In re J.A., (2017)

• Decision Date: 29 June 2017
• Docket Number: AP2016-0001,ref: CCV2015-0018
• Citation: In re J.A., 2021 TOR Supp. 54, AP2016-0001, ref: CCV2015-0018 (Tohono O'odham Ct. of App. Jun 29, 2017)
• Parties: IN THE MATTER OF: J.A.
• Court: Tohono O'odham Court of Appeals

2021 TOR Supp. 54

IN THE MATTER OF: J.A.

No. AP2016-0001

ref: CCV2015-0018

Tohono O'odham Court of Appeals

June 29, 2017

Wendell Matt, Counsel for Appellant, Tohono O'odham Nation Department of Health and Human Services, ChildWelfare Division.

Rebel Haijo, Counsel for Appellee, Mr. A.

Before Judges Kyle Fields, Barbara Atwood, and Veronica Darnell.

OPINION

Kyle Fields Judge.

Under the Tohono O'odham Rules of Family Law and Will Procedures, the Court must make individualized findings before attributing income to an unemployed parent.Here, the Children's Court followed an unpublished draft administrative order that mandated attributing federal minimum wage to an unemployed parent.Because the Children's Court did not make any individualized findings, we vacate the order and remand

Jurisdiction

We have jurisdiction under Article VIII, Section 7 of the Constitution of the Tohono O'odham Nation and Tohono O'odham Rule of Appellate Procedure 12

Preliminary Issues

Both parties moved to strike each other's briefs for various reasons.The Court denies the motions.The Court addresses the issues on the merits because this is an ongoing case involving a child See3 T.O.C. § 1201 (stating that the Court interprets the Children's Code "to facilitate the

2021 TOR Supp. 55

authority of the Nation and Children's Court to protect the interests of children and families").As a result striking the briefs will not protect J.A.'s interests or further the interests of justice Seeid;see alsoGreen v. Lisa Frank, Inc.,221 Ariz. 138, 153, 211 P.3d 16, 31(Ct. App.2009)(stating that Courts prefer to resolve claims on their merits).Also, the parties fully addressed the merits of the issues during oral argument.

Factual and Procedural Background

In early 2016, J. A. became a ward of the Children's Court.The Tohono O'odham Department of Health and Human Services, Child Welfare Division("Child Welfare") sought child support from J.A.'s natural father, Mr. A Because Mr. A. was unemployed, Child Welfare asked the Court to impute full-time Arizona minimum wage, which is $10 an hour.The Court, however, following an unpublished draft administrative order, imputed full-time Federal minimum wage which is $7.25 an hour.Child Welfare appealed.

We ordered additional briefing to address Proposition 2016, which raised the Arizona minimum wage incrementally to $12 by 2020.

Analysis

We review child support awards for abuse of discretion.^[1]Engel v. Landman,221 Ariz 504 510, 212 P.3d 842, 848(Ct. App.2009);see alsoDenny v. Lopez,3 TOR3d 10, 10-11(T O. Ct. App. 2006).A court abuses its discretion when the court commits an error of law that underlies its exercise of discretion.Kohler v. Kohler,211 Ariz. 106, 107, 118 P.3d 621, 622(Ct. App.2005).We review the trial court's interpretation of the law and the Tohono O'odham Rules of Family Law and Will Procedures ("Family Law Rules")de novo.SeeMead v. Holzmann,198 Ariz. 219, 220, 8 P.3d 407, 408(Ct. App2000);Tohono O'odham Council v. Garcia,1 TOR3d 10, 15(TO. Ct App1989)(court of appeals is not bound by a trial court's conclusions of law), United States v. Kaplan,836 F.3d 1199, 1208(9th Cir2016)(court of appeals reviews questions of statutory construction de novo).

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I.Draft Administrative Order

Child Welfare argues that the Children's Court abused its discretion by relying on an unpublished draft administrative order in attributing federal minimum wage.We agree.

The Tohono O'odham Nation recognizes that a child has a right to support.3 T.O.C. § 1511.The Children's Code provides that the Court may order child support when "the parent [is]. .. legally obligated and financially able to pay all or part of the costs and expenses for the support and treatment of the child[.]"3 T.O.C. § 1512(E)(2).Unlike the Arizona Revised Statutes, the Children's Code does not have a comprehensive statutory system for child support.CfA.R.S. § 25-500, et seq.But Family Law Rule 2("Guidelines") provides how the Court calculates child support.

We interpret the Guidelines using the rules of statutory construction.SeeMead,198 Ariz. at 221, 8 P.3d at 409.Thus, we look to Guidelines' language as the best and most reliable indicator of its meaning.Seeid.', see alsoWilliams v. Chukut KukDist., 2 TOR3d 57, 58(T.O. Trial Ct.Jun. 9, 1999).We interpret a section of the Guidelines with the Guidelines' other provisions being mindful of the Guidelines' purpose.SeeMead,198 Ariz. at 221, 8 P.3d at 409.

Under Family Law Rule 2.2(b), a child support award "should permit the children a standard of living which as closely as possible approximates the one they would have had if the family remained together[.]"Additionally, the Court needs "(t]o make child support awards consistent for persons in similar circumstances[.]"Family Law Rule 2.1(b);see3 T.O.C. § 1512(E)(2)(stating that a child support order is based on the parent's financial ability "to pay" the support).

The Guidelines describe howto calculate a parent's gross income.Family Law Rule 2.4.The Guidelines provide:

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, such as caring for children, the court may attribute income to the parent up to his or her earning capacity.

2021 TOR Supp. 57

Family Law Rule 2.4(e).The Guidelines do not define earning capacity or full earning capacity Cf3 T.O.C. § 1202(listing definitions for the Children's Code).

When a term is not defined, the Court looks to a dictionary definition.See In re: Petition ofthe Judicial Branch, 3 TOR3d 105, 119(T.O. Trial Ct., Oct. 22, 2010)(reviewing a dictionary definition of a word not defined in the rules).Black's Law Dictionary defines earning capacity as:

A person's ability or power to earn money, given the person's talent, skills, training, and experience.Earning capacity is one element considered when measuring the damages recoverable in a personal-injury lawsuit.And in family law, earning capacity is considered when awarding child support and spousal maintenance (or alimony) and in dividing property between spouses upon divorce.

Black's Law Dictionary (10th ed., 2014).Another court defined earning capacity as "the income the [parent] is reasonably capable of earning based upon the [parent's] age, health, education, marketable skills, employment history, and the availability of employment opportunities."In re Marriage of Simpson,841 P.2d 931, 936(Cal.1992).

Black's Law Dictionary does not define Jitll earning capacity.One Arizona court defined full earning capacity to be full-time employment based on the parent's regular income at his or her regular working schedule.SeeMcNutt v. McNutt,203 Ariz. 28, 32, 49 P,3d 300, 304(Ct. App.2002).

One purpose of the Guidelines is "[t]o comply with federal law (42 U.S.C.[§] 651 et seq., 45 C.F.R.[§] 302.56)[.]"Family Law Rule 2.1.Federal law, particularly 45 C.F.R. § 302.56, while not defining earning capacity or full earning capacity, calls for child support guidelines to:

[consider] the specific circumstances of the noncustodial parent... to the extent known, including such factors as the noncustodial parent's assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the noncustodial parent, prevailing earnings level in the local community, and other relevant background factors in the case.

45 C.F.R. § 302.56(c)(iii)(2017);see alsoMead,198 Ariz. at 221, 8 P.3d at 409(noting that courts interpret child support guidelines being mindful of its purpose).

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Based on these definitions and 45 C.F.R. § 302.56,Family Law Rule 2.4(e) requires the Court to consider the parent's specific circumstances to find the parent's earning capacity before attributing income.

Here the Children's Court did not consider Mr. A.'s specific circumstances.The Children's Court stated:

Chief Judge Lui-Frank's August 2015 draft Administrative Order states, "Unless otherwise governed by Tohono O'odham or the Tohono O'odham Rules of Court, the federal minimum wage shall be attributed when an income or other work calculation requires the use of a minimum wage."The Court will follow the draft Order.

The draft administrative order is not in the record.^[2]Cf.Appellate Rule 19(providing that the appellate court may remand if the record on appeal is inadequate).Also, neither party asked the Court to follow the draft administrative order.

Furthermore the Court's reasoning is problematic even if the draft administrative order had been adopted.First, the Guidelines provide a method for the Court to attribute income; as such, the draft order does not apply because the issue was "governed by . . . the Tohono O'odham Rules of Court."SeeFamily Law Rule 2.4(e)(stating that the Court find the parent's earning capacity).Second, based on the quoted text, "the federal minimum wage shall be attributed when an income or other work calculation requires the use of a minimum wage," the draft order does not apply because the Guidelines do not require using minimum wage.Instead, the Guidelines tell the Court to find the parent's earning capacity.Third, the Children's Court did not make any findings on why it was deviating from the Guidelines or why federal minimum wage was justified by the facts.Cf.Family Law Rule 2.3(stating that the Court should follow the Guidelines and that if the Court does not follow the Guidelines to make...