Rector v. Stevenson ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Matter of:
STEPHANIE RECTOR, Petitioner/Appellant,
v.
JOHN STEVENSON, Respondent/Appellee.
No. 1 CA-CV 21-0164 FC
FILED 12-30-2021
Appeal from the Superior Court in Maricopa County
No. FC2010-091675
The Honorable Rodrick J. Coffey, Judge
AFFIRMED IN PART; VACATED AND REMANDED IN PART
COUNSEL
Bert L. Roos, P.C., Phoenix
By Bert L. Roos
Counsel for Petitioner/Appellant
Law Offices of Matthew S. Schultz, P.C., Tempe
By Matthew S. Schultz
Counsel for Respondent/Appellee
RECTOR v. STEVENSON
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
C R U Z, Judge:
¶1 Stephanie Rector (“Mother”) appeals from the superior
court’s orders regarding Mother’s petition to modify child support and the
attorneys’ fees awarded to John Stevenson (“Father”). For the following
reasons, we affirm in part, vacate and remand in part.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Father share a daughter, P.S., born in 2006. They
have equal parenting time and joint legal decision-making authority over
P.S., though Father has final decision-making authority. In July 2019,
Mother was ordered to pay $35 in monthly child support and an additional
$100 per month in past due child support.
¶3 In December 2019, Mother filed a petition to modify child
support, alleging she had an increase in childcare costs of $175 and Father
was no longer paying the $298 in private education expenses he had been
attributed. Father filed two contempt motions, in June and October 2020
respectively, alleging Mother was violating multiple court orders. Per
Father’s request, the two contempt motions and the petition to modify were
consolidated and the court heard arguments on all three in a single hearing
that it conducted virtually with videoconferencing.
¶4 At the hearing, Father’s counsel objected to Mother testifying
about her childcare costs, arguing the Arizona Child Support Guidelines
(“Guidelines”) did not allow the court to consider childcare costs when the
parties share equal parenting time. Father also noted the parties had a
parenting time and legal decision-making order in place that stated the
parties were both responsible for their own childcare costs. The court
agreed and sustained the objection. Mother and Father testified about the
remaining issues.
¶5 The court found Father’s income had decreased, Mother’s
income slightly increased, and Father was no longer paying extra education
expenses. Mother’s child support obligation was increased to $207 per
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Decision of the Court
month. The superior court found Mother in contempt for failing to pay her
child support arrearage, and increased her monthly arrearage payment to
$150, for a total child support obligation of $357 per month. Mother was
also found in contempt for violating multiple court orders, including
wrongfully claiming P.S. on her taxes, exercising medical decisions without
Father’s approval, taking P.S. out of the country without Father’s or the
court’s permission, failing to reimburse Father for medical expenses, and
failing to comply with the parenting time order. As a result the superior
court awarded Father $5,000 in attorneys’ fees.
¶6 Mother timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).
DISCUSSION
I. Due Process
¶7 Mother argues her due process rights were violated because
the two-hour hearing provided insufficient time to address her petition to
modify child support and Father’s two contempt petitions.
¶8 The court “may impose reasonable time limits appropriate to
the proceedings,” Ariz. R. Fam. Law P. 22(a), and “whether additional time
is necessary remains committed to the court’s discretion.” Backstrand v.
Backstrand, 250 Ariz. 339, 347, ¶ 29 (App. 2020). Mother was aware of the
time allotted for the hearing, but she did not object or ask for more time
before the hearing. At trial, Mother’s counsel noted he was concerned the
parties did not “have the full necessary time” to address the three issues,
but counsel stated he just wanted “to bring that up to the Court’s attention”
and did not otherwise object. At the conclusion of the hearing, counsel did
not request additional time, nor did he suggest that he had been unable to
present all of his evidence.
¶9 “Procedural due process . . . requires nothing more than an
adequate opportunity to fully present factual and legal claims.” Kessen v.
Stewart, 195 Ariz. 488, 492, ¶ 16 (App. 1999). Mother’s untimely objection
fails to identify any specific evidence she would have presented had she
been given additional time to present her case. See In re Marriage of Dorman,
198 Ariz. 298, 303, ¶ 13 (App. 2000). And, contrary to Mother’s contention,
the transcript demonstrates Mother had the opportunity to cross-examine
Father and provide rebuttal testimony. Mother’s due process rights were
not violated.
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¶10 Mother also argues a video hearing violated her due process
rights because the court was unable to adequately judge the credibility of
the witnesses and the testimony presented. However, Mother fails to
explain how the use of videoconferencing prevented the court from
observing and listening to the witnesses such that her due process rights
were violated. We are unpersuaded by the generalized argument that the
use of videoconferencing is unconstitutional. This is especially so as the
court strived to manage its calendar during a global pandemic. See Findlay
v. Lewis, 172 Ariz. 343, 346 (1992) (the superior court has broad discretion
over the management of its docket). We find no error.
II. Child Support Modification
¶11 Mother argues the court erred when it modified her child
support obligation. A child support order can be modified “upon a
showing of a substantial and continuing change of circumstances.” A.R.S.
§ 25-320 app. § 24(A) (2018). “The decision to modify an award of child
support rests within the sound discretion of the trial court and, absent an
abuse of that discretion, will not be disturbed on appeal.” Little v. Little, 193
Ariz. 518, 520, ¶ 5 (1999).
A. Father’s Income
¶12 Mother argues the superior court erred in determining
Father’s income when calculating her child support obligation. Mother’s
child support obligation was previously $35 per month based upon Father’s
income of $6,000 per month. At the evidentiary hearing, Father presented
evidence, including bank statements and his affidavit of financial
information, that indicated he was currently earning about $2,400 per
month. Father also submitted his most recent tax return, demonstrating he
had earned $3,286.25 in monthly income the prior year. The court
ultimately attributed the $3,286.25 figure to Father.
¶13 Mother argues Father’s income is greater than the court found
and cites to previous superior court orders in which the court found Father
to have a higher income. But these orders were based on evidence that has
no bearing on Father’s current income. Mother argues that Father’s income
could not have changed within the eighteen-month period between the July
2019 child support order and the December 2020 hearing. But, in accepting
Father’s current figures as true, the superior court made a credibility
determination we cannot now disturb. We do not reweigh the evidence
and “[w]e must give due regard to the trial court’s opportunity to judge the
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credibility of the witnesses.” Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App.
2009).
¶14 Mother also argues the court should have attributed a higher
income to Father because the Guidelines allow a court to attribute income
based on the parent’s earning capacity if the court finds a parent is
unemployed or underemployed voluntarily. See A.R.S. § 25-320 app. § 5(E).
While it is within the court’s discretion to attribute a higher income to a
parent when the evidence so supports, here the court did not find Father to
be voluntarily underemployed and no evidence supports that Father’s
earnings were reduced “as a matter of choice.” See id.
¶15 The evidence supports the superior court’s finding that Father
had a monthly income of $3,286.25. The superior court did not err in
finding Father’s lower income to be “a substantial and continuing change
of circumstances” that justified child support modification. See A.R.S. § 25-
320 app. § 24(A); Nia v. Nia, 242 Ariz. 419, 423, ¶¶ 9-14 (App. 2017).
B. Childcare Expenses
¶16 Mother contends the superior court also erred in failing to
consider her after-school care costs when modifying child support.
¶17 At the hearing, opposing counsel and the superior court
erroneously interpreted the Guidelines as precluding the court from
considering childcare costs when the parties share equal parenting time. As
a result, Mother was prevented from testifying about an increase in her
childcare costs. Father argues prior court orders established that Mother
and Father were responsible for their own childcare costs, and so any
misinterpretation of the Guidelines was harmless. However, the change in
Mother’s childcare costs is the very reason Mother sought to modify the
current child support orders.
¶18 The superior court is not required to credit a parent for his or
her childcare costs. See A.R.S. § 25-320 app. § 9(B)(1) (the court “[m]ay add
to the Basic Child Support Obligation amounts” for “[c]hildcare expenses
that would be appropriate to the parents’ financial abilities”) (emphasis
added). However, the court prevented Mother from presenting any
evidence of her childcare costs. And the decision to exclude this evidence
was based upon an erroneous interpretation of the law. See Kohler v. Kohler,
211 Ariz. 106, 107, ¶ 2 (App. 2005) (citation omitted) (an abuse of discretion
occurs when the court commits an error of law). We remand on this issue
for the superior court to consider Mother’s evidence regarding a change in
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childcare costs. We do so without expressing any opinion as the weight to
be accorded this evidence or the ultimate determination on this issue.
III. Attorneys’ Fees
¶19 Mother argues the superior court erred in awarding Father his
attorneys’ fees. We review the superior court’s award of attorneys’ fees for
an abuse of discretion. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265,
¶ 18 (App. 2004). An abuse of discretion occurs if there is no evidence to
support the court’s decision or if the court commits an error of law. Charles
I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17 (App. 2006).
¶20 The superior court awarded Father his attorneys’ fees
pursuant to A.R.S. § 25-324(A), which states the court may award fees “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken.” Mother argues Father has greater
financial resources. Notwithstanding the fact the evidence at the hearing
proved otherwise, the superior court found no financial disparity and
balanced this with Mother’s unreasonable behavior and violation of
multiple court orders when deciding to award fees. Mother does not
challenge these findings, and even states she “does not disagree that a
portion of the attorneys fees related to the contempt issues should have
been awarded.” She instead “disagrees that the entire amount should have
been awarded.” The court has wide discretion to award attorneys’ fees in
family law proceedings, and Mother fails to explain how the court abused
its discretion in awarding $5,000 in fees. See Orfaly, 209 Ariz. at 265, ¶ 18.
We find no error.
¶21 Mother argues Father acted unreasonably by requesting
continuances of the modification proceeding. Mother fails to explain how
this was unreasonable, particularly when she did not object to two of the
three requests for continuances, and the court ultimately granted each
request.
¶22 Finally, Mother argues the superior court would not have
awarded fees had she been able to adequately present her case and had her
due process rights not been violated. But as explained above, Mother’s due
process rights were not violated. The superior court did not abuse its
discretion in awarding Father his attorneys’ fees.
CONCLUSION
¶23 For the foregoing reasons, we vacate the child support order
and remand for proceedings consistent with this decision. We affirm the
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Decision of the Court
superior court’s ruling in all other respects. Both parties request an award
of their attorneys’ fees on appeal pursuant to A.R.S. § 25-324(A). We have
considered the relative financial resources of the parties and the
reasonableness of the positions asserted on appeal. In the exercise of our
discretion, we decline to award fees and costs.
AMY M. WOOD • Clerk of the Court
FILED: JT
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