Vega v. Cipres

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAVIER MILLAN VEGA, Petitioner/Appellant,

v.

MANUELA ISLAS CIPRES, Respondent/Appellee.

No. 1 CA-CV 19-0335 FC
FILED 01-28-2020

Appeal from the Superior Court in Maricopa County
No. FC2018-007113
The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Michael L. Gertell LLC, Phoenix
By Michael L. Gertell
Counsel for Petitioner/Appellant

VEGA v. CIPRES
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 Javier Millan Vega (“Father”) appeals from the superior
court’s Decree of Dissolution of Marriage.1 For the following reasons, we
affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father and Mother were married in March 2008 and have
three minor children together. Father filed for divorce in September 2018,
and the court held an evidentiary hearing in March 2019.2 The court entered
a Decree of Dissolution of Marriage shortly after. The court found that
during the marriage, Father was the primary wage earner and Mother
worked to supplement the family’s income. The court also found that
Mother had the majority of responsibility for the children, which included
caring for their child with complex medical needs.

¶3 Accordingly, the court ordered that the children live
primarily with Mother, and it granted Father parenting time every

1 Manuela Islas Cipres (“Mother”) did not file an answering brief,
which we may, in our discretion, deem a confession of reversible error.
McDowell Mountain Ranch Cmty. Ass’n, Inc. v. Simons, 216 Ariz. 266, 269, ¶ 13
(App. 2007). We decline to exercise our discretion to do so.

2 In his opening brief Father explains there is no record of the March
2019 evidentiary hearing due to some likely audio recording error by the
superior court. When the record of proceedings is unavailable for some
unexpected reason, the proper procedure “is to file in the court in which the
appeal is pending, a motion to suspend the progress of the appeal and to
reinstate the [superior] court’s jurisdiction over the case for the limited
purpose of reconstructing the record.” Rodriquez v. Williams, 104 Ariz. 280, 283
(1969) (emphasis added). Here, Father did not so request. Therefore, in the
absence of a transcript, we assume the record supports the superior court’s
findings. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).

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weekend. Additionally, the court granted Mother $400 per month in child
support and $800 per month in spousal maintenance for a term of thirty-six
months.

¶4 Father timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes section 12-2101(A)(1).

DISCUSSION

¶5 Father argues the court incorrectly determined Father’s and
Mother’s incomes when calculating spousal maintenance and child
support, and the income the court attributed to both parties was not
supported by the evidence. The superior court is in the best position to
properly calculate an award of spousal maintenance and child support, and
it is given broad discretion in determining what is a reasonable amount.
Ruskin v. Ruskin, 153 Ariz. 504, 507 (App. 1987); Nash v. Nash, 232 Ariz. 473,
478, ¶ 16 (App. 2013). We view the evidence in the light most favorable to
upholding the superior court’s findings, and absent an abuse of discretion,
we will uphold those findings if supported by any reasonable evidence.
Mitchell v. Mitchell, 152 Ariz. 317, 323 (1987); Sherman v. Sherman, 241 Ariz.
110, 112-13, ¶ 9 (App. 2016).

I. Father’s Income

¶6 Father contends that he historically earned a significantly
lower income than the court attributed to him. The court found Father’s
earning ability to be $35 per hour full time or $72,240 annually. Father
argues there is insufficient evidence to support the court’s finding that he
had the ability to earn $72,240 annually, as the most Father has ever earned
was $64,680 with his previous employer, Steel Placers, in 2018. However,
Father does not contest that he was working full time and earning $35 per
hour with Steel Placers, until he left that employment mid-year for a lower-
paying job. Father alleged he left this job due to health reasons, including
diabetes and back problems, and that he was currently only capable of
earning minimum wage.

¶7 A court may decline to attribute income to an individual if
that person is physically disabled. Sherman, 241 Ariz. at 113, ¶ 12.
However, here, the court believed Father to be underemployed and
“financially motivated” to maintain that status as a result of these
proceedings, and it did not find him to be credible in regard to the reasons
he left his employment with Steel Placers. Father failed to present credible
evidence, such as medical documentation, to support his claim that he was
physically unable to earn more than minimum wage. The court noted that

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Father testified he presently was involved in physical, construction-related
work, which was similar to the work he had performed at Steel Placers.
Father also did not include his most recent pay stubs in his Affidavit of
Financial Information (“AFI”), and while Father’s opening brief concedes
he earned $64,680 in 2018, Father’s AFI states his gross monthly pay with
Steel Placers was only $2,980.78. Thus, it was appropriate for the court to
conclude that Father was not completely forthcoming in his testimony
regarding employment and earning abilities. See Goats v. A.J. Bayless Mkts.,
Inc., 14 Ariz. App. 166, 171 (1971) (“The trial court is in the best position to
judge the credibility of the witnesses, the weight of evidence, and also the
reasonable inferences to be drawn therefrom.”).

¶8 Reasonable evidence in the record supports the court’s
finding that Father was voluntarily underemployed. When an individual
is found to be underemployed or working below his full earning capacity,
the superior court may attribute his prior income to him in calculating
spousal maintenance and child support. See Pullen v. Pullen, 223 Ariz. 293,
299, ¶ 26 (App. 2009); see also Little v. Little, 193 Ariz. 518, 521, ¶ 6 (1999).
On this record, the court did not abuse its discretion in finding that Father
had the ability to earn $35 per hour, or $72,240 annually.

II. Mother’s Income

¶9 Father next argues that the court abused its discretion in
calculating Mother’s gross income. The court found that Mother had the
ability to work thirty hours per week at $11.50 per hour. Father argues that
Mother regularly worked forty hours per week and had listed $1,907.67 for
her gross monthly income on her Proposed Resolution Statement.
However, the court found that Mother would have the majority of
responsibility for the children, and Father worked in Tucson, which
precluded him from assisting Mother during the week. Further, one of the
children has complex medical needs for muscular dystrophy, epilepsy,
asthma, dysphagia and feeding disorder with G Tube dependent feeding,
and bilateral hearing loss. The court found that under these circumstances,
Mother would be precluded from working a full-time schedule. We find
no abuse of discretion in the court’s findings relative to Mother’s earning
capacity.

III. Social Security Payments

¶10 Father also argues that the court erred in its consideration of
social security payments Mother received when determining child support.
“The superior court has broad latitude to fashion an appropriate award of

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child support.” Nash, 232 Ariz. at 478, ¶ 16. We will uphold the award
unless it is “devoid of competent evidence.” Jenkins v. Jenkins, 215 Ariz. 35,
37, ¶ 8 (App. 2007) (citation omitted) (internal quotation marks omitted).

¶11 Mother receives monthly social security payments for one of
the parties’ children, and the court appropriately deviated from the Arizona
Child Support Guidelines (“Guidelines”) to account for these payments.
The court found that under the Guidelines, Father would be obligated to
pay $610 per month for all three of their children. However, because
Mother receives social security payments to provide for one of their
children, the court reduced Father’s obligation by one-third, to the amount
of $400 per month.

¶12 Father claims that the court erred because it did not deduct
the actual amount of the social security payment from $610 when
computing Father’s child support obligation. However, Mother receives
the social security payments to provide for the needs of only one of the
children; the payments do not account for the needs of the other two
children. Thus, the court credited the social security payments
appropriately.

CONCLUSION

¶13 For the foregoing reasons, we affirm. Father requests his
reasonable attorneys’ fees and costs on appeal. In the exercise of our
discretion, we decline to grant his request.

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

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