El-Sharkawy v. El-Sharkawy
| Decision Date | 19 July 2018 |
| Docket Number | No. 1 CA-CV 17-0425 FC,1 CA-CV 17-0425 FC |
| Parties | In re the Marriage of: MOHAMED EL-SHARKAWY, Petitioner/Appellant, v. PATRICIA EL-SHARKAWY, Respondent/Appellee. |
| 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 William L. Brotherton Jr., Judge, Retired
AFFIRMED IN PART; VACATED IN PART; AND REMANDED
Wilkins Law Firm PLLC, Phoenix
By Amy M. Wilkins
Amicus Law PLLC, Higley
By Marisa Kotalik
Counsel for Respondent/Appellee
MEMORANDUM DECISIONPresiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Michael J. Brown and Judge Jon W. Thompson joined.
¶1 Mohamed El-Sharkawy (Husband) appeals from a decree of dissolution, asserting the family court erred by: (1) improperly calculating Husband's income, (2) improperly allocating the property and debt, and (3) awarding Patricia El-Sharkawy (Wife) indefinite spousal maintenance of $2,500 per month. Husband also argues he is entitled to a new trial because he claims the trial judge exhibited bias against him. For the reasons stated below, we affirm the calculation of Husband's income and reject the allegation of bias, but find the court abused its discretion in allocating the community property and debts. Accordingly, we vacate the property allocation and the spousal maintenance award that was based, in part, on that allocation, and remand for reconsideration of those issues.
¶2 Husband and Wife married in 1988 and have five children, two of whom were minors at the time Husband filed for divorce in 2016.1 Pursuant to temporary orders, the parties' three community residences were not to be sold absent written consent of both parties, and, if sold, "the parties shall split the proceeds 50/50." Husband was also ordered to pay all community debts, subject to reallocation, and $750 per month in temporary spousal maintenance.
¶3 Following the trial in February 2017, the family court entered a decree of dissolution ordering Husband to pay all community debts, which included credit card debt and vehicle loans. The court also ordered Husband to pay child support, as well as $2,500 per month in spousal maintenance indefinitely. In calculating these sums, the court included Husband's earnings as a part-time adjunct professor at Maricopa Community Colleges (MCC) in addition to his regular, full-time earnings at American Airlines. The court rejected Husband's argument that he was entitled to credit for one-half of the mortgage payments he was ordered to pay pending sale of two community residences and, finally, ordered Husband to pay Wife one-half of the total proceeds from the sale of the parties' Tucson house, implicitly rejecting his claim that most of the proceeds were used for the community expense of sending one of the parties' minor children to a rehabilitation facility.
¶4 Husband timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)2 and -2101(A)(1).
¶5 Husband argues the family court improperly calculated his earnings when calculating spousal maintenance and child support. Generally, we review the factual determinations underlying the calculation of child support and the resulting award for an abuse of discretion. See In re Marriage of Robinson, 201 Ariz. 328, 331, 335, ¶¶ 5, 17 (App. 2001) (citing Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999)). Whether the court properly considered Husband's income from his second job as gross income for the purpose of calculating support obligations presents a question of law reviewed de novo. Id. at 331, ¶ 5 (citations omitted). Because neither party requested written findings of fact or conclusions of law, we presume the court found every fact necessary to support its ruling. See Rinegar v. Rinegar, 231 Ariz. 85, 90, ¶ 20 (App. 2012) ).
¶6 According to the record, Husband worked full-time at American Airlines, earning $39.62 an hour. Husband also worked as an adjunct professor at MCC, a position he had held since 2008. Husband's MCC earnings historically varied depending on the number of classes he taught. For example, in 2014 and 2015, Husband earned approximately $25,000 per year from MCC, but, according to Husband, he earned only $7,000 in 2016 because he was offered fewer classes. Husband testified he would earn only $7,000 in 2017, adding that the extra hours at MCC were difficult for him, and he did not plan to continue teaching.
¶7 In the decree, the family court calculated Husband's monthly income from American Airlines to be $6,867. Husband argues this amount is not supported by the evidence and is contrary to the Arizona Child Support Guidelines, A.R.S. § 25-320 app. (Guidelines). Instead, Husband argues his monthly income from American Airlines is $70,265 annually, or $5,855 per month. However, he did not submit a 2016 tax return or W-2 to support this assertion; rather, Husband averred in his Affidavit of Financial Information that he earns $39.62 per hour. The family court used that hourly wage to calculate a monthly income of $6,867.3 The court did not abuse its discretion in using the information Husband provided to calculate his gross monthly income of $6,867 from American Airlines, and we find no error.
¶8 Husband also contends the family court incorrectly included $7,000 in annual income from his second job at MCC. For purposes of calculating child support, a party's "gross income" includes:
Guidelines § 5(A) (emphasis added). Thus, the Guidelines do not "entitle a parent who continues to work the same schedule as he or she consistently worked during the marriage to a decreased support obligation." McNutt v. McNutt, 203 Ariz. 28, 31-32, ¶ 14 (App. 2002) (citing Jensen v. Bowcut, 892 P.2d 1053, 1057 n.3 (Utah App. 1995)).
¶9 The record reflects Husband had taught at MCC for eight years before filing for dissolution, with varied hours and earnings. Although Husband claimed the additional hours were now difficult for him, the record does not suggest that teaching one class each year, as he did in 2016, would require an "extraordinary work regimen." To the contrary, the evidence shows this income was "historically earned from a regular schedule" and would "continue into the future." See Guidelines § 5(A); cf. Lundy v. Lundy, 242 Ariz. 198, 200, ¶ 9 (App. 2017) (). Accordingly, the family court did not err by concluding Husband's historical work at MCC would likely continue into the future and including income received from MCC in Husband's gross income.
¶10 Husband also argues the family court erred by failing to apply the balancing test set forth in Pullen v. Pullen, 223 Ariz. 293, 297-98, ¶¶ 15-18 (App. 2009), to determine whether to include income from his second job for purposes of spousal maintenance. In Pullen, one spouse quit a higher paying job in Arizona and relocated to another state where he could only find a lower paying job. Id. at 295, ¶ 4. The court attributed his income at the higher earning capacity for purposes of calculating his support obligation. Id. at ¶ 6. This Court affirmed after considering several factors, including the spouse's reasons for relocating, the timing and circumstances of the change, the impact on and conduct of the parties, and the spouse's efforts to secure similar employment. Id. at 297-98, ¶¶ 19-20. Here, however, the court was not considering a voluntary reduction in earnings. Instead, the court considered Husband's actual historical earnings from both jobs, in accordance with the Guidelines. See supra ¶¶ 8-9. Pullen does not apply.
¶11 Husband argues the family court erred in its allocation of property and debts. Within the decree, the court awarded each party one-half of the community assets but ordered Husband to pay all community debts after finding Wife was unable to work.4 The court advised it would attempt to remedy this inequity by "consider[ing] the disproportionate distribution of debts in determining the amount and duration of spousal maintenance awarded to [Wife]." We review the allocation of community property and debt for an abuse of discretion. Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007) (). "An abuse of discretion occurs when a court commits an error of law in the process of reaching a discretionary conclusion." In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8 (App. 2008) (citing Grant v. Ariz. Pub. Serv...
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