Opinion
No. 2 CA-CV 2016-0159-FC
03-01-2017
CELESTE MARTINEZ, Petitioner/Appellant, v. JUSTIN KURI SALGADO, Respondent/Appellee.
COUNSEL Lalosh Law, P.L.L.C., Tucson By Diane M. Lalosh Counsel for Petitioner/Appellant Ames-Light & Associates, P.C., Tucson By Susan A. Light Counsel for Respondent/Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. SP20120633
The Honorable Christopher C. Browning, Judge
AFFIRMED
COUNSEL Lalosh Law, P.L.L.C., Tucson
By Diane M. Lalosh
Counsel for Petitioner/Appellant Ames-Light & Associates, P.C., Tucson
By Susan A. Light
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Vásquez concurred. HOWARD, Presiding Judge:
¶1 Celeste Martinez appeals from the trial court's ruling effectively denying her petition to modify child support. She contends the court abused its discretion by ratifying a 2014 stipulation between herself and Justin Salgado in which they agreed Salgado would pay a deviated amount of child support. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In August 2014, the trial court entered an order, pursuant to Martinez and Salgado's stipulation, regarding legal custody, parenting time, and child support relating to their child A.M., then two years old. Although the child support guidelines dictated Salgado should pay Martinez $695 each month, they both agreed Salgado would pay a deviated amount of $207. The agreement also gave Martinez the right to relocate with A.M. out of Arizona, in which case the parenting plan would be suspended and Martinez and Salgado would "consult together in good faith about a new parenting time plan." In October 2014, Martinez moved with A.M. to Texas.
¶3 In February 2016, Salgado filed a motion to modify parenting time, seeking a new parenting plan because he alleged Martinez was preventing him from exercising any parenting time. Martinez subsequently filed a motion to modify child support, alleging Salgado's health insurance for A.M. was not valid in Texas and she therefore had to provide that coverage, and also alleging the parties' income and Salgado's parenting time had changed since 2014.
¶4 Following a two-day hearing, the trial court entered an order ratifying the 2014 agreement as to legal custody and child support, but modifying Salgado's parenting time. We have jurisdiction over Martinez's appeal pursuant to A.R.S. §§ 12-2101(A)(2) and 12-120.21(A)(1).
Discussion
¶5 Martinez argues "the trial court abused its discretion in ratifying the previous agreement and not granting [her] motion to modify child support." "The decision to modify an award of child support rests within the sound discretion of the trial court and, absent an abuse of that discretion, will not be disturbed on appeal." Jenkins v. Jenkins, 215 Ariz. 35, ¶ 8, 156 P.3d 1140, 1142 (App. 2007).
¶6 Martinez first contends the trial court erred by failing to prepare a Child Support Worksheet to determine the appropriate amount of child support without deviation. She argues that because the court altered the parenting time arrangement, it was required to determine the appropriate amount of child support pursuant to A.R.S. § 25-320 and the applicable guidelines. A.R.S. § 25-403.09(A); see also Heidbreder v. Heidbreder, 230 Ariz. 377, ¶ 7, 284 P.3d 888, 890-91 (App. 2012). She did not, however, alert the court to the requirements of § 25-403.09 or object to the court's failure to prepare the worksheet. The court therefore did not have an opportunity to address this issue and Martinez has waived it. Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59 (1995); see also Banales v. Smith, 200 Ariz. 419, ¶ 8, 26 P.3d 1190, 1191 (App. 2001).
¶7 Martinez additionally argues the trial court's failure to make explicit findings as to whether there had been a "substantial and continuing" change in circumstances constitutes an abuse of discretion. See A.R.S. § 25-503(E). The court was not obligated to make that finding pursuant to § 25-503(E), and Martinez did not request the court make findings of fact pursuant to Rule 82, Ariz. R. Fam. Law P., nor did she object to the court's failure to do so. She has therefore waived this issue for review. Trantor, 179 Ariz. at 300-01, 878 P.2d at 658-59.
¶8 Martinez also appears to argue the trial court erred by not making an explicit finding as to whether Martinez and Salgado had an enforceable agreement that child support would be non-modifiable. As stated above, Martinez did not request such findings and did not object on this basis below. This argument is thus waived for review. Trantor, 179 Ariz. at 300-01, 878 P.2d at 658-59.
¶9 Martinez additionally argues the trial court abused its discretion because she had presented sufficient evidence of a substantial and continuing change of circumstances. She has not, however, provided this court with any of the exhibits submitted below. It is an appellant's obligation to ensure the record on appeal contains all documents necessary to consider an issue raised on appeal. State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, ¶ 16, 66 P.3d 70, 73 (App. 2003). Our review is limited to items in the record before us, A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cty., 222 Ariz. 515, ¶ 99, 217 P.3d 1220, 1248 (App. 2009), and we presume any document not in the record would support the trial court's decision, Ashton-Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996).
¶10 Additionally, although the trial court "may" modify a child support order after a substantial and continuing change in circumstances, § 25-503(E), that decision is within the sound discretion of the court, Burton, 205 Ariz. 27, ¶ 14, 66 P.3d at 73. Martinez's only argument on this issue is that "[b]oth parties had increased incomes," "the cost of day care, medical/dental/vision insurance premiums for the child" had increased as well, and there had been "a change in parenting time." This argument, however, essentially asks us to reweigh the evidence, which we will not do. See Gerow v. Covill, 192 Ariz. 9, ¶ 24, 960 P.2d 55, 61 (App. 1998). Instead, we only determine if substantial evidence supports the court's decision. Id.
¶11 The available record demonstrates that Martinez's monthly income had increased from $2,869 in 2013 to $4,763. The record does not contain Salgado's 2016 financial affidavit, which was admitted during the hearing. At the hearing, he testified his net monthly income was $5,313, a slight decrease from his 2013 income of $5,438. Martinez's 2016 financial affidavit stated A.M.'s daycare expenses totaled $624 each month, but at the hearing she testified A.M.'s daycare expenses were $134 per week, slightly less than the cost in 2013. Furthermore, despite any change in cost, she and Salgado split that cost equally, as they had in 2013. Both Martinez and Salgado paid approximately $60 per month for A.M.'s medical and dental insurance. And although Salgado's parenting time had been significantly reduced, the trial court ordered that Salgado would be financially responsible for all transportation costs necessary to exercise his parenting time. Given this evidence, and our presumption that the missing exhibits support the court's findings, Martinez has not demonstrated the court abused its discretion by denying her motion to modify the child support.
Martinez's opening brief states that she "incorporates by reference her legal arguments" made to the trial court "regarding whether there is a valid, binding, enforceable agreement to never modify child support." As already noted, the court did not make any explicit findings on whether there was such an agreement. To the extent Martinez is challenging any implicit findings on that issue, her "reference does not satisfy the requirement[s]" of Rule 13(a)(7), Ariz. R. Civ. App. P., and she has thus waived any argument on it on appeal. See Lake Havasu City v. Ariz. Dep't of Health Servs., 202 Ariz. 549, n.4, 48 P.3d 499, 503 n.4 (App. 2002); see also Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167, 920 P.2d 41, 47 (App. 1996) ("Issues not clearly raised and argued in a party's appellate brief are waived."). --------
Attorney Fees and Costs
¶12 Martinez has requested an award of her attorney fees and costs incurred on appeal, but has not provided any statutory basis for her request. We thus decline to grant such an award. In re Marriage of Williams, 219 Ariz. 546, ¶ 16, 200 P.3d 1043, 1047 (App. 2008).
¶13 Salgado has requested his reasonable attorney fees and costs on appeal pursuant to A.R.S. § 25-324(A) and (B)(1), contending Martinez's position was unreasonable and this appeal was not filed in good faith. Having considered the parties relative financial positions and reasonableness of their positions, we decline to award Salgado his reasonable attorney fees and costs on appeal pursuant to § 25-324(A). And although we did not find in Martinez's favor, we cannot say her appeal was made in bad faith. We therefore also decline to award Salgado his attorney fees and costs pursuant to § 25-324(B)(1).
Disposition
¶14 For the foregoing reasons, we affirm the trial court's judgment.