Fuentes v. Fuentes

• Decision Date: 26 August 2004
• Docket Number: No. 1 CA-CV 03-0589.,1 CA-CV 03-0589.
• Citation: 97 P.3d 876,209 Ariz. 51
• Parties: In re the Marriage of Maria FUENTES, Petitioner-Appellee, v. Hector FUENTES, Respondent-Appellant.
• Court: Arizona Court of Appeals

97 P.3d 876

209 Ariz. 51

In re the Marriage of Maria FUENTES, Petitioner-Appellee, v. Hector FUENTES, Respondent-Appellant.

No. -0589.

Court of Appeals of Arizona, Division 1, Department C.

August 26, 2004.

As Amended September 28, 2004.

Fromm Smith & Gadow, P.C. by Stephen R. Smith, Jennifer G. Gadow, Phoenix, Attorneys for Petitioner-Appellee.

Daniel J. Siegel, P.C. by Daniel J. Siegel, Phoenix, Attorney for Respondent-Appellant.

OPINION

WEISBERG, Judge.

¶ 1 Hector Fuentes ("Hector") appeals the trial court's orders regarding child support and spousal maintenance. For the reasons that follow, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 On September 25, 2002, Maria Fuentes ("Maria") filed a petition for dissolution of marriage. At that time, the parties had been married for more than twenty-one years and had one disabled child over the age of majority and two minor children. The trial court granted temporary custody of all three children to Maria. Effective November 1, 2002, the court ordered Hector to pay temporary child support in the amount of $231 per month for the disabled child and a total of $846 per month for the two minor children. The court also ordered an appraisal of the family residence.

¶ 3 Prior to trial, Hector filed a second amended affidavit of financial information in which he disclosed that he also was the father of two minor children living with him in Tucson. Evidently, Hector had accepted a job in Tucson five or six years earlier and thereafter returned to Phoenix less and less, until he was only visiting every four to six weeks and not staying overnight. After the temporary court orders were issued, Hector did not return to Phoenix to see his children. However, one minor son drove to Tucson three or four times to see Hector.

¶ 4 Maria testified that she had worked both full-time and part-time over the course of the marriage. Due to the needs of her disabled daughter, however, Maria could not work more than thirty-two hours per week. Maria offered into evidence her budget of average anticipated monthly expenses, which the court admitted over objection. Arguing that Hector ought not receive credit for his two children born out of wedlock during the couple's marriage, Maria requested both child support and spousal maintenance.

¶ 5 Hector requested joint custody of the two minor children and visitation at least twice per month. He testified that his gross income was $5333 per month and his net income $4378 per month. He argued that the trial court should take into consideration his two children born out of wedlock when it determined his child support obligation. Specifically, he sought credit in the amount of $1094 for the support of his other two children. However, when asked, "Isn't it true that you've already been supporting these two children in Tucson for years, yet you were depositing your whole paycheck, and [Maria] was able to live in the same lifestyle?" Hector responded, "That's correct."

¶ 6 Following Hector's testimony, his counsel inquired about the opportunity to make closing argument. The court replied that closing arguments were not necessary. Counsel did not pursue the issue further. Following the trial and an agreement reached by the parties concerning the division of real property, the trial court entered a signed minute entry resolving all other issues. It ordered Hector to pay child support in the amount of $1450 per month for the three children and spousal maintenance in the amount of $1000 per month for 120 months.

¶ 7 Hector filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), and -2101(B) (2003).

ISSUES

¶ 8 Hector raises five issues on appeal:

1. That the trial court erred by ordering him to pay more than one-half of his net disposable income in child support and spousal maintenance;

2. That the spousal maintenance and child support awards violate the statutory provisions that require the court to consider Hector's current financial needs;

3. That the trial court improperly applied fault to him when calculating child support;

4. That the trial court's award of spousal maintenance was based on inappropriate evidence; and

5. That the trial court improperly refused to permit his counsel to present closing argument.

DISCUSSION

A.R.S. SECTION 33-1131

¶ 9 Hector first contends that the trial court abused its discretion by ordering him to pay child support and spousal maintenance ($2450) in an amount that collectively exceeds one-half of his monthly net disposable income ($4378). He argues that the trial court's award violates A.R.S. § 33-1131(C) (2000), which he interprets as exempting one-half of an obligor's disposable earnings from support orders for any person.¹ As applicable here, Hector asserts that this wage assignment restriction precludes the trial court from ordering child support and spousal maintenance that exceed one-half of Hector's net disposable income for any pay period. Maria responds that A.R.S. § 33-1131(C) limits only the amount of earnings that can be subject to assignment. She asserts that the statute does not limit the amount of child support and/or spousal maintenance that can be ordered by a trial court. We agree with Maria.

¶ 10 "Awards of maintenance, child support and attorneys' fees are within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion." Kelsey v. Kelsey, 186 Ariz. 49, 53, 918 P.2d 1067, 1071 (App.1996) (quoting In re Marriage of Berger, 140 Ariz. 156, 167, 680 P.2d 1217, 1228 (App.1983)).

¶ 11 Section 33-1131(C), A.R.S., provides that "in the case of any order for the support of any person ... one-half of the disposable earnings of a debtor for any pay period is exempt from process." For several reasons, we interpret this statute as operating only to exempt from process one-half of a parent's disposable earnings arising during a single pay period, and as not restricting the amounts that may be awarded as child support and/or spousal maintenance.

¶ 12 First, and most importantly, the clear language of A.R.S. § 33-1131 requires this result. When interpreting a statute, the first place a court must look is the statutory language itself. Tobel v. Ariz. Dep't of Pub. Safety, 189 Ariz. 168, 174, 939 P.2d 801, 807 (App.1997); Chaparral Dev. v. RMED Int'l, Inc., 170 Ariz. 309, 311, 823 P.2d 1317, 1319 (App.1991). Of course, when the statutory language is clear and unambiguous, a court need not and should not resort to secondary rules of statutory construction. See Chaparral Dev.,170 Ariz. at 311,823 P.2d at 1319; see also City of Phoenix v. Mangum, 185 Ariz. 31, 35, 912 P.2d 35, 39 (App.1996).

¶ 13 The language of A.R.S. § 33-1131 is clear and unambiguous. Subsection (A) defines "disposable earnings" in a limited manner not extending protection to such items as interest or dividend income, or to tangible assets. Also, the limitations emplaced by subsections (B) and (C) are directed only against process. The statute contains no language extending its application any further.

¶ 14 Second, the apparent purpose of A.R.S. § 33-1131 is to ensure that the noncustodial parent keeps at least one-half of his or her current earnings to provide for his or her current needs. But the factors providing for child support are based, in part, on the noncustodial parent's "financial resources," which may exceed his or her "disposable income." See A.R.S. § 25-320(A)(5)(Supp.2003). Obviously, such "financial resources" can include income and assets that are not part of "disposable income." The implication, of course, is that an order of support need not be limited to one-half of the noncustodial parent's disposable income.

¶ 15 Finally, we note that, when faced with a similar challenge based on a similar statute, the Ohio Court of Appeals, concluded:

Although we find that the trial court erred in ordering withholdings in excess of the limits established by Ohio and federal law, we do not find that the trial court abused its discretion in ordering husband to pay combined support in excess of fifty percent of his net income. The withholding limits imposed by R.C. 3113.21 and Section 1673(b), Title 15, U.S.Code do not impose limitations on a trial court's ability to order support in excess of those limits, but only restricts the trial court's ability to order wage withholdings beyond those limits.

Arthur v. Arthur, 130 Ohio App.3d 398, 720 N.E.2d 176, 184-85 (1998) (R.C. 3113.21 was repealed effective March 2001).

¶ 16 For all these reasons, we conclude that the trial court did not violate A.R.S. § 33-1131 when it ordered Hector to pay more than one-half of his monthly disposable income as child support and spousal maintenance.

CONSIDERATION OF HECTOR'S CURRENT FINANCIAL NEEDS

¶ 17 Hector next argues that the child support and spousal maintenance awards violate the statutory provisions that require a court to consider his current financial needs. See A.R.S. § 25-319(B)(4) (Supp.2003) (requiring the court to consider "[t]he ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance"); A.R.S. § 25-320(A)(5) (requiring the court to consider "[t]he financial resources and needs of the noncustodial parent" when awarding child support). We disagree. While we agree that a trial court must consider "all relevant factors, including ... [t]he ability of the spouse from whom maintenance is sought to meet that spouse's needs while meeting those of the spouse seeking maintenance," A.R.S. § 25-319(B)(4), the record indicates that the trial court appropriately considered the financial needs of each party in reaching its decision.

¶ 18 Hector testified briefly regarding his income, and also addressed what he believed to be the financial position of both parties in...