Temporary Family Support
The parties were married in 2007 and had four children together. In 2016, Mother filed for divorce. At that time, Father earned $10,000 and an additional $10,000 worth of company per month.
The family court ordered Father to pay Mother $4,000 per month and to directly pay some of her living expenses as temporary “family support.” Approximately a month later, Father’s employment was terminated. When he failed to meet his monthly support obligation, Mother filed a petition to enforce the temporary orders. The parties agreed to slightly modify the temporary orders to relieve Father of the obligation to pay living expenses in exchange for $3,000 of monthly spousal maintenance and $3,000 of monthly child support.
Spousal Maintenance and Child Support Hearings
In January 2018, the family court held a trial to address spousal maintenance on a final basis. Because this case was a Title IV-D case, which means that at least one party received state assistance, the court referred the child support issue to specialty court to be handled by a IV-D commissioner.
At trial, the family court rejected Father’s argument that he could earn only $500 per month. Based on the information Father disclosed, it was unable to accurately determine his current income so it attributed income based on his historical earning capacity of between $100,000 – $150,000 per year. It awarded Mother spousal maintenance of $2,500 per month for three years.
At the child support hearing, Father claimed he earned $2,000 per month. However, the court concluded there was evidence of change in circumstances between the spousal maintenance trial and the child support hearing, so it used the same income attribution to calculate child support.
Income Attributed to Underemployed Parent
Father appealed and argued that the family court’s income attribution was unsupported by evidence. He pointed to his testimony that he earned just $500 per month plus variable commissions and exhibits he admitted including three paystubs from 2017 and three bank statements that all reflected sums less than $500 per month.
But Father failed to provide an updated affidavit of financial information. Without this or other evidence to more completely document Father’s financial circumstances, the family court was left to fill in the blanks regarding Father’s ability to pay spousal maintenance.
The Court of Appeals found that the family court thoroughly considered Father’s current circumstances and soundly reasoned that Father’s experience justified the attribution of his most recent historical income.
Father also argued that because his employment was involuntarily terminated, that the Arizona Child Support Guidelines limited income attribution to minimum wage. The Court of Appeals disagreed and explained that income attribution beyond minimum wage is not conditioned solely on voluntary unemployment or underemployment. In other words, family courts still may attribute income even when a parent is involuntarily unemployed.
The Court of Appeals emphasized that Father was given an opportunity at the child support hearing to present evidence of circumstances that changed after the spousal maintenance trial. Father could have provided current bank statements, pay stubs, tax returns, or other documentation to urge the court to reconsider the previous income attribution. Instead, he relied only on his testimony which was contradicted by Mother’s testimony and evidence.
Notably, Mother admitted a photograph Father sent depicting Father holding what appeared to be several thousand dollars in cash. This may not have been outcome-determinative by itself but it is a great example of how litigants can severely damage their case.
Overall, the Court of Appeals found sufficient evidence existed to support the income attributed for both spousal maintenance and child support.