Lynch v. Brakebill
| Decision Date | 17 February 2015 |
| Docket Number | No. 1 CA-CV 14-0165,1 CA-CV 14-0165 |
| Parties | In Re the Matter of: MARK H. LYNCH, Petitioner/Appellee, v. FRANCES KATHRYN BRAKEBILL, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Thomas L. LeClaire, Judge
AFFIRMED IN PART; REMANDED IN PART
Frances Kathryn Brakebill, Phoenix
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Maurice Portley joined.
¶1 Frances Brakebill (Mother) appeals the trial court's order modifying child support and denying her motions for new trial and to amend the judgment. For the following reasons, we affirm in part and remand in part for further findings.
¶2 Mother and Mark Lynch (Father) divorced in February 2008. As part of the divorce decree, they agreed to share legal and physical custody of their three minor children, whom they stipulated had no special needs or extraordinary expenses. The child support worksheet, prepared by Mother's attorney and incorporated into the decree, attributed Mother income of $6,000 per month, and required Father to pay $1,216 per month in child support; however, Father agreed to an upward deviation of $2,284 for a total monthly child support amount of approximately $3,500. In May 2010, the parties stipulated to reduce Father's child support obligation to $2,400 per month.
¶3 In September 2012, after the parties' oldest child turned eighteen years old, Father filed a petition to modify his child support obligation via the "simplified procedure" authorized by Arizona Rule of Family Law Procedure 91(B)(2)(b) and Arizona Revised Statutes (A.R.S.) section 25-320 app. § 24(B) (Guidelines).2 The accompanying child supportworksheet reflected Father's child support obligation as $1,327.49 per month.3
¶4 Mother requested a hearing on Father's petition. She then filed her own petition, alleging Father's income had increased, her own income had decreased, and the children had extra education expenses, medical expenses, and special needs, all of which supported an increase in Father's child support obligation to $2,598.80. She also alleged Father had recently relocated to Florida, which affected their custody and parenting time arrangement. She requested a modification of child support, custody and parenting time accordingly, as well as an award of attorneys' fees.
¶5 Mother thereafter submitted a timely request for findings of fact and conclusions of law pursuant to Arizona Rule of Family Law Procedure 82(A). Prior to trial, the parties entered into an agreement affirming the majority of their prior order, which granted the parties joint legal decision-making, Mother primary physical custody, and Father parenting time of approximately sixty days per year, leaving only the issues of child support and attorneys' fees for determination by the trial court.
¶6 At trial in May 2013, Father testified he received a substantial inheritance during the parties' marriage, of which $250,000 was given to Mother as part of the divorce settlement. He also originally agreed to an upward deviation, believing it to be in his children's best interest, but testified the monies with which he had intended to fund those additional sums had been exhausted, at least in part in litigating a joint debt, and he could no longer afford to pay the increased amount. Father testified he currently earns $90,400 per year, plus commissions, which was reflected in his 2010 and 2011 tax returns and 2012 W-2 form. He also submitted evidence regarding the cost of health insurance available through his employer.
¶7 Mother testified she had earned a bachelor's degree, would receive her paralegal certificate within the next week, and was six to twelve hours short of obtaining a master's degree. Despite her high level of education, Mother claimed monthly income of only $684 and explained her 2012 tax return, reflecting a total income of $29,790, reflected mostlydividends and capital gains. Mother submitted a child support worksheet with her response to Father's petition, and again at trial, estimating, as did Father, that the cost of health insurance was $270 per month.
¶8 Mother further testified that an upward deviation was appropriate to allow the children to maintain the lifestyle they were accustomed to during the parties' marriage, which included building a custom home and taking yearly Disney cruises. She testified to having approximately $1,000 per month in "extra education expenses" and "extraordinary child expenses" related to past medical care and having a thirteen-year-old "homebound student." She provided no documentation to support either the existence or amount of those expenses.
¶9 In its ruling, the trial court adopted Father's income from his 2012 W-2 form and Mother's from her 2012 federal income tax return. As set forth in an accompanying child support worksheet, Father was credited for fifty parenting days and $270 per month to provide health, dental and vision insurance for the children. Using these figures, the court calculated Father's child support obligation for two children at $1,291.28 per month.
¶10 The trial court went on to deny Mother's request for an upward deviation, noting Father provided "a number of gift items not covered by child support" to the children and "Mother has not fully disclosed her income to the Court." The court found Mother's evidence was "inadequate as it does not relate back to how the increased funds, if they were Ordered, would enhance the life of the minor child[ren] and, thus, be in the best interests of the minor children." The trial court then concluded Mother failed to establish that the presumptive child support amount was deficient.
¶11 Finally, the trial court denied Mother's request for attorneys' fees based upon an alleged disparity of income between the parties because it was unable to "reliably assess" Mother's income. Mother timely appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1). See Reeck v. Mendoza, 232 Ariz. 299, 302, ¶ 10, 304 P.3d 1122, 1125 (App. 2013) ().
¶12 Mother argues throughout her briefs that the trial court failed to set forth specific findings to support its decision. Generally, "when atimely request for findings is submitted, the trial court must make findings concerning all of the ultimate facts." Elliott v. Elliott, 165 Ariz. 128, 134, 796 P.2d 930, 936 (App. 1990) (citing Fritts v. Ericson, 87 Ariz. 227, 234, 349 P.2d 1107, 1111 (1960)). Even where a proper request is made, the sufficiency of the findings may still be waived where a party fails to object to their inadequacy at the trial court level. Id. (citing Green v. Geer, 720 P.2d 656, 660 (Kan. 1986)); see also Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59 (1994). A lack of findings may likewise be waived "where the record is so clear that the [reviewing] court does not need the aid of findings . . . on the ground that the error is not substantial in the particular case." City of Phx. v. Consol. Water Co., 101 Ariz. 43, 45, 415 P.2d 866, 868 (1966) (citing Hurwitz v. Hurwitz, 136 F.2d 796, 799 (D.C. Cir. 1943)).
¶13 Here, Mother argued in her post-trial motions that the trial court's findings were insufficient only with regard to the requested upward deviation, the basis for calculation of Father's parenting days, and the cost of health insurance for the children.4 However, we find the court's determination regarding the cost of health insurance, undoubtedly adopted from the concurring submissions of the parties, to be so clear that we do not need the aid of findings. See infra Part II(B)(4). Any purported error regarding this issue is therefore not substantial in this case and waived. See Consol. Water, 101 Ariz, at 45, 415 P.2d at 868. Moreover, because she failed to pursue her request for specific findings on the remaining factors, "she may not be heard to complain to this court" about their sufficiency. Patterson v. Patterson, 63 Ariz. 499, 502, 163 P.2d 850, 851 (1945).
¶14 Accordingly, we only address the sufficiency of the trial court's findings with regard to Mother's requested upward deviation and Father's parenting days. On the remaining matters, we presume the court found every fact necessary to support its judgment, and must affirm its order if any reasonable construction of the evidence justifies the decision. Neal v. Neal, 116 Ariz. 590, 592, 570 P.2d 758, 760 (1977) (). We further presume that the trial court knows the law and applies it correctly. Fuentes v. Fuentes, 209 Ariz. 51, 58, ¶ 32, 97 P.3d 876, 883 (App. 2004) (citing State v. Trostle, 191 Ariz. 4, 22, 951 P.2d 869, 887 (1997)). Where the court chooses to make specific findings, we defer to those findings "unless clearly erroneous, giving due regard to the opportunity of the court to judge the credibility ofwitnesses." In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5, 12 P.3d 1203, 1205 (App. 2000). Findings of fact are "clearly erroneous" when "'the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.'" Park Cent. Dev. Co. v. Roberts Dry Goods, Inc., 11 Ariz. App. 58, 60, 461 P.2d 702, 704 (1969) (quoting Merryweather v. Pendleton, 91 Ariz. 334, 338, 372 P.2d 335, 338 (1962)). It is with...
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