Marriage of Pacific, In re
| Citation | 815 P.2d 7,168 Ariz. 460 |
| Decision Date | 18 July 1991 |
| Docket Number | CA-CV,No. 1,1 |
| Parties | In re the MARRIAGE OF Colleen PACIFIC, f/k/a Colleen Beatty, Petitioner-Appellee, and Quentin Winston Beatty, Respondent-Appellant. 89-074. |
| Court | Court of Appeals of Arizona |
In a modification hearing two years after the parties dissolved their marriage, the trial court revised the parties' child custody arrangements and ordered the father to pay the mother child support and attorneys' fees. We now set aside the latter, monetary, orders. We find that the trial court miscalculated the income that each party had available for child support and attorneys' fees by including one half of the income of each party's current spouse.
Quentin Winston Beatty ("Father") and Colleen Pacific, formerly Colleen Beatty ("Mother"), were married in 1976 and divorced on December 17, 1985. Two children were born of their marriage.
At dissolution, the parties stipulated concerning custody and child support: Mother would have physical custody on weekdays, Father on weekends; vacations and holidays would be cooperatively arranged. Neither party would pay the other child support, each would provide for "ordinary needs" when in physical custody of the children, and "extraordinary expenses" would be allocated by later agreement as the need arose. After entry of the decree, both parties remarried.
In November of 1987, Mother petitioned for modification, asking that custody be modified and that Father pay child support in accordance with the Arizona Child Support Guidelines. 1 Mother also sought attorneys' fees and costs pursuant to Ariz. Rev. Stat. Ann. § 25-324 (1976). The only issues pertinent to this appeal are those concerning child support and attorneys' fees.
When the decree was entered in 1985, Mother's monthly income was $1,292; by the modification hearing in the spring of 1988, her income had declined to approximately $375 per month. Mother explained that she had reduced her hours of employment to complete her nursing studies; and though she anticipated receiving her degree in December 1988, she intended to continue to defer full-time employment because she had a small child--a daughter born of her second marriage--at home.
Father had also reduced his earnings since the decree. In December of 1985, he had earned approximately $1,400 per month; at the time of hearing, he was a full-time student pursuing a teaching degree and otherwise unemployed. However, Father anticipated an offer of employment as a teacher beginning in the 1988 fall term at a salary of approximately $20,000 per year.
Both parties' current spouses were fully employed. Mother's spouse had earnings of approximately $2,340 per month. Father's spouse earned approximately $39,000 per year and maintained a bank account with a balance over $66,000. Father testified, however, that, in accordance with a prenuptial agreement, all of his wife's income and assets were her separate property because she was supporting two children of her own. He added that, although his wife was paying all of the family's living expenses, certain of those payments constituted loans to him and were evidenced by promissory notes. Specifically, Father testified that his wife had loaned him money to pay debts from his previous marriage and a portion of his college tuition. She continued to loan him money to pay a portion of his living expenses.
In its ultimate ruling on the issue of child support, the trial court attributed to each parent one-half of the income of that parent's current spouse. The court explained:
THE COURT FURTHER FINDS ... that each parent has received and will continue to receive a specific financial benefit as a result of their marriage to third persons and expense sharing with those persons.
THE COURT FINDS that the benefit equals one-half of the income of each new spouse and therefore the Court finds this benefit shall be considered by the Court in determining the child support amount under the guidelines.
The court calculated Father's income to be $2,775 per month, attributing $1,150 to Father's anticipated earnings and the remaining $1,625 to his marital community half-interest in his wife's income. The court determined Mother's income the same way, attributing $375 per month to Mother's earnings and $1,171 to her undivided one-half interest in her husband's income. The court deducted $150 per month from Mother's income for support of her youngest child, yielding $1,396 per month.
Combining the adjusted gross income of both parents, the court arrived at a figure of $4,171. From this figure and the 1987 guidelines, the court derived a basic support obligation of $850 per month and assessed Father's and Mother's respective proportionate shares as 67 and 33 percent. The court ordered Father to pay Mother $561 per month for child support 2 and $6,000 for her attorneys' fees. The court also ordered Father to pay a reduced sum of $280 for June and July each year, the months when the children would reside with him.
Child support awards are highly discretionary, and appellate courts review them deferentially. In re Marriage of Berger, 140 Ariz. 156, 680 P.2d 1217 (App.1983). We conclude, however, that the trial court abused its substantial discretion in this case.
Father argues that the trial court erred by including in its calculation of each parent's gross income one-half of the income of that parent's current spouse. We agree.
We first consider Ariz. Rev. Stat. Ann. § 25-215(B)(1976), which provides:
The community property is liable for the premarital separate debts or other liabilities of a spouse, incurred after September 1, 1973 but only to the extent of the value of that spouse's contribution to the community property which would have been such spouse's separate property if single.
In Hines v. Hines, this court rejected a mother's claim for assignment of a portion of the father's current spouse's wages, holding that child support is a "premarital separate debt" within the meaning of § 25-215(B). 146 Ariz. 565, 567, 707 P.2d 969, 971 (App.1985). Hines establishes that § 25-215 protects the wages of both Father's and Mother's current spouses and that each community is only liable for the "premarital separate debt" of child support to the extent of Father's and Mother's contributions.
In this case, however, Mother does not seek a wage assignment against Father's spouse; she seeks rather to have half his spouse's wages treated as Father's income in the computation of earnings available for support. Mother argues further that the trial court's method of calculating income available for child support was authorized by section B.4.f of the 1987 Guidelines, which provided that, in determining gross income, "[t]he court may take into account the benefits a parent derives from remarriage, expense-sharing, or other source." 3
Child support guidelines are not a source of law, but a source of guidance to the trial courts in the application of the law embodied in the statutes and recorded cases. See Ariz. Rev. Stat. Ann. § 25-320(A) (Supp.1990); 4 Schenek v. Schenek, 161 Ariz. 580 581, 780 P.2d 413, 414 (App.1989). Approaching section B.4.f in this spirit, we do not find that it supports the court's award. It is one thing to consider the benefits that a parent derives from remarriage or expense-sharing. It is another to automatically treat one-half of that parent's spouse's income as the parent's own. In this case, the court was entitled to consider the extent to which Father's living expenses were defrayed by his wife's income and to assess the likelihood that Father would be required to repay his wife. Such determinations required fact-finding, however, and were not accomplished by the trial court's arithmetic income-splitting approach.
Fought v. Fought, 94 Ariz. 187, 382 P.2d 667 (1963), a pre-section 25-215(B) case cited by Mother, does not contradict this view. There, reviewing a father's petition to reduce his child support, our supreme court directed the trial court to take the mother's remarriage "into consideration in weighing the equities of the situation," and the court observed that the mother had a "community property interest in the income of the husband, which could also be applied to the welfare of the child." 94 Ariz. at 188-89, 382 P.2d at 668. We do not interpret Fought to hold that a parent's half-share of a new spouse's community earnings is income to the parent for the purpose of calculating child support; we interpret Fought rather to recognize, as the 1987 Guidelines later recognized, that a new spouse's earnings are a source to defray expenses.
The 1989 Guidelines are more specific on this point; section 5.f states: "Income of a parent's new spouse is not treated as income of that parent under these guidelines." We interpret this section as a clarification of the 1987 Guidelines to conform them to existing statutory and case law.
Because we conclude that the trial court erred in calculating the income each party had available for support, we remand for reconsideration of the child support award. This does not, however, exhaust the issues of this appeal.
We next consider Father's argument that the trial court should have attributed more than part-time earning capacity to Mother. Although the parties' situation may have changed by the time of rehearing, we find no error in this aspect of the trial court's evaluation of the evidence that it heard.
Section B.4.e of the 1987 Guidelines provided:
If a parent is unemployed or working below full earning capacity, the...
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