Opinion
No. 2 CA-CV 2014-0042
07-22-2014
IN RE THE MARRIAGE OF: AMY JO MYERS, NKA WILLIAMS, Petitioner/Appellee, and HOWARD MYERS, Respondent/Appellant.
Dawn Wyland, Tucson Counsel for Petitioner/Appellee Dan W. Montgomery, Tucson Counsel for Respondent/Appellant
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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. D20101613
The Honorable Suzanna S. Cuneo, Judge Pro Tempore
AFFIRMED
COUNSEL
Dawn Wyland, Tucson
Counsel for Petitioner/Appellee
Dan W. Montgomery, Tucson
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 In this domestic-relations action, Howard Myers appeals from the trial court's denial of his motion for a new trial following an order awarding child support to appellee Amy Williams. He argues the court erred in determining his income when setting the amount of the award. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. In re Marriage of Yuro, 192 Ariz. 568, ¶ 3, 968 P.2d 1053, 1055 (App. 1998). Amy and Howard married in June 1996. During their marriage, Howard was self-employed, providing consulting services for land developers in need of erosion and sediment control. In late 2003, Howard hired his brother, Jeff Myers, to assist with the business, and, between 2004 and 2005, Howard experienced his "peak year." In early 2005, after Amy and Howard temporarily separated, Howard warned Amy he had contacted an attorney and had taken steps to ensure that she would not receive "anything" if their marriage dissolved in the future.
Although Amy filed a motion to join Jeff as a third-party, he was dismissed from the action later.
¶3 In April 2010, Amy filed a petition for legal separation with children, which later was converted to dissolution of marriage. At trial, Howard testified on the issue of child support that his income as of April 2013 was between $1,000 and $1,500 per month due to the recession that had occurred in 2008. The court's signed under-advisement ruling was filed in July 2013. Relying on a 2008 tax return Howard had filed with his last inventory of property and debt, the court attributed an annual income of $130,000 to Howard for the purpose of calculating child support. It then directed Amy to file a worksheet and proposed order "reflecting these figures." The court's ruling also dissolved the parties' marriage, divided their property and debt, affirmed their earlier agreement on legal decision-making and parenting time, and denied all requests for attorney fees.
If one "party objects to a decree of legal separation, . . . the court shall direct that the pleadings be amended to seek a dissolution of the marriage." A.R.S. § 25-313(4).
The trial court noted that, "although the matter was originally pled as a Petition[] for Legal Separation, there is no disagreement that the matter should proceed to a dissolution and jurisdictional testimony was taken on day one of the trial from [Amy]."
¶4 Prior to submitting the worksheet and proposed child support order, Amy filed two motions pursuant to Rules 35 and 85, Ariz. R. Fam. Law P. Among other things, she requested that child support be retroactive from the date of the parties' separation in January 2010. At a subsequent hearing, the trial court again directed Amy to submit a child support order for the court's signature but gave Howard "leave . . . to challenge the [effective] date." The court also set another hearing for September 20, 2013, stating it would "hear all pending motions" at that time.
Amy also asked the court to restore her maiden name, reconsider an award of attorney fees and its division of property and debt, and resolve a claim for "[f]raudulent [c]onveyance [that] was properly ple[]d in pretrial and argued at court."
¶5 The trial court entered a child support order on September 5, 2013, and it "affirmed" that order after the September 20 hearing. On September 30, 2013, Howard requested "a new [t]rial on the issue of child support or alternatively an order modifying the child support." He argued that his recently filed tax returns for 2009 through 2012 were newly discovered evidence and those returns indicated his income had dropped significantly below the $130,000 amount attributed to him.
¶6 The trial court denied Howard's motion for a new trial on December 18, 2013. Howard filed a notice of appeal from the denial of that motion on January 14, 2014.
Jurisdiction
¶7 Howard states this court has jurisdiction to review his appeal pursuant to A.R.S. § 12-2101(A)(1), (2), (4), and (5)(a). Although Amy does not disagree, this court has an independent duty to confirm its jurisdiction. In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 6, 289 P.3d 946, 948 (App. 2012). "Our jurisdiction is prescribed by statute, and we have no authority to entertain an appeal over which we do not have jurisdiction." In re Marriage of Kassa, 231 Ariz. 592, ¶ 3, 299 P.3d 1290, 1291 (App. 2013).
¶8 "The timely filing of a valid notice of appeal is a prerequisite to the exercise of appellate jurisdiction." Santee v. Mesa Airlines, Inc., 229 Ariz. 88, ¶ 3, 270 P.3d 915, 916 (App. 2012). Generally, a notice of appeal must be filed within "30 days after the entry of the judgment from which the appeal is taken, unless a different time is provided by law." Ariz. R. Civ. App. P. 9(a). The time to file may be extended if a "party files any of a series of specified post-judgment motions—including a motion for a new trial." Craig v. Craig, 227 Ariz. 105, ¶ 7, 253 P.3d 624, 625 (2011); see Ariz. R. Civ. App. P. 9(b). Nevertheless, to extend the time to file an appeal, the motion for a new trial must also be timely filed. See Ariz. R. Fam. Law P. 4(B); Edwards v. Young, 107 Ariz. 283, 284-85, 486 P.2d 181, 182-83 (1971) (discussing civil counterpart to Rule 4(B)); Butler Prods. Co. v. Roush, 145 Ariz. 32, 33, 699 P.2d 906, 907 (App. 1984) ("[T]ime limits for filing a motion for new trial are to be strictly applied.").
¶9 Here, Howard filed his notice of appeal within thirty days from the denial of his motion for a new trial. See Ariz. R. Civ. App. P. 9(b)(1)(D); see also § 12-2101(A)(5)(a). However, we must determine whether Howard's motion for a new trial was timely filed within fifteen days of the underlying judgment. See Ariz. R. Fam. Law P. 83(D)(1) (fifteen days to file motion for new trial). And, to answer that question, first we must identify when the underlying appealable judgment was entered. Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, ¶ 7, 189 P.3d 1114, 1117-18 (App. 2008) ("The date of filing, or entry, of judgment . . . commences the running of the time for filing post-trial motions.").
¶10 To be final, an order generally must dispose of all parties and claims in the underlying action. See Ariz. R. Fam. Law P. 78(B); Robinson v. Kay, 225 Ariz. 191, ¶ 4, 236 P.3d 418, 419 (App. 2010). In addition, we have "historically focused on the intent of the judge" to determine whether a judgment is final. Haywood Sec., Inc. v. Ehrlich, 214 Ariz. 114, ¶ 14, 149 P.3d 738, 740-41 (2007). Here, the trial court's signed under-advisement ruling filed in July 2013 did not resolve the issue of child support and instead directed Amy's counsel "to draft a child support order and worksheet for the [c]ourt's signature . . . after submitting it for review to [Howard]." And, the court explicitly noted in its under-advisement ruling that "[p]er the request of the parties," it would treat the ruling "as the formal decree of dissolution unless the parties choose to file a formal decree." Thus, the July 2013 ruling did not resolve all the claims in this action, nor did it show a clear intention of finality.
¶11 The September 5 child support order also lacked the requisite finality. Amy raised several new issues in her motions filed pursuant to Rules 35 and 85 that had to be addressed before the trial court could resolve the child support issue. By minute entry dated August 29, the court directed Amy to file a proposed child support order, which it entered on September 5, but the court also gave Howard "leave . . . to challenge the [effective] date" of child support. Moreover, the court set a hearing for September 20, during which it planned to "hear all pending motions." Therefore, the child support order entered September 5 also did not constitute a final judgment. See Robinson, 225 Ariz. 191, ¶ 4, 236 P.3d at 419.
¶12 We conclude instead that, for purposes of this appeal, the trial court's signed minute entry from the September 20 hearing filed on September 23 represents the final, appealable judgment. In that minute entry, the court granted some of Amy's pending motions, implicitly denied her remaining claims, and "affirmed" the September 5 child support order. Although Howard notified the court that "he intend[ed] to file a motion to address child support and arrearages" and the court affirmed the child support order "subject to [Howard] filing a motion to challenge the same," he apparently did not specifically request any relief during the September 20 hearing. Moreover, the court later entered an order clarifying that "the child support [o]rder . . . is final and appealable as of September 20, 2013."
The trial court filed this order in response to the parties' stipulation that the child support order became "final and appealable" on September 20. Normally, "the time [to file a post-judgment motion] may not be extended by agreement of counsel nor is jurisdiction thereby conferred upon the trial court to rule upon the merits of the motion." Edwards, 107 Ariz. at 285, 486 P.2d at 183. Nevertheless, we conclude that the minute entry entered September 23 was final and appealable.
¶13 Because Howard's motion for a new trial was filed seven days after this final judgment, the motion was timely and extended the time to appeal. See Haroutunian, 218 Ariz. 541, ¶ 7, 189 P.3d at 1117-18. We therefore have jurisdiction to review Howard's appeal from the denial of that motion. See § 12-2101(A)(5)(a).
Howard also requested a modification of child support in his motion for a new trial, and that request was still pending with the trial court when Howard filed his notice of appeal. See Ariz. R. Fam. Law P. 91. Generally, post-judgment orders are subject to the same requirement of finality as any other judgment, and a notice of appeal filed before a final post-judgment order is entered would be premature. See Marriage of Kassa, 231 Ariz. 592, ¶¶ 4-5, 299 P.3d at 1291-92; Craig, 227 Ariz. 105, n.1, 253 P.3d at 625 n.1 (denial of motion for new trial considered "judgment" pursuant to Rule 78). However, this particular appeal is not premature because a motion for modification is not the type of time-extending motion that must be resolved before bringing an appeal, see Craig, 227 Ariz. 105, ¶¶ 7-8, 253 P.3d at 625, and the denial of a motion for a new trial is an appealable order pursuant to § 12-2101(A)(5)(a), see Pulaski v. Perkins, 127 Ariz. 216, 218 n.3, 619 P.2d 488, 490 n.3 (App. 1980).
Child Support Order
¶14 Howard argues the trial court erred in denying his motion for a new trial because it "erroneously imputed income far beyond his means in violation of the Child Support Guidelines." Specifically, he contends the court erred when it attributed him with income of $130,000, based on his 2008 tax return, an amount "higher than his last four tax returns show," without "provid[ing] a finding that it was imputing income to [him] or how [the court] was calculating this imputed income." We review the denial of a motion for a new trial for a manifest abuse of discretion. Melcher v. Melcher, 137 Ariz. 210, 212, 669 P.2d 987, 989 (App. 1983); see also In re Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 5, 35 P.3d 89, 92 (App. 2001) (child support award reviewed for abuse of discretion). A court abuses its discretion when the record is "devoid of competent evidence to support [its] decision." Platt v. Platt, 17 Ariz. App. 458, 459, 498 P.2d 532, 533 (1972). We do not reweigh the evidence but consider only whether there is reasonable evidence supporting the court's decision. Rowe v. Rowe, 154 Ariz. 616, 620, 744 P.2d 717, 721 (App. 1987).
¶15 Generally, a trial court must use the Arizona Child Support Guidelines to determine the amount of child support a parent must pay, "unless the[ Guidelines'] application would be 'inappropriate or unjust.'" State ex rel. Dep't of Econ. Sec. v. Ayala, 185 Ariz. 314, 316, 916 P.2d 504, 506 (App. 1996), quoting A.R.S. § 25-320(D). The principal consideration under the Guidelines is a parent's gross income. See A.R.S. § 25-320 app. § 5. In determining gross income, subsection 5(E) states:
"[T]he Guidelines are not substantive law, but function rather as a source of guidance to trial courts in applying the substantive statutory and case law." Little v. Little, 193 Ariz. 518, ¶ 6, 975 P.2d 108, 111 (1999), citing In re Marriage of Pacific, 168 Ariz. 460, 466, 815 P.2d 7, 13 (App. 1991).
If a parent is unemployed or working below full earning capacity, the court may consider the reasons. If earnings areSee also Little v. Little, 193 Ariz. 518, ¶¶ 12-13, 975 P.2d 108, 112-13 (1999). A child support order that "attribut[es] . . . a greater amount of income to [a party] than he was actually earning at the time of trial" necessarily implies the court relied on subsection 5(E) in determining the amount of the award. McNutt v. McNutt, 203 Ariz. 28, ¶ 18, 49 P.3d 300, 304 (App. 2002).
reduced as a matter of choice and not for reasonable cause, the court may attribute income to a parent up to his or her earning capacity. If the reduction in income is voluntary but reasonable, the court shall balance that parent's decision and benefits therefrom against the impact the reduction in that parent's share of child support has on the children's best interest.
¶16 Howard acknowledged that he was underemployed but asserted the state of the economy prevented him from finding new clients. In contrast, Amy testified that his actions following their separation in 2005 were to blame for the reduction in his income:
Howard felt pretty confident about [his business], that it would work out well for him, because he would gloat and he would say things to me like if you leave again, . . . I have everything set up so you're not going to get anything. . . .
. . . .. . . [H]e said he hired an attorney and that he was . . . getting things set up to make sure that I didn't get anything.
. . . .. . . [F]rom what I could see, it looked like he was funneling everything to [his brother,] Jeff.
¶17 Amy noted that, after the parties' separation in 2005, "all of the accounts that were Howard's were now Jeff's." And although Jeff started his own business in 2005, Amy testified that the "structure" of the relationship between Howard and Jeff remained the same: "Howard called the shots." An employee of Jeff's also testified that, during site inspections, Howard "would go out with us and just kind of make sure we were doing things that he wanted us to do." Howard also prepared work schedules and drafted contracts using forms prepared for his business, shared his office space with Jeff's employee, and sent faxes to clients on behalf of Jeff's business.
¶18 The record supports Amy's testimony. Several volumes of financial documents suggest that Jeff's business rapidly grew as Howard's decreased, the two businesses shared clients and funds, and Jeff's business had a gross income in 2011 near that of Howard's business in 2006. Thus, sufficient evidence exists to support the trial court's apparent conclusion that Howard had voluntarily reduced his income and that his income in 2008 represented his true earning capacity. See McNutt, 203 Ariz. 28, ¶ 18, 49 P.3d at 304; Marriage of Robinson & Thiel, 201 Ariz. 328, ¶ 5, 35 P.3d at 92; Melcher, 137 Ariz. at 212, 669 P.2d at 989.
Howard's counsel argued during Amy's testimony that Jeff "did stuff besides [site] inspections" to generate this income. The court replied that the issue could be raised during Jeff's cross-examination. However, Howard failed to include the transcript of Jeff's testimony in the record on appeal. Thus, we must assume his testimony "would support the court's findings and conclusions." Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).
Howard argues on appeal that the trial court "had already made findings regarding [his] income, . . . concluding [his] income was well below the income later imputed by the trial court." He also concedes, however, that "these were not, of course, decisions which bound the trial court." Cf. Baker v. Bradley, 231 Ariz. 475, ¶¶ 10-17, 296 P.3d 1011, 1015-16 (App. 2013) (any ruling subject to change before final judgment entered). Therefore, we need not address this argument further.
¶19 Howard nevertheless argues that his personal tax returns for 2009 through 2012 show his income had dropped significantly below $130,000. However, these tax returns were not provided to the court until Howard's motion for a new trial filed after the September 23 final judgment. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990) (appellate review limited to record before trial court). And although Howard's motion asserted the tax returns were "new material evidence" pursuant to Rule 83(A)(4), Ariz. R. Fam. Law P., he failed to raise below or on appeal any ground that would justify revisiting the original proceedings with this new evidence. See Ariz. R. Civ. App. P. 13(a)(6) ("An argument . . . shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on."); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007) (issue waived for insufficient argument on appeal).
A moving party must show "(1) the newly discovered evidence could not have been discovered before the granting of judgment despite the exercise of due diligence, (2) the evidence would probably change the result of the litigation, and (3) the newly discovered evidence was in existence at the time of the judgment." Boatman v. Samaritan Health Servs., Inc., 168 Ariz. 207, 212, 812 P.2d 1025, 1030 (App. 1990).
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¶20 Howard also argues that "[i]f the trial court believed that [his] evidence and testimony w[ere] unreliable" on the issue of income, "it should have made a finding that it believed that [Howard] reduced his[] earnings as a matter of choice and furthermore that the choice was unreasonable." But Howard did not request findings of fact during the underlying proceedings or in his motion for a new trial. Thus, he has waived any review of this issue as well. See Trantor v. Fredrikson, 179 Ariz. 299, 301, 878 P.2d 657, 659 (1994) (failure to request findings of fact waives issue on appeal); Rourk v. State, 170 Ariz. 6, 12, 821 P.2d 273, 279 (App. 1991) (when appeal taken "solely from an order denying a motion for new trial," issues addressed on appeal are only those raised in motion for new trial). And, in any event, although the Guidelines state "[t]he court shall make findings in the record as to . . . Gross Income," it also states this requirement is satisfied "by incorporating a worksheet containing this information into the file." § 25-320 app. § 22. Thus, the worksheet that the court directed Amy to submit was sufficient to support the court's final child support order.
Attorney Fees
¶21 Amy has requested attorney fees and costs on appeal pursuant to A.R.S. §§ 12-341, 12-341.01, 12-349, and 25-324. Section 12-341.01 only applies to "action[s] arising out of a contract," and, thus, is not a basis for an award of fees here. Nor does it appear from the record that Howard filed this appeal in bad faith, for an improper purpose, or without any support in the facts or law. See §§ 12-349, 25-324(B). And in our discretion, we deny Amy's request for fees pursuant to § 25-324(A). However, upon compliance with Rule 21, Ariz. R. Civ. App. P., Amy is entitled to recover her costs as the prevailing party on appeal.
Disposition
¶22 For the reasons stated above, we affirm.