Jares v. Hartman

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JESSICA H. JARES, Petitioner/Appellee,

v.

BRANDON HARTMAN, Respondent/Appellant.

No. 1 CA-CV 16-0435 FC
FILED 5-4-2017

Appeal from the Superior Court in Maricopa County
No. FC2015-006937
The Honorable Suzanne E. Cohen, Judge

AFFIRMED

COUNSEL

Bert L. Roos, Phoenix
Counsel for Respondent/Appellant

The Murray Law Offices, Scottsdale
By Stanley David Murray
Counsel for Defendant/Appellee

JARES v. HARTMAN
Decision of the Court

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which Chief
Judge Michael J. Brown and Judge Maurice Portley joined.1

O R O Z C O, Judge:

¶1 Brandon Hartman (Father) appeals the family court’s order of
child support. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Jessica Jares (Mother) are the parents of two minor
children. Mother filed a petition to establish legal decision-making
authority, parenting time, and child support in August 2015. Father
responded, asserting that no child support was necessary because the
parents share equal parenting time.

¶3 The matter was set for a resolution management conference
in January 2016. Mother filed a proposed resolution statement and noted
that Father had not disclosed the financial information necessary for
calculating the proposed child support. Father did not file a proposed
resolution statement.

¶4 At the resolution management conference, the parties agreed
to paternity, joint legal decision-making, and equal parenting time; the
issue of child support was set for trial. The court directed Mother’s counsel
to prepare a stipulated judgment and order based on the agreement of the
parties.

¶5 In March 2016, Mother filed a motion to set trial regarding
child support, and asserted Father had failed to disclose his financial
information and she had served him with formal discovery requests. The
family court then issued an order directing both parties to exchange and
bring to court certain financial information necessary for determining child

1 The Honorable Patricia A. Orozco and Honorable Maurice Portley,
Retired Judges of the Court of Appeals, Division One, have been authorized
to sit in this matter pursuant to Article VI, Section 3 of the Arizona
Constitution.

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JARES v. HARTMAN
Decision of the Court

support. The order specified that disclosure of the financial information for
the past three years was to be exchanged at least two week before trial.

¶6 Mother provided her financial disclosure with attachments,
but Father’s financial information affidavit was incomplete and did not
include recent pay stubs or income tax information.

¶7 Mother submitted a pretrial statement one week before trial
and again noted that Father failed to comply with the court’s order
regarding his financial disclosure. In addition, Mother included a request
that child support be determined retroactively to the date of the parents’
separation, September 2013. Father did not file a pretrial statement or
comply with the court’s order.

¶8 Both Mother and Father testified at the child support hearing.
Mother submitted documentation that Father was earning approximately
$75,000 per year based upon his deposits of over $100,000 in 2015 and
estimated expenses consistent with Father’s 2014 tax return. Father
disagreed with this calculation and testified that he earns approximately
$3,300 to $3,400 per month and that “my bank statements reflect a lot of
money, but it’s not my money. It’s money that I have to give to other
people.” He explained that as a remodeler, “I get a check from a customer.
It costs me money for the cabinet guy, the glass guy, the flooring guy.”
Father did not present any financial information for consideration during
trial.2

¶9 The family court found that Father would be attributed the
sum of $6,000 per month as income, resulting in child support of $455.18
per month beginning June 1, 2016. The court also ordered Father to pay
past child support from September 2013, the date of separation, until May
2016. Because Father failed to present any evidence of his past earnings,
the court attributed the same $6,000 per month as Father’s monthly income,
resulting in arrearages of $12,571.20.

2 Father attempted to admit what was marked for identification as
Exhibit 19 into evidence, but the court sustained an objection based on
Father’s untimely disclosure.

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JARES v. HARTMAN
Decision of the Court

¶10 Father timely appealed and we have jurisdiction pursuant to
Arizona Revised Statutes (A.R.S.) section 12-2101.A.1.3

DISCUSSION

¶11 Father argues the family court abused its discretion by
“ignoring the evidence, assuming facts not in evidence, and attributing
income to [Father] greater than supported by the evidence in calculating
current child support.” We review an award of child support for an abuse
of discretion. Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994) (“An
award of child support is left to the sound discretion of the trial court and
will not be disturbed on appeal absent an abuse of discretion.”). An abuse
of discretion exists when the record, viewed in the light most favorable to
upholding the trial court’s decision, is “devoid of competent evidence to
support” the decision. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999) (internal
quotations and citation omitted).

¶12 In calculating child support, the Arizona Child Support
Guidelines, A.R.S. § 25–320, require a court to consider the gross income of
each parent—“the actual money or cash-like benefits received by the
household which is available for expenditures.” Cummings, 182 Ariz. at 385.

¶13 In this case, the court ordered all discovery and disclosures
completed by May 6, 2016. Despite repeated requests from Mother for
Father’s financial information and records, Father only disclosed the
following to Mother: (1) a 1099 for 2015 in the amount of $4,635; (2) a
“Transaction Detail for Point One Construction, Inc.,” which indicated
Father was compensated $39,411; and (3) a portion of Father’s 2014 tax
documents. Mother already had in her possession Father’s bank records,
including his 2015 deposit history indicating net total deposits of
$101,096.44, or an average of $8,424.70 per month. At trial, however, Father
testified that he only makes about $3,300 to $3,400 per month. The court
considered Father’s argument that he only earns $3,400 per month, but
noted that the only evidence offered to support his claim, “was his
testimony.”

¶14 Father argues the court erred by using the 2014 tax
information to estimate his 2015 expenses; however, he failed to submit any

3 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

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JARES v. HARTMAN
Decision of the Court

evidence of his 2015 expenses, and testified he had neither prepared nor
disclosed his 2015 tax documents.4 The court, like Mother’s pretrial
statement, had to use the 2014 return as guidance for his expenses.
Accordingly, because Father knew his income and expenses would be used
to calculate child support, but failed to provide current information of
income or expenses, or failed to object to Mother’s pretrial statement, the
court did not abuse its discretion by admitting and relying on the exhibits
Mother presented to attribute income to him.5

¶15 Father next argues that the family court abused its discretion
by calculating retroactive child support prior to the filing of the petition
because Mother did not make that request in the petition and there was
insufficient evidence for an accurate calculation. Father, however, did not
argue lack of notice on the issue of retroactive child support to the family
court. We will not examine an issue first raised on appeal. Cullum v.
Cullum, 215 Ariz. 352, 355 n.5, ¶ 14 (App. 2007). Consequently, we find no
abuse of discretion.

¶16 Further, Mother raised the issue in her pretrial statement,
asserting that “Father has not provided Mother with any consistent
financial support for the minor children since the parties’ separation in 2013
. . . . Therefore, pursuant to A.R.S. § 25-320.C. Mother asserts an order of
past support is due . . . . Mother seeks past support for a period of three
years, in addition to the entry of an order for Father’s current obligation.”
As a result, Father had notice that Mother was seeking to recover past child
support, and did not raise any objection in the family court. See Leathers v.
Leathers, 216 Ariz. 374, 378, ¶19 (App. 2007) (“The pretrial statement
controls the subsequent course of the litigation.” (internal quotations and
citation omitted)); see also Nold v. Nold, 232 Ariz. 270, 274, ¶20 (App. 2013)
(deciding where separate pretrial statements are filed, trial court can rule
on an issue so long as it is presented in one of the parties’ pretrial
statements).

¶17 Finally, Father failed to present any evidence about his
income between the separation of the parties and the filing of the petition.

4 Father’s tax documents for the past three years were ordered to be
produced by the court, but were not attached to his Affidavit of Financial
Information, or admitted at trial.

5 Father argues that the court erred by refusing to consider Father’s
Affidavit of Financial Information but the affidavit contained no supporting
documentation, and was not offered or admitted into evidence at trial.

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JARES v. HARTMAN
Decision of the Court

As a result, the court did not abuse its discretion by determining Father’s
attributed gross income to calculate past child support pursuant to A.R.S. §
25-320.C.

CONCLUSION

¶18 For the foregoing reasons, we affirm. Both parties request
attorneys’ fees on appeal pursuant to A.R.S. § 25–324. In the exercise of our
discretion, we deny their requests. As the prevailing party, Mother is
entitled to her taxable costs on appeal upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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