LUNDY v. LUNDY

394 P.3d 25 (Ct. App. 2017)

In Lundy v. Lundy, the Arizona Court of Appeals reversed the family court’s attribution of income from a second job, for purposes of calculation of child support.

After the parties’ divorce, Father filed a petition to modify child support. At trial, the family court attributed to Mother income from two jobs. It also credited Father with the full amount of family insurance based on Father’s testimony that the insurance coverage cost was consistent regardless of the number of dependents covered. Father also was awarded $5,000 in attorney’s fees after his attorney asked for the award during closing argument. Mother appealed.

First, concerning the attribution of income, Section 5(A) of the Arizona Child Support Guidelines provides that the “court should not attribute income greater than what would have been earned from full-time employment. Each parent should have the choice of working additional hours through overtime or at a second job without increasing the child support award. The court may, however, consider income actually earned that is greater than would have been earned by full-time employment if that income was historically earned from a regular schedule and is anticipated to continue into the future.”

The purpose of this section is to ensure that child support is based on the parents’ regular incomes while preserving the option for either parent to work additional time or at a second job without increasing child support.

The Court of Appeals reversed the trial court’s inclusion of second job income.

Next, regarding the credit to Father for the cost of insurance, Section 9(A) of the Child Support Guidelines requires the family court to “add to the Basic Child Support Obligation the cost of the children’s medical dental or vision insurance coverage” and instructs the court to credit “only the amount of the insurance cost attributable to the children subject of the child support order … [i]f coverage is applicable to other persons, the total cost shall be prorated by the number of persons covered.”

The Court of Appeals reversed the trial court’s decision to credit the full cost of insurance rather than the prorated share for the parties’ children in common.

Lastly, Rule 78(D)(1) provides that all claims for “attorney’s fees, costs and expenses initially shall be made in the pleadings, pretrial statement, or by motion filed prior to trial or post-decree evidentiary hearing.”

Because Father’s attorney requested attorney’s fees orally during closing argument only, the Court of Appeals reversed the award.

2018-11-06T17:12:26+00:00