Opinion
No. 1 CA-CV 14-0808 FC
12-03-2015
In re the Matter of: MOLLY MCGINNIS, Petitioner/Appellee, v. CHRISTOPHER D'ALTON, Respondent/Appellant.
COUNSEL Christopher D'Alton, Phoenix 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. FC2013-007513
The Honorable Roger E. Brodman, Judge
AFFIRMED
COUNSEL Christopher D'Alton, Phoenix
Respondent/Appellant
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined. PORTLEY, Judge:
¶1 Christopher D'Alton ("Father") appeals from the decree of dissolution awarding Molly McGinnis ("Mother") sole legal decision-making authority of their two children and ordering Father to pay child support. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
"We view the facts in the light most favorable to sustaining the family court's ruling." Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 522 n.1, ¶ 2, 169 P.3d 111, 112 n.1 (App. 2007).
¶2 The parties were married in 2011 and their first child was born the following year. Mother filed a petition for legal separation in November 2013 and, based on the parties' stipulation, the family court converted the petition into one for dissolution of marriage with children. Their second child was born soon thereafter.
¶3 Following a trial, the family court issued a decree of dissolution awarding Mother sole legal decision-making authority, ordering Father to pay $1,290.00 per month for child support, and ordering Father to pay Mother $1,153.50 for child support arrearages. Father appealed, and we have jurisdiction under Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).
We cite to the current version of the statute unless otherwise noted.
DISCUSSION
¶4 Father claims the family court erred in its child-support calculations, legal decision-making determination, and evidentiary rulings. We address each in turn.
Mother did not file an answering brief. Although we may treat her action as a confession of error, we exercise our discretion to decide this appeal on the merits, relying on the opening brief and our review of the trial record. See Patterson v. Patterson, 226 Ariz. 356, 358 n.2, ¶ 4, 248 P.3d 204, 206 n.2 (App. 2011).
A. Child Support
¶5 Father first contends that Mother failed to prove her earnings with a pay stub or other disclosure and the family court merely took her word for her earnings. We will not disturb an award of child support absent an abuse of discretion. Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21, 202 P.3d 481, 486 (App. 2008). But we review de novo the court's application of the Arizona Child Support Guidelines ("the Guidelines"). In re Marriage of Robinson and Thiel, 201 Ariz. 328, 331, ¶ 5, 35 P.3d 89, 92 (App. 2001).
¶6 During trial, Mother testified under oath about her income. She answered income questions from her attorney, the family court, and Father. Her testimony was relevant and material because it impacted the child support calculation. And although there is no one way to prove income, the court could consider the testimony of the person receiving the income, especially if she had only been fully employed for one week. See Brevick v. Brevick, 129 Ariz. 51, 53, 628 P.2d 599, 601 (App. 1981). Because the court had to determine the facts, including whether Mother was a credible witness, a "matter peculiarly within the province of the trier of facts," see id., there is evidentiary support for the court's ruling. See Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 18, 357 P.3d 834, 839 (2015) ("[A]ppellate courts generally defer to the findings of the family court."). Consequently, the court did not abuse its discretion by considering Mother's testimony to determine her income.
Mother filed an affidavit of financial information in March 2014, stating she had no income. At the time, she was working on her master's degree and completing a required, unpaid internship. She started working in September 2014, as a pool therapist; that is, she would fill in for someone who was ill or on vacation. She secured a full-time position as a residential therapist the week before trial.
¶7 Father also claims the court should have considered Mother's overtime income in calculating child support. The Guidelines provide that "[g]enerally, the court should not attribute income greater than what would have been earned from full-time employment." A.R.S. § 25-320 app. § 5(A). However, the court may consider overtime income if the income "was historically earned from a regular schedule and is anticipated to continue into the future." Id.
¶8 Here, there is no evidence Mother was receiving overtime pay. Mother testified that she had the full time job for one week and her schedule was "Monday through Friday, 7:00 to 5:30." There was no evidence that she earned any overtime pay at her new job, or that she "historically earned" overtime income. As a result, the court did not abuse its discretion by not finding that Mother earned overtime pay or including the alleged overtime pay in the child support calculation. See Nash v. Nash, 232 Ariz. 473, 478, ¶ 16, 307 P.3d 40, 45 (App. 2013) (noting "[t]he superior court has broad latitude to fashion an appropriate award of child support" in its application of the Guidelines) (citation omitted).
¶9 Father also argues the family court erred by ordering him to pay $1,290 per month for child support because the court did not indicate "how it arrived at this amount." The facts belie Father's argument. In the decree, the court calculated the child support payment under the Guidelines after considering that: Father earns $48,000 per year; Mother earns $19.00 per hour; Father pays $75.00 per month for the children's health insurance; Mother was ordered to pay approximately $1,500 for day care; and Father exercises an average of 110 days of parenting time. Based on the information in the record, and using the child support calculator, the court determined the child support award. Although the court did not include a copy of its award calculation in the record, we find no abuse of discretion in the calculations or the award.
The child support calculator used for child support orders entered between May 31, 2011 and before July 1, 2015, can be accessed at http://www.azcourts.gov/familylaw/2011-Child-Support-Calculator.
B. Legal Decision-Making Authority
¶10 Father next argues that the family court erred by granting Mother sole legal decision-making authority and failing to make specific findings as required by A.R.S. § 25-403. We review the superior court's legal decision-making and parenting-time decisions for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013) (citation omitted). "An abuse of discretion exists when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision." Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) (citation omitted).
¶11 The decree demonstrates the court made specific written findings as to each factor listed in A.R.S. § 25-403.01(B) and § 25-403(A). The court found that the parents' "toxic relationship" would preclude them from co-parenting. See A.R.S. § 25-403.01(B)(1)-(2). The court reviewed the prior six-month period when Mother and Father shared temporary joint legal decision-making authority and found that they were unable to co-parent; namely, the court had to intervene because Father refused to agree that he would not give the baby a bottle knowing that Mother was breast-feeding their new-born. See A.R.S. § 25-403.01(B)(3). Additionally, the parties' emails to each other contained "inappropriate harassing or derogatory comments." Based on its findings, the court concluded joint legal decision-making was not logistically possible. See A.R.S. § 25-403.01(B)(4).
¶12 The court also made detailed findings about the best interests of the children under § 25-403(A). Although both parties had problems moderating their behavior, the court concluded Father had a significantly greater problem given that Father was belligerent, had angry outbursts, engendered conflict, and sabotaged relationships, as well as his admission to his therapist that he verbally abused Mother. The court also considered that Father screamed at Mother in front of one of the children at the daycare, and he paid a debt to Mother by placing the money in a baggie inside a bag of dirty diapers. Given the court's analysis of the facts, which also included "significant acts of domestic violence towards Mother," the court did not abuse its discretion by finding that it was in the best interests of the children for Mother to have sole legal decision-making authority.
¶13 Father, however, disagrees with the court's factual findings, and argues Mother "fabricated stories" and refused to co-parent, "not the other way around." In reviewing the issues on appeal, we do not reweigh conflicting evidence. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009) (citation omitted). The family court has to find the facts, which may include determining the credibility of the witnesses, see Brevick, 129 Ariz. at 53, 628 P.2d at 601, and we will not overturn the ruling if there is any evidence supporting the ruling. See Michaelson v. Garr, 234 Ariz. 542, 544, ¶ 5, 323 P.3d 1193, 1195 (App. 2014). And because there is substantial evidence supporting the court's rulings, we find no abuse of discretion. See Hurd, 223 Ariz. at 52, ¶¶ 16-17, 219 P.3d at 262.
C. Evidentiary Rulings
¶14 Finally, Father contends the family court erred in various evidentiary rulings. We review the court's evidentiary rulings for an abuse of discretion, and will not reverse unless the ruling resulted in unfair prejudice. See Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6, 995 P.2d 281, 283 (App. 2000).
¶15 Before trial, Father filed a motion seeking Mother's medical records because he had "a sincere belief" that Mother was abusing prescription pills. The court did not rule on the motion. Father did not renew his motion before trial, nor demonstrate that he had a medical-records expert who could read the records and render an opinion about the information in the records.
¶16 Although the court did not rule on the motion, it is deemed denied by operation of law if not ruled upon at the time of final judgment. See Atchison, Topeka & Santa Fe Ry. Co. v. Parr, 96 Ariz. 13, 15, 391 P.2d 575, 577 (1964); Chopin v. Chopin, 224 Ariz. 425, 431, ¶ 22, 232 P.3d 99, 105 (App. 2010). And the court did not abuse its discretion by not ruling on the motion because even if Father's good faith suspicions were true, he could not interpret the records without an expert and he did not have an expert or suggest that one was available if the records were produced. As a result, we find no prejudice.
¶17 Father's other claim is that the court improperly admitted an audio recording. During trial, Mother sought to play an audio recording of the screaming match that occurred at the daycare. Father objected, arguing the recording had not been timely disclosed. But Mother demonstrated that the audio recording had been e-mailed to Father's lawyer months before trial. Although Father's attorney later withdrew as counsel, "a client is [normally] bound by the knowledge of his attorney," see Hackin v. First Nat'l Bank of Ariz., Phx., 5 Ariz. App. 379, 385, 427 P.2d 360, 366 (1967). As a result, the court did not abuse its discretion by overruling Father's objection to the audio recording.
¶18 Father also argues the court should not have allowed Mother to "present her case" because she did not disclose that she intended to use certain trial exhibits at trial. We disagree.
¶19 At the beginning of the trial, the court said:
Under Rule 65, if there are nondisclosure situations, the Court has a number of options at its discretion, including things from excluding the evidence, preventing testimony concerning certain issues, and also awarding financial sanctions and perhaps - this is an extreme example - entering a judgment against the party who's violated the rule.And the court exercised its discretion. For example, the court precluded Mother's attempt to introduce records from Father's mental health providers because they had not been properly disclosed before trial. Moreover, the record demonstrates that if Father objected to records that were not disclosed, the court considered the objection, and precluded Mother from introducing records that she had not disclosed. Consequently, the court did not abuse its discretion.
However, because Father called his clinical social worker to testify, the court found that Father had "opened the door" to using some medical records Mother had not disclosed. As a result, we find no abuse of discretion in the ruling.
Father also appears to argue that the family court erred by ordering him to pay child support arrearages. In his closing argument at trial, Father argued that he was current on child support and "I would like to see from the clearinghouse, some hard numbers." The court ordered a payment history, received the Support Payment Clearinghouse records, which showed Father owed Mother $1,153.50, and addressed the arrearages in the decree. Because Father did not specifically raise the issue at trial, or in his request for reconsideration and/or request for new trial, he has waived the arrearages issue on appeal. See ARCAP 13(a)(7); Polanco v. Indus. Comm'n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (noting that parties waive their issues on appeal when they fail to develop and support their arguments). --------
CONCLUSION
¶20 Based on the foregoing, we affirm the decree.