Toller v. Toller

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT EUGENE TOLLER, Petitioner/Appellee,

v.

IRYNA M. TOLLER, Respondent/Appellant.

No. 1 CA-CV 20-0181 FC
FILED 2-25-2021

Appeal from the Superior Court in Maricopa County
No. FC 2010-002637
The Honorable Casey J. Newcomb, Judge Pro Tempore

AFFIRMED

APPEARANCE

Iryna M. Toller, Phoenix
Respondent/Appellant

TOLLER v. TOLLER
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann
joined.

C A M P B E L L, Judge:

¶1 Iryna Toller (“Mother”) appeals the superior court’s
modification of child support and denial of her request that Robert Toller
(“Father”) reimburse her for a portion of the cost for their daughter’s
extracurricular activities. We affirm.

BACKGROUND

¶2 The parties’ divorced in 2011. The court awarded the parents
equal parenting time and shared decision-making for their daughter. The
court also ordered Father to pay $188.25 a month in child support,
pursuant to the Arizona Child Support Guidelines. A.R.S § 25-320 app.
§ 5(C) (2018) (“Guidelines”).

¶3 A contentious post-divorce relationship developed between
the parents where they continually asked the court to resolve their
parenting disputes. For example, Mother sought the court’s help with
obtaining the child’s passport from Father, Father’s non-compliance with
the court-ordered exchange of financial information, and Father’s failure
to provide the daughter’s health insurance. Mother also filed a Request for
Ruling and Request for Assurance from Petitioner Regarding His Not
Exposing the Child to Coronavirus.

¶4 In April 2019, Mother petitioned to modify Father’s child
support obligation and sought reimbursement from Father for their
daughter’s dance classes. The court set an evidentiary hearing and
ordered the parties to exchange information, including their income tax
returns for the last two years. Father did not comply; Mother notified the
court and requested sanctions. At the August 2019 evidentiary hearing,
Father still had not provided the income tax documents and the hearing
was continued to September. On September 10, Mother filed a motion for
another continuance because Father had not provided the necessary
information. The following day, for the second time, Mother requested the

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TOLLER v. TOLLER
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superior court sanction Father for his discovery delays. The court denied
Mother’s motion. At the evidentiary hearing on September 16, Father still
had not provided adequate discovery. The court gave Father until October
18 to respond to Mother’s discovery requests and again continued the
hearing. Father finally submitted his discovery responses and tax
documents; however, he left several interrogatories unanswered. The
evidentiary hearing was finally completed at the end of January 2020.

¶5 The superior court determined that Father’s total income for
2018 was $12,113. The court also found that Mother earns $14.00–$15.50 an
hour at temporary and seasonal jobs. Consequently, the court attributed
minimum wage earnings to both parents and reduced Father’s child
support obligation to $0.00 per month. The court declined to order
reimbursement for the child’s dance classes. Finally, the court denied
mother’s motions to sanction Father for his failure to timely disclose
information. Mother now appeals.

DISCUSSION

¶6 We review the superior court’s modification of a child
support award for an abuse of discretion. Little v. Little, 193 Ariz. 518, 520,
¶ 5 (1999). “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.” Id. (citation omitted). We
review the superior court’s legal conclusions and interpretation of a
statute de novo. In re Estate of Travers, 192 Ariz. 333, 334, ¶ 11 (App. 1998);
Fremont Indem. Co. v. Indus. Comm’n, 182 Ariz. 405, 408 (App. 1995).

I. Due Process

¶7 Mother contends the superior court denied her due process
by depriving her of a meaningful opportunity to present her case. To
support her due process challenge, Mother first points to the time
limitations imposed by the court; next, to the court requiring her to use an
interpreter at all times; then, to the court failing to sanction Father for his
failure to timely produce income-related documentation. Noting that
“justice must satisfy the appearance of justice,” In re Murchison, 349 U.S.
133, 136 (1955) (quoting Offutt v. United States, 348 U.S. 11, 13 (1954)),
Mother also contends the court failed to conduct itself as a fair tribunal.

¶8 To satisfy due process, the superior court “must afford the
parties ‘an opportunity to be heard at a meaningful time and in a
meaningful manner’” before modifying child support. Volk v. Brame, 235
Ariz. 462, 468, ¶ 20 (App. 2014) (citation omitted); see also Heidbreder v.

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Heidbreder, 230 Ariz. 377, 381, ¶ 14 (App. 2012) (“A trial court errs if it
modifies child support without . . . allowing the parties to gather and
present their evidence.”); U.S. Const. amend. XIV, § 1; Ariz. Const. art. 2,
§ 4. We review alleged violations of due process de novo. Wassef v. Ariz.
State Bd. of Dental Exam’rs, 242 Ariz. 90, 93, ¶ 11 (App. 2017).

A. Time Limitations at Trial

¶9 Mother argues the superior court denied her due process by
imposing time limitations that deprived her of a meaningful opportunity
to present her case. The superior court has broad discretion to manage its
docket and we generally will not substitute our judgment regarding its
day-to-day management of cases. Findlay v. Lewis, 172 Ariz. 343, 346
(1992). This includes broad discretion to “impose reasonable time limits
appropriate to the proceedings.” Ariz. R. Fam. Law P. 22(a). If a party
believes the time allotted by the superior court is insufficient, it may
request additional time, Id., but “[t]he determination of when additional
time is necessary is normally committed to the discretion of the trial
court.” Volk, 235 Ariz. at 469, ¶ 22. However, if “it becomes apparent that
the court lacks sufficient time to receive adequate testimony, then the
court must allow reasonable additional time or continue the hearing to
permit it to perform its essential tasks.” Id. at 468, ¶ 21.

¶10 Before trial, the superior court informed the parties that each
would have 45 minutes to present its case. The court had also informed
the parties they could petition for more time if needed. Mother neither
objected to the time limits set by the court nor requested additional time.
Because Mother raises this issue for the first time on appeal, we review it
for fundamental error. State v. Bible, 175 Ariz. 549, 572 (1993); see also Ruben
M. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 239, ¶ 15 (App. 2012)
(explaining the doctrine of fundamental error is appropriate in civil cases
in “situations that may result in the denial of a constitutional right”).

¶11 Fundamental error goes to the foundation of the case, takes
away an essential right to one’s defense, and precludes the possibility of a
fair trial. State v. Hunter, 142 Ariz. 88, 90 (1984). Fundamental error “must
be clear, egregious, and curable only via a new trial.” State v. Gendron, 168
Ariz. 153, 155 (1991). We will not reverse the superior court for
fundamental error “unless [our] analysis of the entire record permits [us]
to set forth reasons clearly demonstrating that the case falls within our
definition of fundamental error.” Id.

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¶12 Mother was responsible for ensuring the record contained all
documents necessary for us to consider the issues she raised in her appeal.
Baker v. Baker, 183 Ariz. 70, 73 (App. 1995) (citing ARCAP 11). However,
Mother provided only short excerpts from the hearing transcripts, and the
remaining record on appeal is insufficient to allow adequate review for
error. As such, we must presume that the missing transcripts support the
superior court’s decision, and we further conclude that the time Mother
was provided was sufficient to present her case. See In re Mustonen’s
Estate, 130 Ariz. 283, 284 (App. 1981). Because we find no error in the
record before us, we hold the court’s time limitation did not violate
Mother’s due process rights.

B. Russian Interpreter

¶13 Mother argues the superior court denied her due process by
requiring her to use a foreign language interpreter for the entire hearing,
rather than on an as-needed basis. However, Mother fails to explain how
she was in this fashion deprived of a meaningful opportunity to present
her case. Because Mother did not object to the superior court’s decision at
the hearing and raises this issue, too, for the first time on appeal, she is
entitled only to fundamental error review. Bible, 175 Ariz. at 572.

¶14 As discussed above, due process requires the superior court
to allow a party appropriate time to present its case. Volk, 235 Ariz. at 468,
¶ 21. This includes time required for an interpreter to translate testimony.
Because the record is incomplete, again we cannot meaningfully review
the sufficiency of the time the court provided. We presume the missing
record supports the court’s decision and find no violation of Mother’s due
process. Mustonen’s Estate, 130 Ariz. at 284.

¶15 Mother cites to no legal authority and we find none to
support the proposition that an interpreter can be used only when a party
affirmatively requests assistance. Under Arizona law, the court may
appoint and summon interpreters when necessary. A.R.S. § 12-241. A
party either requests the use of an interpreter or not. The interpreter
translates everything if the party cannot understand the full proceedings
in English without assistance. Allowing “as-needed” interpreter services
would risk error in the proceedings. More importantly, the management
of the court proceeding at issue is squarely within the discretion of the
trial court, and absent some cogent explanation as to how Mother’s rights
were adversely affected, we defer to the court’s management of
interpreter services.

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C. Rulings on Motions

¶16 Mother next argues the superior court denied her due
process by failing to rule on a motion for sanctions and a motion to obtain
copies of Father’s tax returns directly from the Internal Revenue Service.
Mother’s arguments are without merit.

¶17 Under Arizona law, a motion that is not directly ruled on by
the superior court is deemed denied by operation of law. McElwain v.
Schuckert, 13 Ariz. App. 468, 470 (1970). Although timely resolution of
pending motions is nearly always required, there may also be reasons for
a court to defer resolution of a motion, including one seeking discovery
compliance and/or sanctions. Simply stated, Mother was not entitled to
an express ruling on her repetitive discovery and sanction motions and
the court did not deny her due process by failing to provide an explicit
pronouncement.

¶18 Additionally, the superior court ruled on Mother’s motion
for sanctions in its minute entry Under Advisement Ruling on the matter.
The court agreed that Father failed to timely provide the requested tax
documents. But, because the hearing was continued, Mother had adequate
time to review the discovery and prepare for the hearing. The court then
expressly denied Mother’s motion for sanctions.

D. Evasive Conduct

¶19 Mother argues Father engaged in “evasive conduct” in
discovery, which, “combined with . . . inaction by the trial judge[,] offends
. . . notions of fairness and undermines the administration of justice” and
deprived her of due process. At the same time, Mother notes that she
“does not allege actual bias” on the part of the court. As far as we can
discern, Mother’s due process claim in this regard is based on the notion
that not sanctioning Father for his conduct was fundamentally unfair and
created an unfair tribunal, which deprived her of justice. Beyond these
vague assertions, Mother has not demonstrated exactly how her rights
were violated and provides no legal authority to support her argument.

¶20 The superior court has broad discretion over sanctions for
disclosure and discovery issues. Lenze v. Synthes, Ltd., 160 Ariz. 302, 305
(App. 1989). We review the court’s decision concerning discovery
violation sanctions for “a clear abuse of discretion.” Seidman v. Seidman, 222 Ariz. 408, 411, ¶ 18 (App. 2009); see also Lenze, 160 Ariz. at 305
(explaining the court’s sanctions for discovery violations are entitled to

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deference on appeal). Based on this record, the court exercised its
discretion in an appropriate manner.

II. Modification of Child Support

¶21 Next, Mother contends the court erred by relying on falsified
financial documents and applying the wrong definition of gross receipts
when determining Father’s income. Guidelines § 5(C). Mother argues the
superior court erred by attributing minimum wage to Father.

¶22 “We defer to the trial court with respect to any factual
findings explicitly or implicitly made, affirming them so long as they are
not clearly erroneous . . . .” John C. Lincoln Hosp. & Health Corp. v. Maricopa
County, 208 Ariz. 532, 537, ¶ 10 (App. 2004). “A finding of fact is not
clearly erroneous if substantial evidence supports it, even if substantial
conflicting evidence exists.” Kocher v. Dep’t of Rev., 206 Ariz. 480, 482, ¶ 9
(App. 2003). Evidence is substantial if it permits “a reasonable person to
reach the trial court’s result.” Davis v. Zlatos, 211 Ariz. 519, 524, ¶ 18 (App.
2005) (citation omitted). “[W]e cannot reweigh the evidence and substitute
our own evaluation of it. Instead, we must uphold the trial court’s
determination unless we find it is without any evidence to support it or is
absolutely contrary to the uncontradicted and unconflicting evidence on
which it purports to rest.” Cauble v. Osselaer, 150 Ariz. 256, 258 (App.
1986).

A. Financial Documents

¶23 Mother argues the documents submitted by Father were
fabricated and self-serving, falsely reducing his income below minimum
wage. Mother challenges Father’s credibility and raises numerous
questions about the authenticity and accuracy of the documents produced
by Father. We recognize the unusual circumstances leading the superior
court to attribute minimum wage to Father, a business owner with at least
seven properties in Arizona. However, the court is in a better position to
judge party credibility and we must defer to its findings unless there is no
substantial evidence in the record to support them. Cardoso v. Soldo, 230
Ariz. 614, 619, ¶ 17 (App. 2012). Here, Father’s tax returns and testimony
related to his income support the court’s decision. We therefore affirm.

B. Gross Income

¶24 Mother argues the superior court erred by relying on
Father’s tax returns rather than his business and rental income figures
when determining his income. Guidelines § 5(C). Mother also argues the

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court should not have used cash drawer reports from Father’s business to
determine his self-employment income without expressly determining
what his gross receipts and ordinary and necessary expenses were.

¶25 We review the superior court’s interpretation of the
Guidelines de novo as a question of law. Mead v. Holzmann, 198 Ariz. 219,
220, ¶ 4 (App. 2000). When determining income from self-employment or
rent for child support purposes, “gross income means gross receipts
minus ordinary and necessary expenses required to produce income.
Ordinary and necessary expenses do not include amounts determined by
the court to be inappropriate for determining gross income for purposes
of child support.” Guidelines § 5(C). Section 5(C) allows the court to
decide what income is gross income and what expenses are “ordinary and
necessary.”

¶26 The record indicates the superior court considered not only
Father’s tax documents and cash drawer reports from his business, but
also his testimony related to the current state of his business and the
income, maintenance, and taxes for his rental properties. According to the
court, “Father testified that he can no longer compete with companies on
the Internet,” Father has gone from 20 employees to 2, and Father’s tax
returns “show that his business is barely staying afloat.” The court found
Father’s “gross business income” in 2017 was $222,370 and his net profit
only $2,070. The court also found Father’s 2018 “gross business income”
was $199,860 but that after expenses, his net profit was only $4,594. The
court found Father’s combined rental income was $1,890 per month but
“[Father] testified that he makes very little money on his properties after
paying the expenses (mortgage, taxes, maintenance, etc.).”

¶27 After noting Father’s limited income, the superior court
quoted the Guidelines Section 5(C), noting that “gross income is gross
receipts minus the ordinary and necessary expenses to produce the
income.” In context, it is clear the court’s use of “gross business income”
refers to the Guidelines’ “gross receipts.” While the court did not state the
expenses deducted from the gross receipts were ordinary and necessary
for Father to produce income, it listed them as salaries, utilities, insurance,
and real estate taxes. Accordingly, the court appropriately exercised its
discretion in determining which of Father’s expenses were ordinary and
necessary, and we find no error.

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III. Dance Class Reimbursement

¶28 Mother sought reimbursement for expenses she incurred
paying for the child’s dance instruction. However, Mother conceded that
there was no court order requiring him to do so and no written agreement
where Father assumed this responsibility. See Guidelines § 9(B)(2); Ariz. R.
Fam. Law P. 69. We agree with the superior court, Father is not legally
required to reimburse Mother for dance classes.

CONCLUSION

¶29 We affirm the superior court’s modification of child support.

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

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