Johnson v. Johnson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CAROLINE J. JOHNSON, Petitioner/Appellant,

v.

MICAH W. JOHNSON, Respondent/Appellee.

No. 1 CA-CV 21-0015 FC
FILED 9-2-2021

Appeal from the Superior Court in Maricopa County
Nos. FC 2018-006544
FC 2018-051540
The Honorable Alison Bachus, Judge

AFFIRMED

COUNSEL

Paul D. Nordini, Scottsdale
Counsel for Petitioner/Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Samuel A. Thumma and Chief Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Caroline Johnson (“Mother”) appeals from the child support
award contained in the decree dissolving her marriage to Micah Johnson
(“Father”). She challenges the family court’s calculation of her gross income
for child support purposes.1 For the following reasons, we affirm.

BACKGROUND

¶2 After nine years of marriage, Mother and Father separately
petitioned for dissolution. The family court consolidated the cases, held a
two-day trial on contested issues, and entered a decree of dissolution.
Specific to this appeal, after attributing to Mother $100,000 per year in
annual income through recurring monetary gifts, the court ordered Mother
to pay Father (1) $17,008 in past-due child support, and (2) $1,061 per month
in current child support. Mother timely appealed.

DISCUSSION

¶3 At the time of trial, Mother was unemployed. To determine
her gross income for child support purposes, the court averaged Mother’s
previous salaries to calculate her annual earning capacity ($60,833.33).
Mother does not contest this determination, or the court’s separate finding
that she earns $2,000 annually from business income. Instead, Mother
challenges only the court’s imputation of an additional $100,000 to her
annual gross income based on its finding that she receives substantial,
recurring gifts from various third parties.

¶4 “Arizona has adopted the Arizona Child Support Guidelines
for, among other things, the purpose of establishing a standard of support
for children consistent with their needs and the ability of parents to pay,

1 Father did not file an answering brief. Although we may treat his
failure to do so as a confession of error, in the exercise of our discretion, we
instead address the merits of Mother’s claim. See Savord v. Morton, 235 Ariz.
256, 259, ¶ 9 (App. 2014).

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and to make child support awards consistent for persons in similar
circumstances.” Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994);
A.R.S. § 25-320 app. § 1 (the “Guidelines”). “Because the Guidelines are
based upon assumptions about spending patterns of families at various
income levels, gross income for child support purposes is not determined
by the gross income shown on the parties’ income tax returns, but rather on
the actual money or cash-like benefits received by the household which is
available for expenditures.” Cummings, 182 Ariz. at 385.

¶5 Applying an income sharing model, the Guidelines require
each parent to contribute “his or her proportionate share” to “the total child
support amount.” Guidelines, Background. For purposes of determining
each parent’s proportionate share, the Guidelines define “gross income” as
“income from any source.” Guidelines § 5(A). Consistent with this
definition, courts “may consider all aspects of a parent’s income to ensure
the award is just and based on the total financial resources of the parents.”
Strait v. Strait, 223 Ariz. 500, 502, ¶ 8 (App. 2010) (internal quotations
omitted). While nonrecurring payments need not be included, and the court
generally should not attribute to a parent more income than would be
earned from full-time employment, under the Guidelines, gross income
includes gifts that are “continuing or recurring in nature.” Guidelines
§ 5(A).

¶6 We review a family court’s determination that a particular
source of funds factors into a parent’s gross income, within the meaning of
the Guidelines, for an abuse of discretion. See Milinovich v. Womack, 236
Ariz. 612, 615, 617, ¶¶ 7, 16 (App. 2015) (noting the categorization of funds
“requires consideration of the Guidelines on a case-by-case basis”). An
abuse of discretion exists when the record “is devoid of competent evidence
to support the decision.” Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8 (App. 2007)
(internal quotation omitted).

¶7 At trial, Mother acknowledged that she had been gifted
substantial sums during the divorce proceedings, explaining that third
parties provided the funds to assist her with basic living expenses and legal
fees. She denied receiving regular, recurring gifts, however, and testified
that she had not received any financial gifts during the preceding six
months (ending in March 2020).

¶8 Father, likewise, testified about Mother’s third-party gifts.
Cataloguing her repeated refusals to comply with discovery requests and
her overall failure to disclose the receipt of large financial gifts (Mother’s
2020 Affidavit of Financial Information disclosed no gift income), Father

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testified that he obtained evidence of the gifts by subpoenaing a financial
institution for Mother’s account information. The account documents
revealed that Mother received more than $256,000 from five men during a
two-year period ending in March 2020. According to Father’s
uncontroverted calculations, Mother received on average nearly $12,000 in
monthly third-party gifts from the date she filed for dissolution through
March 2020. Moreover, Father also discovered that Mother received
numerous non-monetary gifts of substantial value from various men
during the same time. Because Mother refused to disclose financial records
after March 2020, Father testified that he believed she continued to both
receive and hide substantial third-party contributions.

¶9 In its detailed ruling, the family court expressly found that
Mother “attempted to mislead” both Father and the court about the gifts
she had received. After questioning Mother’s credibility, the court noted
that Father received financial disclosures concerning Mother’s accounts
only through March 2020, coinciding precisely with the time Mother
testified she stopped receiving gifts from third parties. We do not reassess
the credibility of witnesses on appeal, Gutierrez v. Gutierrez, 193 Ariz. 343,
347, ¶ 13 (App. 1998), and in evaluating a potential source of gross income,
the family court “need not restrict its view of the evidence to a few isolated
months . . . particularly when such income is controlled by the party
[her]self and is subject to possible manipulation.” Pearson v. Pearson, 190
Ariz. 231, 236 (App. 1997).

¶10 While the amounts of the gifts Mother received varied and the
timing of the gifts was irregular, the trial evidence supports the family
court’s finding that men transferred money to Mother when she requested
it. Moreover, nothing in the record controverts Father’s testimony that
Mother maintains a lavish standard of living that far outpaces that afforded
by her earning capacity. See Sherman v. Sherman, 241 Ariz. 110, 114, ¶ 16
(App. 2016) (“We see no reason under the Guidelines that [a parent] should
be able to select one level of expenditures for [her]self while supporting
[her] children based on a lower hypothetical income level.”). On these facts,
and absent any evidence to substantiate Mother’s assertion that third
parties stopped gifting her money in March 2020, the record supports the
inference drawn by the family court, after assessing credibility, that Mother
continues to receive substantial gifts from various third parties. Therefore,
the family court did not abuse its discretion by attributing the recurring gift
monies to Mother as gross income for purposes of calculating her child
support obligation.

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CONCLUSION

¶11 For the foregoing reasons, we affirm.

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

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