Mendoza v. Perez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAVIER CUEVAS MENDOZA, Petitioner/Appellee,

v.

LILLIANA HERNANDEZ PEREZ, Respondent/Appellant.

No. 1 CA-CV 21-0394 FC
FILED 5-26-2022

Appeal from the Superior Court in Maricopa County
No. FC2020-051966
The Honorable Alison Bachus, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Pangerl Law Firm PLLC, Phoenix
By Regina M. Pangerl
Counsel for Respondent/Appellant

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.
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Decision of the Court

F U R U Y A, Judge:

¶1 Lilliana Hernandez Perez (“Mother”) appeals two parts of the
superior court’s dissolution decree, including the child support and
division of tax exemption orders. For the following reasons, we vacate the
court’s 2017, 2018, and 2020 child support orders and remand to recalculate
but otherwise affirm the decree.

FACTS AND PROCEDURAL HISTORY

¶2 Javier Cuevas Mendoza (“Father”) and Mother share one
minor child (the “Child”) who resides in California with Mother. The
parties separated in 2016, and Father had another child from a separate
relationship in 2018. Father petitioned the Maricopa County Superior Court
to dissolve the marriage in June 2020.

¶3 Mother presented evidence of the Child’s expenses at the
dissolution trial in March 2021, including prior medical and orthodontic
expenses. Father testified he would reimburse Mother for half of these
expenses and half of agreed-upon extracurricular activities. Mother sought
orders for retroactive and ongoing child support. Both parents earned less
than minimum wage at all relevant times, and the court attributed a full-
time minimum wage to both. See Ariz. Rev. Stat. (“A.R.S.”) § 25-320(N). The
court granted Mother’s request for retroactive child support for a three-year
period preceding Father’s petition for dissolution. See A.R.S. § 25-320(C).
The court calculated retroactive child support for 2017 and 2018 of $5,937.60
and ordered Father to pay $250 monthly towards his retroactive child
support. However, the court ordered Father to pay $0 in child support from
2019 forward.

¶4 The court also ordered Father to pay half of the Child’s
ongoing medical, vision, orthodontic, and extracurricular expenses and to
reimburse Mother for past expenses in the amount of $2,690.59. Finally, the
court ordered that Mother and Father split the child-tax exemption in
alternating years.

¶5 Following issuance of the dissolution decree, Mother moved
to alter or amend the judgment under Arizona Rule of Family Law
Procedure (“Rule”) 83. The court denied Mother’s Rule 83 motion. The
court thereafter awarded Mother $2,500 in attorney’s fees and stated that
no further matters remained pending. Mother timely appealed, and we
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

DISCUSSION

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¶6 In a proceeding for dissolution of marriage, the superior court
may order either or both parents owing a duty of support to a child “to pay
an amount reasonable and necessary for support of the child.” See A.R.S. §
25-320(A). The legislature charged our supreme court with establishing
“guidelines for determining the amount of child support” and “criteria for
deviation from them on all relevant factors,” including, in relevant part, the
financial resources and needs of the child, the financial resources and needs
of the custodial parent, and the financial resources and needs of the
noncustodial parent. See A.R.S. § 25-320(D). To implement this directive, the
supreme court established the Arizona Child Support Guidelines (the
“Guidelines”) in 2015, providing a framework to determine the amount of
child support “consistent with the reasonable needs of children and the
ability of parents to pay.” See A.R.S. § 25-320(D); Guidelines § 1. The
Guidelines were amended in 2018 and 2022. Id. Because the order at issue
in this appeal was filed before the 2022 amendment became effective, the
2018 Guidelines control our analysis here. Compare A.O. 2018-08 (Jan. 24,
2018) (providing, in relevant part, that the 2018 Guidelines govern all child
support orders “entered after March 31, 2018”), with A.O. 2021-131 (Aug.
16, 2021) (providing that the 2022 Guidelines govern all child support
orders “entered on or after January 1, 2022”).

¶7 We review child support awards for an abuse of discretion.
Sherman v. Sherman, 241 Ariz. 110, 112, ¶ 9 (App. 2016). The court abuses its
discretion when it commits an error of law in reaching a discretionary
conclusion or when the record is “devoid of competent evidence” to
support the court’s decision. See Woyton v. Ward, 247 Ariz. 529, 531, ¶ 5
(App. 2019) (internal citations omitted). We accept the court’s factual
findings unless clearly erroneous, but we review its conclusions of law and
interpretation of the Guidelines de novo. Sherman, 241 Ariz. at 113, ¶ 9.

¶8 Mother argues the superior court abused its discretion by
ordering that Father pay no child support from 2019 onward. Mother
argues the Guidelines required the court—after applying the self-support
reserve test to reduce Father’s gross income—to consider “the financial
impact the reduction would have on [Mother]’s household.” Guidelines §
15. The self-support reserve test is a tool used by the court to verify, after
determining the child support order, that the paying parent is financially
able to pay the child support and maintain a minimum standard of living,
Id., and provides a means for the court to account for “the financial
resources and needs of the noncustodial parent” A.R.S. § 25-320(D)(2). The
calculations used for this test have been modified through the years
(compare Guidelines § 15 (2015), with Guidelines § 15 (2018)), but at the time
the court issued its orders, the reserve was equal to 80% of the monthly full-

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time earnings at Arizona’s minimum wage. Guidelines § 15. If, after
deducting the reserve amount from the paying parent’s adjusted gross
income, the resulting amount is less than the child support order, the court
may reduce the paying parent’s obligation. Id.

¶9 Mother did not request, prior to the dissolution trial, that the
court make separate findings of fact or conclusions of law. See Ariz. R. Fam.
Law P. 82(a)(1). Therefore, “we assume that the court found every
controverted fact necessary to sustain the judgment, and we will uphold
such an implicit finding if supported by the record.” Femiano v. Maust, 248
Ariz. 613, 616, ¶ 12 (App. 2020) (internal quotation marks omitted). The
record reflects the court had all relevant financial information before it and
correctly calculated ongoing child support. We presume, in particular, that
the court considered the impact a reduction in Father’s child support
obligation would have on Mother’s household. See id.

¶10 Next, Mother argues the court erroneously applied the self-
support reserve test retroactively because the Guidelines state it “applies
only to the current child support obligation.” Guidelines § 15. We disagree.
Because no prior child support orders had been issued, the court applied
the reserve test to the “current support obligation,” which included three
years of support awarded retroactively at Mother’s request. See A.R.S. § 25-
320(C).

¶11 Our review of the record reveals that the 2018 child support
worksheet miscalculated the self-support reserve test. Specifically, the 2018
worksheet did not use the full 80% credit amount for the reserve test
required under the 2018 Guidelines, but instead applied a lesser credit
amount. Using the correct percentage under the 2018 Guidelines would
have resulted in a credit that exceeded the amount of child support
provided. The result was that the worksheet used by the court errantly
indicated a maximum child support amount of $326 rather than $0. While
any reduction in child support resulting from this test is discretionary, we
cannot say the court would still have ordered $310 in monthly child support
for 2018 had the self-support reserve amount been properly calculated. See
Guidelines § 15 (“If the resulting amount is less than the child support
order, the court may reduce the current child support order . . . .”).

¶12 Further, the child support calculations for 2017 and 2020 in
the dissolution decree do not state whether they incorporated a self-support
reserve and the record lacks a child support worksheet for either of these
years. As such, we cannot say whether the court’s 2017 and 2020 child
support orders were the result of discretion or another miscalculation.

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Therefore, we vacate the 2017, 2018, and 2020 child support orders, and
remand for the court to recalculate those three years. We note that upon
remand, the court will be required to use the new 2022 Guidelines for these
recalculations. We affirm the 2019 child support order, however, because
the child support worksheet supports the court’s calculations and
demonstrates the court’s exercise its of discretion.

¶13 Finally, Mother argues the court abused its discretion and
committed legal error by awarding Father an alternating tax exemption for
the Child prospectively, despite not owing ongoing child support. Because
Mother has not included supporting legal authority or citations to the
record, we could deem this argument waived. See Ritchie v. Krasner, 221
Ariz. 288, 305, ¶ 62 (App. 2009); ARCAP 13(a)(7). We decline to do so,
however, because the Guidelines clearly resolve this issue. See id. Unless
otherwise agreed upon by the parties, the court shall allow “each parent to
claim allowable federal dependency exemptions proportionate to adjusted
gross income . . . .” Guidelines § 27. The court “may deny the right to present
or future tax exemption when a history of non-payment of child support
exists.” Id. (emphasis added). On this record, we discern no abuse of
discretion or legal error.

CONCLUSION

¶14 For the foregoing reasons, we vacate and remand the 2017,
2018, and 2020 child support orders, but affirm the 2019 child support order
and division of child tax exemption.

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

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