Nachiappan v. Subramanian ( 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NOTICE: NOT FOR PUBLICATION.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 Marriage of:
NACCHAL NACHIAPPAN, Petitioner/Appellant,
v.
RAMANATHAN SUBRAMANIAN, Respondent/Appellee.
No. 1 CA-CV 13-0396
FILED 5-1-2014
Appeal from the Superior Court in Yuma County
No. S1400DO201100326
The Honorable Lisa W. Bleich, Judge
AFFIRMED
COUNSEL
The Murray Law Offices, PC, Scottsdale
By Stanley David Murray
Counsel for Petitioner/Appellant
Torok Law Office, PLLC, Yuma
By Gregory T. Torok
Counsel for Respondent/Appellee
NACHIAPPAN v. SUBRAMANIAN
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.
H O W E, Judge:
¶1 Nacchal Nachiappan (Wife) appeals various provisions in
the final decree ending her marriage to Ramanathan Subramanian
(Husband). Finding no error, we affirm the decree.
FACTS AND PROCEDURAL HISTORY
¶2 In June 2007, Wife and Husband married in India. Wife and
Husband then moved to California, where their two minor children were
born.
¶3 In June 2010, Wife and the children moved to Arizona
without Husband. In the move, Wife took items from Husband, including
his permanent resident identification card (“green card”). Husband
repeatedly asked to see the children, but Wife did not allow visits until
November 2010.
¶4 In January 2011, the youngest child had open heart surgery.
When complications developed, the child was airlifted to another hospital.
Wife never notified Husband that the child had been airlifted.
¶5 Wife petitioned for legal separation from Husband in March
2011 and sought emergency orders, alleging domestic violence and
seeking sole custody of the children without notice. The superior court
granted Wife sole, temporary physical custody of the children.
¶6 In March and April of 2011, Wife sent two emails to
Husband’s employer. Her first email stated, in pertinent part, that “I am
writing to you regarding [Husband] in order to inform you of his
character before you consider supporting him in his further efforts toward
gaining custody over our children and other immigration issues.” Her
second email stated that “[y]ou are best positioned to assist [Husband] in
his efforts in gaining custody and his green card . . . .” Wife admitted that
she was aware that these emails could have affected Husband’s
immigration status.
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¶7 In late April 2011, Wife petitioned for—and obtained—an
order of protection against Husband. The court ordered that “[Wife] shall
continue to have temporary sole custody of the minor children. The
[Husband] shall have parenting time with the minor children 2 weekends
per month . . . .”
¶8 In May 2011, Wife requested temporary child support,
spousal maintenance, and attorney’s fees. The court ordered Husband to
pay wife $1,343 per month in child support, effective September 1, 2011,
and $1,500 per month in spousal maintenance, effective September 1, 2011,
for three months. The court reserved judgment on past support and
attorney’s fees for trial, but ordered Wife to return Husband’s green card.
¶9 In November 2011, Husband requested that Wife’s petition
for legal separation be converted into a petition to dissolve their marriage.
Wife then filed a petition for dissolution, seeking sole custody of their
children, child support, equitable division of community property and
debts, and attorney’s fees.
¶10 The family court dissolved Wife and Husband’s marriage in
September 2012. The court awarded Wife and Husband joint legal custody
of the children and ordered Husband to pay Wife $1,083 per month in
child support and $11,000 in past child support and spousal maintenance.
The court also ordered Wife to pay Husband $24,865 in attorney’s fees.
¶11 In October 2012, Wife moved for a new trial to amend the
provisions of the dissolution order, arguing that the family court “failed to
give its reasons why joint physical custody [was] in the children’s best
interests.” Although the family court denied Wife’s request for a new trial,
it amended its original findings and orders to explain that joint custody
was in the children’s best interests because it will “prevent the Mother
from excluding the Father” on “important issues regarding the children.”
¶12 In May 2013, the family court issued a final, amended decree
of dissolution that awarded Wife and Husband “joint legal decision-
making authority over the minor children,” with Wife having “final
decision-making authority as to medical decisions only after diligent
consultation with” Husband. The court explained that “[t]he best interests
of the children will be served if the parents are awarded joint legal
decision making authority [because it] will prevent the Father from being
excluded from important issues regarding the children.” The decree also
allocated parenting time between Wife and Husband. The decree required
Husband to pay Wife $11,159 child support arrearages and $9,500 in
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spousal maintenance arrearages; required Husband to pay Wife $752.50 in
community property equalization payment; and ordered Wife to pay
Husband $24,865 in attorney’s fees.
DISCUSSION
¶13 Wife argues that the family court erred in its joint legal
decision-making with non-specific parenting time, child support, and
attorney’s fees awards. We reject her arguments.
(a) Legal Decision-Making And Parenting Time
¶14 Wife argues that the family court erred in awarding joint
legal decision-making authority for the children to her and Husband.
Although Wife concedes that the court made the “required statutory
findings under [A.R.S. § 25-403],” she contends that “some of the trial
court’s findings are not supported by the record . . . and actually show[]
that Mother should have been awarded sole decision-making authority.”
She also argues that the 75 days “of parenting time allocated to
[Husband]. . . was also erroneous and not supported by the record.”
¶15 We review the family court’s legal decision-making and
parenting time decisions for an abuse of discretion. Nold v. Nold, 232 Ariz.
270, 273 ¶ 11, 304 P.3d 1093, 1096 (App. 2013). Because the family court is
better situated to evaluate testimony and other evidence, Acuna v. Kroack,
212 Ariz. 104, 113 ¶ 35, 128 P.3d 221, 230 (App. 2006), we assess only
whether “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). As
a reviewing court, we do not reweigh conflicting evidence and defer to the
family court’s determination of credibility of the witnesses. 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).
¶16 In making a legal decision-making determination, the family
court is required to consider “all factors that are relevant to the child’s
physical and emotional well-being,” including the factors enumerated in
A.R.S. § 25–403(A).1 In a contested legal decision-making case, the court
1 Those factors include: (1) the past, present, and potential future
relationship between the parent and child; (2) the interaction and
interrelationship of the child with the child’s parent or parents, the child’s
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must make specific findings on the record regarding “all relevant factors
and the reasons for which the decision is in the best interests of the
child[ren].” A.R.S. § 25–403(B).
¶17 The family court properly considered the relevant factors
and the record supports the court’s determination that joint legal decision-
making was in the children’s best interests. As the court noted, Wife has a
history of interfering with Husband’s relationship with the children.
When Wife moved to Arizona, she did not allow Husband to see the
children until November 2010. Wife also failed to notify Husband when
their youngest child was airlifted to a pediatric intensive care unit.
Further, Wife attempted to affect Husband’s immigration status by taking
his green card and emailing Husband’s employers about their marital
troubles, which could have hindered Husband’s ability to visit the
children. Although Wife also alleged that Husband committed acts of
domestic violence against her, Husband denied those allegations. After
weighing the credibility of Wife’s and Husband’s testimony, the family
court concluded that “[s]ignificant domestic violence ha[d] not occurred in
this case.” See A.R.S § 25-403.03(A) (prohibiting joint legal decision
making if there is a finding of significant domestic violence or a significant
history of domestic violence). Accordingly, the court did not abuse its
discretion by awarding Wife and Husband joint-custody of the children
and awarding Husband 75 days of parenting time.
siblings and any other person who may significantly affect the child’s best
interest; (3) the child’s adjustment to home, school, and community; (4) if
the child is of suitable age and maturity, the wishes of the child as to legal
decision-making and parenting time; (5) the mental and physical health of
all individuals involved; (6) which parent is more likely to allow the child
frequent, meaningful, and continuing contact with the other parent; (7)
whether one parent intentionally misled the court to cause an unnecessary
delay, to increase the cost of litigation, or to persuade the court to give a
legal decision-making or a parenting time preference to that parent; (8)
whether there has been domestic violence or child abuse; (9) the nature
and extent of coercion or duress used by a parent in obtaining an
agreement regarding legal decision-making or parenting time; (10)
whether a parent has complied with chapter 3 article 5 of Title 25
(requiring completion of a domestic relations education program); and
(11) whether either parent was convicted of an act of false reporting of
child abuse or neglect. A.R.S. § 25–403(A).
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(b) Child Support
¶18 Wife next argues that the family court erred in calculating
child support by (1) failing to make the child support award retroactive to
the date of the parties’ legal separation; (2) attributing to her a monthly
income of $9,750; and (3) allocating Husband 75 days parenting time.
Rejecting her arguments, we address each in turn.
¶19 The family court has discretion in determining child
support, and its decision will not be disturbed absent an abuse of
discretion. Little, 193 Ariz. at 520, ¶ 5, 975 P.2d at 110. 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.” Id. This Court reviews de novo the family
court’s interpretation of the Arizona Child Support Guidelines
(Guidelines), A.R.S. § 25–320. See In re Marriage of Robinson and Thiel, 201
Ariz. 328, 331 ¶ 5, 35 P.3d 89, 92 (App. 2001).
¶20 Wife first contends that the family court failed “to make the
[child] support awards retroactive to the date of the parties’ [legal]
separation.” Pursuant to A.R.S. § 25–320(B), child support is typically
retroactive to the filing of the dissolution petition, although the family
court does have the discretion to make an award retroactive to the parties’
separation based on “all relevant circumstances.” See Simpson v. Simpson,
224 Ariz. 224, 226 ¶ 9, 229 P.3d 236, 238 (App. 2010).
¶21 The family court did not err in awarding child support
retroactive to the filing of the dissolution petition. The court awarded
retroactive child support from February 2011 through August 2011.
Because that award was retroactive to Wife’s filing of a dissolution
petition in March 2011, the family court did not err. Although awarding
child support retroactive to the date of legal separation was within the
court’s discretion, it is not required. Id.¶22 Wife next contends that the family court erred by attributing
her $9,750 and Husband $10,525 in monthly income because “[t]hese
figures are not supported by the evidence in the record.” 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).
¶23 The family court did not err in attributing Wife a monthly
income of $9,750. The court’s calculation was based on Wife’s earning
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capacity of $90 per hour at 25 hours per week. Because this calculation is
less than Wife’s full earning capacity, assigning Wife a monthly income of
$9,750 was well within the family court’s discretion.
¶24 Wife also contends that the child support order “needs to be
re-calculated based upon the true and accurate 34 days of parenting time
spent by Father with the children,” not the 75 days awarded by the court.
The family court awarded Husband the “2nd, 3rd, and 4th weekend of
each month—as well as two weeks of vacation per year—for parenting
time. Nothing on the record suggests that Husband will not use the
awarded parenting time. Under these circumstances, we see no abuse of
discretion. Accordingly, we affirm the family court’s award and
calculation of child support.
(c) Attorney’s Fees
¶25 Finally, Wife argues that the family court erroneously
awarded attorney’s fees to Husband, which violated “Mother’s right to
due process of law.” Specifically, Wife alleges that “[n]o attorneys’ fees
would be owed if the [c]ourt had applied the correct calculation of
[support] arrears owed in the amount of $27,116. . . .”
¶26 We will not disturb an award of attorney’s fees under § 25–
324 absent an abuse of the family court’s sound discretion. See Roden v.
Roden, 190 Ariz. 407, 412, 949 P.2d 67, 72 (App. 1997). “We accept the
court’s findings of fact unless they are clearly erroneous.” McNutt v.
McNutt, 203 Ariz. 28, 30 ¶ 6, 49 P.3d 300, 302 (App. 2002).
¶27 Section 25–324(A) allows the family court to “order a party
to pay a reasonable amount to the other party for the costs and expenses
of maintaining” a dissolution proceeding, provided the court first
consider[s] the financial resources of both parties and the reasonableness
of the positions each party has taken. “The purpose of the statute is to
provide a remedy for the party least able to pay.” In re Marriage of Zale, 193
Ariz. 246, 251 ¶ 20, 972 P.2d 230, 235 (1999). “[A]n applicant’s inability to
pay his or her own attorneys’ fees is not a prerequisite to consideration for
an award.” Magee v. Magee, 206 Ariz. 589, 593 ¶ 18, 81 P.3d 1048, 1052
(App. 2004). “[A]ll a spouse need show is that a relative financial disparity
in income and/or assets exists between the spouses.” Id. at 589¶ 1, 81 P.3d
at 1048.
¶28 The family court did not err in awarding Husband attorney’s
fees. As the court noted, “[Wife] has taken an unreasonable position
during these proceedings and caused Husband to spend unnecessary and
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extensive attorney’s fees. Wife has filed numerous unnecessary pleadings
lacking merit[,] requiring a response from [Husband].” Nothing on the
record suggests a financial disparity in income or assets between Wife and
Husband. Accordingly, we affirm the family court’s award of attorney’s
fees to Husband.
¶29 Additionally, for the first time on appeal, Wife argues that
the family court’s award of attorney’s fees to Husband without giving her
the “opportunity to be heard” denied her right to due process. Because
this argument was not raised before the family court, it is waived on
appeal. See In re MH 2008-002659, 224 Ariz. 25, 27 ¶ 9, 226 P.3d 394, 396
(App. 2010).
¶30 Both Wife and Husband request an award of attorney’s fees
and costs on appeal pursuant to A.R.S. § 25–324(A). Having considered
the relevant factors, we deny both requests for attorney’s fees.
CONCLUSION
¶31 For the foregoing reasons, we affirm.
:MJT
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