Rector v. Stevenson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
STEPHANIE RECTOR,
Petitioner/Appellant,
v.
JOHN STEVENSON,
Respondent/Appellee.
No. 1 CA-CV 19-0852 FC
FILED 2-16-2021
Appeal from the Superior Court in Maricopa County
No. FC2010-091675
The Honorable Rodrick J. Coffey, Judge
AFFIRMED
COUNSEL
Bert L. Roos, PC, Phoenix
By Bert L. Roos
Counsel for Petitioner/Appellant
Law Offices of Matthew S. Schultz, PC, Tempe
By Matthew S. Schultz
Counsel for Respondent/Appellee
RECTOR v. STEVENSON
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Stephanie Rector (“Mother”) appeals from the superior
court’s post-decree modification orders for John Stevenson (“Father”) on
child support, parenting time and attorney fees. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 This action concerns P.S. and her unmarried parents. P.S. was
born in 2006. Five years later, the superior court awarded Mother and
Father joint legal decision-making and physical custody of P.S. and ordered
Father to pay Mother $300 per month in child support. The court ordered
that neither party need pay child support in 2015. It did not account for
private school tuition.
¶3 Mother was convicted of DUI in April 2012 and extreme DUI
in March 2018. She concealed both incidents from Father. The second DUI
involved an accident. Mother continued to drink and drive—even with P.S.
in the car. In August 2018, Mother tried to pick up her daughter from school
while intoxicated and was banned from the school. After learning about
this incident and Mother’s two DUIs, Father petitioned the superior court
to modify legal decision-making authority and parenting time, while also
moving for a temporary order awarding him sole legal decision-making
authority. The court granted Father’s request and required Mother’s
parenting time be supervised and that she undergo random urinalysis
testing.
¶4 Mother continued to drink. She submitted three diluted urine
samples in the first two weeks of December 2018 and then missed tests in
December 2018 and January 2019. Also, while under a court order not to
drink, she consumed several alcoholic beverages during her December 2018
vacation in Mexico.
¶5 Following an evidentiary hearing in 2019 on Father’s
underlying petition, the court again awarded the parents equal parenting
time and joint legal decision-making authority, while giving Father final
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RECTOR v. STEVENSON
Decision of the Court
decision-making authority where the parents could not agree. This time,
however, Mother was ordered to pay Father $35 a month in future child
support and $7,623 in retrospective child support. The court also ordered
Mother and Father to alternate child-related tax deductions and restricted
international travel. Father was awarded $10,000 in attorney fees. Mother
timely appeals. We have jurisdiction. See A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Prospective Child Support
¶6 Mother raises several challenges to the superior court’s child
support award for Father. “We review child support awards for abuse of
discretion,” Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018),
upholding the award for any reason supported by the record, unless it is
devoid of competent evidence, Nia v. Nia, 242 Ariz. 419, 422, ¶ 7 (App. 2017).
We do not reweigh the evidence. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App.
2009). We review de novo the court’s conclusions of law, including
interpretations of A.R.S. § 25-320 app. § 9(B)(2) (2018) (“Guidelines”).
Birnstihl, 243 Ariz. at 590-91, ¶ 8.
¶7 Mother argues the superior court erroneously calculated
Father’s income at $6,000 per month. But the court’s calculation is
supported by the evidentiary record, including Father’s child support
worksheet, and Father’s sworn testimony both in February 2019 and June
2019, when he set his monthly income as $6,200 and $5,836 based on then-
available information. Mother complains, in particular, that the superior
court found Father’s more recent financial information to be more
persuasive than his older financial information. But the trial court properly
considered conflicting evidence, and we will not reweigh that evidence on
appeal. Hurd, 223 Ariz. at 52, ¶ 16.
¶8 Mother next contends the court should have included
Father’s vehicle, travel and home office expenses in calculating his income
because they are not “ordinary and necessary” business expenses. But the
record evidence supports the court’s decision, including Father’s testimony
that he incurred the expenses in the ordinary course of his real estate and
consulting businesses. On this record, the court did not abuse its discretion.
See id.
¶9 Mother also argues the superior court erroneously included
private school tuition payments in the child support worksheet because the
2015 child support order did not include them. But whether to include
reasonable and necessary expenses for private or special school tuition
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Decision of the Court
when calculating child support is within the trial court’s discretion.
Guidelines § 9(B)(2). And, “[o]nce a court [finds] substantial and
continuing circumstances warranting a child support modification, the
court determines the amount of child support pursuant to the Guidelines.”
Nia, 242 Ariz. at 424, ¶ 19. Father testified about the tuition expenses at trial
and offered proof of payment. Mother never objected to including these
costs. Therefore, the court acted within its discretion by including private-
school tuition in the child-support calculations.1
II. Retroactive Child Support
¶10 Mother next challenges the superior court’s award of
retroactive child support. The court awarded Father child support arrears
of $693 per month because Mother had exercised only 35 parenting days in
the prior 12 months. Mother claims the court miscalculated her income and
Father’s income, “did not take evidence” on Mother’s parenting time or
childcare expenses, and miscalculated annual parenting time on eight
months of parenting.
¶11 We have addressed Mother’s arguments about Father’s
income above. Mother contends the court erred in calculating her monthly
income at $4,100 by ignoring her $14-per-hour pay, which “started . . . on
September 17, 2018.” But the record supported the court’s finding. At the
evidentiary hearing, she did not identify the period for those wages,
whether she received bonuses, or how many hours she worked. As for
evidence of parenting time, Mother had a full and fair opportunity to
present evidence on the issue—she did not. The court did not abuse its
discretion in determining retrospective child support based on the evidence
provided by Father. And the Guidelines expressly permit a court to
extrapolate annualized parenting time from fewer than 12 months.
Guidelines § 11 (determining parenting time from a “court order or
parenting plan or by the expectation or historical practice of the parents”).
Mother has shown no abuse of discretion.
III. Restrictions to the Parenting Plan
¶12 Mother argues the court abused its discretion by prohibiting
either parent from taking P.S. “outside of the United States without either
1 Mother claims the superior court erroneously modified the allotment
of tax exemption years. We decline to address the argument because
Mother never develops the argument or cites supporting legal authority.
See Polanco v. Indus. Comm’n of Ariz., 214 Ariz. 489, 491, ¶ 6 n.2 (App. 2007).
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RECTOR v. STEVENSON
Decision of the Court
a court order or the other parent’s written permission.” We review
parenting plans for abuse of discretion. Lehn v. Al-Thanayyan, 246 Ariz. 277,
285-6, ¶ 28 (App. 2019). Courts must adopt parenting plans consistent with
the child’s best interests and may include conditions “necessary to promote
and protect the emotional and physical health of the child[,]” A.R.S. § 25-
403.02(B), (D), which may include restrictions on international travel, Lehn,
246 Ariz. at 285, ¶ 26.
¶13 The record includes evidence supporting this restriction,
including Mother’s vacation to Mexico in December 2018, during which she
consumed alcohol in violation of the superior court’s order. The court also
restricted Father’s international travel. Nor was the superior court required
to include that “the other parent’s written permission should not be
unreasonably withheld.” At minimum, the court remains available to hear
these arguments and resolve disputes regarding international travel.
IV. Attorney Fees in Superior Court
¶14 Mother contests the attorney fees award to Father. The
superior court may award attorney fees “after considering the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings.” A.R.S. § 25-324(A). This court
reviews an attorney fee award for an abuse of discretion. Democratic Party
of Pima Cty. v. Ford, 228 Ariz. 545, 547, ¶ 6 (App. 2012). “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.” Hurd, 223 Ariz. at 52, ¶ 19.
¶15 Mother first argues the court should not have awarded Father
attorney fees because he did not file an “Application for Attorney’s Fees
and Costs” as ordered by the court. Because the attorney fee statute does
not require a party to file such a document before the court awards attorney
fees, her argument fails. A.R.S. § 25-324.
¶16 Beyond that, the record contains evidence supporting the
court’s fee award against Mother. The court found her “unreasonable
conduct caused Father to file his Petition and his Motion for Temporary
Orders.” Mother does not dispute this, instead she argues that the court
erred in weighing competing evidence because—as she alleges—Father
earns 2.5 times more than Mother and acted unreasonably during
negotiations. Trial courts have discretion to weigh competing
considerations, and we “give due regard to the trial court’s opportunity to
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judge the credibility of the witnesses.” Hurd, 223 Ariz. at 52, ¶ 16. Mother
has shown no error here.
¶17 Mother also challenges the amount of attorney fees awarded
as excessive, but her arguments are directed at Father’s original request of
$23,990.55, which the court reduced to $10,000. And even there, she only
contests $5,764.50 of the original request. At any rate, we cannot say the
record “is devoid of competent evidence to support” the $10,000 fee award,
which is reasonable. Id. at ¶ 19.2
CONCLUSION
¶18 Because Mother has shown no error, we affirm. Mother and
Father request attorney fees on appeal under A.R.S. § 25-324. After
considering the parties’ financial resources and the reasonableness of their
positions, we exercise our discretion to deny attorney fees. As the
prevailing party, Father is awarded his taxable costs upon compliance with
ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 Mother also raises an argument about the Soberlink Testing
Schedule, but she concedes the issue is moot. This Court will generally not
examine moot questions and does not do so here. State v. Henderson, 210
Ariz. 561, 565, ¶ 10 n.2 (2005).
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