Chambers v. Chambers ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
JENNIFER SUE CHAMBERS, Petitioner/Appellant,
v.
DAVID ROY CHAMBERS, Respondent/Appellee.
No. 1 CA-CV 13-0474
FILED 4-15-2014
Appeal from the Superior Court in Maricopa County
No. FC2007-093705
The Honorable Veronica Brame, Judge Pro Tem
AFFIRMED
COUNSEL
Bueler Jones LLP, Chandler
By Gordon S. Bueler
Counsel for Petitioner/Appellant
CHAMBERS v. CHAMBERS
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Acting Presiding Judge John C. Gemmill and Chief Judge Diane M.
Johnsen joined.
H O W E, Judge:
¶1 Jennifer Sue Chambers (Mother) appeals the family court’s
order modifying the child support payments of David Roy Chambers
(Father). Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father married in January 1997. Father worked
in active military duty. Before retiring in 2002, Mother worked at a
sporting goods store.
¶3 Mother and Father’s marriage was dissolved in February
2009. In its dissolution order, the family court awarded Mother sole
custody of their two minor children. The court attributed Father a
monthly income of $5,680 and ordered him to pay $958.28 per month in
child support until May 2010, and thereafter to pay $1,117 per month. The
court attributed Mother no income, noting that Mother “cannot earn
income because of her physical health condition and the young ages of her
children. [Mother] intends to seek disability income through the Social
Security Administration.”
¶4 After retiring from the military in October 2012, Father
petitioned to modify child support. On May 10, 2013, Mother applied for
disability benefits.
¶5 At a child support modification hearing held on May 20,
2013, Father requested that Mother be attributed a monthly minimum
wage income of $1,352, as well as $305 per month that she received from
his military retirement income. Mother requested that she be attributed no
income because “she is seeking social security for disability and has not
worked since 2002.” Mother also requested that Father be imputed an
income higher than his retirement because he can be employed while
retired from the military.
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CHAMBERS v. CHAMBERS
Decision of the Court
¶6 Finding a continuing and substantial change in
circumstances of the parties, the family court amended Father’s child
support obligation to $540 per month. The court attributed Mother a
monthly income of $1,657 (minimum wage plus $305 in military
retirement) and attributed Father a monthly income of $2,062 ($2,367 in
military retirement less $305 given to Mother).
¶7 On May 24, 2013, Mother moved for a new trial. Mother
argued that the court erred by modifying Father’s child support
obligations because “no evidence of any kind was presented” at the
modification hearing to demonstrate a change in her circumstances and
that her full-time care of the minor children permits “an exception to the
imputation of income in her situation.” The court denied Mother’s motion
for a new trial. Mother timely appeals.1
DISCUSSION
¶8 Mother argues that the family court erred in modifying
Father’s child support obligation “because there was no demonstration of
change in circumstances” to impute income to Mother. Mother also argues
that the family court erred because she “met the conditions for non-
imputation of income” under Section 5(E) of the Arizona Child Support
Guidelines (Guidelines).
¶9 The decision to modify an award of child support rests
within the sound discretion of the family court. Jenkins v. Jenkins, 215 Ariz.
35, 37 ¶ 8, 156 P.3d 1140, 1142 (App. 2007). Absent an abuse of that
discretion, we will not disturb an award—or modification—of child
support on appeal. Id. An abuse of discretion occurs “when the record,
viewed in the light most favorable to upholding the [family] court’s
decision, is ‘devoid of competent evidence to support’ the decision.” Little
v. Little, 193 Ariz. 518, 520 ¶ 5, 975 P.2d 108, 110 (1999). We review de
novo, however, the trial court’s interpretation of the Guidelines. Clay v.
Clay, 208 Ariz. 200, 202 ¶ 5, 92 P.3d 426, 428 (App. 2004).
¶10 A court may modify a child support order only if a parent
shows a substantial, continuing change of circumstances. A.R.S. § 25–
1 Father did not file an answering brief. We could treat his failure to
do so as a confession of error, but we choose—in our discretion—to
address the merits. ARCAP 15(c); see In re Marriage of Diezsi, 201 Ariz. 524,
525 ¶ 2, 38 P.3d 1189, 1190 (App. 2002).
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CHAMBERS v. CHAMBERS
Decision of the Court
327(A); Little, 193 Ariz. at 521 ¶ 6, 975 P.2d at 111. The Arizona Supreme
Court has adopted the Guidelines—codified at A.R.S. § 25–320—to
provide procedural guidance in applying the substantive law. Id.; see also
In re Marriage of Pacific, 168 Ariz. 460, 815 P.2d 7 (App. 1991). Under the
Guidelines, when a parent is unemployed or working below his or her full
earning potential, a family court may impute income to that parent, up to
full earning capacity, if the parent’s earnings are reduced voluntarily and
not for reasonable cause. See Guidelines § 5(E). In the absence of contrary
testimony, a parent who is unemployed or working below full earning
capacity may be imputed an income of at least minimum wage. § 25–
320(N); State ex rel. Dep’t of Econ. Sec. v. Ayala, 185 Ariz. 314, 316, 916 P.2d
504, 506 (App. 1996). The court can, however, decline to attribute income
to a parent if that parent is “physically or mentally disabled,” Guidelines §
5(E)(1), or “[u]nusual emotional or physical needs of a natural or adopted
child require that parent’s presence in the home,” Guidelines § 5(E)(3).
¶11 Based on our review of the record, the family court did not
abuse its discretion in finding a substantial and continuing change in
circumstances. At the modification hearing, Father testified that he had
retired from active military duty since the court’s original dissolution
order. As a retiree, Father’s income was reduced to $2,627 from $5,680 per
month, and approximately $305 of his retirement benefits went to Mother
each month. It was also within the discretion of the family court to impute
the presumptive minimum wage income to Mother. Although the court
that issued the original dissolution order found that Mother could not
work because of her health condition, the court did not abuse its
discretion in concluding that Mother’s health no longer precludes her
from working. Moreover, the court did not abuse its discretion in
concluding that the children–who have since turned 4 years older—no
longer require Mother’s full-time care.
¶12 Mother’s argument that no evidence supports a change in
circumstances attacks the sufficiency of the evidence presented at the child
support modification hearing. As a reviewing court, we, however, do not
reweigh conflicting evidence and defer to the family court’s determination
of credibility. In re Estate of Pouser, 193 Ariz. 574, 579 ¶ 13, 975 P.2d 704,
709 (1999); Gutierrez v. Gutierrez, 193 Ariz. 343, 347–48 ¶ 13, 972 P.2d 676,
680–81 (App. 1998). Because sufficient evidence was presented to the
family court, we affirm the court’s decision to modify Father’s child
support obligations.
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CHAMBERS v. CHAMBERS
Decision of the Court
CONCLUSION
¶13 For the foregoing reasons, we affirm.
:MJT
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