Yurcaba, III v. Yurcaba

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN YURCABA, III, Petitioner/Appellant,

v.

JOYCE A. YURCABA, Respondent/Appellee.

No. 1 CA-CV 20-0450 FC
FILED 4-22-2021

Appeal from the Superior Court in Maricopa County
No. FC2009-005050
The Honorable Shellie F. Smith, Judge Pro Tempore

REMANDED

COUNSEL

John Yurcaba, III, North Las Vegas, Nevada
Petitioner/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.

C R U Z, Judge:

¶1 John Yurcaba, III (“Husband”) appeals from the court’s
judgment ordering him to continue to pay $1,713 per month towards
spousal maintenance arrearages. For the following reasons, we remand for
clarification.

FACTUAL AND PROCEDURAL HISTORY

¶2 Husband petitioned for divorce in 2009, after about twenty-
two years of marriage with Joyce A. Yurcaba (“Wife”). Shortly after, a
decree of dissolution was entered, which in part ordered Husband to pay
spousal maintenance in the amount of $1,713 per month for a period of 138
months commencing April 1, 2010. The decree provided that spousal
maintenance was to be non-modifiable as to duration and amount.

¶3 In June 2020, Wife filed a petition to enforce spousal
maintenance and spousal maintenance arrears. Wife alleged that Husband
owed nearly $50,000 in past-due support. A hearing was held on Wife’s
petition, and the superior court issued a signed minute entry:

IT IS ORDERED adopting the arrears calculation filed herein
and entering judgment in favor of [Wife] and against
[Husband] for spousal maintenance arrearages in the
principal amount of $50,420.22 for the time period April 1,
2010 through June 30, 2020 (this date is the first day of the
first month after the end of the time period for the
judgment). Further, [Wife] is granted a judgment for interest
in the amount of $22,574.11 for the same time period. This
interest judgment does not earn additional interest.

THE COURT FINDS [Husband] has the ability to pay the
sum of $1,713.00 per month toward spousal maintenance
arrears. Therefore,

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IT IS FURTHER ORDERED [Husband] shall continue to pay
the sum of $1,713.00 per month as and for spousal
maintenance arrearages, as ordered on March 19, 2010.
[Husband] shall pay by Income Withholding Order a monthly
Support Payment Clearinghouse fee which set by Rule, and
which is subject to change. Failure to make such payment
may result in a finding of contempt which may result in
sanctions including incarceration.

¶4 The clerk of the superior court subsequently entered an
income withholding for support order, deducting from Husband’s monthly
income $1,713 in spousal support and an additional $1,713 in past-due
spousal support, for a total of $3,426. Husband timely appealed. We have
jurisdiction pursuant to Arizona Revised Statues (“A.R.S.”) section 12-
2101(A)(1).

DISCUSSION

¶5 As an initial matter, we note that Wife did not file an
answering brief, which we may, in our discretion, deem a confession of
reversible error. See McDowell Mountain Ranch Cmty. Ass’n v. Simons, 216
Ariz. 266, 269, ¶ 13 (App. 2007). We decline to exercise our discretion to do
so.

¶6 Husband does not contest that he owes spousal maintenance
arrearages in the amount of $50,420.22. Instead, Husband argues that, to
the degree the court intended to order that he continue to pay spousal
maintenance payments in the amount of $1,713 per month
contemporaneously with arrears payments also in the amount of $1,713 per
month, it erred. Husband contends he is unable to make monthly payments
of $3,426 towards spousal maintenance and arrears, because doing so
would cause him financial hardship. Husband alleges that after the
hearing, he understood he would be paying a total of $1,713 per month in
maintenance and arrears, not twice that. We review rulings on spousal
support for an abuse of discretion. In re the Marriage of Berger, 140 Ariz. 156,
167 (App. 1983); see also Ferrer v. Ferrer, 138 Ariz. 138, 140 (App. 1983). “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.” State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 14 (App. 2003) (citation omitted).

¶7 The superior court ordered that Husband “has the ability to
pay the sum of $1,713.00 per month toward spousal maintenance arrears”

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and ordered that Husband “continue to pay the sum of $1,713 per month.”
However, if the court intended to order Husband to continue to pay only a
total of $1,713 per month “as and for spousal maintenance arrearages,” then
the court did not account for Husband’s ongoing spousal maintenance
obligation. The signed minute entry makes no mention of Husband’s
current monthly spousal maintenance obligation of $1,713, nor does it make
specific findings as to Husband’s income and his ability to pay arrears. In
fact, the date of the arrears judgment the court referenced concludes on June
30, 2020. However, the period of the original spousal maintenance orders
concludes after 138 months, or at the end of September 2021. It is unclear
whether the court mistakenly understood the period of spousal
maintenance concluded at the end of June 2020. The hearing transcript is
not part of the record on appeal. Husband contends that based upon the
discussions during the hearing, he expected he would be required to make
only a total payment of $1,713 per month. We therefore remand for
clarification whether the court intended Husband to make payments of
$1,713 per month in total for arrears only; $1,713 per month in combined
maintenance and arrears payments; or $1,713 per month in spousal support,
and an additional $1,713 per month in arrears for a grand total of $3,426 per
month, as stated in the most recent income withholding order the clerk of
the superior court issued.

¶8 Husband also asks the court to waive the interest he owes on
spousal maintenance arrearages. He argues that he was unaware interest
was accruing, the Support Payment Clearing House never told him he was
accumulating interest on missed spousal support payments, and the
divorce decree did not state that late payments would result in penalties
and interest payments. However, support arrearage is a legal debt, and a
spouse-creditor “is due interest at the statutory rate based on the date the
payment was due,” pursuant to A.R.S. § 44-1201. Alley v. Stevens, 209 Ariz.
426, 428, ¶ 7 (App. 2004). The court is without legal authority to excuse this
financial obligation.

¶9 Husband additionally alleges that he and Wife had a verbal
agreement that he could make up shortages in spousal support payments
at a later date. To the extent Husband is raising equitable defenses to estop
Wife from collecting interest, Husband failed to submit the hearing
transcript, and so it is unclear if he raised this argument during the hearing.
But when an appellant fails to include transcripts or other necessary
documents, we assume the missing portions of the record support the
superior court’s findings and ruling. Baker v. Baker, 183 Ariz. 70, 73 (App.
1995); see also ARCAP 11(c). The superior court did not err in ordering
Husband to pay interest on his support arrearages.

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CONCLUSION

¶10 For the foregoing reasons, we remand to the superior court
for clarification in accordance with this decision.

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

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