Dekker v. Dekker ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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 Marriage of:
JANOLYN S. DEKKER, Petitioner/Appellee,
v.
JACK E. DEKKER, Respondent/Appellant.
No. 1 CA-CV 12-0786
FILED 05/22/2014
Appeal from the Superior Court in Maricopa County
No. FC2011-007630
The Honorable Sam J. Myers, Judge
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART,
AND REMANDED
COUNSEL
Janolyn S. Dekker, Queen Creek
Petitioner/Appellee in Propria Persona
S. Alan Cook, P.C., Phoenix
By S. Alan Cook
Counsel for Respondent/Appellant
DEKKER v. DEKKER
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.
P O R T L E Y, Judge:
¶1 Jack E. Dekker (“Father”) brings this appeal from a decree of
dissolution and the denial of his motion for new trial. Because we find
that the family court did not properly calculate the gross income of
Janolyn S. Dekker (“Mother”) in determining the award of child support,
we reverse the calculation, vacate the award of attorneys' fees, and
remand this case for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother filed her petition for dissolution after twenty-five
years of marriage, and served Father on November 21, 2011. As is
relevant here, she requested spousal maintenance, child support for the
parties’ two minor children, and the division of community property and
community debts.
¶3 Mother requested temporary child support and spousal
maintenance, and a hearing was set. The parties, however, entered into a
stipulation in which Father agreed to pay Mother $2300 per month in
“temporary family support” starting from January 1, 2012, and, to cover
the January and February payments, he agreed to give her a judgment for
$4600. The family court approved the stipulation on February 6, 2012.
¶4 The case proceeded to trial. After taking the matter under
advisement, the family court subsequently entered a decree that dissolved
the marriage and awarded joint legal custody of the children. The decree
also required Father to pay Mother $1100 per month in spousal
maintenance for eight years beginning August 1, 2012, and $340 per
month in child support effective from December 1, 2011. The court also
awarded Mother an equalization payment of $10,000, and $8000 in
attorneys’ fees.
2
DEKKER v. DEKKER
Decision of the Court
¶5 Father moved for a new trial and to alter or amend the
decree. The family court denied the motion in a signed order. Father then
filed this appeal. We have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(1) and (5)(a). 1
DISCUSSION
¶6 Father argues that the family court abused its discretion in
various trial rulings and in denying his motion for new trial on the issues
of child support, income calculation, disclosure violations, debt allocation,
and attorneys’ fees. Mother did not file an answering brief. Although we
could consider it a confession of reversible error, we will exercise our
discretion and will consider the case on the merits because all of the
evidence before the family court is in the record. See Gonzales v. Gonzales,
134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982).
¶7 When reviewing a ruling on a motion for new trial, we grant
the family court broad discretion and we will not disturb the ruling absent
a clear abuse of that discretion. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10,
222 P.3d 909, 912 (App. 2009). 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) (citation omitted)
(internal quotation marks omitted). Moreover, we presume that the court
“found every fact necessary to support the judgment” where neither party
requested findings of fact or conclusions of law pursuant to Arizona Rule
of Family Law Procedure (“Rule”) 82(A). See Neal v. Neal, 116 Ariz. 590,
592, 570 P.2d 758, 760 (1977) (citation omitted) (internal quotation marks
omitted).
I. Child Support
¶8 Father argues that the family court abused its discretion in
calculating child support. We review an award of child support for an
abuse of discretion, but review de novo the court’s application of the
Arizona Child Support Guidelines, A.R.S. § 25-320 app. (the
“Guidelines”). See In re Marriage of Robinson and Thiel, 201 Ariz. 328, 331,
¶ 5, 35 P.3d 89, 92 (App. 2001).
1We cite the current version of the applicable statute unless revisions
material to this decision have since occurred.
3
DEKKER v. DEKKER
Decision of the Court
¶9 In calculating child support, the court must determine the
gross income of both parents. Mead v. Holzmann, 198 Ariz. 219, 220 n.3, ¶
5, 8 P.3d 407, 408 n.3 (App. 2000). Section 5(A) of the Guidelines provides
that “gross income” includes income from “spousal maintenance.”
Although the family court ordered Father to pay $1100 in monthly spousal
maintenance, which he does not challenge, the court did not add the
amount to Mother’s gross income. Father contends that the omission was
erroneous. We agree.
¶10 On remand, the family court needs to recalculate Mother’s
gross monthly income by adding the $1100 spousal maintenance award to
her gross income, and then calculate Father’s child support obligation.
The court will also need to consider the uncontested fact that Father is
paying $245 per month to maintain medical insurance for the children as
part of the child support calculation. Additionally, the court will then also
need to recalculate the parties’ proportionate shares of the total child
support obligation under § 10 of the Guidelines, and then adjust to the
parties’ shares of unreimbursed medical expenses, Guidelines § 9(A).
¶11 Father also argues that the family court is required to give
him credit toward his child support obligation from December 2011 until
the entry of the decree because he paid $2300 per month in “temporary
child support” prior to the entry of the decree. Although the parties
stipulated to the temporary family support sum, the order submitted by
Father did not allocate the sum between child support, spousal
maintenance or living expenses. As a result, the family court only ordered
the stipulated temporary family support sum, and did not allocate any
part of it as temporary child support.
¶12 At trial, Mother testified and requested child support and
Father agreed to pay appropriate child support. He did not testify that a
portion of the stipulated sum was for child support nor ask that a portion
of the sum be designated for child support. The court, as a result, ordered
him to pay child support retroactive to December 1, 2011, the month after
the service of the petition. Consequently, the court did not abuse its
discretion by denying Father’s argument in his post-trial motion that some
portion of his pretrial payment should be credited towards the child
support obligation. See A.R.S. § 25-503(A) (stating that the court may
specify the date when child support begins).
4
DEKKER v. DEKKER
Decision of the Court
II. Calculation of Mother’s Income
¶13 Father also argues that the family court erroneously
calculated Mother’s gross income by relying on her affidavit of financial
information. He claims that Mother’s trial testimony was inconsistent
with the affidavit, and proved that her business income was nearly $3917
per month and her business had grossed more than $160,000 in 2011.
A. Mother’s Trial Testimony
¶14 Mother, who had been a homemaker, was a self-employed
florist for the last two years of marriage. Because she was self-employed,
her gross income is calculated as “gross receipts minus ordinary and
necessary expenses.” Guidelines § 5(C). Mother’s Amended Affidavit of
Financial Information lists her gross monthly income as $3143.
¶15 Mother testified that her floral business earned $160,279.49
in 2011, but she paid $92,528.88 for job materials, including flowers, vases,
and supplies. She also paid more than $7800 in contract labor expenses,
more than $1800 in vendor commissions, and $7342 for bank overdraft
charges, classes, dues and subscriptions, equipment rental, janitorial
services, and office supplies, resulting in annual income of about $47,000.
After deducting business-related expenses for auto, computer/internet,
and meals and entertainment, Mother’s income came to $3200 per month.
Her testimony as to her monthly income approximates the $3143 listed in
her affidavit.
¶16 Additionally, she testified that her business was not faring as
well in 2012 because of the economy. Given her testimony, the family
court did not abuse its discretion by attributing Mother’s gross income as
$3143 per month.
B. In-Kind Services
¶17 In his motion for new trial, Father argued that he learned
after trial that Mother had a roommate starting July 1 and the court
needed to recalculate Mother’s gross income to account for the “trade
outs” — the tenant’s work around the house in lieu of rent. We review the
court’s ruling on a motion for new trial for an abuse of discretion, Pullen,
223 Ariz. at 296, ¶ 10, 222 P.3d at 912, but whether the court should have
included additional amounts in Mother’s gross income calculation is a
question of law we review de novo. See Patterson v. Patterson, 226 Ariz.
356, 358, ¶ 4, 248 P.3d 204, 206 (App. 2011).
5
DEKKER v. DEKKER
Decision of the Court
¶18 Although Mother had a tenant who started living with her
nine days before trial, the family court did not have to consider the value
of the “trade outs” because any service for rent was not then continuing or
recurring in nature. See Guidelines § 5(A). Because “[i]ncome from any
sources which is not continuing or recurring in nature need not
necessarily be deemed gross income for child support purposes,” the
court did not err by denying Father’s post-trial argument. See id.
III. Disclosure of Business Records
¶19 Father also contends that Mother failed to adequately
disclose the basis of her expenses pursuant to Rule 49(C), and a new
determination is warranted. We review the ruling on disclosure issues for
abuse of discretion. Link v. Pima Cnty., 193 Ariz. 336, 338, ¶ 3, 972 P.2d
669, 671 (App. 1998).
¶20 The record belies Father’s argument. In addition to her
Amended Affidavit of Financial Information, Mother voluntarily
disclosed her bank account statements which she used for personal and
business expenses. She also provided the profit and loss statements for
her business for 2011 and 2012, which were attached to her affidavit. If
Father wanted more information, he never sought it. He never served her
with written discovery, filed a motion to compel production of Mother’s
business records, or took her deposition. Moreover, the record does not
reflect any attempt he made to schedule a conference to resolve any
discovery dispute as provided in the family court’s pretrial order.
Consequently, the court did not abuse its discretion by refusing to reopen
the trial based upon Father’s disclosure argument.
IV. Debts
¶21 Father further argues that the family court failed to give him
credit for paying $27,000 in community debts owed to his mother and
sister. He contends, as a result, that Mother is equally responsible for the
debt and should not have received a $10,000 equitable offset.
¶22 The family court enjoys broad discretion in equitably
dividing community assets and liabilities. Flower v. Flower, 223 Ariz. 531,
535, ¶ 14, 225 P.3d 588, 592 (App. 2010). In dividing property, the court
may consider all related debts and obligations. A.R.S. § 25-318(B). We
will not disturb the court’s allocation absent a clear abuse of discretion.
Inboden v. Inboden, 223 Ariz. 542, 544, ¶ 7, 225 P.3d 599, 601 (App. 2010).
6
DEKKER v. DEKKER
Decision of the Court
¶23 Father had been the owner of a drilling and blasting
business; which, by the time of trial was defunct or bankrupt. In his
revised pretrial statement filed on the day of trial, he disclosed that he
sold a piece of business equipment for approximately $80,000. After
stating that he and Mother owned fifty percent of the asset and his sister
owned the remaining fifty percent, Father asserted that he had used their
$40,000 from the sale to pay $27,000 in community debts: $17,000 owed to
his sister and brother-in-law; and $10,000 owed to his parents.
¶24 Prior to the revised pretrial statement, neither party had
listed any community debts they owed or that were outstanding from
Father’s relatives related to the business. Mother testified that the parties
had agreed that Father would pay the $27,000 owed to family members
and would also receive all money he could collect from his parents, which
was approximately $240,000. Father denied the existence of the
agreement, but did not dispute that his parents had received $210,000
from the parties. The conflicting testimony raised a credibility question
that the court had to, and was in the best position to, resolve. See Gutierrez
v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998). The
court resolved the issue in Mother’s favor and ordered Father to pay
$20,000 to Mother for her twenty-five percent share of proceeds from the
sale of equipment. Because there is evidence supporting the court’s
decision, we find no abuse of discretion.
V. Denial of Motion for New Trial
¶25 Finally, Father argues that the family court abused its
discretion by denying his motion for new trial. Under Rule 83(A), a
“judgment may be vacated and a new trial granted” for certain listed
causes “materially affecting [a] party’s rights.” The causes include:
1. irregularity in the proceedings of the court
or a party, or abuse of discretion, whereby the
moving party was deprived of a fair trial;
2. misconduct of a party;
3. accident or surprise which could not have
been prevented by ordinary prudence;
4. material evidence, newly discovered, which
with reasonable diligence could not have been
discovered and produced at the trial;
7
DEKKER v. DEKKER
Decision of the Court
....
6. that the ruling, decision, findings of fact, or
judgment is not justified by the evidence or is
contrary to law.
Id.
¶26 Father contends that the family court should increase
Mother’s gross income by $1100, making corresponding adjustments to
the parties’ percentage shares of the total child support obligation, revisit
its rulings on $27,000 in debt, and modify the decree to recognize that
Father provides medical insurance for the children. Because we have
resolved those issues, we need not discuss them further.
¶27 Father also contends that the court erred by: (1) excluding
his mother, Henrietta Dekker, as a rebuttal witness on the community
debt issue; and (2) disregarding his mother’s affidavit that he filed after
trial. Here, Father disclosed that he wanted to call his mother to testify the
day before trial. Mother objected to the late disclosure and the fact that
Father failed to specify the nature of his mother’s testimony. Although
counsel outlined the areas that he hoped she would testify about, Father
did not make an offer of proof concerning his mother’s testimony. The
court sustained the objection, but allowed her to testify about Father’s
relationship with his children because that went to the issue of their best
interests. We review the ruling for an abuse of discretion. Link, 193 Ariz.
at 338, ¶ 3, 972 P.2d at 671.
¶28 Although Father argues the court erred, his argument is
devoid of relevant legal authority to support his argument that his mother
should not have been precluded as a rebuttal witness or that the court
should have considered her post-trial affidavit. Father did not timely
disclose his mother as a witness pursuant to Rule 49(H) on any issue,
much less the issue of community debts. As a result, we will not address
the argument. See ARCAP 13(a)(6) (“[E]ach contention raised on appeal
. . . shall be identified, with citations to relevant authority.”); see also
Polanco v. Indus. Comm’n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2
(App. 2007) (recognizing that an argument is waived on appeal if the
opening brief lacks citations to supporting authority).
8
DEKKER v. DEKKER
Decision of the Court
VI. Attorneys’ Fees
¶29 Father also contends that the family court committed
procedural and legal errors in awarding Mother $8000 in attorneys’ fees
pursuant to A.R.S. § 24-324(A). We review the award for abuse of
discretion. Hrudka v. Hrudka, 186 Ariz. 84, 94-95, 919 P.2d 179, 189-90
(App. 1995).
¶30 At trial, Mother testified that she had incurred more than
$10,000 in attorneys’ fees, due in part to Father’s failure to cooperate in
discovery, and submitted Exhibit 7, an itemization of the legal charges,
which was admitted into evidence. She requested a fee award of $8000.
Father objected based on his inability to cross-examine anyone about the
reasonableness of the fees. In response, the court noted that if attorneys'
fees are granted, a China Doll affidavit 2 would have to be submitted to
“allow the other side to object.”
¶31 Although the family court subsequently determined an
award of fees was appropriate under A.R.S. § 25-324, the court did not
allow Father to challenge Exhibit 7 or the reasonableness of Mother's
$8000 request. Consequently, we remand the issue of attorneys' fees to
allow the court to consider any objection Father wants to make to Exhibit
7 and the reasonableness of the requested amount. After reviewing the
exhibit and any objection, the court can affirm the award or modify it
downward, as appropriate.
¶32 Father also requests attorneys' fees and costs on appeal
pursuant to A.R.S. § 25-324. Based on the record, we exercise our
discretion and deny Father’s request for fees on appeal. Moreover,
because he was not completely successful we decline to award him costs
on appeal. See Valento v. Valento, 225 Ariz. 477, 484, ¶ 25, 240 P.3d 1239,
1246 (App. 2010).
CONCLUSION
¶33 Based on our analysis, we reverse the family court’s
calculation of Mother’s gross income and remand for redetermination of
her gross income and related issues as directed by this decision. We also
remand to allow the court to consider any objection Father has to Exhibit
7, as well as the reasonableness of Wife’s requested and awarded $8000 in
2 See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188, 673 P.2d 927, 932
(App. 1983).
9
DEKKER v. DEKKER
Decision of the Court
attorneys' fees. We otherwise affirm the family court’s rulings in this
matter.
:gsh
10