Galvan v. Duarte

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARMEN LOPEZ DE GALVAN,
Petitioner/Appellee,

v.

MARTIN GALVAN DUARTE,
Respondent/Appellant.

No. 1 CA-CV 19-0471 FC
FILED 4-16-2020

Appeal from the Superior Court in Maricopa County
No. FC2018-003163
The Honorable Bradley H. Astrowsky, Judge

AFFRIMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Michael L. Gertell LLC, Phoenix
By Michael L. Gertell
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Kenton D. Jones and Judge D. Steven Williams joined.

B R O W N, Judge:

¶1 Martin Galvan Duarte (“Husband”) appeals from the
superior court’s decree of dissolution of his marriage to Carmen Lopez De
Galvan (“Wife”). He challenges the court’s division of property and the
child support award. For the reasons that follow, we vacate the child
support award and remand for proceedings consistent with this decision.
We otherwise affirm the decree.

BACKGROUND

¶2 Husband and Wife were married in June 1988. Wife filed a
petition for dissolution in August 2018. The couple had one child who was
still a minor. After an evidentiary hearing, the superior court entered a
decree of dissolution and, as relevant here, ordered Husband to pay Wife
$553 per month for child support and $600 per month for three years for
spousal maintenance. The court awarded the couple’s marital residence in
Tolleson to Husband and their house in Sonora, Mexico, to Wife. Husband
timely appealed.

DISCUSSION

¶3 Husband argues the superior court abused its discretion by
awarding Husband only $18,000 for his community interest in the Sonora
property and understating Wife’s income when calculating his child
support obligation. Wife did not file an answering brief.1

1 We could treat Wife’s failure to file an answering brief as a
confession of reversible error; instead, we exercise our discretion to
consider Husband’s arguments on the merits. See Lopez v. Barraza, 150 Ariz.
291, 292 (App. 1986).

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Decision of the Court

A. Value of Sonora Property

¶4 Husband argues that the superior court incorrectly valued the
Sonora property and thus erred by awarding him $18,000 for his
community interest in the property.

¶5 We review the superior court’s division of property for an
abuse of discretion. Day v. Day, 20 Ariz. App. 472, 473 (1973). “The
determination of issues of credibility and the resolution of conflicting
evidence . . . are . . . functions of the trial court.” Lee v. Lee, 133 Ariz. 118,
123 (App. 1982). We view the evidence most favorably to upholding the
superior court’s judgment. Id.

¶6 Before trial, Husband and Wife agreed Wife would receive
the Sonora property and pay Husband $18,000 for his community property
interest. She did so. Husband then filed a pretrial statement asserting he
obtained an appraisal indicating the property was worth more than the
$36,000 Wife had told him it was worth. The appraisal report indicated the
property was worth $1,475,000 pesos.2

¶7 Husband and Wife were the only witnesses at trial. The
superior court heard testimony from Husband that based on the appraisal
report, he believed the Sonora property was worth more than twice as much
as he had thought when he agreed to accept $18,000 from Wife for his
interest in the property. Wife testified she had believed her half of the
property was worth $15,000 “without an appraisal or anything,” and she
initially planned to “sell” her interest in the property to Husband for
$15,000 but later decided she wanted to keep the property. According to
Wife, Husband told her he wanted $20,000 for his interest in the property
but they settled on $18,000 and finalized the “documents” and
“paperwork” at a bank. Addressing Husband’s appraisal, Wife testified
that “in Mexico, you can buy a lot of things. You can buy an appraiser to
have them say that a property is worth more.”

¶8 The superior court awarded the Sonora property to Wife,
finding that Husband’s community interest in the property was $18,000.
The court explained that Wife “already paid [Husband] $18,000 for his
interest in [the Sonora] property per the agreement of the parties. No
credible evidence was presented to demonstrate that this property is worth
more than previously agreed upon by the parties.” On appeal, Husband

2 In his opening brief Husband asserts that the property was worth
$77,082.71 in U.S. dollars. He testified, however, that it was worth $82,000.

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argues the court ignored the appraisal report and failed to recognize that
Wife did not present any evidence of the value of the Sonora property or
dispute the value set forth in the appraisal.

¶9 Wife testified she believed half of the property was worth
$15,000 but she agreed to pay Husband $18,000 after he requested $20,000.
Wife’s testimony demonstrated that she did not agree with the appraisal.
The superior court did not accept Husband’s valuation as credible and was
free to reject it. Accordingly, we affirm the court’s order finding that
Husband’s interest in the Sonora property was $18,000.

B. Determination of Wife’s Income

¶10 “We review child support awards for abuse of discretion,”
and “accept the court’s factual findings unless clearly erroneous but review
de novo the court’s conclusions of law and interpretation of the Arizona
Child Support Guidelines . . . .” Sherman v. Sherman, 241 Ariz. 110, 112–13,
¶ 9 (App. 2016).

¶11 Husband argues the superior court erred when it determined
Wife’s gross monthly income for awarding child support because the court
did not include Wife’s rental income or the $600 per month in spousal
maintenance the court ordered Husband to pay Wife.3

¶12 Wife, who was age 52 at the time of the decree, testified she
was capable of working and earning minimum wage. She also explained
that she receives $200 per month in rental income from the Sonora house.
According to Husband, the rental income was $250 per month, but neither
party submitted supporting documentation.

¶13 For purposes of determining child support, gross income
includes income from any source, including spousal maintenance and
rental income. A.R.S. § 25-320 app. § (5)(A), (C). The superior court
imputed to Wife $1906.67 in gross monthly income (minimum wage at 40
hours per week). The court subtracted $600 per month from Husband’s

3 We reject Husband’s conclusory assertion that had the superior court
considered Wife’s rental earnings “it could likely have changed the amount
that Husband was ordered to pay for spousal maintenance.” The court
referenced the Sonora property in its spousal maintenance findings and
heard evidence of the property’s rental income. Husband has not identified
anything in this record suggesting the court failed to consider that income
as part of its spousal maintenance award. Thus, we will not presume the
court ignored it.

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income for spousal maintenance paid but did not add $600 to Wife’s income
for spousal maintenance received. Thus, the court erred by not including
the spousal maintenance in Wife’s income. Additionally, although the
parties disagreed on the amount Wife received in rental income from the
Sonora property ($200 vs. $250), it was undisputed that she received rental
income. Nor does the record include any evidence of rental expenses. The
court erred by not including Wife’s rental income when calculating child
support. On remand, the court must account for these discrepancies and
re-calculate Husband’s child support obligation.

CONCLUSION

¶14 We vacate the child support award and remand for further
proceedings consistent with this decision. The remainder of the decree is
affirmed. We deny Husband’s request for an award of attorneys’ fees
because he cites only to ARCAP 21, which does not provide a substantive
basis for a fee award. See ARCAP 21(a)(2) (an appellate court may decline
to award fees when a party fails to state pertinent authority). Because both
parties have partially prevailed on appeal, we decline to award costs to
Husband. See Valento v. Valento, 225 Ariz. 477, 484, ¶ 25 (App. 2010).

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

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