Hanson v. Whetten ( 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NOTICE: NOT FOR PUBLICATION.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
SHANNON HANSON, Petitioner/Appellant,
v.
BRANDON CARL WHETTEN, Respondent/Appellee.
No. 1 CA-CV 13-0386
FILED 06-17-2014
Appeal from the Superior Court in Maricopa County
No. FC2007-002611
The Honorable John R. Hannah, Judge
AFFIRMED
COUNSEL
Jeffrey M. Zurbriggen, P.C., Phoenix
By Jeffrey M. Zurbriggen
Counsel for Petitioner/Appellant
Brandon Carl Whetten, Winslow
Respondent/Appellee
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Donn Kessler joined.
HANSON v. WHETTEN
Decision of the Court
J O N E S, Judge:
¶1 Shannon Hanson (Mother) appeals the trial court’s decision
to deviate from the child support guidelines in setting Brandon Whetten’s
(Father) support obligation, as well as the trial court’s decision to not
award her attorney’s fees. 1 For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2007, Mother was granted a “default decree of dissolution
of non-covenant marriage,” and awarded sole legal custody of the
couple’s only child, S.W.; the decree did not award Father parenting time,
or require him to pay child support, due to his incarceration.
¶3 In September 2011, in anticipation of his release from prison,
Father petitioned to modify custody, parenting time, and child support. 2
A temporary orders hearing was held in March 2012, following which the
trial court elected not to enter temporary orders regarding parenting time,
as it awaited the outcome of a pending motion to terminate Father’s
parental rights. At a status conference in May 2012, the trial court was
informed the severance would not go forward; it then re-set the temporary
orders hearing for June 7, 2012. At the June hearing, the trial court
appointed a therapeutic interventionist to help with Father’s transition
into S.W.’s life. Thereafter, following a series of Review Hearings
regarding the progress of the therapeutic intervention, the trial court set a
“Review Hearing/Child Support Establishment Hearing” for April 25,
2013.
¶4 Mother and Father each testified at the April hearing. In its
subsequent minute entry, with regard to the establishment of child
support, the trial court attributed minimum wage income to Father, and
monthly income of $8,000 to Mother. The court then found, based upon
1 Initially, we note Father did not file an answering brief on appeal, which
could constitute a confession of reversible error. However, in our
discretion, we choose to resolve the appeal on the merits of the case. See
Patterson v. Patterson, 226 Ariz. 356, 358 n.2, 248 P.3d 204, 206 n.2 (App.
2011).
2 Father requested: (1) he and Mother be given joint legal custody of S.W.;
and (2) he be granted reasonable parenting time and ordered to pay child
support to Mother. However, he did not specify the amount of child
support he should pay or attach a “Child Support Worksheet.”
2
HANSON v. WHETTEN
Decision of the Court
application of the Child Support Guidelines, that Father owed Mother
$173.72 per month for a period of eighteen months (October 2011 through
March 2013), for a total arrearage obligation of $3,126.96. However, the
trial court then determined that child support based upon the Child
Support Guidelines would be inappropriate or unjust, and reduced
Father’s obligation to $0 for both past and current child support. Mother
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) section 12-2101(A)(2) (2014). 3
DISCUSSION
¶5 Mother argues the trial court erred in several respects by
deviating from the Child Support Guidelines in setting Father’s support
obligation. “An award of child support is left to the sound discretion of
the trial court and will not be disturbed on appeal absent an abuse of
discretion.” Cummings v. Cummings, 182 Ariz. 383, 385, 897 P.2d 685, 687
(App. 1994). Arizona adopted the Child Support Guidelines, inter alia,
“[t]o establish a standard of support for children consistent with the
reasonable needs of children and the ability of parents to pay,” and also
for consistency between persons in similar circumstances. A.R.S. § 25-320
app. § 1(A)-(B) (2014) (“Guidelines”). Therefore, it is presumed the child
support award will be derived from the guidelines. Guidelines § 3.
Although, a court may deviate from that presumed amount if it finds
application of the guidelines would be inappropriate or unjust.
Guidelines § 20.
I. Deviation From Child Support Guidelines
A. Deviation Not Requested by Father
¶6 Mother first argues, without citation to relevant authority,
the trial court abused its discretion by reducing Father’s child support
obligation to zero because Father did not request a deviation. While
Mother’s factual assertion is correct, her allegation of error is not.
¶7 A court is directed by the Guidelines to deviate from the
presumed child support amount if, in light of the factors set forth in A.R.S.
§ 25-320, the application of the Guidelines amount would be inappropriate
or unjust in the immediate case, deviation is not contrary to the
child(ren)’s best interests, and the court makes written findings regarding
3Absent material revisions after the relevant dates, we cite the current
version of the statutes and rules unless otherwise indicated.
3
HANSON v. WHETTEN
Decision of the Court
each of these requirements, as well as stating what the amount of child
support would be both prior to and after deviation. Guidelines § 20 (A)
(stating “[t]he court shall deviate from the guidelines . . . only if all
the . . . criteria are met”); Mead v. Holzmann, 198 Ariz. 219, 223 n.5, ¶ 14, 8
P.3d 407, 411 n.5 (App. 2000) (“The Guidelines mandate a deviation . . .
when the failure to do so would result in the imposition of an
inappropriate or unjust support order.”) (emphasis in original).
Therefore, the trial court was within its discretion to, sua sponte, deviate
from the Guidelines, even in the absence of a specific request to do so by
Father.
B. Evidentiary Support for Deviation
¶8 Mother next contends the trial court abused its discretion as
its decision to deviate from the Guidelines was unsupported by evidence.
“An abuse of discretion exists 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.” Little v. Little, 193 Ariz. 518, 520, ¶ 5,
975 P.2d 108, 110 (1999). In this instance, we cannot find the trial court
abused its discretion.
¶9 Initially, we need note that Mother did not provide the Child
Support Establishment Hearing transcript to this Court on appeal. See
ARCAP 11(b)(1) (placing the responsibility of providing relevant
transcripts to this Court on appeal with the appellant). When a party fails
to do so, we assume the record from the hearing supports the trial court’s
ruling. State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66
P.3d 70, 73 (App. 2003). The trial court attributed minimum wage to
Father and $8,000 in monthly income to Mother. Further, it found Father
has, essentially, zero parenting time with S.W., and that the therapeutic
intervention costs are substantially more than Father’s Guidelines-based
support obligation of $173.72 per month. As we assume the evidence at
the hearing supports the trial court’s findings, we will not set aside the
order based on alleged insufficiency of the evidence.
C. Insufficient Written Findings
¶10 Lastly, Mother argues the trial court abused its discretion in
failing to make written findings regarding the statutory factors contained
within A.R.S. § 25-320(D), and by failing to make the requisite written
findings to justify the deviation under Section 20 of the Child Support
Guidelines.
4
HANSON v. WHETTEN
Decision of the Court
1. Statutory Factors
¶11 When ordering child support in an amount inconsistent with
the child support guidelines, the court must first consider all relevant
factors, including those set forth in A.R.S. § 25-320(D). 4 Mother argues the
trial court’s findings were insufficient because it did not make written
findings. We disagree.
¶12 There is a distinction between “written findings,” and need
for the court’s “consideration” of the A.R.S. § 25-320(D) criteria. The
Guidelines do not mandate written findings regarding the relevant
factors, but merely require the court to consider the factors before
deviating from the Guidelines. Elliott v. Elliott, 165 Ariz. 128, 131 n.1, 796
P.2d 930, 933, n.1 (App. 1990); Guidelines § 20(A). The court noted in its
minute entry that it had “considered all of the relevant factors.” Further,
we presume the court considered a factor if the record contains evidence
relating to that factor. Fuentes v. Fuentes, 209 Ariz. 51, 55-56, ¶¶ 17-18, 97
P.3d 876, 880-81 (App. 2004). As we have not been provided a certified
transcript of the child support hearing, we assume the trial court correctly
considered the relevant factors upon which evidence was provided as
4 A.R.S. § 25-320(D) sets forth the following factors:
1. The financial resources and needs of the child.
2. The financial resources and needs of the custodial parent.
3. The standard of living the child would have enjoyed if the child
lived in an intact home with both parents to the extent it is
economically feasible considering the resources of each parent
and each parent’s need to maintain a home and to provide
support for the child when the child is with that parent.
4. The physical and emotional condition of the child, and the
child’s educational needs.
5. The financial resources and needs of the noncustodial parent.
6. The medical support plan for the child. The plan should
include the child’s medical support needs, the availability of
medical insurance or services provided by the Arizona health
care cost containment system and whether a cash medical
support order is necessary.
7. Excessive or abnormal expenditures, destruction, concealment
or fraudulent disposition of community, joint tenancy and other
property held in common.
8. The duration of parenting time and related expenses.
5
HANSON v. WHETTEN
Decision of the Court
required. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App.
1995). Therefore, on this record, we find no abuse of discretion.
2. Deviation Findings
¶13 Mother contends on appeal that the trial court’s written
findings were insufficient to support a deviation. Mother, however, did
not object to the lack of findings to the trial court. Generally, a party’s
failure to raise the issue to the trial court amounts to waiver of the issue
on appeal. Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59
(1994); In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 27, 5 P.3d 911, 917
(App. 2000). The reason for this principle is to allow the trial court and
opposing party to correct any defects prior to them being raised on
appeal. Trantor, 179 Ariz. at 300, 878 P.2d at 658. However, the waiver
rule is not absolute, and has not been applied in situations like this, where
the issue concerns the best interests of a child. See Reid v. Reid, 222 Ariz.
204, 209-10, ¶ 20, 213 P.3d 353, 358-59 (App. 2009). Therefore, we address
the merits of Mother’s argument.
¶14 A trial court is entitled to deviate from the Guidelines when,
after considering the relevant factors (including those set forth in § 25-
320(D)) and the best interests of the child, the court finds an application of
the Guidelines would be “inappropriate or unjust.” Guidelines § 20(A)(1)-
(2). The court must also make written findings explaining why it
deviated, as well as what the child support amount is before and after
deviation. Guidelines § 20(A)(3)-(5); Patterson, 226 Ariz. at 358, ¶ 5, 248
P.3d at 206.
¶15 Here, the trial court made the requisite written findings. In
its minute entry, it calculated Father’s child support amount under the
Guidelines was $173.72 per month; after deviation, his child support
amount was zero. The trial court expressly found the “application of the
child support guidelines would be unjust or inappropriate in this case,”
and stated it had considered the best interests of the child. The court
explained it was deviating from the Guidelines amount because the cost of
Father’s therapeutic intervention with S.W. was “substantially greater
than the support on an ongoing basis” and was therefore “a substantial
reason to deviate from the guidelines.” Further, the court found a
substantial disparity between the parties’ respective monthly income,
attributing $8,000 to Mother and minimum wage to Father.
6
HANSON v. WHETTEN
Decision of the Court
II. Attorney’s Fees in Trial Court
¶16 In several filings, Mother requested the trial court award her
costs and attorney’s fees. The trial court did not rule upon Mother’s
request in its order setting Father’s child support. As such, we deem her
request was denied. See Pearson v. Pearson, 190 Ariz. 231, 237, 946 P.2d
1291, 1297 (App. 1997). On appeal, Mother asserts the trial court’s
handling of the matter constituted error. We review the trial court’s
decision to award or deny attorney’s fees and costs for an abuse of
discretion. In re Marriage of Robinson and Theil, 201 Ariz. 328, 335, ¶ 20, 35
P.3d 89, 96 (App. 2001).
¶17 A.R.S. § 25-324(A) allows a trial court to award a party a
reasonable amount of attorney’s fees and costs upon consideration of “the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.” To merit consideration
for fees, a party must demonstrate “he or she is financially poorer than the
other spouse.” Magee v. Magee, 206 Ariz. 589, 591, ¶ 12, 81 P.3d 1048, 1050
(App. 2004) (emphasis in original). The benchmark for eligibility rests
upon a “relative financial disparity between the parties.” Id. at 593, ¶ 18,
81 P.3d at 1052.
¶18 Here, as previously mentioned, the trial court attributed
$8,000 in monthly income to Mother and minimum wage to Father. As
Mother’s income far exceeds Father’s, the trial court did not abuse its
discretion in denying Mother’s request for attorney’s fees and costs.
CONCLUSION
¶19 Based upon the foregoing, we affirm the trial court’s child
support award. Mother requests her attorney’s fees and costs on appeal.
As she is not the prevailing party, we deny that request.
:gsh
7