Peralta v. Peralta ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
HERIBERTO PERALTA, Petitioner/Appellant,
v.
BERTHA ALICIA PERALTA, Respondent/Appellee.
No. 1 CA-CV 19-0065 FC
FILED 12-24-2019
Appeal from the Superior Court in Yuma County
No. S1400DO201601068
The Honorable Levi Gunderson, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART; REMANDED
COUNSEL
Bishop Law Office, P.C., Phoenix
By Daniel P. Beeks
Counsel for Petitioner/Appellant
S. Alan Cook, P.C., Phoenix
By S. Alan Cook
Counsel for Respondent/Appellee
PERALTA v. PERALTA
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
W I N T H R O P, Judge:
¶1 Heriberto Peralta (“Father”) appeals various aspects of the
dissolution decree ending his marriage to Bertha Alicia Peralta (“Mother”).
For the following reasons, we affirm the legal decision-making and
parenting time orders, but vacate the child support orders and remand for
reconsideration in light of Father’s correct 2017 income. We also vacate the
court’s award of attorneys’ fees to Mother, and remand for reconsideration
as to the unreasonableness of Father’s conduct during the litigation.
FACTS AND PROCEDURAL HISTORY
¶2 The parties married in 2010 and have one child, who was born
in 2013. Both parties worked for the United States Border Patrol. In
September 2017, Father was terminated for lack of candor after he admitted
making a false statement to the Yuma Police in connection with a domestic
violence incident.
¶3 In August 2016, Father filed a petition for dissolution and a
motion for temporary orders without notice seeking sole legal decision-
making authority. Father alleged that Mother committed three separate
acts of domestic violence. The superior court granted Father temporary sole
legal decision-making authority. At the first temporary orders hearing on
September 1, 2016, the court affirmed the award of sole legal decision-
making authority to Father and granted Mother unsupervised parenting
time.
¶4 Father’s attorney withdrew shortly before the two-day trial.
On what was scheduled to be the first day of trial, Father successfully
moved for a continuance. In light of the continuance, Mother requested
additional temporary orders, and the court held a third temporary orders
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hearing on December 11, 2017.1 After taking evidence, the court denied
Mother’s request to modify the temporary orders hearing, and the matter
proceeded to trial on March 9, 2018.
¶5 Following the trial, the superior court allocated the parties’
community property and debts, awarded sole legal decision-making
authority to Mother, granted Father equal parenting time, entered past and
current child support orders, and awarded Mother a portion of her
attorneys’ fees. Father filed a motion for new trial from the final decree.
¶6 The superior court granted Father’s motion for new trial, in
part, on issues related to Father’s income and child support. Following the
new trial on November 16, 2018, the court affirmed its prior findings
regarding Father’s income and child support. Father filed a timely notice
of appeal. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1), (2), and (5)(a).
ANALYSIS
I. Alleged Violation of Father’s Due Process Rights
¶7 Father contends he was denied due process because the
superior court initially set the matter for a two-day trial, then reduced it to
one day after his counsel withdrew. Due process claims are issues of law,
which we review de novo. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App.
1999).
¶8 Due process requires that the court “afford the parties ‘an
opportunity to be heard at a meaningful time and in a meaningful
manner.’” Volk v. Brame, 235 Ariz. 462, 468, ¶ 20 (App. 2014) (citation
omitted). Although the original trial was scheduled for two days, the
superior court explained that a one-day trial was sufficient in light of the
multiple pretrial hearings and, in particular, its familiarity with the
domestic violence issues. At two prior evidentiary hearings, the court
heard testimony about the domestic violence allegations, Father’s income,
and the parties’ ability to co-parent. As he did in his motion for new trial,
Father argues that, given the limited trial time, he only had seven minutes
to testify.
1 The court held a second temporary orders hearing on May 31, 2017,
to address Mother’s motion for temporary orders regarding summer
vacation and travel to Mexico.
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¶9 The parties received equal trial time. Father, however, chose
to call Mother and three other witnesses before testifying himself. As noted
in its subsequent detailed ruling, the superior court frequently reminded
Father that his testimony was important and to reserve sufficient time to
present his own testimony. Instead, Father spent significant time
questioning Mother about the same domestic violence allegations raised in
the prior hearings. Father’s inefficient use of time does not constitute a due
process violation.2 See id., at 469, ¶ 22.
¶10 Father also suggests he was prejudiced because the superior
court deducted the time it took to renumber Father’s trial exhibits from his
allotted time. According to the transcript, the court took a ten-minute recess
to address the issues with the exhibits. This delay was a result of Father
failing to list the exhibits from an earlier hearing as trial exhibits. Thus, it
was not unfair for the court to attribute to Father the time needed to
renumber his earlier exhibits.
¶11 Finally, when notified that the trial would be one day instead
of two, neither party objected or expressed concern that one day was
insufficient. Likewise, at trial, Father did not object to his allotted time, and
at the end of his case, he did not request additional time or make an offer of
proof regarding the additional evidence he would have presented. Under
these circumstances, we find no denial of due process. See Nicaise v.
Sundaram, 244 Ariz. 272, 277, ¶ 15 (App. 2018) (finding no due process
violation where a party made a strategic decision regarding use of trial time
and then failed to request additional time or make a proffer of evidence),
vacated in part on other grounds, 245 Ariz. 566, 569, ¶ 17 (2019).
II. Awarding Sole Legal Decision-Making Authority to Mother
¶12 The superior court awarded sole legal decision-making
authority to Mother. In denying Father’s motion for new trial on this issue,
the court provided a thorough discussion of the evidence of the mutual acts
of domestic violence that constituted a large portion of the pretrial hearings
and the trial.
¶13 We review the superior court’s legal decision-making and
parenting time orders for an abuse of discretion. Engstrom v. McCarthy, 243
Ariz. 469, 471, ¶ 4 (App. 2018). We accept the court’s findings of fact absent
clear error. Id. Courts must consider the child’s best interest in deciding
2 Father was able to present additional evidence regarding his income
during the new trial as it related to child support issues.
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legal decision-making and parenting time. A.R.S. § 25-403. One of the
factors relevant to determining the child’s best interest is whether there has
been domestic violence. A.R.S. § 25-403(A)(8) (citing § 25-403.03). “If the
court finds either the existence of significant domestic violence or a
significant history of domestic violence, [§ 25-403.03(A)] precludes an
award of joint legal decision-making authority.” DeLuna v. Petitto, 247 Ariz.
420, 423, ¶ 11 (App. 2019). Here, the court found a significant history of
mutual acts of domestic violence.
¶14 Father argues the court improperly considered domestic
violence in which he was the perpetrator because Mother did not raise this
issue in her pretrial statement. The pretrial statement controls the course of
the litigation and is “intended to avoid unfair surprise at trial.” Bobrow v.
Bobrow, 241 Ariz. 592, 598, ¶ 28 (App. 2017) (citations omitted).
¶15 Here, Mother’s allegations of Father perpetrating acts of
domestic violence predate the pretrial statements and were addressed at
two of the temporary orders hearings. Father also failed to object when
Mother testified at trial regarding his acts of domestic violence. Further,
the court stated that evidence of Father’s domestic violence was relevant
because “both sides” were claiming to be victims of domestic violence.
Father even called his first wife to testify that he was not abusive during
their marriage. Father was not unfairly surprised by evidence of mutual
domestic violence at trial.
¶16 More importantly, this evidence was highly relevant to
determining the child’s best interest. See Nold v. Nold, 232 Ariz. 270, 273,
¶ 10 (App. 2013) (rejecting a waiver argument and holding that “the best
interests of the child trump the consequences ordinarily imposed for
violations of the rules”); see also A.R.S. §§ 25-403(A)(8), -403.03. Therefore,
the court properly considered the evidence of mutual acts of domestic
violence.
¶17 Father next argues the superior court did not give sufficient
weight to Mother’s acts of domestic violence and improperly considered
that she was not prosecuted for the March 2014 domestic violence incident.
The court did not minimize the seriousness of Mother drawing a weapon
but considered the parties’ overall history of mutual acts of domestic
violence and, when balanced against the other factors relevant to the child’s
best interest, decided it was in the child’s best interest to award sole legal
decision-making authority to Mother. Father asks this court to balance
these factors differently, but “[w]e must give due regard to the [superior]
court’s opportunity to judge the credibility of the witnesses” and do not
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reweigh conflicting evidence on appeal. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16
(App. 2009). Regarding the lack of prosecution, the court also considered
that the prosecutor similarly declined to charge Father for his actions in the
same incident.
¶18 Finally, § 25-403.03(D) creates a presumption that it is not in
the child’s best interest to award sole legal decision-making authority to a
parent who has committed an act of domestic violence, but specifically
states that the presumption “does not apply if both parents have committed
an act of domestic violence.” Father argues the superior court did not
consider the relevant factors listed in § 25-403.03(E) when considering
whether Mother rebutted this presumption. Because both parties
committed domestic violence, the presumption did not apply. We find no
error.
III. Child Support Issues
A. The Superior Court Did Not Abuse Its Discretion by
Attributing More Than Minimum Wage Earnings to
Father.
¶19 In calculating child support, the superior court issued three
separate child support worksheets for these time periods: (1) September 1,
2016, through September 30, 2017, when Father had primary custody of the
child and worked at Border Patrol; (2) October 1, 2017, through March 31,
2018, after Father was terminated from Border Patrol and had primary
custody; and (3) from April 1, 2018, when the parties had equal parenting
time. For the second and third worksheets, when Father was unemployed,
the court attributed $4,654 per month income to Father, which the court
found to be half of his previous earnings at Border Patrol. According to the
court’s calculations, Father earned $6,707 per month base salary, plus $2,600
per month in supplemental pay at Border Patrol.3 The court granted
Father’s motion for new trial to reconsider the amount of income attributed
to him but affirmed its finding that Father earned $2,600 per month in
supplemental pay before being terminated from Border Patrol. After the
new trial, the court explained, in great detail, why it concluded that Father
has remained voluntarily unemployed since his termination and why
attributing half his prior income was appropriate.
3 Father’s total income also includes military retirement pay and
military disability income, but those amounts are not in dispute.
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¶20 Father raises several arguments regarding the superior
court’s decision to attribute half his Border Patrol income in determining
the child support obligation. Whether the court can attribute a higher
income than the party earns is a question of law reviewed de novo, Pullen v.
Pullen, 223 Ariz. 293, 295, ¶ 9 (App. 2009), but we review factual findings
for clear error, Strait v. Strait, 223 Ariz. 500, 502, ¶ 6 (App. 2010).
¶21 Father reasons that because his employment was terminated,
his unemployment is not voluntary, and the court erred in attributing more
than minimum wage. Child Support Guidelines § 5(E), A.R.S. § 25-320
Appendix (“Guidelines”), allows the court to attribute income up to
earning capacity when a parent is unemployed or working below his or her
full earning capacity “if the parent’s earnings are reduced voluntarily and
not for reasonable cause.” Little v. Little, 193 Ariz. 518, 521, ¶ 6 (1999). The
Guidelines give the court discretion to consider the reasons for the parent’s
unemployment. Guidelines § 5(E) (“If a parent is unemployed or working
below full earning capacity, the court may consider the reasons.”).
According to Guidelines § 5(E), the court shall attribute at least minimum
wage
after considering the specific circumstances of the parents to
the extent known. This includes such factors as the parents’
assets, residence, employment and earnings history, job skills,
educational attainment, literacy, age, health, criminal record
and other employment barriers, and record of seeking work,
as well as the local job market, the availability of employers
willing to hire the parents, prevailing earnings level in the
local community, and other relevant background factors in
the case.
¶22 Thus, the Guidelines authorize the court to attribute more
than minimum wage if the circumstances warrant. For example, in Sherman
v. Sherman, 241 Ariz. 110, 112-13, ¶¶ 5, 12 (App. 2016), the father was unable
to work because of a medical condition and not voluntarily unemployed.
This court held, however, that it was within the court’s discretion to
attribute more than minimum wage but less than previous earning capacity
to the father “despite his involuntary unemployment.” Id. at 113, ¶ 12. The
court may also consider a parent’s effort or lack thereof in finding new
employment. See Patterson v. Patterson, 102 Ariz. 410, 415 (1967) (refusing
to reduce child support because the father was capable of working and his
obligation to his children could not be diminished because he preferred to
be idle rather than industrious or his own improprieties caused a
diminution in his income).
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¶23 Here, Father’s termination may not have been “voluntary,”
but that was only one of the factors the superior court considered. The
evidence supports the findings that Father had preferred status as an
honorably discharged military veteran, a long work history including
leadership responsibilities, and a wide range of employable skills,
including being bilingual. The court properly considered Father’s
voluntary decision, after being turned down from three jobs, to not seek
other work while awaiting the appeal of his termination. See id. After
considering all these factors, the court was within its discretion to conclude
that Father could earn more than minimum wage.
¶24 Father also argues the superior court abused its discretion
because it attributed more than minimum wage to punish him for having
lied to law enforcement. Father contends that this is contrary to the
directive that “[t]he court may not attribute income to a person who is
incarcerated, but may [consider] actual ability to pay.” Guidelines § 5(E).
We disagree. Father was not incarcerated, and the Guidelines also allow
the court to consider all the reasons for the parent’s unemployment. Id. We
find no abuse of discretion.
¶25 The superior court attributed only half of Father’s most recent
earning capacity to account for the difficulty he may have in finding a
comparable position as a result of his termination. Father contends this
reduction was speculative and, therefore, an abuse of discretion. The case
law does not support Father’s contention that Mother must provide expert
testimony from a vocational expert for the court to attribute income over
minimum wage. The court has discretion to determine a parent’s earning
capacity based on that parent’s education, work experience, and previous
earning capacity. See Taliaferro v. Taliaferro, 188 Ariz. 333, 336-37 (App.
1996); Williams v. Williams, 166 Ariz. 260, 266 (App. 1990). We find no abuse
of discretion.
B. The Evidence Does Not Support the Amount of
Supplemental Pay Attributed.
¶26 The superior court found Father earned $2,600 per month in
supplemental income at Border Patrol from September 1, 2016, through
September 30, 2017. Father argued in his motion for new trial that this was
incorrect. The court relied on Father’s 2016 financial affidavit, which stated
that he earned $2,600 per month in supplemental pay and denied a new
trial on this basis.
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¶27 Father does not dispute his 2016 financial affidavit stated he
earned $2,600 per month in supplemental pay, in addition to his regular
Border Patrol income of $6,706. Father contends, however, the paystubs
admitted at the new trial show he did not earn $2,600 per month in
supplemental pay after July 24, 2016. Father testified that his opportunity
to earn supplemental pay decreased significantly when he started working
as a union representative rather than a field agent in August 2016, which
was approximately the same time his supplemental pay hours were
restricted for disciplinary reasons.
¶28 According to his paystubs, between July and October 2016,
Father’s “supplemental pay” was approximately $1,542 per month. But
Father focuses only on the “supplemental pay” line of his paystub.
Throughout 2016, Father received income in addition to his base pay, such
as overtime, holiday leave, and “other leave.” Some of this additional
compensation continued in 2017. The court properly considered this
additional compensation in determining Father’s average monthly income.
¶29 We conclude, however, that the superior court should have
corrected the child support worksheets when more detailed information
was presented at the new trial. The monthly average of the year-to-date
gross income stated on Father’s October 15, 2016 paystub was $9,140 per
month, which includes all forms of additional compensation.4 Father did
not include any 2016 paystubs for November or December. The monthly
average of the yearly gross income stated on Father’s last paystub from
September 16, 2017, is approximately $7,600.5 Mother did not dispute that
Father earned an average monthly income of approximately $7,600 for 2017.
Thus, the record does not support the court’s finding that Father earned
$9,307 in 2017.
¶30 As stated above, the superior court was within its discretion
to attribute one-half of Father’s previous income given the findings
regarding the reasons for his unemployment. But the court must base the
one-half reduction on the correct income amount. We vacate the child
4 The gross year-to-date income was $86,834.06 as of October 15, 2016.
Dividing this amount by 9.5 months results in an average gross monthly
income of $9,140.43.
5 The gross year-to-date income was $65,086.96, as of September 16,
2017. Dividing this amount by 8.5 months results in an average gross
monthly income of $7,657.29.
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support orders and remand for reconsideration based on Father’s correct
income.
C. Attributing Child Care Costs Is Discretionary.
¶31 The superior court did not include child care costs when
calculating Father’s child support obligation after October 1, 2017, because
Father withdrew the child from preschool in September 2017. Father argues
this was an abuse of discretion because the court attributed a full-time
income and should, therefore, attribute the corresponding cost of child care
under Guidelines § 5(E). We review child support awards for an abuse of
discretion, but the court’s interpretation of the Guidelines is a question of
law we review de novo. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21 (App.
2009).
¶32 Guidelines § 5(E) states, “If income is attributed to the parent
receiving child support, appropriate child care expenses may also be
attributed.” This is discretionary. Engel, 221 Ariz. at 511-12, ¶¶ 22, 25-28.
The court in Engel noted that the Guidelines reflect a policy to allow
attribution of hypothetical income and expenses, and that such attribution
can affect the monthly child support obligation. The purpose of attributing
hypothetical income and expenses is “to protect a working parent from
paying a disproportionate amount of the total support obligation when the
other parent has chosen not to earn income to the extent he or she is able.”
Id. at 511, ¶ 22. Attributing child care expenses increases the total child
support obligation by a corresponding amount. Id. at 512, ¶ 28. When this
attribution significantly increases what the employed spouse must pay, the
result is contrary to what the Guidelines intended. Id.
¶33 In this case, Father did not actually incur child care expenses
after he withdrew the child from preschool when he lost his job. Thus,
attributing hypothetical child care expenses while Father was unreasonably
not looking for work, is contrary to the intent of the Guidelines. Id.
Accordingly, the court did not abuse its discretion when it declined to
attribute hypothetical full-time child care costs, particularly because the
child was starting school in August 2018.
IV. Property Allocation Issues
¶34 The superior court awarded each party the debts associated
with credit cards in his or her name, their own savings and retirement
accounts, and various personal property. Mother was awarded the marital
home, which had $45,000 in equity. The court denied Father’s request to be
reimbursed for the mortgage and maintenance expenses he paid for the
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marital residence during the litigation. Because the allocation resulted in
Father receiving $38,344 in debts and Mother having $43,664 in assets,
Mother owed Father $41,004. After deducting Mother’s $15,000 attorneys’
fee award, the court entered a $26,004 equalization judgment in favor of
Father. The court ordered that no interest shall accrue on the judgment as
long as Mother made monthly payments of at least $400. The court denied
Father’s motion for new trial on the property allocation. We review the
court’s allocation of property for an abuse of discretion. Hrudka v. Hrudka,
186 Ariz. 84, 93 (App. 1995), superseded by statute on other grounds as noted in
Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8 (App. 2014).
A. The Superior Court Properly Denied Father’s
Reimbursement Claim.
¶35 First, we find no abuse of discretion in denying Father’s
request for reimbursement for the mortgage and maintenance expenses he
paid after filing the petition for dissolution. Father testified that he used
the rental income from the marital residence to pay those expenses. Father
did not provide a detailed accounting of the expenses he paid, so we cannot
presume these expenses exceeded the rental income he received and did
not share with Mother. Although Father had no obligation to pay these
expenses with his separate, post-petition funds, see Bobrow, 241 Ariz. at 596,
¶ 19, on this record, denying his claim for reimbursement allocation was
equitable because the court did not attribute rent as income to Father.
B. The Superior Court Abused Its Discretion by Not Awarding
Interest on the Equalization Judgment.
¶36 Next, Father concedes that although the overall property and
debt allocation was mathematically equal, the practical result was not fair
and equitable because the court failed to award any interest on the
equalization judgment unless Mother failed to pay on time, whereas Father
has to pay interest on the community debts assigned to him. We agree. The
court has no discretion to refuse to award interest under A.R.S. § 44-1201(B).
In re Estate of Miles, 172 Ariz. 442, 445 (App. 1992). If Mother is not required
to pay interest on the equalization judgment, Father is “forced to make an
interest-free loan to [Mother].” McCune v. McCune, 120 Ariz. 402, 404 (App.
1978). Here, this is inequitable because the court assigned a significant
portion of the community credit card debt to Father6 and all of the equity
6 Mother contends that Father incurred all the credit card debt
assigned to him. But the credit card statements show that there was
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in the marital residence to Mother. Mother essentially concedes this point
on appeal and notes that a more equitable result might have been to pay the
equalization judgment in a lump sum.
¶37 Father’s motion for new trial did not specifically raise the
failure to award interest on the equalization judgment, but he objected to
the overall allocation being unfair because, in part, he had to pay substantial
interest on the credit card debt assigned to him. Generally, we do not
consider arguments raised for the first time on appeal, but the doctrine of
waiver is discretionary. Noriega v. Town of Miami, 243 Ariz. 320, 326, ¶ 27
(App. 2017). We decline to find waiver here because Mother agrees the
court abused its discretion in failing to order interest and because Father’s
motion for new trial argued the property allocation was unfair because he
could not pay off the debts assigned to him with Mother paying only $400
per month.
¶38 Because the superior court erred by failing to award interest
on the equalization judgment unless Mother missed a payment, we vacate
the property and debt allocation and remand for reconsideration. On
remand, the court may exercise its discretion to reconsider the overall
allocation and, as Mother suggests, order a lump sum equalization
payment, if possible.
V. Support for the Findings Regarding Father’s Unreasonableness
¶39 The superior court awarded Mother $15,000 in attorneys’ fees
under A.R.S. § 25-324(A). The court found Father acted unreasonably
because he (1) unilaterally renewed the lease on the marital residence to a
third party just days before trial and after Mother requested possession of
the house, (2) was inflexible in co-parenting, and (3) requested sole legal
decision-making and greater parenting time. We review an award of
attorneys’ fees for an abuse of discretion. In re Marriage of Williams, 219 Ariz.
546, 548, ¶ 8 (App. 2008).
¶40 Section 25-324(A) authorizes an award of fees after
considering the parties’ financial resources and “the reasonableness of the
positions each party has taken throughout the proceedings.” Father argues
that the conduct cited by the superior court does not constitute a “legal
minimal change in the balances from the time the petition was filed in
August 2016 to the time of trial. Thus, the credit card debt owed at the time
the petition was filed is presumed to be a community obligation because it
was incurred during marriage. See Hrudka, 186 Ariz. at 91-92.
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position” and was thus not a proper basis for awarding fees under § 25-324.
Father also contends he was not unreasonable.
¶41 During the litigation, just days before trial, Father unilaterally
renewed the third-party lease on the marital residence after Mother
specifically requested possession of the house. Father was aware that
possession of this marital asset was in dispute; therefore, renewing the lease
during litigation and without Mother’s knowledge constitutes taking a
legal position, i.e., Mother was not entitled to possession of the marital
asset. Similarly, denying Mother’s request to attend the child’s first day of
preschool constituted a legal position that the temporary parenting time
orders must be strictly followed. Although Father was strictly following
the temporary parenting time order, under these circumstances, the court
could view his refusal as unreasonably inflexible, especially given the other
examples of Father’s inflexibility regarding co-parenting issues. See Barron
v. Barron, 246 Ariz. 580, 587, ¶ 22 (App. 2018), vacated in part on other grounds,
246 Ariz. 449 (2019).
¶42 We agree with Father, however, that his request for sole legal
decision-making authority and greater parenting time was not objectively
unreasonable given the mutual domestic violence and the prior temporary
orders in this case. See Williams, 219 Ariz. at 548-49, ¶¶ 10-11 (holding that
a party’s positions are evaluated by an objective standard of
reasonableness). Therefore, this finding is not supported by the evidence.
Although the record supports the other findings regarding Father’s
unreasonableness, we cannot determine how much weight the court placed
on any one finding.7 Accordingly, we vacate the award of attorneys’ fees
and remand for reconsideration.
VI. Attorneys’ Fees and Costs on Appeal
¶43 Both parties request an award of attorneys’ fees on appeal
under § 25-324. After considering the parties’ financial resources and the
reasonableness of their positions, we hold each party shall bear his or her
7 The court also found Father was unreasonable because he “was
motivated by an issue not related to the child’s best interests, such as the
desire to control Mother and to prove to Mother that Father is in charge.”
Although Father did not address this finding on appeal, it was improper to
base an award of fees on Father’s subjective intent. See Williams, 219 Ariz.
at 549, ¶ 12 (holding that nothing in § 25-324(A) suggests the reasonableness
factor be assessed with reference to a party’s intentions in taking that
position).
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own fees on appeal. Because we have vacated and remanded the child
support orders, property allocation, and attorneys’ fee award, Father is
entitled to his costs on appeal under A.R.S. § 12-342(A), upon compliance
with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶44 Father was not deprived of due process, and we affirm the
legal decision-making and parenting time orders. We reverse the child
support orders and remand for reconsideration of the income attributed to
Father. We vacate the property allocation and award of attorneys’ fees and
remand for reconsideration.
AMY M. WOOD • Clerk of the Court
FILED: AA
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