In re Wassenaar
| Decision Date | 27 July 2021 |
| Docket Number | 1 CA-CV 20-0429 FC |
| Parties | In re the Matter of: SAMANTHA WASSENAAR, Petitioner/Appellee, v. RYAN WASSENAAR, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2015-053180 The Honorable Alison S. Bachus, Judge
Keith Berkshire, Alexandra Sandlin
Counsel for Petitioner/Appellee
Garnice Law PLLC, Scottsdale
Victor A. Garnice
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Kent E. Cattani joined.
¶1 Ryan Wassenaar (Father) appeals from a post-decree order denying his petitions regarding parenting time, child support and to enforce or modify the Decree. For the reasons stated below, that portion of the June 2020 order requiring the parties to help prepare and execute a new deed naming Samantha Anderson Wassenaar (Mother) the sole owner of a home, is vacated. In all other respects, the order is affirmed.
¶2 Father and Mother married in 2007 and have one minor child who was born in 2009. After Mother petitioned for dissolution in 2015, the parties entered into a consent decree later entered by the court. Mother's counsel drafted the Decree, which disposed of the parties' community property, including the former marital home in Anthem. The Decree provided that Mother:
shall retain the marital home . . . as her sole and separate property. Mother shall be solely responsible for any and all mortgage and liabilities associated with the marital home and shall indemnify and hold Father harmless therefrom. Mother shall make reasonable attempts to refinance the marital home to remove Father's name from the loan documents within one year of the entry of the Decree. Upon the sale of the marital home by Mother, whenever that shall occur, Father shall be entitled to 30% of the equity in the home after all mortgages, closing costs and fees are paid.
Father waived the opportunity to have counsel of his choice review the Decree before he signed it. At about this same time, Father relocated for a landscape design job in California. Neither party appealed from the Decree, which was entered in December 2015.
¶3 In 2019, Father returned to Arizona and became self employed. Father began making informal requests for more parenting time with their child, most of which Mother granted. After a few months, Father petitioned for increased parenting time and a modification of child support. Father also petitioned to enforce or modify the Decree to immediately convey his community property share of the equity in the former marital home awarded to Mother.
¶4 Both Father and Mother testified at an evidentiary hearing on Father's petitions held in June 2020. In a ruling issued later that month, the court found Father's return to Arizona was a material change in circumstances and awarded him more parenting time. Father testified that he earns just under $3, 000 per month after business expenses. The court, though, attributed to him income of $9, 000 per month and ordered him to pay $543 per month in child support. On the issue of the marital home, the court denied Father's petition to enforce or modify the Decree. The court awarded Mother her attorneys' fees under A.R.S. § 25-324, after finding Father's position about the home to be unreasonable. This court has jurisdiction over Father's timely appeal pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(2) (2021).[1] Accord Yee v. Yee, 251 Ariz. 71, 73 ¶ 1 (App. 2021).
¶5 The Decree awarded joint legal custody with Father receiving 35 days of long-distance parenting time. Mother did not dispute that Father's post-Decree return to Arizona in 2019 was a material change in circumstances that might justify a modification of the parenting time schedule. Thus, the court's role was to determine what parenting time schedule was in the child's best interests. See A.R.S. § 25-403(B).
¶6 Father proposed a parenting time schedule of every other weekend and four "floating days" per month. Mother did not object to Father having parenting time every other weekend, but did oppose any floating days. She testified that an inconsistent schedule caused conflict and harmed the child. Based on the evidence presented, the court found that "floating days" conflicted with the child's best interests. Accordingly, the court denied Father's request for floating days and instead awarded him 127 scheduled days, a decision Father challenges on appeal.
¶7 Father asserts the court modified parenting time based on findings unsupported by the evidence. Specifically, he argues there was no evidence that floating days harmed the child. In doing so, Father misstates the record. In addressing the past, present and potential future relationship between the parents and the Child, the court expressed concerns about father's behavior:
The Court is concerned that Father's pattern of requesting time with the Child on short notice has signaled to the Child that Father spends time with the Child at Father's convenience, or that the Child is expected to be "on call." This pattern could have long-term negative effects on the Father/Child relationship, particularly as the Child enters her teenage years, unless parenting time is exercised with consistency and on a predictable schedule.
Having considered this, and the other A.R.S. § 25-403(A) factors, the court then found that a changing schedule associated with floating days conflicted with the child's best interests.
¶8 This court will not disturb a parenting time decision absent an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525 ¶ 3 (App. 2002). The superior court weighs the conflicting evidence before exercising its discretion to determine what schedule is in a child's best interests. Nold v. Nold, 232 Ariz. 270, 273-74 ¶ 14 (App. 2013) (applying A.R.S. § 25-403(A)). Father has shown no abuse of discretion.
¶9 Mother testified about the effect of an inconsistent schedule on the child and the court considered the conflicting evidence before modifying the schedule. Parenting plans are designed to protect a child's emotional and physical health, which are not trumped by a parent's convenience or desires. See A.R.S. §§ 25-403.02(C)(3) (requiring a "practical schedule"), - 403.02(D). The court made findings on all the A.R.S. § 25-403(A) best interest factors and Father has shown no error.
¶10 Father argues it was error for the court to calculate his child support obligation based on $9, 000 in monthly income, which was his California salary. Father asserts that his self-employed net income is less than $3, 000 per month, meaning the court's calculation of child support is legal error.
¶11 The superior court must consider the financial resources of each parent when determining child support. A.R.S. § 25-320(D). Arizona permits the attribution of a higher income based on a parent's work experience and earning capacity. See, e.g., Taliaferro v. Taliaferro, 188 Ariz. 333, 337 (App. 1996); Williams v. Williams, 166 Ariz. 260, 266 (App. 1990). Findings of fact are reviewed for an abuse of discretion, while legal questions under the child support Guidelines are reviewed de novo. McNutt v. McNutt, 203 Ariz. 28, 30 ¶ 6 (App. 2002); A.R.S. § 25-320 app. (2018) (Guidelines). The evidence is construed in the light most favorable to affirming. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51 ¶ 11 (App. 2009).
¶12 Self-employment income is calculated based on "gross receipts minus ordinary and necessary" business expenses. See Guidelines § 5(C). The court squarely addressed Father's contention that he earned less than $3, 000 per month from self-employment, finding that Father had not:
corroborated that testimony. Father provided no profit/loss statement or clear accounting of his earnings at his current position. Father runs his personal and business expenses through the same financial accounts. In short, the Court does not conclude that the documentary evidence supports Father's claim of such low earnings. Even if Father had proven lower earnings, Father has not demonstrated that he is incapable of earning more than he is. He provided no evidence regarding a job search for any employment, much less a position that pays $9, 000.00 per month. Based on the evidence presented, the Court finds Father is capable of earning $9, 000.00 per month.
The Guidelines allow the attribution of income up to full earning capacity when a parent is under-employed. Guidelines § 5(E). Father did not prove that he is incapable of earning the amount attributed to him (like what he earned in California).
¶13 The superior court considered the conflicting evidence on Father's self-employment income and earnings capacity, as well as credibility, and this court does not reweigh that evidence on appeal. See Clark v. Kreamer, 243 Ariz. 272, 276 ¶ 14 (App. 2017). Because the order shows the court engaged in the necessary inquiry, and Father has shown no error based on his employment status/potential as of the date of the hearing, the attribution of income to Father is affirmed.
¶14 Father asserts the Decree unfairly dealt with the distribution of the equity in their community property marital home and asked the court to intercede. Father however,...
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