Amadore v. Lifgren
| Decision Date | 16 October 2018 |
| Docket Number | No. 1 CA-CV 17-0024 FC,1 CA-CV 17-0024 FC |
| Citation | 431 P.3d 579 |
| Parties | In re the Matter of: Camille Morgan AMADORE, Petitioner/Appellant, v. Steven Paul LIFGREN, Respondent/Appellee. |
| Court | Arizona Court of Appeals |
Berkshire Law Office PLLC, Tempe, By Keith Berkshire, Erica Gadberry, Counsel for Petitioner/Appellant
Udall Shumway, PLC, Mesa, By Steven H. Everts, Co-Counsel for Respondent/Appellee
The Sampair Group PLLC, Glendale, By Brandy M. Ramsay, Co-Counsel for Respondent/Appellee
1
OPINION
¶ 1 Camille Morgan Amadore ("Mother") appeals the superior court’s order modifying several provisions of the marriage dissolution decree ending her marriage to Steven Paul Lifgren ("Father"). For the following reasons, we affirm the court’s modification of child support and termination of spousal maintenance. We also affirm the court’s denial of Mother’s request that uncovered medical payments be apportioned based on the parties’ incomes. We vacate, however, (1) the effective dates the court applied for the child support modification and spousal maintenance termination, (2) the court’s reduction of Father’s monthly child support obligation as reimbursement for his overpayments created by the retroactive effective dates, and (3) the court’s award of attorneys’ fees and costs to Father. We remand for further proceedings consistent with this opinion.
¶ 2 Mother and Father married in 2000 and have three children. Mother, who was not employed at the time, petitioned for divorce in February 2013, ultimately resulting in a default decree that ordered Father to pay (1) spousal maintenance of $2,000 per month indefinitely, and (2) consistent with the parties’ written agreement, child support of $3,000 per month, which was an upward deviation from the Child Support Guidelines, Arizona Revised Statutes ("A.R.S.") section 25-320 app. ("Guidelines").
¶ 3 Mother obtained a real estate license in May 2014. In September, Father petitioned the superior court to modify the decree, seeking joint legal decision-making, equal parenting time, and modified child support. Mother counter-petitioned to change the children’s schools and modify parenting time based on her plans to move to a different community in the greater Phoenix area. On October 20, 2015, before the court ruled on the pending petitions, Father filed a petition to modify spousal maintenance, alleging Mother had "achieved an ability to be financially independent by obtaining her [r]eal [e]state license." Father requested that spousal maintenance be terminated or, in the alternative, significantly reduced. On November 9, 2015, Mother accepted a job (unrelated to her real estate license) as a sales coordinator earning an annual salary of $42,500.
¶ 4 After a June 2016 evidentiary hearing on the petitions, the superior court modified the decree by (1) reducing child support to an amount resulting from application of the Guidelines, and (2) terminating spousal maintenance. Consistent with statutory presumptions, the court made the changes effective as of the first day of the month after the filing of Father’s respective petitions. To account for the overpayments created by the changes, the court decided that Father’s monthly child support obligation would be reduced to "$500 per month until Father’s overpayment [was] equalized/offset." The court ordered each party responsible for half of the uncovered medical expenses for the children and declined to award attorneys’ fees to either party. Mother filed a motion to amend/motion for new trial, which the court denied, and awarded Father attorneys’ fees and costs incurred in defending the motion. Mother timely appealed.
¶ 5 An award of spousal maintenance or child support "may be modified or terminated only on a showing of changed circumstances that are substantial and continuing." A.R.S. § 25-327(A). We review the superior court’s decision to modify a child support award for an abuse of discretion, which occurs if the record is devoid of competent evidence to support the decision. Jenkins v. Jenkins , 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App. 2007). The burden of showing changed circumstances is on the party seeking modification. Id. at 39, ¶ 16, 156 P.3d at 1144. We review de novo the court’s interpretation and application of statutes. Thomas v. Thomas , 203 Ariz. 34, 36, ¶ 7, 49 P.3d 306, 308 (App. 2002).
¶ 6 Following the evidentiary hearing, the superior court (1) adopted Father’s child support worksheets, which attributed $3,541 in gross monthly income to Mother, and (2) found that deviating from the Guidelines was not appropriate. The court ordered the following monthly child support obligations for Father: (1) $1,288 from October 1, 2014, to June 30, 2015; (2) $1,338 from July 1, 2015, to October 31, 2015; and (3) $1,430 from November 1, 2015, to the present. The court also terminated the spousal maintenance award, effective November 1, 2015.
¶ 7 Application of these effective dates resulted in overpayments by Father of $31,464 in child support and $14,000 in spousal maintenance. The court then ordered that going forward, Father is obligated to pay a reduced amount of $500 per month in child support until he has recouped the overpayments, without specifying whether it intended to include the spousal maintenance overpayment in that directive.
¶ 8 The superior court implicitly concluded that Father met his burden of proving a substantial and continuing change in circumstances. The court found that Mother acquired her real estate license in 2014, gained employment as a real estate agent, relocated to a different community to pursue better real estate opportunities, and was currently employed with an annual salary of $42,500.
¶ 9 Because Mother had not yet started her $42,500 salaried position when Father filed his petition to terminate spousal maintenance, she contends the changed circumstances could not have existed when Father filed his petition and thus the court erred in considering it. But she failed to raise this issue in the superior court, even though Father alerted Mother in his prehearing statement he was relying on her new employment as one of the changed circumstances. See Heidbreder v. Heidbreder , 230 Ariz. 377, 380, ¶ 7 n.1, 284 P.3d 888, 891 (App. 2012) (). Mother has therefore waived her argument that the court should have summarily denied Father’s petition. See Bobrow v. Bobrow , 241 Ariz. 592, 597, ¶ 23, 391 P.3d 646, 651 (App. 2017) ().
¶ 10 Mother’s challenge to the sufficiency of the evidence supporting a finding of changed circumstances relating to her employment as a sales coordinator also fails. At the time of the June 2016 hearing, Mother had been employed as a sales coordinator for about seven months, with an annual salary of $42,500. She has not shown the superior court abused its discretion in finding that her employment as a sales coordinator constituted changed circumstances that were substantial and continuing.
¶ 11 The superior court erred, however, to the extent it found that Mother’s obtaining a real estate license, relocating to pursue better real estate opportunities, or working as a real estate agent constituted a substantial and continuing change of circumstances. The acts of obtaining a license and pursuing employment, by themselves, do not necessarily mean a modification or termination of spousal maintenance is justified. Rather, those acts must be viewed in the context of the increased income the party has achieved from obtaining the license/employment, and how that income compares to the circumstances at the time of the decree. See Richards v. Richards , 137 Ariz. 225, 226, 669 P.2d 1002, 1003 (App. 1983) ().
¶ 12 According to Mother’s January 2016 affidavit of financial information, her "gross" monthly pay was $387 as a real estate agent from May 2014 until November 2015. And her income tax return lists the amount of her "business income" for 2014 as $362. Father presented no conflicting evidence, and he has not argued, either in the superior court or on appeal, that Mother’s actual income from her real estate business constitutes a substantial and continuing change of circumstances. Moreover, when Mother moved to Gilbert in 2015, the parenting plan changed, but as the child support worksheets show and as Father testified, his parenting time increased only from 88 days to 92 days, which did not impact the child support calculation.
¶ 13 Nor do we find persuasive Father’s argument that the court could properly attribute income to Mother of $3,541 for each month from September 2014 to November 2015 to justify a finding of changed circumstances. Father argues that "Mother presented no evidence to indicate that she could not have been earning" $42,500 during the time she was earning less income as a real estate agent, and that she also failed to present any evidence that the sales coordinator position was not available in September 2014. Father’s attempt to shift the burden to Mother conflicts with established law—it was his burden to prove a substantial and continuing change of circumstances. See Jenkins , 215 Ariz. at 39, ¶ 16, 156 P.3d at 1144.
¶ 14 Father’s reliance on Section 5(E) of the Guidelines is also misplaced. That provision states in pertinent part as follows:
If a parent is unemployed or working below full earning capacity, the court may consider the reasons. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute...
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