Arizona Court of Appeals
Vega v. Cipres
Vega v. Cipres is an unpublished memorandum decision where the Arizona Court of Appeals affirmed the family court’s attribution of income for purposes of calculating spousal maintenance and child support.
January 28, 2020
1 CA-CV 19-0335-FC
Income Attributed to Both Parents
Father filed for divorce in September 2018. In March 2019, the family court held an evidentiary hearing and found that Father was the primary wage earner during the approximately ten-year marriage and that Mother primarily cared for their three minor children.
The decree designated Mother as the children’s primary residential parent and awarded Father parenting time every weekend. It also ordered Father to pay $400 per month in child support and $800 per month in spousal maintenance for a duration of three years.
Employment and Social Security Benefits
Father appealed and argued that the family court incorrectly calculated both parents’ incomes when it calculated child support and spousal maintenance.
The family court found Father’s earning capacity to be $35 per hour or $72,240 annually. Father argued that this amount was unsupported by evidence and that he was capable only of earning minimum wage after he left his previous employment because of various medical conditions.
Although family courts can decline to attribute income to an individual who is physically disabled, this court found that Father was voluntarily underemployed to manipulate the outcome of this litigation. Father presented no credible documentation to prove any medical condition and failed to provide his most recent paystubs in his affidavit of financial information.
The Court of Appeals found that this constituted reasonable evidence to support the family court’s finding that Father was voluntarily underemployed. When an individual is voluntarily unemployed or underemployed, the family court may attribute income up to the person’s full earning capacity. Usually that is based on the individual’s historical earnings or a vocational evaluation that considers the individual’s education, experience, and qualifications.
Father separately argued that the family court miscalculated Mother’s income when it found that she had the ability to work thirty hours per week at $11.50 per hour. Father claimed Mother regularly worked forty hours per week and pointed to her Proposed Resolution Statement where she listed her gross monthly income to be $1,907.67.
But the family court found that Mother would be precluded from working a full-time schedule based on her proportionately greater responsibilities caring for their children. It also considered the unique medical needs of one of the children to support its conclusion.
Finally, Father argued that the family court failed to properly factor social security benefits Mother received on behalf of one of their children. The family court originally calculated Father’s child support obligation to be $610 per month, but because Mother received benefits for one of the three children, it reduced the obligation by one third. The Court of Appeals agreed that this properly credited the social security payments.