Pearson v. Pearson
| Decision Date | 16 September 1997 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 190 Ariz. 231,946 P.2d 1291 |
| Parties | , 252 Ariz. Adv. Rep. 30 In re the Marriage of Jacqueline PEARSON, Petitioner-Appellee, Cross Appellant, v. Jerry PEARSON, Respondent-Appellant, Cross Appellee. 96-0603. |
| Court | Arizona Court of Appeals |
Jerry Pearson appeals from the trial court's order increasing the amount of child support he must pay from $250 to $840 per month and the court's denial of his motion to amend or vacate the order or for a new trial. He also asserts that the court erred in denying his request for attorneys' fees. Jacqueline Pearson cross-appeals from the court's denial of her request for attorneys' fees. For the reasons given below, we affirm the judgment as modified.
Jerry and Jacqueline were divorced in 1986. Jacqueline was awarded custody of their child and Jerry was ordered to pay $250 per month in child support. On October 10, 1995, Jacqueline petitioned to modify the amount of child support. While the parties agreed that Jacqueline's monthly income was $4357, they disputed the amount of Jerry's income. When the petition was filed, Jerry was employed by a catering corporation he solely owns.
At a hearing regarding Jacqueline's petition, the parties agreed to "proceed by avowal." The depositions of Jerry and of his accountant, Kim Giese, were admitted without objection. The trial court subsequently ruled as follows:
[Jacqueline]'s gross monthly income is uncontested at $4,357. [Jerry]'s salary as reflected on his 1995 W-2 form is $47,754. In addition to this, [Jerry] receives significant cash and non-cash benefits from his solely-owned catering business which should be included in his gross income. The exact extent and nature of these benefits is somewhat cloudy due to [Jerry]'s incomplete and evasive discovery. The corporation paid $11,902 to purchase a Harley Davidson motorcycle for [Jerry] in 1995. The corporation paid out $13,000 to [Jerry]'s parents in 1995, ostensibly for repayment of a personal loan, which should be included in [Jerry]'s gross income. In addition, the corporation provided [Jerry] the use of a sports car and paid $9,443.64 to purchase the vehicle in 1995. Based upon a pro rata division of mileage, [Jerry]'s personal use of this vehicle is 95% as compared to 5% for business use. This would add an additional $8,971 of income at a minimum to [Jerry]'s income. The corporation has also paid a rental income to [Jerry] in the past which amounted to $18,000 in 1994 and $41,000 in 1993. The court believes that [Jerry]'s income should at least be increased by the lower of these figures of $18,000. Adding these cash and non-cash benefits to [Jerry]'s income results in a gross annual income to [Jerry] of $99,627.... [Jerry] also has other personal financial benefits from his corporation.
* * *
At the present, it appears that [Jerry]'s income and benefits from his business are sufficient to attribute an income to [Jerry] of at least $100,000....
The court then calculated the parties' child support obligations and ordered Jerry to pay $840 per month, beginning October 1, 1995.
Jerry moved for a new trial or that the court amend or vacate the order increasing the child support award, alleging that the evidence was insufficient to support the finding that his income was $100,000 per year. The motion was denied and Jerry appealed.
Jerry essentially raises four issues, which we restate as follows: (1) whether the trial court erroneously failed to consider the factors set forth in ARIZ.REV.STAT. ANN. ("A.R.S.") section 25-320(A) in modifying the child support award; (2) whether the court abused its discretion by incorrectly determining his salary and including certain items as income for the purpose of calculating the modified child support award; (3) whether the court correctly calculated the amount of child support based on the Child Support Guidelines and (4) whether the court should have allowed him to recover costs and attorneys' fees. Jacqueline asks that this court reverse the trial court's refusal to award her costs and attorneys' fees. Both parties request an award of costs and attorneys' fees incurred on appeal.
Child-support awards may be modified only as to installments accruing after notice of the motion for modification and then "only upon a showing of changed circumstances which are substantial and continuing." A.R.S. § 25-327(A) (Supp.1996). "As with the original determination of a child support award, the decision whether changed circumstances exist to warrant modification of an award is within the sound discretion of the trial court." Cummings v. Cummings, 182 Ariz. 383, 387, 897 P.2d 685, 689 (App.1994).
In relevant part, A.R.S. section 25-320(A) (Supp.1996) provides as follows:
A. ... The supreme court shall establish guidelines for determining the amount of child support. The amount resulting from the application of these guidelines shall be the amount of child support ordered unless a written finding is made, based on criteria approved by the supreme court, that application of the guidelines would be inappropriate or unjust in a particular case.... [T]he guidelines and criteria for deviation from them shall be based on all relevant factors, including:
1. The financial resources and needs of the child.
2. The financial resources and needs of the custodial parent.
3. The standard of living the child would have enjoyed had the marriage not been dissolved.
4. The physical and emotional condition of the child, and the child's educational needs.
5. The financial resources and needs of the noncustodial parent.
6. Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common.
7. The duration of visitation and related expenses.
The court has complied with the legislative directive by issuing the "Arizona Child Support Guidelines Adopted By The Arizona Supreme Court For Actions Filed After May 31, 1994" ("Guidelines"), 1 including criteria for deviating from the guidelines and procedures for modifying child support awards. Guidelines, pp 15, 19. The Guidelines provide that "[e]ither parent may request the court to modify a child support order if application of the guidelines results in an award that varies 15 percent or more from the existing amount." Guidelines, p 19.b Jerry contends that, in addition to applying the Guidelines, the trial court must specifically address all of the factors set forth in A.R.S. section 25-320(A) when modifying a child-support award, citing Brevick v. Brevick, 129 Ariz. 51, 628 P.2d 599 (App.1981). He asserts that the court considered only his alleged increase in income in calculating the increase in child support and failed to consider the factors set forth in the statute. 2
The Brevick case is irrelevant; it was decided before A.R.S. section 25-320(A) was amended in 1989. The statute as amended does not direct the trial court to consider the factors enumerated in section 25-320. Rather, it directs the supreme court to establish guidelines based on given factors and requires the trial court to follow the Guidelines, unless a deviation is justified based upon criteria set forth in the Guidelines. The court must consider "all relevant factors, including those set forth" in A.R.S. section 25-320(A) only if it intends to deviate from the Guidelines--and then the court may deviate from the Guidelines only if, among other criteria, "[a]pplication of the guidelines [is] inappropriate or unjust in a particular case" and "[d]eviation is in the best interest of the child." A.R.S. § 25-320(A). See also Guidelines, p 15.a.1 and a.2. Because the parties did not request a deviation from the Guidelines, the trial court was not required to specifically consider the factors set forth in section 25-320(A).
Nevertheless, the "Guidelines do not replace the exercise of trial court discretion; they focus it." Burnette v. Bender, 184 Ariz. 301, 304, 908 P.2d 1086, 1089 (App.1995). We thus consider whether the court abused its discretion in applying the Guidelines to modify the child-support award in this case.
As a preliminary matter, Jerry has waived any right to now object that proceeding "by avowal" results in insufficient evidence to support the judgment. The parties in this case, when asked by the trial court, specifically agreed that the modification hearing would proceed in this manner. Proceeding by avowal does not allow the court to evaluate the demeanor and credibility of the witnesses but merely results in the attorneys' declaration of what the witnesses would state if called. It does not permit the creation of an appellate record suitable for a challenge to a witness or, on that basis, a challenge to the sufficiency of the evidence.
Jerry argues that the trial court abused its discretion in determining his salary from the catering business by considering his past salary, rather than his salary as of the date the modification petition was filed, and by projecting the amount of his salary after the date of the hearing. He specifically asserts that the court gave insufficient consideration to his contention that, between October 1995 and June 1996, he earned $1833 per month or approximately $34,000 per year.
In its initial order scheduling the modification hearing, the trial court ordered both parties to bring documents, including proof of income, such as check stubs, W-2 forms and past income tax forms. No such documents were discussed at the hearing...
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