McNutt v. McNutt

• Decision Date: 27 June 2002
• Docket Number: No. 1 CA-CV 01-0255.,1 CA-CV 01-0255.
• Parties: In re the Marriage of Vanessa A. McNUTT, Petitioner-Appellee, v. Shane M. McNUTT, Respondent-Appellant.
• Court: Arizona Court of Appeals

49 P.3d 300

203 Ariz. 28

In re the Marriage of Vanessa A. McNUTT, Petitioner-Appellee, v. Shane M. McNUTT, Respondent-Appellant.

No. -0255.

Court of Appeals of Arizona, Division 1, Department D.

June 27, 2002.

Favour, Moore & Wilhelmsen, P.A. By Mark M. Moore, Marguerite A. Kirk, Prescott, Attorneys for Petitioner-Appellee.

Law Offices of Robert L. Fruge, P.C. By Robert L. Fruge, Prescott, Attorney for Respondent-Appellant.

OPINION

HALL, Judge.

¶ 1 Shane M. McNutt ("Father") appeals the trial court's order that he pay Vanessa A. McNutt ("Mother") $484 per month in child support. He also appeals the court's failure to allocate the federal tax exemption for the parties' minor child. In calculating Father's gross income for child support purposes, the court included all income Father earned from his current sixty-four-hour workweek and also imputed additional income to Father based on his previous eighty-hour workweek.

¶ 2 Interpreting applicable sections of the Arizona Child Support Guidelines ("Guidelines"), Appendix to Arizona Revised Statutes ("A.R.S.") section 25-320 (1996),¹ we conclude that the phrase "full-time employment" may encompass more than forty hours per week if part of a regular schedule. We further conclude, however, that because Father was not working below "full earning capacity" at the time of trial, the trial court erred by attributing additional income to Father based on an eighty-hour workweek. The trial court also erred by failing to allocate the tax exemption. Accordingly, we vacate the trial court's child support order and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 3 After Father and Mother began living together, they had a daughter born in 1995. They married in 1996; Mother filed a petition for dissolution of marriage in July 1999. At all relevant times, Father worked as a caretaker for developmentally disabled clients at one or more residential facilities. In 1993 or 1994, he began working eighty hours per week to enable the parties to purchase a home. His work regimen required him to be on duty for five twenty-four-hour shifts each week, but he was compensated for only sixteen hours per day because he was permitted to sleep the remaining eight hours. In August 1999, shortly after the parties separated, Father reduced the number of hours he worked to sixty-four hours per week consisting of four twenty-four-hour shifts. Although he was still working sixty-four hours per week when the case was tried on December 1, 2000, Father testified that he wanted to further reduce the number of hours he worked to forty-eight hours per week (three twenty-four-hour shifts) to increase the quality of time he spent with the parties' daughter. He testified that he had not yet done so because he would have been unable to pay the temporary family support order of $709 per month, which included $400 for spousal maintenance, if he worked less than sixty-four hours per week.

¶ 4 In addition to his monthly salary, Father also received monthly income from a rental property. However, Father testified without contradiction that he received no net income after paying the monthly mortgage and other expenses, including a ten percent management fee, property tax, insurance, and maintenance. Mother initially testified that she believed that Father received $220 net income per month from the rental home, but later acknowledged that this figure simply reflected the difference between the rent payment and the mortgage and that she did not know how much net income Father actually received after paying the other expenses.

¶ 5 After taking the matter under advisement, the trial court filed a minute entry attributing gross income of $2,840 per month to Father and $1,316 to Mother, and ordered Father to pay Mother $484 per month for child support. The court did not allocate the federal tax exemption for the parties' minor child. The minute entry was reduced to a decree of dissolution from which Father timely appeals.

STANDARD OF REVIEW

¶ 6 Generally, we review child support awards for an abuse of discretion. Kelsey v. Kelsey, 186 Ariz. 49, 53, 918 P.2d 1067, 1071 (App.1996). We "accept the trial court's findings of fact unless they are clearly erroneous," but "draw our own legal conclusions from facts found or implied in the judgment." Burnette v. Bender, 184 Ariz. 301, 304, 908 P.2d 1086, 1089 (App.1995). We review de novo the trial court's interpretation of the Guidelines. Mead v. Holzmann, 198 Ariz. 219, 220, ¶ 4, 8 P.3d 407, 408 (App.2000).

DISCUSSION

I. Gross Monthly Income

¶ 7 Father contends that the trial court erred by attributing gross monthly income to him based on an eighty-hour workweek because: (1) "gross income" under § 4(a) of the Guidelines does not include wages earned from working more than forty hours per week; (2) Father was already employed at "full earning capacity" under § 4(e) of the Guidelines based on his sixty-four-hour work-week; and (3) the child support award unconstitutionally violated his due process and equal protection rights.

¶ 8 In its findings, the trial court stated that it "attributes gross income of $2,840 per month to the father." Both parties agree, and we concur, that the trial court reached this figure by attributing income to Father based on an eighty-hour workweek in combination with net rental income of $220.²

A. Full-Time Employment

¶ 9 Father claims that the court erred in using an eighty-hour workweek because "there is no quantity other than a forty-hour work-week [sic] that is generally associated with full-time employment."

¶ 10 We apply the same rules of construction in interpreting the Guidelines that we use in construing statutes. Mead, 198 Ariz. at 221, ¶ 8, 8 P.3d at 409. Because the phrase "full-time employment" is not defined in the Guidelines, we interpret this language "in conjunction with other provisions of the Guidelines and in light of the Guidelines' overall purpose." Id. (citations omitted).

¶ 11 The first step in determining the parents' basic child support obligation is to calculate each parent's gross income. See Guidelines at § 6. Gross income is defined broadly as

income from any source.... Seasonal or fluctuating income shall be annualized. Income from any source which is not continuing or recurring in nature need not necessarily be deemed gross income for child support purposes. It is generally not expected that a parent will earn income greater than what would be earned from full-time employment.

Id. § 4(a).

¶ 12 Father asserts that any income earned from working more than forty hours per week should be characterized as "overtime" income and excluded from the calculation of a parent's gross income as income "greater than what would be earned from full-time employment." Id. He posits that society generally recognizes full-time employment as being limited by the concept of a forty-hour workweek and argues that the Guidelines have implicitly adopted this approach. For support, he cites to the predecessor of § 4(a), which provided in relevant part: "Seasonal, overtime, or fluctuating income shall be averaged. When income from a full-time job is consistent with income during the marriage, income earned as the result of overtime hours or a second job may be disregarded." Guidelines at § 5 (1992).

¶ 13 Thus, before 1996, the definition of gross income permitted the trial court to disregard "income earned as the result of overtime hours or [from] a second job" only when the parent earned income from a full-time job consistent with that parent's income during the marriage. Id. In 1996, this bias was reversed; now all "income greater than what would be earned from full-time employment" is generally not included in a parent's gross income. Guidelines at § 4(a).

¶ 14 Nonetheless, unlike Father, we do not interpret § 4(a) as limiting full-time employment to no more than approximately forty hours per week. First, we are not persuaded by his claim that any time spent working over forty hours per week is necessarily overtime. Overtime is generally defined as "[t]ime beyond an established limit, as: a. Working hours in addition to those of a regular schedule." The American Heritage Dictionary 1293 (3d ed.1992). Father's regular schedule of employment at the time of trial was sixty-four hours per week, not forty. The change in the definition of gross income permits an already fully-employed parent to work extra hours or a second job without thereby incurring an increased support obligation. But we do not believe the amended Guidelines entitle a parent who continues to work the same schedule as he or she consistently worked during the marriage to a decreased support obligation. Cf. Jensen v. Bowcut, 892 P.2d 1053, 1057 n. 3 (Utah App. 1995)

(stating "this court has previously held that a full-time job can exceed forty hours per week if consistent with the obligee's [sic] prior practice").

¶ 15 Second, as Father correctly observes, the definition of gross income from self-employment contained in § 4(c) of the Guidelines³ is clearly not limited by any artificial construct of a forty-hour workweek, nor could it be. If we adopted Father's position and construed § 4(a) as imposing an hourly limitation on the amount of earned income generated from full-time hourly employment, we would be fostering a situation in which children of parents with comparable gross incomes would receive inconsistent child support awards depending on the parent's type of employment rather than ability to pay, a result unfair to both children and parents. See Guidelines at § 1(b) (one purpose of the Guidelines is "[t]o make child support orders consistent for persons in similar circumstances").

¶ 16 Finally, even if we accept Father's characterization of his work schedule as involving overtime hours, we still disagree with his conclusion that the Guidelines now require the trial court to disregard all overtime wages when...