Lacour v. Lacour

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
NEIL LACOUR, Petitioner/Appellant,
v.
CHRISTINE ANN LACOUR, Respondent/Appellee.
No. 1 CA-CV 22-0416 FC
FILED 3-16-2023
Appeal from the Superior Court in Yavapai County
No. P1300DO202000248
The Honorable Michael P. McGill, Judge
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
COUNSEL
Law Offices of Robert L. Frugé, P.C., Prescott
By Robert L. Frugé
Counsel for Plaintiff/Appellant
LACOUR v. LACOUR
Decision of the Court
MEMORANDUM DECISION
Vice Chief Judge David B. Gass delivered the decision of the court, in which
Judge Brian Y. Furuya and Judge Maurice Portley 1 joined.
G A S S, Vice Chief Judge:
¶1 Father appeals the superior court’s award of attorney fees to
mother and its calculation of retroactive child support mother owed him.
We affirm in part, vacate the child support award in part, and remand for
the superior court to calculate mother’s child support obligations to include
both daughter and son for the three months from the time father filed the
petition for dissolution to the time daughter turned 18.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the evidence, and reasonable inferences
drawn from it, in the light most favorable to sustaining the superior court’s
decision. See Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5 (App. 1998).
¶3 Father and mother married in October 1993. The two had a
daughter and a son. Mother homeschooled the children until about 2014,
when they started attending a school affiliated with the church where father
served as pastor. In March 2020, father forced mother to move out of the
home and away from the children. One month later, father filed for
dissolution.
¶4 Daughter’s age and high school attendance impact mother’s
child support obligation. When father filed this case, daughter was three
months away from turning 18. Daughter turned 19 in July 2021 and
graduated from high school in January 2022. Father asked the superior
court to award child support for daughter until she turned 19 because she
was still in high school, saying mother’s homeschooling caused daughter’s
late graduation. Father, however, did not produce a school tuition
statement and did not give mother information about daughter’s education.
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to article VI, section 3, of the Arizona Constitution.
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LACOUR v. LACOUR
Decision of the Court
¶5 The superior court denied father’s request, finding it
inappropriate to include daughter because “[f]ather intentionally delayed
daughter’s graduation solely because this matter was pending.” But the
superior court also failed to award child support for daughter for the time
before she turned 18. Considering only child support for son, the superior
court awarded father monthly child support of $250, which represented a
downward deviation from the guideline support amount of $492. The
superior court also awarded retroactive child support of $5,750, which
appears to reflect retroactive child support of $250 per month for 23 months.
¶6 The timing of the superior court’s final orders affects whether
it had jurisdiction to award mother attorney fees. On April 11, 2022, the
superior court issued a signed dissolution decree. In that decree, the
superior court: (1) awarded mother attorney fees under A.R.S. §§ 25-324.A
and 25-403.08; (2) ordered mother file an affidavit of attorney fees and costs
within 20 days; and (3) said it would not issue Rule 78(c) language until it
finalized mother’s attorney fee award. On April 26, 2022, mother timely
filed that affidavit. And on June 3, the superior court entered a judgment
containing Rule 78(c) language for attorney fees and costs (the June 3 order).
¶7 In the meantime, the superior court issued two orders
requiring father pay mother an equalization payment. The superior court
issued both before it resolved mother’s attorney fee award. Because of a
temporary case reassignment, two judges entered nearly identical orders
for a stipulated equalization payment. The orders differed only because the
May 3 order contained Rule 78(c) language and the other order did not.
Father filed a notice of appeal on May 31. Three days later, the superior
court issued the June 3 order awarding mother her attorney fees and
included Rule 78(c) language. With the June 3 order, no other matters
remained pending before the superior court.
¶8 Father, then, timely filed an amended notice of appeal from
the June 3 order. This court has jurisdiction under article VI, section 9, of
the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1, and -2101.A.1.
ANALYSIS
¶9 To begin, we consider whether mother’s failure to file an
answering brief on appeal was an implied confession of error. See Nydam v.
Crawford, 181 Ariz. 101, 101 (App. 1994). This court may treat a party’s
failure to file a brief as an implied confession of error, but this court is
“reluctant to reverse based on an implied confession of error” when the
superior court applied the law correctly. Id. Under the circumstances here,
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LACOUR v. LACOUR
Decision of the Court
we exercise our discretion and determine mother’s failure to file an
answering brief was not an implied confession of error.
I. The superior court had jurisdiction to award mother her attorney
fees.
¶10 Father argues the superior court lost jurisdiction to award
mother her attorney fees when mother did not file a Rule 83 motion after
the superior court entered the decree and the May 3 order. A party must
file a Rule 83 motion within 25 days to alter or amend a Rule 78(b) or (c)
final judgment. Ariz. R. Fam. Law P. 83(c)(1).
¶11 Because the decree lacked Rule 78(c) language and did not
resolve the substantive issue of attorney fees, it was not final and
appealable. Father relies on A.R.S. § 25-325.A and Reeck v. Mendoza, 232
Ariz. 299 (App. 2013) to argue the decree was a final judgment. Under
A.R.S. § 25-325.A, “[a] decree of dissolution of marriage . . . is final when
entered, subject to the right of appeal.” But “the first sentence of A.R.S.
§ 25-325(A) addresses enforceability, not appealability.” Natale v. Natale, 234
Ariz. 507, 511, ¶ 16 (App. 2014) (responding to Reeck). A superior court
ruling without Rule 78(c) language and with unresolved pending
substantive issues is not final and appealable. See id. at 509, ¶ 9.
¶12 Father next argues the May 3 order was a final judgment
because it contained Rule 78(c) language. But attorney fees remained open.
The Rule 78(c) language, thus, was improper and a legal nullity. See Ariz.
R. Fam. Law P. 78(c) (requiring no remaining pending matters). The May 3
order, thus, was also not final or appealable. See Madrid v. Avalon Care Ctr.-
Chandler, L.L.C., 236 Ariz. 221, 224, ¶ 6 (App. 2014) (holding a judgment
containing Arizona Rule of Civil Procedure 54(c)—the civil analog to Rule
78(c)—is not final when pending matters remain).
¶13 Father also argues the superior court erred in awarding
mother attorney fees after he filed his initial notice of appeal on May 31,
2022. A premature notice of appeal does not divest the superior court of
jurisdiction. In re Marriage of Johnson & Gravino, 231 Ariz. 228, 232, ¶ 11
(App. 2012). A notice of appeal is premature when there is an unresolved
pending issue requiring a discretionary judicial determination, such as
substantive motions or issues awaiting determination [when]
the premature notice of appeal is filed. If so, the ruling of the
[superior] court could change and the [superior court’s]
remaining task . . . would not be merely ministerial and . . .
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the premature notice of appeal would be “ineffective” and a
“nullity.”
Baker v. Bradley, 231 Ariz. 475, 480, ¶ 18 (App. 2013) (citation omitted).
Attorney fee issues are substantive, not ministerial. See Fields v. Oates, 230
Ariz. 411, 415, ¶ 13 (App. 2012).
¶14 Here, father’s May 31 notice of appeal was premature because
the superior court had not resolved the substantive attorney fee issue. See
id. On June 3, the superior court entered a final judgment resolving all issues
requiring judicial determination, including attorney fees. Father’s
premature May 31 notice of appeal before the superior court’s final
judgment did not divest the superior court of jurisdiction to award mother
attorney fees, though father preserved his appeal when he later filed his
amended notice.
¶15 Because neither the decree nor the May 3 order was final,
mother did not need to file a Rule 83 motion to preserve the superior court’s
jurisdiction to award attorney fees. We, thus, need not address father’s
argument he did not waive his right to challenge mother’s failure to file a
Rule 83 motion.
II. The child support order must include daughter for the three
months before she turned 18, but not after.
¶16 Father argues the superior court erred by not including
daughter when it calculated child support. Father contends he should
receive child support for daughter until she graduated high school at 19-
years-old. See A.R.S. § 25-320.F (2014). Further, father asserts there was no
evidence from which the court could have inferred daughter should have
graduated earlier than January 2022.
¶17 A parent has the duty to provide reasonable support for a
natural child until the child reaches the age of majority. A.R.S. § 25-501.A.
If a child reaches the age of majority while attending high school, a parent
must keep supporting the child until the child turns 19. A.R.S. § 25-501.F
(2014). But the parent receiving child support must provide the paying
parent with the child’s attendance records. Id. And the superior court must
determine whether a child is “actually attending” high school on a case-by-
case basis. State ex rel. Ariz. Dep’t of Econ. Sec. v. Lee, 217 Ariz. 427, 430, ¶ 14
(App. 2008). In making its determination, the superior court must weigh
three factors: “(1) whether the child is regularly present in class; (2) the
reasons for any absences; and (3) whether the child is taking affirmative
steps in pursuit of an education.” Id.5
LACOUR v. LACOUR
Decision of the Court
¶18 This court reviews de novo the superior court’s conclusions of
law about child support. Nia v. Nia, 242 Ariz. 419, 422, ¶ 7 (App. 2017). This
court reviews factual findings for an abuse of discretion and reverses only
when clearly erroneous. In re Marriage of Gibbs, 227 Ariz. 403, 406, ¶ 6 (App.
2011). A finding is clearly erroneous only if, after considering the evidence,
this court has a “definite and firm conviction” the superior court erred. State
v. Burr, 126 Ariz. 338, 339 (1980). This court does “not reweigh the evidence
but defer[s] to the [superior] court’s determinations of witness credibility
and the weight given to conflicting evidence.” Lehn v. Al-Thanayyan, 246
Ariz. 277, 284, ¶ 20 (App. 2019).
¶19 As to whether mother had a duty to support daughter after
she turned 18, father produced no evidence to show daughter was regularly
attending class, explain any absences, or show her affirmative effort to
complete her education. See Lee, 217 Ariz. at 431, ¶ 19–20. The superior court
also considered father’s failure to provide evidence of school tuition and
weighed conflicting testimony about whether father provided mother with
information about daughter’s alleged ongoing education. The superior
court declined to award father child support after daughter turned 18,
saying such an award was inappropriate. Because the record supports the
superior court’s findings, the superior court did not err by not awarding
father child support for daughter after she turned 18.
¶20 Mother, however, had an obligation to support daughter until
she turned 18. See A.R.S. § 25-501.A. The superior court should have
awarded father child support until then. See id. This court, thus, vacates the
child support order in part and remands to the superior court to include
daughter in the calculations for the three months between father’s filing the
petition for dissolution and her turning 18.
III. The superior court did not err in how it determined the parenting
time adjustment when it calculated mother’s child support
obligations.
¶21 Father argues the superior court’s child support award did
not address mother’s lack of parenting time from March 2020 through April
2022. On March 2, 2020, father forced mother from the home and away from
the children. From that time, mother did not see the children again until
April 2022. As a result, father caused mother’s lack of parenting time. The
superior court, thus, acted within its discretion to reduce father’s child
support based on father’s interference with mother’s parenting time. On
this record, father has shown no abuse of discretion.
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LACOUR v. LACOUR
Decision of the Court
CONCLUSION
¶22 We affirm the superior court’s attorney fee award. We vacate
father’s award of child support and remand to the superior court to
reconsider the child support award consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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