Thomas v. Thomas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TYLER J. THOMAS, Petitioner/Appellee,

v.

TERESA M. THOMAS, Respondent/Appellant.

No. 1 CA-CV 21-0745 FC
FILED 9-6-2022

Appeal from the Superior Court in Maricopa County
No. FC2020-053559
No. FN2020-051457
The Honorable Scott A. Blaney, Judge

AFFIRMED

COUNSEL

The Sampair Group PLLC, Glendale
By Patrick S. Sampair
Counsel for Petitioner/Appellee

The Hogle Firm, PLC, Mesa
By Nathan Hogle
Counsel for Respondent/Appellant

THOMAS v. THOMAS
Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Peter B. Swann joined.

P A T O N, Judge:

¶1 Teresa M. Thomas (“Mother”) appeals the superior court’s
ruling denying her motion to alter or amend a dissolution decree and
granting judgment for attorneys’ fees in favor of Tyler J. Thomas (“Father”).
For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The superior court dissolved the parties’ marriage and
entered a final dissolution decree, wherein the child support calculation
excluded childcare expenses paid by Mother and used a lower figure for
Father’s income than that requested by Mother. The court also apportioned
community debts that excluded several debts listed by Mother on her
Affidavit of Financial Information (“AFI”) and awarded $5,000 in attorneys’
fees against Mother based on its finding that she acted unreasonably during
litigation.

¶3 The superior court entered final judgment granting Father
attorneys’ fees. Mother timely filed a motion to alter or amend the decree,
which the court denied. We have jurisdiction over Mother’s timely appeal
under Arizona Revised Statutes § 12-2101(A)(1) and (2).

DISCUSSION

I. Child-Support Calculation

¶4 We review a child support award for abuse of discretion.
Kelsey v. Kelsey, 186 Ariz. 49, 53 (App. 1996). A court abuses its discretion
when the record lacks competent evidence to support its decision. Little v.
Little, 193 Ariz. 518, 520, ¶ 5 (1999). We will not reweigh conflicting
evidence and will affirm if substantial evidence supports the court’s
decision. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009). We review the
record “in the light most favorable to upholding” the court’s decision.
Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 7 (App. 2015).

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THOMAS v. THOMAS
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A. Childcare Expenses

¶5 Mother argues the superior court erred in calculating child
support because it omitted her childcare expenses. The Arizona Child
Support Guidelines are permissive as to the consideration of childcare costs
in the child support calculation. A.R.S. § 25-320 app. (“Guidelines”)
§ 9(B)(1) (2018) (stating that the superior court “[m]ay add to the Basic Child
Support Obligation amounts for . . . [c]hildcare expenses that would be
appropriate to the parents’ financial abilities.”).

¶6 Mother suggests the superior court improperly punished her
for signing the children up for childcare/preschool without Father’s
permission because it commented that Mother’s actions were outside the
bounds of joint legal decision-making authority. We disagree with
Mother’s characterization. In addition to requesting that current childcare
expenses be included in the child support calculation, Mother also asked
the court to order Father to reimburse her for past childcare expenses,
which the court ultimately denied because Mother unilaterally enrolled the
children in daycare. Mother does not challenge the court’s denial of
reimbursement for past childcare expenses on appeal. We do not presume
that the court’s reasoning for denying past childcare expenses applies to its
decision not to include ongoing childcare expenses in the child support
calculation. The court did not give a reason for excluding childcare
expenses and it was not required to do so. Guidelines § 9(B)(1).

¶7 Mother argues the superior court erred because the only way
she can work is to pay someone to watch the children and her undisputed
childcare expenses are approximately $2,000 per month. Considering this
court’s obligation to review the record with an eye to upholding the
superior court’s ruling, Milinovich, 236 Ariz. at 615, ¶ 7, we find the record
supports the discretionary ruling not to include childcare expenses. At the
time of the evidentiary hearing in this case, both children were under the
age of five. Even though Mother presented evidence of her recent
employment and childcare expenses and Father offered to pay his half of
the amount of childcare expenses that the court found reasonable, Mother
testified she was not actually working at the time of the hearing due to
injuries suffered in a recent car accident. Mother also testified that her
workers’ compensation benefits had not “kicked in for over a month” and
she was “working on it.”

¶8 Consistent with Mother’s testimony, the court found that
Mother was not working at the time of the hearing. But it also found
Mother provided no credible evidence of the car accident or any resulting

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physical limitations and concluded that Mother was intentionally
unemployed or underemployed. Mother did not challenge this finding.
On this record, it was not an abuse of discretion for the court to choose to
omit childcare expenses in the child support calculation given Mother’s
ability to care for her own young children during her parenting time
without incurring childcare expenses. Guidelines § 9(B)(1).

B. Father’s Gross Income

¶9 Mother argues the superior court erred in calculating child
support by using $8,275.39 monthly or $99,304.68 annually as Father’s gross
income, an amount for which she claims there was no evidence. We “defer
to the family court’s determinations of witness credibility and the weight
given to conflicting evidence.” Lehn v. Al-Thanayyan, 246 Ariz. 277, 284,
¶ 20 (App. 2019). Father’s June 2021 AFI, which was admitted into evidence
at the evidentiary hearing, listed his 2020 income as $133,739.94 annually,
or $11,145.00 monthly, his 2019 annual income as $99,304.64, and his then-
current gross monthly income in 2021 as $6,179.33. Father testified he was
going to make less in 2021 than in 2020. He guessed that his overall gross
pay in 2021 would be between $110,000 to $115,000 (between $9,166 to
$9,583 monthly) but also testified he made $6,179 gross monthly, consistent
with the amount stated in his June 2021 AFI. He further testified that his
monthly gross paycheck in 2021 was more than $6,000. Given the
conflicting evidence, the court acted within its discretion to use Father’s
2019 income as stated in his AFI in the child support calculation.

II. Community Debt

¶10 Mother also contends the superior court erred in failing to
apportion certain alleged community debt listed in her AFI.
We review the allocation of community debts for an abuse of discretion,
but the classification of the debt as separate or community is a question of
law that we review de novo. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521,
523, ¶ 4 (App. 2007).

¶11 Mother argues there was never any dispute over the marital
debts and because she was pressed for time at trial, she relied on her AFI to
establish the smaller debts. The court equitably divided those two debts
but did not include the other debts in her AFI as part of the community debt
because Mother “did not provide credible evidence as support for the
existence of the debts, the amount of the debts, or the community nature for
the debts.”

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¶12 Mother admitted at the hearing that she introduced no other
statements supporting the other debts into evidence and she was not
surprised that Father did not know about those debts because the bills came
to her. Although Mother is correct that the court was permitted to consider
her AFI as evidence under Arizona Rule of Family Law Procedure 2(d), it
was in the court’s discretion to find that Mother did not establish the
community nature or amount of debt based on the evidence presented. See
Lehn, 246 Ariz. at 284, ¶ 20 (“[W]e do not reweigh evidence but defer to the
family court’s determinations of witness credibility and the weight given
conflicting evidence”).

III. Attorneys’ Fees and Costs

¶13 Finally, Mother argues the superior court erred in awarding
attorneys’ fees to Father, challenging the court’s finding that she acted
unreasonably during litigation. We review an award for attorneys’ fees
under A.R.S. § 25-324 for abuse of discretion. Gutierrez v. Gutierrez, 193
Ariz. 343, 351, ¶ 32 (App. 1998).

¶14 In awarding attorneys’ fees, courts may consider the
reasonableness of the parties’ positions, including settlement
positions. See A.R.S. § 25–324. Here, the superior court found that Mother
was unreasonable in failing to engage in good faith settlement negotiations
after admonishment, refusing to respond to settlement offers after the
resolution management conference, and rejecting Father’s settlement offer
without explanation. The record supports this finding. The court did not
abuse its discretion in finding that Mother acted unreasonably.

CONCLUSION

¶15 For the foregoing reasons, we affirm the superior court’s
ruling. We award costs to Father upon compliance with Arizona Rule of
Civil Appellate Procedure 21. In our discretion, we deny Father’s request
for attorneys’ fees on appeal.

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

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