Nebeker v. Harris

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KEVIN NEBEKER, Petitioner/Appellant,

v.

TIFFANY DIANE HARRIS, Respondent/Appellee.

No. 1 CA-CV 19-0563 FC
FILED 3-16-2021

Appeal from the Superior Court in Maricopa County
No. FC2018-052500
The Honorable Alison Bachus, Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

COUNSEL

Fowler St. Clair, PLLC, Scottsdale
By Benjamin S. Kuipers
Counsel for Petitioner/Appellant

Riggs Ellsworth & Porter, PLC, Mesa
By Paul C. Riggs, Spencer T. Hale
Counsel for Respondent/Appellee

NEBEKER v. HARRIS
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

C R U Z, Judge:

¶1 Kevin Nebeker (“Father”) appeals several rulings in the
decree dissolving his marriage to Tiffany Diane Harris (“Mother”). He also
appeals the lack of findings in a temporary parenting time order and the
partial denial of two petitions to hold Mother in contempt. The temporary
order and contempt rulings are not appealable. We reverse the portion of
the decree denying Father’s claim of his share of $12,000 Mother withdrew
from a community bank account and remand for reconsideration of that
claim. In all other respects, we affirm the decree.

FACTUAL AND PROCEDURAL HISTORY

¶2 The parties lived with their three children in Arizona until
March 2018, when they mutually decided to move to Utah where they both
have family. Mother moved first because she found a job in Utah as a real
estate agent. Father was not working at that time and planned to bring the
children to Utah soon thereafter. Instead, Father remained in Arizona and
petitioned for dissolution in superior court. Father claimed he stayed in
Arizona because Mother planned to file for divorce in Utah.

¶3 Mother responded to the dissolution petition and separately
petitioned for a temporary order allowing her to relocate the children to
Utah. The superior court entered a temporary order for joint legal decision-
making authority, designating Mother primary residential parent in Utah,
and providing long-distance parenting time for Father. Father moved to
Utah later that summer.

¶4 After he moved, Father petitioned to modify the temporary
order, asking for equal parenting time and final authority for education
decisions, alleging that Mother made unilateral decisions. Father also
alleged that Mother was in contempt of the temporary joint legal decision-
making order because she refused to communicate regarding schooling,
refused to disclose her new address, and failed to complete the parenting
class. The court deferred ruling on both petitions until the trial. The court

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also denied Father’s motion to set a temporary orders hearing, finding it
was actually a motion to modify the existing temporary orders and holding
a second temporary orders hearing a few weeks before the upcoming trial
was not in the interests of judicial economy.

¶5 The parties agreed to continue the trial several months to
April 2019, and Father again asked to modify the temporary parenting time
and child support orders to reflect that he now lived in Utah and exercised
more parenting time. Father filed a second contempt petition, again
alleging Mother’s unilateral decision-making; her refusal to communicate
and cooperate; and her failure to provide health insurance for the children,
advise Father of her new address, and complete the parenting class. This
too was deferred to trial, but the court scheduled a hearing on Father’s
petition to modify the temporary orders. Before that hearing, however, the
parties agreed to equal parenting time and to adjust Father’s child support
obligation accordingly. The court entered an order adopting this
agreement.

¶6 Following the April 18, 2019 trial, the superior court entered
a decree ordering joint legal decision-making authority and giving Mother
final authority over education decisions. The court granted Mother’s
request to permanently live with the children in Utah. The court found
Mother in contempt for failing to complete the parent education class and
failing to obtain medical insurance for the children but did not find her
other actions contemptuous. The court denied Father’s claim for his share
of $12,000 that Mother withdrew from a community bank account, finding
that Father failed to show that Mother used the funds for non-community
purposes. Finally, the court ordered the parties to pay their own attorneys’
fees.

¶7 The superior court denied Father’s post-decree motion to
amend the child support order based on Mother’s income and his motion
to clarify reimbursement for the child support overpayment. Father timely
appealed from the decree and these post-decree orders. We have
jurisdiction over the appeal from the decree and post-decree orders under
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1) and (2). We
address our jurisdiction over the other rulings below.

DISCUSSION

I. The Temporary Order Is Not Appealable.

¶8 Father contends the temporary order does not contain the
statutorily required findings addressing the best interests and relocation

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factors and that it is not supported by the evidence. See A.R.S. §§ 25-403,
25-408. Temporary orders are not appealable. Gutierrez v. Fox, 242 Ariz.
259, 264, ¶ 12 (App. 2017). The proper challenge to a temporary order is by
special action, and Father failed to bring a special action. We may, in our
discretion, accept special action jurisdiction sua sponte. See Danielson v.
Evans, 201 Ariz. 401, 411, ¶ 35 (App. 2001). However, we decline to do so
here because the superior court later reconsidered legal decision-making
authority, parenting time, and relocation based on additional evidence and
testimony presented at trial, and Father has appealed that ruling. See
DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 337 (App. 1995).

II. The Record Supports the Final Relocation Order.

¶9 We review the superior court’s decision on a relocation
petition for an abuse of discretion. Murray v. Murray, 239 Ariz. 174, 176, ¶ 5
(App. 2016). An abuse of discretion exists when the record, viewed in the
light most favorable to affirming the orders “is ‘devoid of competent
evidence to support’ the decision.” Little v. Little, 193 Ariz. 518, 520, ¶ 5
(1999) (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)). In determining
whether to allow a parent to relocate, the court must consider all the
relevant factors set forth in A.R.S. § 25-408(I), which includes a
determination of the children’s best interests under § 25-403(A). “The
burden of proving what is in the child[ren]’s best interests is on the parent
who is seeking to relocate the child[ren].” A.R.S. § 25-408(G).

¶10 At the outset, we reject Father’s claim that the superior court
erroneously placed the burden of proof on him. The court expressly stated
that Mother had to prove the relocation was in the children’s best interests.

¶11 Father argues the superior court ignored or discounted
evidence weighing against the relocation to Utah. The court of appeals does
not reweigh the evidence presented to the superior court, but instead defers
to that court’s determination of witness credibility and the weight to give
conflicting evidence. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App.
2019); Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015).

¶12 Father contends the court ignored evidence showing the
relocation would not improve the general quality of life for the children or
Mother. See A.R.S. § 25-408(I)(3). Father highlights evidence showing the
positive aspects of living in Arizona. However, the record supports the
finding that the move will improve Mother’s quality of life because she has
extended family there, along with her new fiancée and new baby. Father
points to evidence that Mother could earn more as a real estate agent in

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Arizona. The court considered this evidence, and we will not reweigh how
the court balanced these competing concerns. Lehn, 246 Ariz. at 284, ¶ 20.

¶13 The court found the children’s quality of life will not suffer
despite a change in their school, church, and friends. See A.R.S. § 25-
408(I)(3). Father argues the court “downplayed” the fact that the move to
Utah caused the children’s grades to suffer. Although the older two
children’s grades have fluctuated after the move to Utah and one child had
some classroom behavior problems, the court heard testimony that the
child had similar behavior challenges in Arizona. The court heard
testimony that Father’s regular involvement helped with the children’s
school performance. For these reasons we reject Father’s contention that
the evidence shows that the move negatively affected their quality of life
and emotional, physical, or developmental needs. See A.R.S. § 25-408(I)(3),
(6). Rather, it shows the importance of having both parents involved on a
regular basis and living in the same city.

¶14 Father also contends the move was harmful to the children’s
emotional, physical, or developmental needs because Mother allowed
contact between the youngest child and another child who had previously
sexually abused him. See A.R.S. § 25-408(I)(6). Mother testified that the
abuse occurred two years before and that any contact between the two
children is supervised. Additionally, Father did not dispute Mother’s
testimony that after the incident the children spent time together in Arizona
at the marital residence without his objection. Thus, the court did not abuse
its discretion when it considered this evidence under A.R.S. § 25-403(A)(8)
and concluded that a no-contact order would adequately protect the child.

¶15 Although two of the children expressed a desire to live in
Arizona, Father agreed before the divorce that the family should move to
Utah even though it would require a change in school, church, and other
activities. This detracts from his argument that the move was contrary to
the children’s best interests. Father testified that he would remain in Utah
if the court granted a permanent relocation. This would allow for equal
parenting time, which the court found to be in the children’s best interests.
The record supports the relocation decision.

III. The Record Supports Awarding Mother Final Decision-Making
Authority for Education.

¶16 Father argues that the superior court abused its discretion by
failing to state any basis for awarding Mother final say on education issues.
However, the court expressly stated that an award of final decision making

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on education issues was necessary because of the parties “persistent conflict
about education.” Given the parties’ inability to coparent or communicate,
the court was within its discretion to choose one parent. See A.R.S. § 25-
401(2); Nicaise v. Sundaram, 245 Ariz. 566, 568-69, ¶¶ 14-15 (2019).

¶17 The best-interests findings, as a whole, informed the superior
court’s decision to award final authority to Mother for education issues. For
example, both parties failed to reasonably communicate with each other or
consider the other parent’s views. Although Mother did not include Father
when choosing the children’s school, she did so on the advice of counsel
and because she did not know Father had moved to Utah when she enrolled
the children in her neighborhood school. She also testified that she enrolled
them in a school not far from the neighborhood that Father suggested.
Father argues the decline in the children’s grades should weigh against
Mother’s having the final say, but the court reasonably concluded the
academic issues were a result of the parents’ conflict, the lack of a consistent
parenting time schedule, and not entirely Mother’s fault. Lastly, Father
argues that because Mother failed to pay school enrollment fees, she should
not get final authority for education issues. However, Mother testified that
she only learned of the unpaid fees a few days before the trial.

¶18 In short, the record shows that both parents are involved in
the children’s daily lives, yet they cannot communicate or coparent and
education was a particularly contentious issue. We cannot say, on balance,
that the court abused its discretion in awarding Mother final authority.1

IV. Denial of Contempt Allegations is Not Appealable.

¶19 Father filed two contempt petitions before trial based on
Mother’s alleged violation of several temporary orders. The superior court
granted these petitions in part, finding Mother in contempt for failing to
obtain medical insurance for the children and failing to complete the
parenting class in a timely manner. Father contends the court ignored
significant evidence in denying the remainder of the contempt allegations.
We lack jurisdiction to consider an appeal from the denial of a petition for
contempt. See Eans-Snoderly v. Snoderly, 249 Ariz. 552, 555, ¶ 8 (App. 2020).

1 Father argues for the first time in his reply brief that the evidence did
not support the finding that he would exclude Mother. We do not consider
issues raised for the first time in a reply brief. See Johnson v. Provoyeur, 245
Ariz. 239, 243, ¶ 13 n.5 (App. 2018).

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V. The Superior Court Did Not Abuse its Discretion by Failing to Order
Immediate Reimbursement for Father’s Child Support
Overpayment.

¶20 After Father moved from Arizona to Utah and began
exercising equal parenting time, he petitioned to modify the parenting time
orders to reflect this change. The court later entered a stipulated order
modifying Father’s child support obligation to reflect his equal parenting
time. The decree also reduced Father’s child support obligation from
$1,262.19 to $286 per month effective August 1, 2018, the date Father began
exercising equal parenting time. According to Father’s calculations, this
resulted in an overpayment of $6,796.33. The decree did not address how
Father should be reimbursed for this overpayment, so he sought
clarification in a post-decree motion. The court concluded that it was not
required to set forth a repayment method as a matter of law and denied the
motion. Father argues this was an abuse of discretion.

¶21 Father argues that the overpayment remedy provided in
A.R.S. § 25-527(A) is not the only option available to reimburse a parent
who overpays child support. Section 25-527(A) provides that a parent
whose support obligation has terminated may request reimbursement of
any overpayment within twenty-four months after the support obligation
terminates. In addition to § 25-527(A), courts may reimburse a parent for
an overpayment before the support obligation terminates from funds that
are not for the children’s benefit or by deviating from the Child Support
Guidelines, A.R.S. § 25-320 Appendix (“Guidelines”), for future support
payments where appropriate. See Amadore v. Lifgren, 245 Ariz. 509, 517, ¶ 24
(App. 2018); In re Marriage of Allen, 241 Ariz. 314, 318-19, ¶¶ 19-22 (App.
2016). However, these remedies are discretionary. Id.

¶22 Father argues the failure to order reimbursement was
inequitable because he could have been paid from Mother’s share of the
community retirement account without impacting funds that were for the
children’s benefit. See Allen, 241 Ariz. at 319, ¶ 21. Father also argues the
court’s ruling is unfair because he cannot seek reimbursement under § 25-
527(A) until 2029, when his support obligation terminates, thus providing
Mother an interest-free $6,796.33 loan. Contrary to Mother’s position on
appeal, Father did not waive this argument. Father’s pretrial statement
asked the court to offset any child support overpayments against Mother’s
interest in his retirement account.

¶23 Although the court’s ruling means Father has to wait until
2029 to recover the child support overpayment, we cannot say the court

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abused its discretion. The remedy Father sought was not mandatory. See
Amadore, 245 Ariz. at 517, ¶ 24; Allen, 241 Ariz. at 318-19, ¶¶ 19-22.
Moreover, it is not clear that Mother’s share of the retirement account is
sufficient to offset both the share of the community debts she was ordered
to pay and the child support overpayment.2 Therefore, we find no abuse of
discretion.

VI. The Superior Court Properly Attributed Minimum Wage Income to
Mother for Purposes of Child Support.

¶24 At the time of trial, Mother was not working full time. The
superior court attributed a minimum wage income to Mother in addition to
$750 per month she earns from an essential oils home-based business to
calculate the child support obligation. Father argues this was an abuse of
discretion because the evidence showed Mother was, in fact, working in
real estate and could earn between $51,900 and $60,980 annually as a real
estate agent in Utah.

¶25 We review child support awards for an abuse of discretion
and accept the superior court’s findings of fact unless they are clearly
erroneous. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21 (App. 2009). The court
may attribute income up to earning capacity when a parent is unemployed
or working below his or her full earning capacity, “if the parent’s earnings
are reduced voluntarily and not for reasonable cause.” Little, 193 Ariz. at
521, ¶ 6; Guidelines § 5(E). The Guidelines give the court discretion to
consider the reasons for the parent’s reduced income. Guidelines § 5(E).

¶26 The evidence showed Mother had worked as a real estate
agent when she first moved to Utah, but she left that position after Father
harassed her and her employer. Mother’s February 2019 financial affidavit
stated that she was a self-employed real estate agent at ReMax and earned
$5,000 in the past twelve months in addition to what she earned from her
home-based business. Father did not provide any evidence to refute this,
nor did he dispute Mother’s claim that she has been unable to work full-
time in real estate because of the harassment incident with her former
employer and because she recently had a baby. Although Father’s expert
witness testified that a real estate agent with Mother’s experience could
earn at least $51,900, the court was within its discretion to find Mother was

2 Mother’s share of the retirement account is “approximately” $13,000.
She was ordered to pay her share of other debts totaling $7,824.06 from her
share of the retirement. Adding reimbursement for the child support
overpayment would result in a $1,620.39 shortfall.

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not currently able to earn that amount because of her recent employment
history and new baby. We affirm the income attributed to Mother for
purposes of child support.

VII. Mother Failed to Show the Withdrawal of $12,000 From a
Community Account Was Not Waste.

¶27 Father claimed he was entitled to reimbursement for $12,000
Mother withdrew from a community bank account without his consent.
The superior court denied this request, finding that the parties mutually
agreed that Mother would use those funds for her living expenses in Utah.
We review the court’s apportionment of community property for an abuse
of discretion. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5 (App. 1998).

¶28 Courts may consider a spouse’s excessive or abnormal
expenditures or the concealment or fraudulent disposition of community
assets when apportioning community property. See A.R.S. § 25-318(C);
Gutierrez, 193 Ariz. at 346, ¶ 6. When one spouse makes a prima facie case
of such waste, the spouse making the withdrawals then bears the burden of
showing the money was spent to benefit the community. Gutierrez, 193
Ariz. at ¶¶ 6-7.

¶29 The record does not show that the parties mutually agreed
that Mother would withdraw $12,000 from the joint account. Although
Mother admitted withdrawing the funds, neither party testified that Father
agreed to this. Thus, Father made a prima facie case of waste.

¶30 Furthermore, the court erroneously placed the burden on
Father to show that Mother did not spend the funds on community
expenses. Because Father made a prima facie case of waste, Mother had the
burden of showing that she spent the funds for the benefit of the
community. Id.

¶31 Mother testified that she withdrew the $12,000 from a
community account and deposited the funds into her busines account. She
did not provide any evidence that Father had access to her business
account. Nor did Mother show that she spent these funds on living
expenses in Utah; rather her testimony was that she sold her Arizona
business in February 2018 for $8,000 and used those funds for living
expenses. Although the bank statements from the business account show
Mother spent the $12,000 over the next several months, we cannot
determine from those statements whether these expenditures benefitted the
community.

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¶32 Because Mother bore the burden of proof and the record did
not support the factual findings, we conclude the court abused its
discretion. We vacate the portion of the decree denying Father’s claim for
reimbursement and remand for reconsideration. The superior court may
exercise its discretion to allow additional evidence on remand.

VIII. The Court Did Not Abuse Its Discretion in Denying Attorneys’ Fees
to Father.

¶33 Finally, Father contests the denial of his request for attorneys’
fees under A.R.S. § 25-324. We review an attorneys’ fees decision for an
abuse of discretion. Magee v. Magee, 206 Ariz. 589, 590, ¶ 6 (App. 2004).

¶34 The court may award attorneys’ fees “after considering the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.” A.R.S. § 25-324(A).
Balancing these factors is “a matter for the trial court’s sound discretion.”
Magee, 206 Ariz. at 592-93, ¶ 17.

¶35 The superior court found Father has considerably more
financial resources than Mother. However, the court declined to award fees
because both parties acted unreasonably and failed to communicate or act
in the children’s best interests. The court further found that Father was
unreasonable, in part, because he filed a legally incorrect motion to set aside
the temporary order arguing that the court must make detailed § 25-403
findings. On appeal, Father argues that, in light of Layne v. LaBianca, 249
Ariz. 301, 303, ¶ 8 (App. 2020), his motion to set aside was correct and,
therefore, reasonable. However, Father only argued that the court failed to
make detailed § 25-403 findings in the temporary order. This is contrary to
the holding in Fox, 242 Ariz. at 267-68, ¶ 34, which was issued more than a
year before Father’s motion. Therefore, the motion was, in fact, legally
incorrect. Although Layne came out after Father filed the motion to set aside
and applied to § 25-408(I) relocation factors, the motion did not assert that
detailed relocation findings were required.

¶36 The record supports the findings that the parties acted
unreasonably, and that Father has greater resources. Therefore, we affirm
the denial of attorneys’ fees to Father.

¶37 Both parties request attorneys’ fees and costs on appeal, citing
§ 25-324. In the exercise of our discretion, after considering the financial
resources and reasonableness of the parties, we decline to award fees to
either party. Neither party is entitled to an award of costs because neither
was entirely successful on appeal. See A.R.S. § 12-342.

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CONCLUSION

¶38 The temporary order and contempt rulings are not
appealable. We reverse the portion of the decree denying reimbursement
for Father’s share of the $12,000 Mother withdrew from a community bank
account and remand for reconsideration. In all other respects, we affirm
the decree.

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

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