Hieger v. Hieger

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of:

CARMEN LYNN HIEGER, Petitioner/Appellant,

v.

BRIAN MATTHEW HIEGER, Respondent/Appellee.

No. 1 CA-CV 17-0753 FC
FILED 8-30-2018

Appeal from the Superior Court in Maricopa County
No. FC2011-004930
The Honorable Stephen M. Hopkins, Judge

AFFIRMED

COUNSEL

Stewart Law Group, Chandler
By Dianne Nicole Sullivan
Counsel for Petitioner/Appellant

Brian Matthew Hieger, Gilbert
Respondent/Appellee
 HIEGER v. HIEGER
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Maria Elena Cruz joined.

C A T T A N I, Judge:

¶1 Carmen Blevins (“Mother”) appeals from the superior court’s
denial of her motion to modify parenting time and legal decision-making,
its determination of her gross income for purposes of child support, and its
award of attorney’s fees to Brian Hieger (“Father”). For reasons that follow,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father’s 2012 divorce decree specified joint legal
decision-making and equal parenting time of their minor children, F.H.,
C.H., and J.H. In 2014, Father petitioned to modify legal decision-making
and parenting time, arguing Mother’s alleged inadequate supervision,
parental alienation, and refusal to follow court orders were a change of
circumstances justifying modification of the parenting plan. On Father’s
motion, the superior court appointed a behavioral health professional to
conduct a comprehensive family evaluation (“CFE”) to assist in considering
Father’s request to modify legal decision-making and parenting time.
Ultimately, the superior court concluded that a sufficient and material
change of circumstances justified modifying the parenting plan, but the
court nevertheless determined that joint legal decision-making was still in
the children’s best interests. The court determined that equal parenting
time was still best for J.H., and the parties agreed that C.H. would reside
with Father.1

¶3 In 2017, while in Father’s care, J.H. left Father’s house, was
later found at Mother’s house, and refused to return to Father’s house.
Mother allowed J.H. to stay at her house and refused to assist Father in
exercising his parenting time. Father then filed a petition to enforce
parenting time, and in response, Mother filed a petition for modification of
legal decision-making, parenting time, and child support. Mother also

1 F.H. turned 18 before Father’s petition for modification was filed.

2
 HIEGER v. HIEGER
Decision of the Court

petitioned the court to interview J.H. “pursuant to A.R.S. § 25-403(A)(4)”
before ruling. The court declined to do so.

¶4 Mother renewed her request for the court to interview J.H. at
the evidentiary hearing, asserting that it was required under § 25-403(A)(4).
The court again denied Mother’s request to interview J.H., reasoning that
14-year-old J.H. was not of suitable age. Ultimately, the court denied
Mother’s petition to modify parenting time and legal decision-making,
finding that a modification was not in J.H.’s best interests. The court
modified child support, finding that Mother had $9,000 of additional
monthly income from a rental property that she had failed to report, and
awarded Father his reasonable attorney’s fees and costs. The court deferred
determination of the amount of attorney’s fees to be awarded pending
submission of appropriate documentation.

¶5 The court certified its minute entry as a final, appealable order
under Arizona Rule of Family Law Procedure 81 even though the court had
not yet determined the amount of Father’s attorney’s fees. Mother timely
filed her notice of appeal before the court determined the amount of
Father’s attorney’s fees. She did not file a subsequent notice of appeal.
Accordingly, we have jurisdiction to consider the merits of the issues
resolved in the minute entry, including the denial of Mother’s petition to
modify, see A.R.S. § 12-2101(A)(2), but we lack jurisdiction to consider the
award of Father’s attorney’s fees because the notice of appeal as to
attorney’s fees was premature. See Craig v. Craig, 227 Ariz. 105, 107, ¶ 13
(2011).

DISCUSSION

I. Alleged Failure to Consider Child’s Wishes.

¶6 According to Mother, the superior court erred by not
considering the wishes of J.H. when it determined legal decision-making
and parenting time. We review determinations of legal decision-making
and parenting time for an abuse of discretion. Nicaise v. Sundaram, 244 Ariz.
272, 278, ¶ 16 (App. 2018).

¶7 Determinations of legal decision-making and parenting time
must be made “in accordance with the best interests of the child.” A.R.S. §
25-403(A). To determine the best interests of the child, the court must
consider all relevant factors, including “the wishes of the child” if the child
is “of suitable age and maturity.” A.R.S. § 25-403(A)(4).

3
 HIEGER v. HIEGER
Decision of the Court

¶8 Here, Mother has not shown that the superior court failed to
consider J.H.’s wishes. The CFE noted that Mother inappropriately
involved the children in the case by presenting them with adult information
related to the dispute. Mother also engaged in alienating behavior,
allowing the children to refer to Father as “Brian” and fostering an
environment that caused the children to gain favor by making negative
comments about Father. The CFE further noted a concern that Mother was
coaching J.H. Moreover, the court was free to consider the fact that Mother
provided a much less structured environment than Father, which may have
tainted J.H.’s wishes. Accordingly, the court did not abuse its discretion by
declining to modify parenting time notwithstanding uncontested evidence
that J.H. wanted to live with Mother.

¶9 To the extent Mother argues that the superior court erred by
refusing to interview J.H., again she has shown no error. Although the
superior court may interview a child that is the subject of a legal decision-
making or parenting time dispute, see Ariz. R. Fam. Law P. 12(A), such an
interview is not required under A.R.S. § 25-403(A)(4). Accordingly, the
superior court did not err by declining to interview J.H.

II. Best Interests.

¶10 Mother next argues that the superior court erred by finding
that a modification of parenting time was not in J.H.’s best interests. Mother
asserts that the strained relationship between Father and J.H. demonstrates
both a change in circumstances and that modification of parenting time is
in J.H.’s best interests. However, Father and J.H.’s strained relationship
was not disputed, and Mother’s argument essentially asks us to reweigh
the evidence on appeal, which we will not do. See Hurd v. Hurd, 223 Ariz.
48, 52, ¶ 16 (App. 2009). Accordingly, the superior court did not abuse its
discretion by finding that modification of parenting time was not in J.H.’s
best interests.

III. Mother’s Income.

¶11 Mother finally argues that the superior court erred when it
determined her gross monthly income because it did not deduct expenses
from her rental income. We review for an abuse of discretion the superior
court’s determination of gross income for child support purposes. See
Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 7 (App. 2015).

¶12 Under § 5(C) of the Arizona Child Support Guidelines
(“Guidelines”), A.R.S. § 25-320 app., gross income includes “gross receipts
[from rental income] minus ordinary and necessary expenses required to

4
 HIEGER v. HIEGER
Decision of the Court

produce income.” Here, Mother owned rental property with an annual
lease agreement for $108,000. Although Mother claimed certain expenses
associated with the rental property—mortgage, inheritance tax, attorney’s
fees, and property taxes—she did not provide documentation
substantiating those expenses. Thus, the superior court’s determination of
her income was a credibility determination, to which we defer. See In re
Marriage of Foster, 240 Ariz. 99, 101, ¶ 5 (App. 2016). Moreover, Mother
initially failed to disclose her rental income, then denied the existence of a
written lease agreement, and then—even after being confronted with the
written lease—claimed that the lease was inaccurate and had been created
only to receive a loan. Accordingly, the superior court did not err when it
calculated Mother’s monthly income.

CONCLUSION

¶13 For the forgoing reasons, we affirm. After considering the
relevant factors under A.R.S. § 25-324, we deny Mother’s request for an
award of attorney’s fees on appeal; because she is not the prevailing party,
we also deny her request for costs on appeal. As the prevailing party,
Father is entitled to his costs on appeal upon compliance with ARCAP 21.

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

5