Brittner v. Bullock ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
LONNY BRITTNER, Petitioner/Appellant,
v.
MICHELLE RAE BULLOCK, Respondent/Appellee.
No. 1 CA-CV 18-0364 FC
FILED 6-4-2019
Appeal from the Superior Court in Maricopa County
No. FC2013-091993
The Honorable Rodrick Coffey, Judge
AFFIRMED
COUNSEL
Warnock MacKinlay Law, PLLC, Mesa
By James N. MacKinlay
Counsel for Respondent/Appellee
Lonny Brittner, Phoenix
In propria persona
BRITTNER v. BULLOCK
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Peter B. Swann joined.
T H O M P S O N, Judge:
¶1 Lonny Brittner (father) appeals from the family court’s
judgment as to child support arrearages, medical reimbursement, past
attorneys’ fees, and denial of his petition to modify child support and
parenting time. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This is a high-conflict domestic relations matter. Father and
Michelle Rae Bullock (mother) were married in 1993 and together had four
children. Father filed a petition for dissolution in 2013 and eventually
mother was awarded sole physical custody and legal decision making of
their three minor children. The court imputed $80,000 a year in income to
father and child support was awarded in the amount of $1303. The child
support obligation did not allocate the $1303 as between the three underage
children. The court calculated that father had underpaid temporary child
support and would have an arrearage. Mother was awarded mother
attorneys’ fees after the court found father had a significantly higher income
and had acted unreasonably during the litigation.
¶3 In 2017, father petitioned the court for modification of legal
decision making, parenting time and child support. Mother filed a
combined response and motion for judgment on past due child support,
spousal maintenance, attorneys’ fees, and unreimbursed medical expenses.
An evidentiary hearing was held in which mother, father, two of father’s
children, and two therapists testified.
¶4 The court awarded mother $11,203.78 in child support
arrearages, $7,224.43 in unreimbursed medical expenses, $8,000 in unpaid
prior attorneys’ fees, and $3,275 in attorneys’ fees for the current matter.
Father timely appealed.
2
BRITTNER v. BULLOCK
Decision of the Court
DISCUSSION
¶5 Father, acting pro per, challenges the denial of his motion for
modification of child support payments, the denial of his request for
modification of parenting time and legal decision making, and the order
directing him to pay for certain medical reimbursement. Father does not
raise issues related to either of the awards of attorneys’ fees.
A. Child Support
¶6 A child support order may be modified "only on a showing of
changed circumstances that are substantial and continuing." Ariz. Rev.
Stat. (A.R.S.) § 25-327(A) (2019)1; Little v. Little, 193 Ariz. 518, 520-21, ¶ 6
(1999). The decision to modify a child support order is within the discretion
of the court, and we will not disturb that decision absent an abuse of
discretion. Little, 193 Ariz. at 520, ¶ 5. The court abuses its discretion "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." Id.
(internal citation omitted).
¶7 At the evidentiary hearing, the court heard from six
witnesses. No evidence was presented as to father’s or mother’s income or
expenses. Father asserted that he had filed a contemporaneous financial
disclosure form, but the record does not support that assertion. The most
recent financial information is from the 2015 trial where the trial court
imputed $80,000 in annual income to father. Two key factors in the
determination of child support are the needs and resources of the children
and both parents. See A.R.S. § 25-320(D) (2019).
¶8 Father failed to provide evidence to support a claim of
substantial and continuing change of circumstances. We find this to be the
case even though the court had evidence which conclusively indicated that
two of the minors had-or would soon-reach their majority. See Guerra v.
Bejarano, 212 Ariz. 442, 445, ¶¶ 13-15 (App. 2006). Pursuant to A.R.S. § 25–
320, our supreme court has established guidelines for the determination of
child support. Guideline § 25, of the Arizona Child Support Guidelines
directly addresses the situation at hand:
If child support for more than one child was ordered under
these guidelines and thereafter the duty to support one of the
1 We cite to the current version of the statute unless the statute was
amended after the pertinent events and such amendment would affect the
result of this appeal.
3
BRITTNER v. BULLOCK
Decision of the Court
children stops, the order is not automatically reduced by that
child's share. To obtain a modification to the child support
order, a request must be made in writing to the court to
recalculate the child support obligation pursuant to these
guidelines.
The court needs income information in order to determine the appropriate
amount of child support. Father failed to comply with the requirement of
Arizona Rules of Family Law Procedure, Rule 91(g), in support of his
request for modification. Father does not even assert in his appeal that he
did not meet that requirement. There being no such evidence, the decision
of the family court is affirmed as to child support.
¶9 Father did not specifically challenge the arrearages award
other than to indicate that there had not been sufficient time allocated for
him to present all of his issues. We note that the parties were each allocated
one and one-half hours and the judge allowed father to use time in excess
of that amount. The parties determined how to allocate their time.
¶10 Father called four witnesses, including two therapists who
were called primarily to discuss the areas of alienation and reunification.
Those therapists’ testimony was largely irrelevant as they had not seen the
parties or their children recently. Dr. Christiano had not seen either the
parties or the children since he wrote his report prior to the dissolution trial.
Dr. Childress wrote a report in 2015 and had no opinion as to custody or
parenting time going forward or a specific course of action. Under the
Arizona Rules of Family Law Procedure, the family court has considerable
discretion in imposing reasonable time limits on proceedings. Ariz. R. Fam.
Law P. 22, 77(B)(1). We find nothing in the record to indicate the court
abused its discretion in allocating three hours for this hearing. Likewise, we
find no abuse of discretion as to the child support arrearages award.
B. Parenting Time and Decision Making
¶11 Next, we review father’s request for additional parenting time
and to modify decision making. In his motion he asserted that the court
should undertake to aggressively increase his parenting time and award
him legal decision-making authority due to mother’s alleged lack of good
faith participation and his estrangement from his children. Two of father’s
daughters testified. They attributed father’s emotional estrangement to his
own behaviors including, but not limited to, installing video cameras
around the house and wearing one around his neck during his interactions
with them, taking the doors off of their bedrooms and the bathroom, calling
4
BRITTNER v. BULLOCK
Decision of the Court
the police on them for insignificant matters, and generally being very
controlling. The daughters testified as to their younger sister’s extreme
discomfort and fear of being with her father.
¶12 We review child custody determinations under an abuse of
discretion standard. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003).
Before the family court can change a previous custody order, it must
determine that there has been a material change in circumstances affecting
the welfare of the child. Canty v. Canty, 178 Ariz. 443, 448 (App. 1994). The
court has broad discretion in making this determination, and we will not
disturb its decision absent a clear abuse of discretion. Id.; In re Marriage of
Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 2002). Finding no abuse of discretion
in the denial of father’s motion for increased parenting time and legal
decision-making authority, the family court is affirmed.
C. Medical Reimbursement and Prior Attorneys’ Fees
¶13 Father does not raise issues related to the attorneys’ fees
awarded to mother. As to medical reimbursement mother testified—
contrary to father’s assertion--that she had timely submitted the
information to father either or both as certified mail or email. [RT at 123,
154] Documents supporting her claims were introduced into evidence.
[Exh 29-31] Although father asserted he had not received the receipts or
had not received them as required by the decree, the court did not find him
credible. "[T]he trial court is in the best position to judge the credibility of
the witnesses, the weight of evidence, and also the reasonable inferences to
be drawn therefrom." Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 171
(App. 1971). There being evidence in the record to support the court’s
conclusion, we affirm.
ATTORNEYS’ FEES
¶14 Mother requests attorneys’ fees on appeal pursuant to A.R.S.
§ 25-324 (2019). Attorneys’ fees are awarded to mother, in an amount to be
determined upon compliance with ARCAP 21.
5
BRITTNER v. BULLOCK
Decision of the Court
CONCLUSION
¶15 For the above stated reasons, the family court is affirmed in
all respects.
AMY M. WOOD • Clerk of the Court
FILED: AA
6