Poage v. Brooks

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RANDY AVERITT POAGE, Petitioner/Appellant,

v.

CHRISTINE BROOKS, Respondent/Appellee.

No. 1 CA-CV 22-0754 FC
FILED 2-8-2024

Appeal from the Superior Court in Maricopa County
No. FC2014-050317
The Honorable Paula A. Williams, Judge

AFFIRMED IN PART; VACATED
AND REMANDED IN PART

COUNSEL

Phelps & Moore, PLC, Scottsdale
By Jon L. Phelps
Counsel for Petitioner/Appellant

Kelley Law Group PLLC, Phoenix
By Cynthia K. Kelley, Brian S. Kelley
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C A M P B E L L, Judge:

¶1 Randy Poage (Father) appeals the trial court’s order
modifying child support, failing to modify the holiday parenting schedule,
and awarding Christine Brooks (Mother) attorneys’ fees and costs. Father
asserts that the court erred in calculating child support by improperly
including his overtime and second-job incomes and by implicitly finding a
change of circumstances dating back to September 1, 2020. He argues the
court failed to analyze whether modification of the holiday schedule was in
the child’s best interests. Finally, Father contends that the attorneys’ fees
award to Mother was improper because she failed to request fees in a
pleading or motion. For the reasons below, we vacate the child support
order and remand for appropriate determinations of off-duty income,
overtime income, and healthcare costs. We affirm the attorneys’ fees award
and the denial of Father’s request to modify the holiday schedule.

BACKGROUND

¶2 Father and Mother divorced in 2014. They share custody of
one child. Initially Mother waived child support, but in June 2017, she
petitioned for a child support order. Father initially objected and did not
provide any financial information. Based on the parties’ stipulation, the
court entered a decree modification ordering Father to pay $350 per month
in child support beginning in September.

¶3 In August 2020, Mother again petitioned to modify their
parenting plan and child support arrangement based on a substantial and
continuing change in circumstances.1 Almost two years later, the parties
filed a joint pretrial statement identifying three unsettled issues: child

1 Mother cited Father no longer living a reasonable distance from the
child’s school, his alleged lack of prioritization of the child’s online
schooling, the child’s routine unhappiness when with Father, Father’s
unstable new marriage, and lack of a bedroom for the child in Father’s
home.

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support, holiday parenting time, and attorneys’ fees. The court then held
an evidentiary hearing. Both parties testified about income and reasons for
and against changing the holiday schedule. By the time of the hearing,
Father had received several pay raises, and his off-duty and overtime
income continued to fluctuate. Mother, on the other hand, had retired early.
Mother asked the court to adjust child support according to the Arizona
Child Support Guidelines, A.R.S. § 25-320 app. (“Guidelines”), which
would account for the new income disparity.2

¶4 In October 2022, the court entered an order modifying child
support, maintaining the holiday schedule, and awarding Mother
attorneys’ fees and costs. The court imposed a new support payment of
$682 per month and a $9,400 arrearage award to Mother. The arrearage
amount was calculated using September 1, 2020, the first of the month
following the filing of her petition, as the start date. The court then
retroactively applied the financial information Father provided for
purposes of the 2022 hearing. The court denied Father’s request to modify
the holiday schedule for failure to show substantial and continuing
changed circumstances or that a modification would be in the child’s best
interests. Finally, the court granted Mother an attorneys’ fee award due to
Father’s greater financial resources and because he “acted unreasonably”
by failing to timely disclose all his financial information. Father timely
appealed.

DISCUSSION

¶5 Father challenges the modification order on several grounds.
First, he argues the court had no evidentiary basis for a finding of
substantial and continuing changed circumstances affecting child support
that began on September 1, 2020. Second, he asserts the court erroneously
calculated his off-duty income using his 2021 earnings when it determined
that amount was “historically earned and is anticipated to continue in the
future,” as is required by Section II(A)(3)(b) of the Guidelines. He also
makes a parallel argument regarding his overtime income. Father
summarily argues that the child support award was “riddled with errors,”
citing both a deficit of evidence and that the evidence presented did not
support the amount awarded. With respect to attorneys’ fees, Father
challenges the award based on Mother’s failure to request fees in a pleading
or motion as is required by Arizona Rule of Family Law Procedure 78(e)(1).

2 Mother testified the new child support obligation should be $682 per
month.

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Finally, Father argues the court erred by not engaging in a best-interests
factor analysis when deciding to maintain the existing holiday schedule.

¶6 Father asks this court to vacate the modification order and
remand with instructions to correctly calculate child support. Father
implies a request to remand with instructions to engage in a best-interests
factor analysis regarding holiday parenting time. He also asks this court to
vacate the attorneys’ fees awarded to Mother, and he seeks an award of
attorney’s fees and costs on appeal. We address each of his arguments in
turn.

I. Child Support Calculation

¶7 We review a trial court’s child support modification order for
an abuse of discretion, which occurs if the record lacks competent evidence
that would support the order. Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8 (App.
2007). We review de novo the lower court’s interpretation and application
of statutes. Amadore v. Lifgren, 245 Ariz. 509, 514, ¶ 5 (App. 2018).

A. Retroactive Modification Date

¶8 A child support award may only be modified by a showing of
“changed circumstances that are substantial and continuing.” A.R.S.
§ 25-327(A). The party seeking modification has the burden of showing
such a change in circumstances. Jenkins, 215 Ariz. at 39, ¶ 16. A modification
based on changed circumstances becomes effective “on the first day of the
month following notice of the petition for modification” unless the court
finds good cause to effectuate the modification on a different date. A.R.S.
§ 25-327(A). A court errs if it orders a modification to take effect on a date
that “predates when the circumstances in a particular case became
substantial and continuing.” Amadore, 245 Ariz. at 516, ¶ 19.

¶9 Following the August 2022 evidentiary hearing, the court
retroactively modified child support upon a finding of substantial and
continuing changed circumstances beginning on September 1, 2020, the first
day of the month following Mother’s filing of the petition. See A.R.S.
§ 25-327(A). For this date to be erroneous, the court needed to have either
1) erred in accepting Mother’s showing of changed circumstances or 2)
erred in not finding good cause to effectuate the change on a different date.

¶10 To modify the existing child support order, Mother needed to
prove changed financial circumstances “by a comparison with the
circumstances existing at dissolution.” Richards v. Richards, 137 Ariz. 225,
226 (App. 1983). Mother met her initial burden. At the time of her petition,

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the only “evidence” of Father’s income was Mother’s estimate from the 2017
modification. When Father finally—albeit only partially—complied with
the court’s order to produce his financial information, that information
illustrated a substantial and continuing change in circumstances based on
the pay raises he received.3

B. Off-Duty Income

¶11 Father argues the court erred by including all of his 2021 off-
duty earnings in its income calculation. Central to his argument is that the
amount of off-duty income he earns varies, making it unreasonable for the
court to adopt a high-earning income year and attribute that amount to all
other years. While Father has historically earned off-duty income and is
likely to continue doing so, he argues that the 2021 amount used in the
calculation (“$50,787”) was uncharacteristically high. This argument is
supported by the record. Father provided the court with his 2017, 2018,
2019, and 2020 tax returns. He also supplied his 1099 tax form for 2021.
These documents show that his off-duty income (without withholding) was
$24,362 in 2017, $26,172 in 2018, $23,349 in 2019, $17,242 in 2020, and
$50,737.50 in 2021. Father could not provide his 2022 overtime income
amount because the tax year was still ongoing at the time of trial.

¶12 Father explained that he worked more in 2021 to support his
new wife and her three children. Because his expenses were lower before
his new marriage and would decrease since he and his second wife
divorced, he testified that his financial burden—and, consequently, his
off-duty income—was historically lower, and could subsequently be lower
going forward. He asked the court to calculate child support using an
averaged amount of $21,081 for his off-duty income—what he claims is the
average of his off-duty income for 2017 through 2020.

¶13 The trial court had discretion to include income beyond
Father’s full-time employment so long as it did not “require an
extraordinary work regimen.” Guidelines § (II)(A)(3)(b). “Determination of
what constitutes an extraordinary work regimen depends on all relevant
circumstances, including . . . the parent’s relevant medical or personal
circumstances.” Id. In its modification order, the court acknowledged that
the 2021 income was not representative of Father’s normal off-duty

3 Father testified he received raises, making his hourly rate at the time of
the August 2022 hearing $44.13.

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earnings: “This amount appears to be an extraordinarily high amount to
attribute to Father as off-duty earnings for the other years at issue.”

¶14 The record suggests the court calculated child support using
Father’s 2021 off-duty income as a sanction for his “fail[ure] to provide all
records of his income that are relevant to this matter.” While Father was not
forthcoming with his financial information, the court erroneously stated it
did not have off-duty income information for any year other than 2021. The
court had sufficient evidence to conclude that Father typically earned
around $20,000 per year in off-duty income. See supra ¶ 11. The court’s
frustration over Father’s inadequate disclosures should not have
manifested in its child support calculation, but rather in its decision to
award Mother attorneys’ fees. By imposing a child support obligation based
on an unusually high annual income amount garnered by Father’s
extraordinary work regimen, the court abused its discretion. We vacate and
remand for further proceedings to determine an appropriate off-duty
income calculation.

C. Overtime Income

¶15 The court also included overtime pay in the child support
calculation. But the court was under the same restrictions: only that income
which is “historically earned and is anticipated to continue into the future”
can be included in the calculation. Guidelines § (II)(A)(3)(b). Moreover, only
overtime that is mandatory may be included: “[v]oluntary overtime is
excepted from the calculation to give parents the choice to work more”
without the risk of creating the “‘treadmill effect’ of an ever-increasing child
support obligation.” Hoobler v. Hoobler, 254 Ariz. 130, 140, ¶ 24 (App. 2022)
(citation omitted).

¶16 Father historically earns overtime income. He testified that
about half of his overtime is mandatory and the other half is discretionary.
His paystubs do not specify which hours are mandatory and which are
voluntary. However, the record demonstrates that the amount of overtime
he works varies. For example, at the time of trial in 2022, Father had worked
two overtime hours that year compared to the “last few years” when he
worked “significantly more overtime” when he had a greater need. In line
with Hoobler, we remand with instructions to calculate the amount of
mandatory overtime Father has historically earned that is likely to continue
and to use that reduced amount in the child support calculation.

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D. Calculation Errors

¶17 Next, Father takes issue with allegedly clear errors made in
the court’s calculations. He cites 1) the court’s reliance on his unsigned,
undated affidavit, 2) a conceded health insurance error, and 3) a seemingly
typographical error in the 2022 calculation. We review the alleged errors in
order below.

1. Sufficiency of the Affidavit

¶18 We accept the trial court’s findings of fact unless they are
clearly erroneous. McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6 (App. 2002).
Where evidence is conflicting, “[w]e will defer to the trial court’s
determination of witnesses’ credibility and the weight to give conflicting
evidence.” Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998). The
record is unclear about Father’s 2020 income, as the affidavit he provided
conflicts with the tax forms supplied for the same year. Given this
conflicting evidence, we defer to the trial court’s reliance on the affidavit,
meaning Father has shown no error. See id.

2. Health Insurance

¶19 Although Mother argues the issue was not preserved for
appeal, she admits in her answering brief that the health insurance
allocation should be $133, not $200, and no evidence on record supports
upholding the court’s $200 credit. We therefore vacate this finding and
remand for further proceedings to determine the correct health insurance
allocation. See McNutt, 203 Ariz. at 302, ¶ 6; Stop Exploiting Taxpayers v. Jones, 211 Ariz. 576, 580, ¶ 17 (App. 2005) (discretion to address waived
arguments on the merits).

3. 2022 Monthly Income

¶20 Given an apparent transposition error, the court listed
Father’s 2022 monthly income as $12,963 rather than $12,693—the amount
supported by the record. Again, Mother argues that although the issue was
not preserved for appeal, in her answering brief, she admits that her
worksheet contained a calculation error: “Father is correct that the available
evidence supports a calculation of $12,693 per month for Father’s income.
It appears that the court’s calculation of Father’s income includes a
transcription error . . . .” We therefore vacate this finding and remand for
further proceedings to determine Father’s 2022 income. See Jones, 211 Ariz.
at 580, ¶ 17.

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II. Attorneys’ Fees

¶21 Father argues that he lacked notice that Mother would seek
an award of attorneys’ fees. We disagree. Arizona Rule of Family Law
Procedure 78(e)(1) requires a claim for attorneys’ fees to be filed “in the
pleadings or by motion” before trial or a post-judgment evidentiary
hearing. Ariz. R. Fam. L.P. 78(e)(1). The request must also be made in the
pretrial statement. Id. Non-compliance under this Rule may be waived
upon a showing of good cause. Id. Statutorily, the trial court has discretion
to order a party to pay reasonable fees and costs “after considering the
financial resources of both parties and the reasonableness of the positions
each party has taken.” A.R.S. § 25-324(A). We review an award of attorneys’
fees under A.R.S. § 25-324 for an abuse of discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011).

¶22 Here, Mother requested attorneys’ fees in the joint pretrial
statement, citing Father’s repeated failure to disclose his financial
information. She did not file a motion requesting fees; however, the court
implicitly waived her non-compliance when it invoked its statutory
authority to award fees as a sanction. Though best practice would have
been to file a separate motion requesting fees (in addition to the joint
pretrial statement), Father was on notice of Mother’s intent to seek fees and
has not suffered any prejudice on this issue. Cf. In re Restated Trust of Crystal
H. West, 249 Ariz. 355, 358, ¶ 8 (App. 2020) (recognizing that civil rule
governing fee requests is intended to provide notice); Salas v. Ariz. Dep’t of
Econ. Sec., 182 Ariz. 141, 143 (App. 1995) (recognizing that procedural due
process includes notice and the opportunity to be heard in a meaningful
time and manner).

¶23 The court’s order awarding attorneys’ fees is based on a
finding that Father acted unreasonably throughout litigation. Father has
shown no abuse in discretion here because failure to supply the court with
financial information may constitute an unreasonable position. See Lehn v.
Al-Thanayyan, 246 Ariz. 277, 286, ¶ 32 (App. 2019) (upholding attorneys’
fees award based on “insufficient disclosure and hiding of assets”). And,
also consistent with A.R.S. § 25-324(A), the court considered Father’s
financial resources relative to Mother’s, finding “that there is substantial
disparity of financial resources between the parties. Because of the disparity
[Father] has considerably more resources available to contribute toward
[Mother’s] attorney fees and costs.” We find no error in the fee award.

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III. Holiday Schedule

¶24 Father’s final argument is that the court erred by not engaging
in a best-interests factor analysis when it declined to modify the holiday
parenting schedule. Father requested this modification in his answer. In
deciding whether to modify parenting time, the court must engage in a
two-part inquiry that first asks whether a substantial and continuing
change in circumstances has occurred since the last order. Pridgeon v.
Superior Court (LaMarca), 134 Ariz. 177, 179 (1982). If so, then the court must
ask whether the modification will be in the child’s best interests. Id. Without
evidence of changed circumstances, the court need not engage in the second
best-interests prong of the inquiry. Black v. Black, 114 Ariz. 282, 283 (1977)
(“Only after [the] initial finding has been made may the trial court then
proceed to determine whether a change in custody will be in the best
interests of the child.”).

¶25 The court denied Father’s request to modify holiday
parenting time, stating “Father did not demonstrate that it was in the child’s
best interest to be with Father’s family every other year for Christmas
instead of seeing Mother during that holiday.” Though the court did not
elaborate, it did not need to. The record lacked any evidence of changed
circumstances affecting parenting time during the holidays. To the
contrary, Father testified extensively about long-standing traditions and
routine travel schedules. Rather than demonstrating a change, Father
simply expressed his dissatisfaction with the existing schedule. Because we
defer to the court’s finding of a change in circumstances—or lack thereof—
we affirm the court’s denial of Father’s parenting time modification request.
See Pridgeon, 134 Ariz. at 179.

CONCLUSION

¶26 Because we find an abuse of discretion in the court’s child
support calculations, we vacate the court’s order and remand for
appropriate determinations of off-duty income, overtime income, and
healthcare costs. We otherwise affirm the court’s attorneys’ fees award to
Mother and denial of Father’s parenting time modification request.

¶27 Both parties seek fee awards on appeal. While our decision
largely favors Father, the necessity for this appeal arises from his
unreasonable litigation tactics in failing to disclose his financial
information. As such, we deny Father’s request for fees and costs. See A.R.S.
§ 25-324(A).

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¶28 We similarly deny Mother’s request. On appeal, Mother only
prevailed insofar as the holiday schedule did not change and her attorneys’
fees award from below was upheld. Father’s unreasonableness at the trial
level and the disparity in income between the parties was addressed in that
fee award. Father was not unreasonable in his decision to appeal an
erroneous child support calculation.

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

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