Price v. Price ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
TOBIAS PRICE, Petitioner/Appellee,
v.
NICOLE PRICE, Respondent/Appellant.
No. 1 CA-CV 17-0058 FC
FILED 12-19-2017
Appeal from the Superior Court in Maricopa County
No. FC2016-070895
The Honorable Kathleen H. Mead, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Olympus Law, LLC, Chandler
By Kirk D. Smith
Counsel for Respondent/Appellant
Tobias Price, Surprise
Petitioner/Appellee
PRICE v. PRICE
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Peter B. Swann joined.
M O R S E, Judge:
¶1 Nicole Price ("Mother") appeals from the provisions in a
decree of dissolution regarding spousal support, division of community
debt, parenting time, and child support. For the following reasons, we
affirm, in part, and vacate and remand in part.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Tobias Price ("Father") were married in 2001 and
had three children. In March 2016, Father filed for dissolution of marriage
and sought spousal support, child support, joint legal decision-making,
equal parenting time with the couple's two younger children, and
reasonable parenting time with the oldest child, A.P. Mother requested
division of the couple's community debt, joint legal decision-making, with
Mother having the "final say," but denied Father's need for spousal support,
and proposed a parenting schedule that would grant Father visitation every
other weekend.
¶3 Mother filed a Motion for Emergency Temporary Orders
Without Notice, stating A.P. reported thoughts of suicide and felt unsafe at
Father's home. Mother requested all three children be placed with her and
asked the court to grant Father parenting time only in the presence of a
therapist. The superior court denied the Motion, held a hearing, and
granted Father temporary 50/50 custody of the two younger children and
reasonable parenting time with A.P.
¶4 At trial, Father testified he was entitled to spousal
maintenance because he stayed at home with the children during the
marriage and his part-time income of $1,100 per month was much lower
than Mother's salary. Mother testified she and Father did not necessarily
have an agreement that he would stay home with the children, and claimed
that she had asked Father to get a job during their relationship but he
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PRICE v. PRICE
Decision of the Court
refused. Additionally, she testified she made $118,000 per year and the
couple had approximately $24,000 in tax and auto debt. Both parties agreed
to the superior court's suggestion that Mother take on the community debt
in lieu of paying Father spousal support and dividing Mother's retirement
savings.
¶5 Father acknowledged his relationship with A.P. was strained
and would need work, but testified he had a good relationship with his
younger children and requested 50/50 parenting time on a 5-2-2-5 schedule
and joint legal decision-making. Father agreed it would be best to take the
relationship with A.P. slow "to get things back together." Mother agreed to
joint legal decision-making but requested she have the "final say," citing
Father's objection to the children attending therapy as support. Mother
testified she would like A.P. to have a relationship with Father and A.P. was
making emotional progress, but opined that a therapist should assist them
in rebuilding their bond.
¶6 In its decree, the superior court denied "Father's request for
spousal maintenance as the parties agree that Mother will be responsible
for the IRS debt and the vehicle deficiency." The superior court calculated
the Arizona Child Support Guidelines amount at $578 per month, but
found a downward deviation to $475 was warranted because the full
amount would be "unjust, not in the interests of justice, and not in the best
interests of the Children . . . because Father is not currently exercising
parenting time with the parties' oldest child." Despite acknowledging that
Father was not exercising his parenting time with A.P., the decree awarded
joint custody of all three children on a 5-2-2-5 schedule. Finally, the decree
awarded parents joint legal decision-making, with Mother having final say
over medical and therapeutic issues.
¶7 Mother appealed the superior court's decisions regarding
spousal support, division of debt, child support calculations, and parenting
time.1 This court has jurisdiction over Mother's timely appeal pursuant to
Arizona Revised Statutes (A.R.S.) section 12-2101(A)(2).
1 Father did not file an answering brief. While we could regard his
failure to do so as a confession of error, we are not required to do so. In the
exercise of our discretion, we address the substance of Mother's appeal.
Cardoso v. Soldo, 230 Ariz. 614, 616 n.1, ¶ 4 (App. 2012).
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DISCUSSION
I. The Superior Court Did Not Err in Assigning Community Debt to
Mother.
¶8 Mother argues the superior court erred in determining that
Father was entitled to spousal maintenance. However, while the superior
court found that Father met the statutory criteria for spousal maintenance
under A.R.S. § 25-319(A), the court did not award spousal maintenance to
Father. Instead, in response to the superior court, both parties agreed that
the superior court should assign Mother's retirement account and the bulk
of the community debt to Mother, and decline to award any spousal
maintenance to Father. Because Mother specifically agreed to this offset
arrangement, she has waived this argument on appeal. See Nia v. Nia, 242
Ariz. 419, 425, ¶ 26 (App. 2017) (finding claims waived when issues are not
pursued before the trial court); In re Marriage of Johnson and Gravino, 231
Ariz. 228, 235, ¶ 25 (App. 2012) (same).
¶9 Moreover, even if this issue were not waived, we review the
superior court's division of community debt for clear abuse of discretion.
In re Marriage of Inboden, 223 Ariz. 542, 544, ¶ 7 (App. 2010). "So long as the
trial court acts equitably, it is allowed great discretion in the apportionment
of community assets and obligations." Neal v. Neal, 116 Ariz. 590, 594 (1977).
¶10 Here, the superior court explicitly found that it was "a fair
outcome" based on the parties' agreement, the "disparity of income," and
the amount of community debt. The record clearly supports the superior
court's finding that Mother agreed to assume the community debt to offset
any division of her retirement fund and to avoid an award of spousal
support to Father. See Ariz. R. Fam. Law P. 69(A)(2) (providing that
agreements between the parties set forth on the record before a judge shall
be "valid and binding"). The superior court did not abuse its discretion
when it accepted that agreement.
II. The Superior Court Erred in Granting Father Equal Parenting Time
With the Oldest Child.
¶11 Mother argues the superior court erred in granting Father
equal parenting time with A.P., the couple's oldest child. Decisions
regarding parenting time are reviewed for an abuse of discretion. Nold v.
Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). "A trial court abuses its discretion
when it commits an error of law or 'reaches a conclusion without
considering the evidence . . . or the record fails to provide substantial
evidence to support the trial court's finding.'" Schickner v. Schickner, 237
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Ariz. 194, 197, ¶ 13 (App. 2015) (quoting Flying Diamond Airpark, LLC v.
Meienberg, 215 Ariz. 44, 50, ¶ 27 (App.2007)).
¶12 Here, the record does not provide substantial evidence to
support equal parenting time for A.P. Father only requested reasonable
parenting time outside of the home while he rebuilt his relationship with
A.P., and both parties testified as to the strained relationship between
Father and A.P. At the time of the evidentiary hearing, Father had only
seen A.P. "once or twice" since the temporary order and the meetings
"didn't go well" because A.P. was "still, like, having, like, anxiety and all
these type of things." Mother presented A.P.'s therapy notes as evidence of
her daughter's mental health problems which were being exacerbated by
Father.
¶13 The decree is also inconsistent regarding A.P. Child support
was reduced because Father was not exercising equal parenting time and
the decree describes Father's relationship with A.P. as "strained," and
commends the parents on their "flexibility" and efforts to address the
relationship between Father and A.P. The decree further contemplates
additional time to restore the relationship between Father and A.P. because
"Mother has been the only custodial parent during the pendency of this
action and that may continue until Father's relationship is restored with the
oldest child." Despite these findings and the wishes of the parties, the
decree awarded equal parenting time to both parents on a 5-2-2-5 schedule
for all three children.
¶14 Because equal parenting time for A.P. is not supported by
substantial evidence and the decree is internally inconsistent regarding
A.P., we conclude that the superior court abused its discretion under A.R.S.
§ 25-403.02(C) when it ordered equal parenting time over A.P. We vacate
that portion of the decree and remand to the superior court to determine
appropriate parenting time for A.P.
III. The Superior Court Erred in its Child Support Calculations.
¶15 Because we vacate the decree as it applies to parenting time
for A.P., we also vacate the award of child support based on 50/50
parenting time as to all three children. On remand, the superior court
should, pursuant to Arizona Child Support Guidelines § 16, separately
calculate child support (i) for the couple's younger children, and (ii) for A.P.
based on the amount of time she is in Father's custody. After an appropriate
amount is calculated, the superior court may then determine whether any
deviation is merited under A.R.S. § 25-320(D); see also Guidelines § 20.
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CONCLUSION
¶16 For the foregoing reasons, we affirm the superior court's
decree regarding spousal maintenance and division of property, but vacate
and remand the parenting time for A.P. and child support order for further
proceedings. In exercise of our discretion, we deny Mother’s request for
attorney’s fees and costs under A.R.S. § 25-324.
AMY M. WOOD • Clerk of the Court
FILED: AA
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