State Guardiola v. Pennington

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STATE OF ARIZONA, ex rel, DES

ELLIE CARAN GUARDIOLA, Petitioners/Appellees,

v.

MARK PENNINGTON, Respondent/Appellant.

No. 1 CA-CV 22-0512 FC
FILED 4-27-2023

Appeal from the Superior Court in Maricopa County
No. FC2020-053923
The Honorable John R. Doody, Judge Pro Tempore

AFFIRMED

APPEARANCES

R.J. Peters & Assoc., P.C., Phoenix
By Rich J. Peters
Counsel for Respondent/Appellant

Ellie Caran Guardiola, Scottsdale
Petitioner/Appellee

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for ADES
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael S. Catlett joined.

B R O W N, Judge:

¶1 Mark Pennington (“Father”) appeals from the superior
court’s post-paternity establishment judgment ordering him to pay child
support to Ellie Caran Guardiola (“Mother”). Father also appeals the
court’s denial of his request for attorneys’ fees under A.R.S. § 25-324. For
the reasons that follow, we affirm.

BACKGROUND

¶2 Mother and Father are the parents of one child (“Child”), born
in August 2007. On December 31, 2020, Mother petitioned to establish
paternity and obtain a judgment for retroactive and ongoing child support.
The parties later stipulated that Father is Child’s natural father and that
Mother would have sole legal decision-making authority, with no
parenting time for Father. The parties also agreed that Father would pay,
on an interim basis, monthly child support of $1,000 beginning on
December 1, 2021.

¶3 In May 2022, the superior court held a child support
establishment hearing. Mother and Father testified about their incomes.
Mother explained that her wage as a full-time nurse had recently increased
to $47.10 per hour, which was more than the rate reflected in her affidavit
of financial information (“AFI”). But most of the hearing centered on
Father’s income. He testified (and offered numerous exhibits) about his
employment history, the failure of his long-haul truck business, and his
current employment search. He also offered testimony from his accountant
and insurance agent relating to his financial records and truck insurance
costs. Ultimately, Father requested that he be attributed minimum wage
income because he was shutting down his business.

¶4 In its minute entry ruling, the superior court attributed a
monthly income of $3,640 to Father for (1) the “past support period,” which
was January 2018 through November 2021; (2) the period from December
2021 through May 2022; and (3) the “[c]urrent support” period starting June
1, 2022. As pertinent here, the court attributed a monthly income of $8,900

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to Mother for calculating Father’s current child support obligation. In its
subsequent order, the court entered judgment against Father in the amount
of $23,494.75, which took into account his interim payments, for past child
support from January 2018 through May 2022. The court also ordered
Father to pay $538 per month as current child support. Father timely
appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).

DISCUSSION

¶5 We review an award of child support for an abuse of
discretion. Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994). The
superior court abuses its discretion when it “commits an error of law” in
reaching a discretionary decision or if the record does not support its
decision. Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018). We review
de novo the court’s conclusions of law and interpretation of the Arizona
Child Support Guidelines (“Guidelines”). A.R.S. § 25-320 app. (2022);
Sherman v. Sherman, 241 Ariz. 110, 113, ¶ 9 (App. 2016).

A. Father’s Income

¶6 Father argues the court abused its discretion by attributing
him $3,640 in monthly income because there was “no evidence” to support
this finding. Mother counters that sufficient evidence exists in the record,
which Father himself presented, to support the court’s ruling.1

¶7 As an initial matter, we view Father’s opening brief as
challenging only the portion of the court’s judgment for the “current
support” period. While he references facts concerning his failed trucking
business, he does not tie those facts to any specific child support period.
Nor does he challenge the court’s arrears judgment of $23,494.75. Instead,
he contends the court erred because he took the position at trial that “he
currently was unable to earn even minimum wage,” which was allegedly
supported by testimony and exhibits about his business. Because Father

1 Mother argues the court abused its discretion in determining
Father’s income because it failed to account for his “total financial resources
or income from any and all sources.” She therefore asks that we remand
for reconsideration under the Guidelines. Because she has not raised these
issues in a cross-appeal, her request for affirmative relief from the judgment
is not properly before us. See ARCAP 13(b)(2) (An appellate court may
“modify a judgment to enlarge the rights of the appellee or reduce the rights
of the appellant only if the appellee has filed a notice of cross-appeal.”);
Hoffman v. Greenberg, 159 Ariz. 377, 380 (App. 1988).

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has not presented any meaningful argument challenging the court’s arrears
judgment, we address only whether the evidence supports the court’s
attribution of income to Father for the “current support” period. See
ARCAP 13(a)(7) (stating that a brief must present arguments that explain
an appellant’s contentions on each issue presented for review with
supporting reasons, legal citations, and appropriate references to the
record); J.W. v. Dep’t of Child Safety, 252 Ariz. 184, 188, ¶ 11 (App. 2021) (“We
may reject an argument based on lack of proper and meaningful argument
alone.”); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (explaining
that appellants abandon claims when they do not establish their position
on a particular issue in question).

¶8 In deciding child support, a court first considers a parents’
gross income, Sherman, 241 Ariz. at 113, ¶ 14, which includes income from
any source, Guidelines § II.A.1.b. By allowing courts to consider “all aspects
of a parent’s income the Guidelines ensure that the award is ‘just’ and based
on the total financial resources of the parents.” Cummings, 182 Ariz. at 386.

¶9 Before 2019, Father was employed as a truck driver and
earned $21.50 per hour. But in 2019, he left that job and started his own
business, which he could do because of a $500,000 line of credit from a
family member and an additional $115,000 federal loan. Between 2019 and
2021, Father claims his business did not generate profits, and he was
therefore unable to receive any income. However, the extent to which
Father did not make money during those years is irrelevant because he has
not challenged the arrearage portion of the court’s judgment.

¶10 Moreover, although Father claimed at the hearing that he was
not earning even a minimum wage, and that his business had failed, it does
not mean the court was obligated to accept Father’s claim. The court heard
evidence that Father had previously earned $21.50 an hour, or roughly
$3,727 monthly, and that he was in the process of seeking similar
employment at this hourly rate. On that evidence alone, the court did not
abuse its discretion in attributing Father an income of $3,640 for the current
child support period. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009)
(noting that the trial court is in the best position to weigh the evidence and
evaluate the parties’ credibility).

B. Mother’s Income

¶11 Mother is employed as a full-time registered nurse. At the
evidentiary hearing, she submitted an AFI, her 2021 W-2 form, tax returns
dating back to 2018, and her two most recent earnings statements from 2022.

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¶12 Father argues the superior court abused its discretion in
determining that Mother’s monthly income is $8,900. He argues that based
on her 2021 W-2, her total compensation was $111,658.21, or $9,304.85
monthly. He also contends that Mother “presented no evidence that her
2021 earnings included overtime, and the pay stubs she did submit do not
include overtime.” See Guidelines § II.A.3.b. (“The court generally does not
include more income than earned through full-time employment.”).

¶13 Father, however, has waived this issue because he has not
identified, nor have we discerned, any point in the superior court record
where he raised these arguments. See Cullum v. Cullum, 215 Ariz. 352, 355,
¶ 14 n.5 (App. 2007) (noting that “a party cannot argue on appeal legal
issues not raised” in the trial court); Hahn v. Pima Cnty., 200 Ariz. 167, 172,
¶ 13 (App. 2001) (explaining that the failure to raise an issue at the trial level
constitutes waiver of that issue). Father’s counsel cross-examined Mother
on her earnings, but he never asked the court to find that her monthly
income was $9,304.85 or that it should be based solely on the 2021 W-2. Nor
did he present any evidence or argument that none of Mother’s attested pay
was based on overtime pay. Waiver aside, Father fails to account for
Mother’s testimony that after she completed her AFI in October 2021, her
hourly rate increased from $43.26 to $47.15, which means she could not
have earned $111,658.21 without overtime pay.

¶14 For her part, Mother argues the superior court erred because
it overstated her income by necessarily including her overtime pay. She
explains that the court’s determination of $8,900 of monthly income would
be based on an hourly rate of $51.35, and there was no evidence supporting
that rate of pay. Mother therefore asserts that her monthly income should
have been calculated at $8,172.67, based on working 2,080 hours at $47.15
per hour. Because Mother has not cross-appealed, we cannot address her
arguments. See supra, n.1.

¶15 On this record, reasonable evidence supports the court’s
determination that Mother’s monthly income is $8,900 for purposes of the
current child support order. Father has not shown that the court abused its
discretion.

C. Attorneys’ Fees

¶16 Under A.R.S. § 25-324, the superior court may award
attorneys’ fees after considering the financial resources of both parties and
the reasonableness of the positions taken by each party throughout the
proceedings. See Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 36 (App. 2007).

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We review the issue of attorneys’ fees for an abuse of discretion. Mangan v.
Mangan, 227 Ariz. 346, 352, ¶ 26 (App. 2011).

¶17 Father argues the court abused its discretion in denying his
request for attorneys’ fees because he established financial disparity
between himself and Mother, and she took several unreasonable positions.
He also contends the court erroneously applied a “prevailing party
standard” to evaluate his request for fees, instead of the § 25-324 factors.
But Father does not inform us where he raised these issues in the superior
court. See Cullum, 215 Ariz. at 352, n.5; Hahn, 200 Ariz. at 172, ¶ 13.

¶18 During the evidentiary hearing, the court advised the parties
not “to spend a lot of time talking about fees, that’s something I have to
decide who it’s going to be of the prevailing party, if anyone. . . .” Father
did not ask the court to clarify its statement nor did he object to the court’s
framing of how it would decide whether to award fees. Later, in its minute
entry, the court did not mention attorneys’ fees or § 25-324 but again stated
that “neither party was the prevailing party.” The court then directed the
submittal of a proposed form of judgment, to which the parties could “file
written objections.” The court added that it would sign the findings and
orders as final, appealable judgments “after considering any objections.”
Father did not object to the proposed judgment, which did not address
attorneys’ fees. Under these circumstances, he has waived any challenge to
the court’s implicit denial of his fee request. Trantor v. Fredrikson, 179 Ariz.
299, 300 (1994) (“Because a trial court and opposing counsel should be
afforded the opportunity to correct any asserted defects before error may
be raised on appeal, absent extraordinary circumstances, errors not raised
in the trial court cannot be raised on appeal.”).

CONCLUSION

¶19 We affirm the superior court’s child support establishment
judgment.

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

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