In re the Matter Of: Jason Craven
| Decision Date | 08 February 2011 |
| Docket Number | 1 CA-CV 09-0619 |
| Parties | IN RE THE MATTER OF: JASON CRAVEN, Petitioner/Appellant, v. JODIE CRAVEN, Respondent/Appellee. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure
The Honorable Thomas L. Wing, Judge
AFFIRMED
Gregory D. Green
Attorney for Petitioner/Appellant
Winslow
Riggs, Ellsworth & Porter, P.L.C.
by Michael R. Ellsworth
Attorneys for Respondent/Appellee
Show Low
¶1 This is a dissolution case. Jason Craven (Father) appeals from the denial of his motion for new trial. For the reasons that follow, we affirm the decision of the trial court.
¶2 Father filed a dissolution petition in Navajo County Superior Court on October 19, 2006. He and Jodie Craven (Mother) had five living children, four of whom were minors at the time of the petition: A1., A2., R., and B. During the marriage, Father had worked as the president and chief executive officer of his company, Desert Rat Excavation, Inc. (Desert Rat), and Mother was a secretary for the business.
¶3 The family court filed its decree (the Decree) granting the dissolution on January 2, 2007. The Decree is a pre-printed form with boxes to check and blanks to complete. It provides for joint custody and for Father's payment of $500 in monthly child support (based upon two children) starting in January 2007; $750 in monthly spousal maintenance for Mother for twelve months; and the division of property pursuant to an attachment labeled "List of Assets for the Dissolution of Non-Covenant Marriage" (the List) executed by the parties on October 18, 2006. The List provides for the parties' residence as follows:
Real Property legal description (section 19, T11N.R20E: W2 of N 436.39' of S 875.15' of NE4 NW4 out of 205-31-023B) shall be sold with approximately 3 acres of land proceeds being shared equally. The remaining land shall become Jason's property.
After the Decree was entered, Mother accepted Father's offer to buy out her interest in the residence.
¶4 A parenting plan contemporaneously filed with the Decree, but not incorporated in it, provides that both Mother and Father will pay for non-insured medical expenses. No box is checked to indicate who will provide health insurance.
¶5 Initially A2. lived with Mother, and B. spent every other week with her while R. and A1. lived with Father. In August 2007, R. began living with Mother on alternating weeks. Meanwhile, Mother started working for the United Parcel Service and Home Depot, earning a monthly income of approximately $2500.
¶6 In September 2007, the family court issued a contempt order against Father based upon his failure to pay Mother $10,000 for her share of the community residence and failing to cooperate reasonably with Mother for payment of their children's uncovered medical expenses. Father successfully objected to the petition, and the family court denied Mother's contempt petition after a hearing. According to the minute entry: "It is thefinding of the Court it cannot determine based on the evidence presented what the agreement was between the parties."
¶7 Meanwhile, Mother filed a petition to modify custody, parenting time, and child support on June 4, 2008. Mother's modification petition alleges that Father had failed to contribute to the children's medical expenses and requests primary physical custody of R. At the time of the hearing, one child resided with Mother full-time, one child resided with Father full-time, and the other two rotated, with the averaged result being that two resided with Father and two resided with Mother.
¶8 Father objected to modification, then filed his own Petition to Modify Child Custody And Child Support and To Provide Equitable Relief on August 21, 2008. He requested primary physical custody of A1. and shared custody of R. and B., with Mother having primary physical custody of A2. He also sought equitable relief for an alleged overpayment to Mother for her share of the house.
¶9 The family court conducted a modification hearing on May 19, 2009. During that hearing, the court granted Mother's counsel's oral motion to dismiss Father's request for relief regarding the overpayment to Mother for equity in the marital home. The family court subsequently entered a signed order on child support on June 10, 2009 (along with child supportworksheets) reducing Father's child support obligation to $221 per month, ordered him to pay child support and medical expense arrearages, and formally dismissed his equitable claim.
¶10 Father responded on June 25, 2009, with a notice of clarification and motion to clarify and for a new trial. The new trial motion raises the following issues: (1) whether the evidence supports the family court's calculation of Father's gross income for purposes of child support; (2) whether the family court erroneously credited Mother with $737 in medical insurance; (3) whether the family court erroneously failed to credit Father with child support payments made prior to September 2008; and (4) whether the family court erroneously failed to make the modification order retroactive to the date of filing. The motion for clarification duplicates three of these claims.
¶11 The family court denied the motion for new trial in an August 3, 2009 order, but made additional findings that: (1) the child support worksheets correctly reflected the $177 insurance credit to Mother and the $737 reference was a typographical error; (2) Father owed arrears of $2250 not $2500; (3) and the court either lacked evidence to determine the amount of child support paid by Father through September 1, 2008, and could not determine an arrearage credit, or the parties could deduct theamount as payment based upon records from the Clerk of Court's office.
¶12 Father attempted to appeal "from the judgment entered on the 3rd day of August, 2009, in favor of the Respondent...." Because Father had not yet obtained a signed order we suspended the appeal to allow him to do so, and he did. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(F)(1)(2003) (). See Bulova Watch Co. v. Super City Dep't Stores of Ariz.r Inc., 4 Ariz. App. 553, 555, 422 P.2d 184, 186 (1967) ().
¶13 Because Father appealed solely from the denial of his motion for new trial, we review only the issues raised in his new trial motion. See Matcha v. Winn, 131 Ariz. 115, 116, 638 P.2d 1361, 1362 (App. 1981) (). We also consider whether the family court had jurisdiction of Father's equitable claim.
¶14 This court will not disturb the family court's modification ruling absent an abuse of discretion. Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999). An abuse of discretion occurs "when the record, viewed in the light most favorable to upholding the trial court's decision, is "Mevoid of competent evidence to support' the decision." Id. (citation omitted). The same standard governs our review of the denial of a motion for new trial. Drahos v. Rens, 149 Ariz. 248, 251, 717 P.2d 927, 930 (App. 1985). We interpret the Arizona Child Support Guidelines, A.R.S. § 25-320 App. (2007) (the Guidelines), de novo. Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21, 202 P.3d 481, 486 (App. 2008).
¶15 Neither party requested findings of fact and conclusions of law pursuant to Rule 82(A), Arizona Rules of Family Law Procedure. Consequently, "we are constrained by the presumption that the Superior Court found every fact necessary to support the judgment, and such presumptive findings must be sustained if the evidence on any reasonable construction justified it.'" Neal v. Neal, 116 Ariz. 590, 592, 570 P.2d 758, 760 (1977) (citations omitted); see also Berryhill v. Moore, 180 Ariz. 77, 82, 881 P.2d 1182, 1187 (App. 1994) (). We accept the family court's factual findings unless they are clearlyerroneous. Hrudka v. Hrudka, 186 Ariz. 84, 91, 919 P.2d 179, 186 (App. 1995).
¶16 Father contends that the family court erroneously attributed gross income to him for purposes of child support. As the party petitioning for modification of child support, Father had the burden to prove a substantial and continuing change of circumstances. A.R.S. § 25-327(A)(2007); see Jenkins v. Jenkins, 215 Ariz. 35, 39, 1 16, 156 P.3d 1140, 1144 (App. 2007) (). The family court may consider "all aspects of a parent's income" to ensure that the award is "just' and based on the total financial resources of the parents." Cummings v. Cummings, 182 Ariz. 383, 386, 897 P.2d 685, 688 (App. 1994) (); see also A.R.S. § 25-320 App., Ariz. Child Support Guidelines, § 5(A) ().
¶17 In the case of self-employment, gross...
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