Arizona, and she had told another separated Japanese woman to take her child to Japan. He testified that Mother had started studying accounting since the divorce, and that her family in Japan owned an international accounting firm. He described Mother's family in Japan as apparently financially well-off, noting that her sister and brother-in-law drove luxury vehicles, owned homes in Japan and the United States, and had traveled first-class with their child to Las Vegas for a week, staying in two suites. Father testified that Mother's mother and Mother's sister had visited twice and met the Child, and he knew of no reason why they could not come to visit here.
¶7 Mother testified that she had a big family in Japan and that her mother could no longer travel. She testified that she had no intention of returning permanently to Japan.
¶8 The court ordered that neither parent could obtain a passport for the Child, that neither parent could travel with the Child outside Arizona without prior written consent of the other parent or a court order, and that Mother was to place herself on any and all U.S. State Department "no departure" lists that would cause Mother to be stopped by authorities if she attempted to leave the country with the Child. The court further ordered Father to "purchase six round-trip tickets from Japan to Phoenix every three years for members of Mother's extended family." The court explained:
The parties should note that while the Court is somewhat concerned with the possibility of one parent or the other absconding with the child, by far the Court's biggest concern is the fact that Japanese courts will not enforce this Court's orders. At the prior scheduling conference, this Court expressly requested that the parties look into and inform the Court of any way that this Court's orders might be enforced in Japan, and neither party presented the Court with any such alternative.
¶9 Father moved for a new trial regarding the court's order that he pay for Mother's family to travel to the United States every three years. Father objected on the grounds that he was deprived of a fair trial on the issue because Mother had never requested such relief until trial, giving him no opportunity to prepare to address it. He further argued that the court had no power to order Father to pay for visitation expenses of a third party, and that even if it did have the authority, the court made no inquiry into the means of the parties to pay for the travel expenses, noting specifically that the court had heard no evidence regarding the financial resources of Mother's relatives to pay their own expenses. Father argued that he was in effect being punished for raising legitimate concerns regarding Mother's possible intent to flee with the Child.
¶10 Mother argued that travel expenses was a component of support calculation, that the situation was unique and required a unique and creative solution which the court fashioned with its equitable powers, and, regarding Mother's failure to raise the issue before trial, that Father should have contemplated that if Mother were precluded from traveling to Japan some alternative would be considered.
¶11 The court denied the motion for new trial. Father appeals. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (Supp. 2013).
DISCUSSION
¶12 The parties characterize this dispute as pertaining to child support. We review a trial court's decision on child support for an abuse of discretion. In re Marriage of Robinson and Thiel, 201 Ariz. 328, 331, ¶ 5, 35 P.3d 89, 92 (App. 2001). The court may abuse its discretion when it makes an error of law in reaching its decision or when the record, viewed in the light most favorable to upholding the trial court's ruling, is devoid of competent evidence in support of its ruling. Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) (insufficient evidence); Thiel, 201 Ariz. at 331, ¶ 5, 35 P.3d at 92 (error of law). The interpretation of statutes and the Arizona Child Support Guidelines, A.R.S. § 25-320 app. § 20(A)(2) (2007) (Guidelines), present questions of law, which we review de novo. Guerra v. Bejarano, 212 Ariz. 442, 443, ¶ 6, 133 P.3d 752, 753 (App. 2006).
¶13 Father argues that the trial court had no authority under either A.R.S. § 25-320 or the Guidelines issued pursuant to that statute to order him to pay for travel expenses for third parties to visit the child. Mother contends that the broad language of the statute and Guidelines gives the court sufficient latitude to issue such an order.
¶14 The most reliable indicator of the meaning of a statute is its language, and where the language is clear and unambiguous, we must give effect to that language. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). We do not enlarge or extend the statute or read into it something not intended by the legislature as shown from the statute itself. State v. Anway, 87 Ariz. 206, 209, 349 P.2d 774, 776 (1960). Words in a statute are given their ordinary meaning unless they are specifically defined differently or the context indicates a different meaning was intended. A.R.S. § 1-213 (2002); Mid Kansas Fed. Sav. & Loan Ass'n of Wichita v. Dynamic Dev. Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991). We apply these same rules in interpreting the Guidelines. Mead v. Holzmann, 198 Ariz. 219, 221, ¶ 8, 8 P.3d 407 409 (App. 2000).
¶15 The family court has only the authority provided by statute. Weaver v. Weaver, 131 Ariz. 586, 587, 643 P.2d 499, 500 (1982). Under A.R.S. § 25-320, the court may order a parent "to pay an amount reasonable and necessary for support of the child, without regard to marital misconduct." A.R.S. § 25-320(A) (Supp 2013). "Support" means "the provision of maintenance or subsistence." A.R.S. §§ 25-320(R)(5) (Supp. 2013), -500(9) (Supp. 2013). "Maintenance" has been defined as:
We cite the current version of the statute because no revisions material to this decision have since occurred.
Sustenance; support; assistance; aid. The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, . . .Black's Law Dictionary 953 (6th ed. 1990). It has elsewhere been defined as "means of support or subsistence; livelihood." Random House Webster's College Dictionary 799 (2nd ed. 1999). "Subsistence" has been defined as "Support. Means of support, provisions, or that which procures provisions or livelihood," Black's Law Dictionary 1428 (6th ed. 1990), and "the means of supporting life" or "the source from which food and other items necessary to exist are obtained," Random House Webster's College Dictionary 1302 (2nd ed. 1999). In addition, we have previously interpreted the statutory definition of "support" as requiring a parent "to provide sufficient support to maintain a child at a reasonable subsistence level with food, shelter, clothing, medical care and the like." State v. Buhman, 181 Ariz. 52, 55, 887 P.2d 582, 85 (App. 1994) (interpreting former A.R.S. § 12-2451 (1998), the pertinent parts of which are now found at A.R.S. § 25-500 (Supp. 2013) and § 25-501 (Supp. 2013)).
¶16 Requiring Father to pay airfare for unspecified relatives of Mother to visit the Child every three years does not fall within the statutory definition of "support." The court made no determination that visits from Mother's relatives were necessary for the Child's welfare or in any way related to maintenance or subsistence. The court treated Mother's request for the tickets as a remedy for restricting the Child's travel. The travel restrictions imposed by the court, however, were based on what the court apparently found to be legitimate concerns that Mother would abscond with the Child to Japan, in which event Japan was unlikely to enforce the court's orders. The court offered no reasoning as to its legal basis for the order to pay for the tickets or as to why Father should be obligated to bear the expense.
We neither decide nor address whether an upward adjustment to the monthly support award, to meet the travel requirements as to a child expressly determined to need extended family visits, may be authorized.
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¶17 Mother also relies on the Guidelines, which provide that the court "may allocate travel expenses of the child associated with parenting time in cases where one-way travel exceeds 100 miles." Guidelines § 18. This provision does not support Mother's position, however, because the travel expenses of Mother's extended family are not "associated with parenting time." The plain language of the statute does not authorize the court to allocated expenses for travel for other purposes.
¶18 We conclude that neither A.R.S. § 25-320 nor the Guidelines authorize the family court, under these circumstances, to order Father to pay for Mother's family's round-trip tickets to visit the Child. Mother has cited no other authority in support of the ruling. We therefore vacate that portion of the family court's order requiring Father to purchase the tickets.
¶19 Mother argues that the issue of the Child's contact with Mother's extended family is so inextricably connected with the family court's decision precluding the Child from international travel, that if this court vacates the family court's order with respect to Father's payment of expenses, we should order a new trial as to all related issues.
¶20 Where issues are interwoven and cannot be separated without injustice, a new trial should include those interwoven issues. Styles v. Ceranski, 185 Ariz. 448, 451, 916 P.2d 1164, 1167 (App. 1996). We disagree, however, that the issue decided by this court is inextricably intertwined with the family court's decision precluding the Child from traveling to Japan. In making its decision the court noted that it was concerned that Japanese courts would not enforce its orders; such concerns are not affected by our decision. In addition, Mother and Child are not precluded from contact with Mother's relatives. Evidence at trial indicated that Mother's relatives had previously visited and Mother did not refute Father's claims that her family apparently had the means to do so again. Our decision merely finds that the family court could not order Father to bear the expense of their travel.
¶21 Mother also argues that an earlier ruling by the family court permitted the Child to travel to Japan and that the subsequent ruling precluding such travel was not based on new evidence and that a new trial should include the issue of whether sufficient evidence existed to preclude the Child's travel. Mother appears to argue that this court should reverse and remand for lack of evidence the family court's order precluding the Child from traveling to Japan. We lack jurisdiction to consider this argument.
¶22 Absent a cross-appeal, this court may not consider an argument by an appellee that seeks to attack the trial court's judgment to enlarge his or her rights or lessen the rights of the appellant under that judgment. ARCAP 13(b)(3); CNL Hotels & Resorts, Inc. v. Maricopa County, 230 Ariz. 21, 25, ¶ 20, 279 P.3d 1183, 1187 (2012). In asking for a new trial on the court's order precluding the Child's travel to Japan on the grounds of insufficient evidence, Mother is seeking to diminish Father's rights and expand her own. Mother was required therefore to file a cross-appeal; because she failed to do so, this court may not consider the argument.
¶23 Both Mother and Father request an award of attorneys' fees on appeal pursuant to A.R.S. § 25-324 (Supp. 2013). In our discretion we deny the requests.
CONCLUSION
¶24 We find that the family court did not have the authority under A.R.S. § 25-320 or the Guidelines under these circumstances to order Father to pay for round-trip tickets from Japan for Mother's extended family to visit the Child. We therefore vacate that portion of the court's order.