Opinion
No. 1 CA-CV 17-0135 FC
11-28-2017
In re the Marriage of: ETHAN RAIMEY, Petitioner/Appellant, v. RONILYN RAIMEY, Respondent/Appellee.
COUNSEL Meerchaum & Orduno, Yuma By Candice Orduno-Crouse Counsel for Petitioner/Appellant S. Alan Cook, PC, Phoenix By S. Alan Cook Counsel for Respondent/Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yuma County
No. S1400DO201501748
The Honorable Stephen J. Rouff, Judge Pro Tempore
AFFIRMED
COUNSEL Meerchaum & Orduno, Yuma
By Candice Orduno-Crouse
Counsel for Petitioner/Appellant S. Alan Cook, PC, Phoenix
By S. Alan Cook
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Jon W. Thompson and Judge John C. Gemmill joined. JONES, Judge:
The Honorable John C. Gemmill, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution.
¶1 Ethan Raimey (Father) appeals the family court's orders: (1) attributing him a monthly income of $2,200 for purposes of calculating child support and spousal maintenance, and (2) awarding Ronilyn Raimey (Mother) final legal-decision making authority over the parties' two minor children (the Children). 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, ¶ 1 (App. 2007) (citing Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)).
¶2 Father and Mother married in 2007, and Mother gave birth to the Children in 2010 and 2013. Mother successfully obtained an order of protection against Father in December 2015, and Father immediately petitioned to dissolve the marriage. The order of protection was upheld following a contested hearing.
¶3 Following a trial in December 2016, the family court entered a dissolution decree dividing the parties' property and debts. As relevant to this appeal, the court awarded the parties joint legal decision-making authority over the Children with Mother having final decision-making authority following reasonable consultation with Father. The court also attributed Father monthly income of $2,200 and calculated both child support and spousal maintenance using this figure. Father moved unsuccessfully for a new trial and then timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), -2101(A)(1), and (5)(a).
Absent material changes from the relevant date, we cite a statute's current version.
DISCUSSION
I. Father's Income
¶4 Father argues several errors in the family court's order attributing him a monthly income of $2,200 for purposes of calculating child support and spousal maintenance.
A. Voluntariness
¶5 Father first argues the family court erroneously concluded his wage reduction was voluntary because, he contends, the court failed to consider: (1) the possible effects of the order of protection upon his employment opportunities, and (2) that the family had been planning to move to Ohio when the proceedings began. We review the court's findings for an abuse of discretion. See Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009).
¶6 Father's assertions are not supported by the record. At trial, Father testified he had been unable to find employment as an airframe mechanic, suggesting the order of protection would prevent him from obtaining the necessary security clearance. He also testified about the planned move to Ohio. To the extent the family court believed Father's evidence was relevant and competent, we presume it was considered. See May v. Sexton, 68 Ariz. 358, 360 (1949). Moreover, although Father claimed the order of protection affected his ability to find suitable employment, Father did not present any evidence that he had actually applied for and been denied a security clearance or that any potential employer had rejected his application based upon the existence of the order of protection. The court was free to reject Father's unsupported self-serving testimony that his employment opportunities were limited. See Graham v. Vegetable Oil Prods. Co., 1 Ariz. App. 237, 241 (App. 1965) ("[T]he trial court is not bound to accept as true the uncontradicted testimony of an interested party.") (citations omitted); see also State v. Medrano, 185 Ariz. 192, 194 (1996) ("Because of the obvious motive to fabricate, . . . self-serving testimony is subject to skepticism."). It apparently did so here, and, because the court, as the fact finder, is "in the best position to judge the credibility of witnesses and resolve conflicting evidence," Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015) (citing Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 169 (App. 1971)), we will not disturb its conclusion.
¶7 Moreover, we are unpersuaded by Father's argument that his situation was "anything but voluntary." In advancing this position, Father faults Mother for "blind-sid[ing him]" with an order of protection and for "her complete unwillingness to negotiate on the order of protection" when she knew it affected Father's ability to obtain employment. We reject the suggestion that a person who has sought and obtained an order of protection against another must choose between safety and support. This is particularly true where, as here, that order was upheld after a contested hearing where Father was given the opportunity to fully articulate his position.
B. Reasonableness
¶8 Father argues the family court erroneously applied a "totality of circumstances" approach in determining whether his wage reduction was reasonable, rather than the "intermediate balancing test" articulated in Little v. Little, 193 Ariz. 518 (1999), and Pullen v. Pullen, 223 Ariz. 293 (App. 2009). We review questions regarding the proper application of law de novo. State Comp. Fund v. Yellow Cab Co. of Phx., 197 Ariz. 120, 122, ¶ 5 (App. 1999) (citing Gonzalez v. Satrustegui, 178 Ariz. 92, 97 (App. 1993)).
¶9 For purposes of attributing income to calculate child support where a person reduces his income to attend school full-time under the "intermediate balancing test," the family court should consider:
whether the parent's current educational level and physical capacity provide him or her with the ability to find suitable work in the marketplace[,] . . . [i]f the additional training is likely to increase the parent's earning potential, . . . the length of the parent's proposed educational program, . . . whether the children are young enough to benefit from the parent's increased future income[,] . . . whether the parent is able to finance his or her child support obligation while in school through other resources such as student loans or part-time employment[, and] . . . whether the parent's decision is made in good faith.Little, 193 Ariz. at 522-23, ¶ 13; see also A.R.S. § 25-320 app. § 5(E) (Guidelines) ("If a parent is unemployed or working below full earning capacity, the court may consider the reasons. If earnings are 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."). For purposes of attributing income to calculate spousal maintenance, the court must consider:
(1) The reasons asserted by the party whose conduct is at issue; (2) The impact upon the obligee of considering the actual earnings of the obligor; (3) When the obligee's conduct is at issue, the impact upon the obligor of considering the actual earnings of the obligee and thereby reducing the obligor's financial contribution to the support order at issue; (4) Whether the party complaining of a voluntary reduction in income acquiesced in the conduct of the other party; and (5) The timing of the action in question in relation to the entering of a decree or the execution of a written agreement between the parties.Pullen, 223 Ariz. at 297-98, ¶¶ 15, 18. In both circumstances, the court should balance the enumerated factors "in addition to other evidence" to determine "the overall reasonableness" of the party's behavior in light of his family support obligations. Id. at 298, ¶ 18; Little, 193 Ariz. at 522, ¶ 13.
¶10 We find no meaningful difference between the "intermediate balancing test" adopted in Little and Pullen and a general consideration of the totality of the circumstances. Indeed, in adopting the balancing test, our courts rejected more restrictive tests that focused on one factor to the exclusion of others. See Little, 193 Ariz. at 521-22, ¶¶ 8-11; Pullen, 223 Ariz. at 297, ¶¶ 15-18. Although the family court here used different terminology, we find no merit in Father's assertion that it applied the wrong test altogether.
¶11 Father also argues the family court failed to consider several relevant factors in evaluating whether his income reduction was reasonable and that the evidence does not support its conclusion that his conduct was unreasonable. The court retains discretion to consider the nature of, and reasons for, the income reduction however, and its decision will be upheld unless the record "is 'devoid of competent evidence to support' it." Little, 193 Ariz. at 520, 523-24, ¶¶ 5, 14, 18 (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)).
¶12 Father's argument focuses largely on evidence not presented to the court below and not contained in the record on appeal. We will not consider evidence presented for the first time on appeal. See LaWall v. Pima Cty. Merit Sys. Comm'n, 212 Ariz. 489, 491 n.3, ¶ 5 (App. 2006) (citing Lewis v. Oliver, 178 Ariz. 330, 338 (App. 1993), and ARCAP 11(a)). Father also argues his position is supported by inferences the family court could have drawn from the evidence. However, Father cannot establish error on this basis. See supra n.2 and ¶ 5; see also Scott v. Scott, 75 Ariz. 116, 120-21 (1953) (noting the factfinder may not be overruled "merely because the jury could have drawn different conclusions or inferences, or merely because courts feel that other inferences or other conclusions would be more desirable") (citation omitted).
¶13 Here, the family court found Father presented "no meaningful evidence why it would be reasonable for [Father] to voluntarily reduce his earnings to pursue an educational program" and, after considering the Children's immediate need for support and Mother's limited earning capacity, concluded it was "unreasonable for [Father] to pursue vague educational objectives in substitution for his current responsibility to support the children to the extent of his reasonable earning potential." These findings are supported by the record, which reflects Father, a trained airframe mechanic and decorated veteran, historically earned a monthly income in excess of $3,000. Father claimed zero income within his affidavit of financial information because he was attending school, but claimed monthly living expenses in excess of $2,600 and had sufficient income to accrue numerous restaurant and hotel charges. Moreover, as noted in ¶¶ 6-7 supra, Father did not show he was unable to obtain comparable work, either full- or part-time, while furthering his education. Nor did Father provide any information regarding his course of study, his anticipated graduation date, the objectives of his education, or how it would enhance his future ability to meet court-ordered support obligations. This information was exclusively within Father's control, and he cannot fault the court for failing to consider evidence and argument he elected not to present. Additionally, the timing of Father's decision to further pursue his education at the expense of his overall income — at the same time he filed the petition for dissolution — ways in favor of attributing Father income. On this record, we find no abuse of discretion.
Contrary to Father's assertion otherwise, the family court specifically considered the impact of his voluntary income reduction on the Children. Even had it not, however, the court could easily infer the Children would suffer without support from Father based upon the evidence that Mother was unable to meet her own needs. --------
II. Legal Decision-Making
¶14 The family court granted the parties joint legal decision-making authority and awarded Mother final decision-making authority after reasonable consultation with Father. This Court will not disturb a legal decision-making order absent an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
¶15 Father argues the family court did not consider all the factors relevant to determining the level of decision-making that is in the children's best interests, as enumerated in A.R.S. § 25-403.01(B). Father's contention is, again, not supported by the record.
¶16 Pursuant to A.R.S. § 25-403.01(B), the family court, prior to entering orders regarding legal decision-making authority, must consider:
1. The agreement or lack of an agreement by the parents regarding joint legal decision-making.The decree here reflects careful consideration of these circumstances. Indeed, the court found there was no agreement for legal decision-making, the parties were both unreasonable in refusing to consider joint legal decision-making authority, and although the parties were not yet able to reasonably communicate and be civil, joint decision-making authority was nonetheless logistically feasible. The parties otherwise had equal ability to make legal decisions for the Children, but Mother had a slight advantage because she had been the primary care provider during the pendency of the proceedings. Notably, the court expressed its hope that the arrangement "will eventually lead to real co-parenting and the ability to make joint legal decisions since such a development would be in the best interests of the children." Given the circumstances, we cannot say the court abused its discretion in granting the parties joint legal decision-making authority with Mother to serve as the tiebreaker.
2. Whether a parent's lack of an agreement is unreasonable or is influenced by an issue not related to the child's best interests.
3. The past, present and future abilities of the parents to cooperate in decision-making about the child to the extent required by the order of joint legal decision-making.
4. Whether the joint legal decision-making arrangement is logistically possible.
¶17 Nor are we persuaded by Father's argument that the arrangement is "nonsensical" given the family court's finding that the parties had worked together to create a parenting plan. First, legal decisions regarding education and healthcare may present sensitive issues that require ongoing and serious discussion at a level of communication greater than that experienced in the development of a parenting plan. Second, the court clearly stated its reservations regarding the parties' ability to engage in joint legal decision-making. The court recognized the significant benefit of joint legal decision-making authority upon the Children, however, and devised an arrangement that gave the parties a chance to work toward "real co-parenting." The court carefully balanced the Children's best interests with the parties' abilities and devised an arrangement that addressed both; we find no error.
¶18 Finally, Father argues the family court's findings "appear to be more supportive of true, joint legal decision-making." Father's suggestion that the evidence could also support an alternate arrangement is insufficient to establish reversible error. See O'Hair v. O'Hair, 109 Ariz. 236, 240 (1973) ("[T]he duty of a reviewing court begins and ends with the inquiry whether the trial court had before it evidence which might reasonably support its action viewed in the light most favorable to sustaining the findings.").
CONCLUSION
¶19 The family court's orders are affirmed.
¶20 Both parties request an award of attorneys' fees and costs pursuant to A.R.S. § 25-324(A). Having considered the financial resources of the parties and the reasonableness of their respective positions, we award Mother an amount of reasonable attorneys' fees to be determined upon compliance with ARCAP 21(b). As the prevailing party, Mother is awarded her costs on appeal upon compliance with ARCAP 21(b). See A.R.S. § 12-341.