The parties were married in 1995 and divorced in 2015. Their divorce decree required Father to pay $4,000 per month in spousal maintenance for forty eight months. It also awarded joint legal decision-making and approximately equal parenting time of the parties four children.
In 2018, Father filed a petition to modify parenting time and child support. He alleged substantial and continuing changes that included one child turning 18 and another child living with Father “exclusively.” Father subsequently filed an emergency motion seeking sole legal decision-making and physical custody of that child after an alleged altercation between Mother and the child. The family court entered temporary orders that limited Mother’s parenting time with that child to every other weekend and appointed a Court Appointed Advisor.
After an evidentiary hearing where the parties and the Court Appointed Advisor testified, the family court affirmed the temporary parenting time order for the child who lived primarily with Father and ordered equal parenting time with the parties’ other minor child. By the time the trial occurred, two of the parties’ children had turned 18.
The court further ordered Mother to pay child support to Father and denied Mother’s request for attorney’s fees. Although Father had greater financial resources, the court found that Mother acted unreasonably during the litigation. After the family court denied Mother’s motion for reconsideration, she filed this appeal.
Income for Child Support
Mother first contested the child support order and argued that the family court erred when it attributed her minimum wage in addition to the spousal maintenance she received from Father.
The Arizona Child Support Guidelines encourage family courts to attribute an “income of at least minimum wage” when “a parent is unemployed or working below full earning capacity[.]” However, the family court does retain discretion to consider the reasons for the unemployment or underemployment and it can decline to attribute income.
Here, Mother argued that attribution was inappropriate because she was “engaged in reasonable career or occupational training” until she passed board exams that would enable her to find employment as a dental hygienist. But the family court attributed minimum wage, it did not attribute an earning capacity only available upon completion of the occupational exams. The Court of Appeals found this was reasonable and within the family court’s discretion.
Mother also contested the figure the family court used for Father’s income. She argued that Father was voluntarily underemployed and that the family court should have included bonuses available at Father’s current job.
Father testified that he left his previous job for a new opportunity with greater pay and better work-life balance, but that job offer was ultimately rescinded by the employer. At that point, Father was unable to return to his previous job so he accepted a different position where he earned a higher base salary.
The family court found that this was reasonable and did not constitute voluntary underemployment. Based on his testimony, Father’s previous job required about 100 hours per week and the family court noted that “the Guidelines do not require Father to work overtime.” Again, the Court of Appeals found this determination to be reasonable and within the family court’s discretion.
Mother also argued that the family court improperly weighed the best interest factors when it modified parenting time. The Court of Appeals interpreted Mother’s arguments to essentially request reconsideration of the evidence. This is never the role of the Court of Appeals. Anyone considering an appeal should understand that it is not an opportunity to reweigh evidence or witness credibility. The Court of Appeals simply reviews the trial record to determine if any reversible error prejudiced the party who filed the appeal.