Webber v. Webber

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUSTIN B. WEBBER, Petitioner/Appellant,

v.

KRISTINA A. WEBBER, Respondent/Appellee.

No. 1 CA-CV 23-0669 FC
FILED 10-08-2024

Appeal from the Superior Court in Navajo County
No. S0900DO202200338
The Honorable Melinda K. Hardy, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

White Mountain Law Group, P.L.C, Show Low
By Michael R. Ellsworth
Counsel for Petitioner/Appellant

Crider Law, PLLC, Mesa
By Brad J. Crider
Co-Counsel for Respondent/Appellee

Gillespie Shields & Taylor, Phoenix
By Mark A. Shields
Co-Counsel for Respondent/Appellee

WEBBER v. WEBBER
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge David D. Weinzweig joined.

M O R S E, Judge:

¶1 Justin Webber ("Father") appeals from a decree of
dissolution's provisions regarding legal decision-making authority,
parenting time, supervision, child support, spousal maintenance, and
division of community debt. For the following reasons, we affirm in part
and vacate and remand in part.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Mother married in 2008. They share six children
born between 2009 and 2019. Father is a physician and earns approximately
$236,000 annually. Mother worked until 2012 when she became a
homemaker.

¶3 After leaving the workforce, Mother homeschooled their six
children. When the three eldest children turned ten or eleven, they each
entered public schools. The Webbers continue to homeschool their three
youngest children.

¶4 Mother is also responsible for managing their fourth child's
medical care. The child has a cleft palate requiring regular doctors'
appointments and multiple surgeries. Mother drives the child to and from
each appointment.

¶5 In 2011, Father began medical school. Father borrowed
$382,006 in student loans. He claims he used $142,680 to pay for tuition and
$274,928 to pay for living and other expenses. Before marriage, Father had
taken out a loan for his undergraduate degree. Although Mother testified
that the undergraduate loan was consolidated into the medical-school loan,
Father asserted that the undergraduate loan was paid off before he incurred
the medical-school debt. Father asked that Mother pay half of the non-
tuition debt used for living expenses but assumed full responsibility for the
cost of tuition and other "schooling expenses."

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¶6 In 2021, Father became a physician at Whiteriver Indian
Hospital in Arizona where he works Wednesday to Tuesday every other
week. Although Father made efforts to be with the family at dinner and
during the weekends, Father's work limited his involvement in the
children's schooling, extracurricular activities, and scheduling doctor
appointments.

¶7 For three years prior to dissolution, Father's mother, Carrie
Webber ("Grandmother") regularly stayed at the Webbers' house on the
weekends to help care for the children. However, Mother believes
Grandmother has "very extreme parental ideas," and "disciplines very
extremely." For example, Mother interfered when Grandmother attempted
to place the Webbers' four-month-old baby in a crib for crying and when
Grandmother placed their 18-month-old toddler in time outs. Father's
sister described Grandmother's interactions with her own children when
they were young as "very unhealthy and unsafe and toxic."

¶8 In 2022, Father filed for divorce. Both parties agreed to joint
legal decision-making. However, at trial, Father sought final decision-
making in educational matters to enroll the three youngest children in
public school. Mother believed the children should continue to be
homeschooled. Father also requested a week-on, week-off parenting-time
plan to accommodate his work schedule. Mother opposed this plan and
asked the court to limit Father's parenting time to two weekends per month
and certain school breaks and holidays. Finally, Father asked that the court
only award spousal maintenance if Mother assumed half of the portion of
his student loan used for non-tuition expenses. Father argued Mother
should be required to seek employment and presented expert testimony
related to Mother's alleged earning capacity.

¶9 In its statutory best-interest findings, the court found that the
children have a good relationship with both parents. See A.R.S. § 24-
403(A)(1). The court determined the children are adjusted to their current
home, community, and schooling, and should remain in their current
educational location, including homeschooling for the three youngest
children. See A.R.S. § 24-403(A)(3). Relatedly, the court found that the
Webbers' child with a cleft palate has special medical needs that will require
him to miss school for treatment. See A.R.S. § 24-403(A)(5). The court
credited Father's sister's testimony and stated its concern about
Grandmother's relationship and interactions with the grandchildren.

¶10 After analyzing the best-interest factors, the court found that
a week-on, week-off parenting-time schedule would not be in the children's

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best interests because Father would be "unable to [sic] all that the minor
children require." Thus, the court awarded Father 136 to 141 days of
parenting time per year, consisting of every other weekend, an additional
day each month, and alternating holidays.

¶11 Regarding financial support, the court ordered Father to pay
$4,313 per month in spousal maintenance for six years and $3,762 per month
in child support. For both calculations, the court did not attribute any
income to Mother because of Mother's long absence from the work force,
the need to homeschool three of her children, and the special medical needs
of one of the children. After the court issued its judgment, Father filed a
motion to amend, claiming errors in the calculation of his child-support
obligation. See Ariz. R. Fam. Law P. 83(a). The court granted his motion in
part, reducing his obligation from $3,762 to $2,192 per month. As to student
loans, the court found that Father should be solely responsible because his
college loan before marriage was not fully paid off at the time he took out
the medical-school loan.

¶12 The court issued its judgment under Rule 78(b). Because the
superior court certified the order under Rule 78(b) as "an appealable
judgment as to one or more, but fewer than all, claims," we have jurisdiction
to consider the orders on appeal under A.R.S. § 12-2101(A)(2). See
Bollermann v. Nowlis, 234 Ariz. 340, 342, ¶ 12 (2014) (stating that rulings on
the merits that include Rule 78(b) language are appealable even if attorney
fees are unresolved).

DISCUSSION

I. Parenting Time and Legal Decision-Making.

¶13 We review legal decision-making and parenting time orders
for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).
An abuse of discretion exists when the trial court makes an error of law,
State v. Bernstein, 237 Ariz. 226, 228, ¶ 9 (2015), or when "the record, viewed
in the light most favorable to upholding the trial court's decision, is 'devoid
of competent evidence to support' the decision," Little v. Little, 193 Ariz. 518,
520, ¶ 5 (1999) (citation omitted). "We review matters of law, including the
interpretation of statutes and court rules, de novo." Woyton v. Ward, 247
Ariz. 529, 531, ¶ 5 (App. 2019).

A. Legal Decision-Making.

¶14 The court assigned Mother and Father joint legal decision-
making authority but gave Mother "presumptive decision-making

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authority" regarding "major issue[s]" if the parties disagreed after good-
faith negotiation. Father argues the superior court's award of "presumptive
decision-making authority" to Mother is inconsistent with A.R.S. §§ 25-401,
403 and Nicaise v. Sundaram, 245 Ariz. 566 (2019). Specifically, Father claims
that the court effectively awarded Mother sole legal decision-making
authority by giving her the final say on all decisions instead of "specified
decisions," as required by Nicaise, 245 Ariz. at 568, ¶¶ 12–13, and A.R.S. §
25-401.

¶15 Under section 25-401(2) "[j]oint legal decision-making" means
that "both parents share decision-making and neither parent's rights or
responsibilities are superior except with respect to specified decisions as set
forth by the court or the parents in the final judgment or order." (Emphasis
added.) Thus, a joint legal decision-making order may give one parent final
authority "with respect to specified decisions as set forth by the court . . . in
the final judgment or order." Id.

¶16 Further, in Nicaise, the supreme court explicitly rejected the
argument that "any order vesting 'superior' decision-making authority in
one parent necessarily establishes sole legal decision-making authority."
Nicaise, 245 Ariz. at 568, ¶¶ 9–10. As the court explained, joint legal
decision-making with final decision-making authority differs from sole
legal decision-making authority because the former orders both parties to
engage in good-faith consultation and preserves some legal authority for
the parent with non-final authority. Id. at 568–69, ¶¶ 14–15. But the
supreme court explained that A.R.S. § 25-401(2) allows a court to make one
parent's legal decision-making authority "superior in some circumstances,"
i.e., as to "certain issues" specified in the "final judgment or order." Id. at
568, ¶¶ 12–13. Indeed, the family court order reviewed in Nicaise outlined
the types of decisions subject to the presumptive authority of one parent.
Id. at 567, ¶ 3 ("Father shall have the ability to make the final decision as to
medical, mental health, dental, and therapy issues . . . .").

¶17 We agree with Father's contention that when a court orders
joint legal decision-making authority, it cannot grant presumptive final
decision-making authority to one parent for all parental decisions. Nicaise,
245 Ariz. at 568, ¶¶ 12–13. Here, the court awarded Mother final decision-
making authority for "major issue[s]" on which the parties disagree.
Standing alone, if a "major issue" is any issue on which the parents disagree,
such a grant could run afoul of Nicaise and A.R.S. § 25-401(2). Thus, a court
should provide some explanation to make it clear to the parties and
reviewing court the exact extent to which the court has vested superior
decision-making authority in one parent.

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¶18 The court's order in this case meets that threshold:

Decision Making Authority - Parental decisions shall be
required for major issues in raising the children and in
meeting on-going needs. When they arise, each parent shall
give good faith consideration to the view of the other and put
forth best efforts to reach a consensus decision. If the decision
involves medical or schooling issues, the parties may further
elect to seek input from treating physicians or educators. Both
parents shall be provided with such input. If they cannot
agree after making a good faith effort to reach an agreement:

IT IS ORDERED that if they cannot agree after
making a good faith effort to reach an agreement, any such
major issue Mother shall have "presumptive decision-making
authority."

¶19 The order explains that there are many "major issues"
involved in raising the children but carves out "medical or schooling issues"
for special attention and provides that Mother would have presumptive
decision-making authority over "such major issues." Thus, consistent with
Nicaise and A.R.S. § 25-401(2), we interpret the court's order as granting
Mother presumptive authority only over "such issues," i.e., "decision[s]
involv[ing] medical or schooling issues."1

B. Parenting Time.

¶20 Father argues the superior court erred by awarding unequal
parenting time without just cause.

1 We acknowledge that in Adkisson v. Keith, an unpublished
memorandum decision, we approved an order granting presumptive
decision-making authority that was not limited to specific issues. 1 CA-CV
20-0193 FC, 2021 WL 248168, at *3, ¶¶ 15–16 (Ariz. App. Jan. 26, 2021) (mem.
decision); Ariz. R. Sup. Ct. 111(c) ("Memorandum decisions of Arizona state
courts are not precedential . . . ."). Because the order in this case contains
language limiting Mother's superior authority to "medical and schooling
issues," we need not determine whether Adkisson is consistent with Nicaise
and A.R.S. § 25-401(2).

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¶21 Under A.R.S. § 25-403.02(B), courts must adopt a parenting
plan "[c]onsistent with the child's best interests." As a matter of public
policy, absent evidence to the contrary, "it is in a child's best interest . . . [t]o
have substantial, frequent, meaningful and continuing parenting time with
both parents." A.R.S. § 25-103(B)(1). But there is no presumption of equal
parenting time. Smith v. Smith, 253 Ariz. 43, 46–47, ¶¶ 17–19 (App. 2022).
Rather, "the superior court 'has discretion to decide parenting time based
on all the evidence before it . . . .'" Id. at 47, ¶ 18 (quoting Gonzalez-Gunter v.
Gunter, 249 Ariz. 489, 492, ¶¶ 11–12 (App. 2020). And we do not reweigh
evidence on appeal. Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App.
2019).

¶22 Here, the court awarded Father parenting time amounting to
136–141 days per year, concluding that an equal division of parenting time
between Mother and Father was contrary to the best interests of the
children. The court found that the children "appear to be adjusted to their
schooling at home" and that it is in the children's best interests that their
lives remain as they were pre-dissolution with as little disruption as
possible. Also, the court found that a week-on, week-off schedule was
unsuitable because Father would "be unable to [sic] all that the minor
children require" due to his work schedule. Mother testified to Father's
"very limited" involvement in the daily care of the children, and the court
refused to order a parenting-time arrangement that was likely to result in
Father's mother supervising the minor children during his time with them.
The court was also concerned by Father's unwillingness to allow the
children to contact Mother during his parenting time.

¶23 On appeal, Father argues he is "equally capable of continuing
the home school education for the younger children during his parent
time." But the record suggests that Father has not been significantly
involved in the children's education. For example, Father testified that he
did not attend his public-school-aged children's parent-teacher conferences
and could not remember their teachers' names. Mother testified that she
had not seen Father engage in the children's education. Despite claiming
that he would be capable of homeschooling the children during his
parenting time, Father acknowledged that he had never done so.
Conversely, Mother had been solely responsible for homeschooling the
children.

¶24 Because substantial evidence supports the superior court's
finding that it is in the younger children's best interests for Mother to
continue their homeschooling education, the court did not abuse its
discretion by awarding an unequal parenting-time schedule.

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C. Required Supervision of Paternal Grandmother.

¶25 Father argues the superior court erred by ordering that
Grandmother be supervised whenever she is around the children. Father
failed to cite any authority that the court lacked discretion to do so. See
ARCAP 13(a)(7) (requiring "citations of legal authorities").

¶26 Even if Father argued that the court abused its discretion,
"competent evidence" supports the order. Little, 193 Ariz. at 520, ¶ 5 (citing
Fought v. Fought, 94 Ariz. 187, 188 (1963)). The court heard testimony from
Father's sister and Mother that Grandmother is very strict with young
children and does not take parents' wishes into account. Such substantial
evidence supports the court's finding and we do not reweigh the evidence
or witness credibility on appeal. Lehn, 246 Ariz. at 284, ¶ 20. The court did
not abuse its discretion by ordering supervised visitation.

II. Child Support.

¶27 "We review child-support awards for abuse of discretion."
Sherman v. Sherman, 241 Ariz. 110, 112, ¶ 9 (App. 2016).

A. Income Attribution.

¶28 Father argues the superior court erred by not imputing
income to Mother in calculating child support. Specifically, Father argues
that (1) his expert's testimony that Mother "was employable and had
earning capabilities of $50,000–$60,000 per year," was uncontradicted, (2)
Mother does not have a child with mental or physical needs requiring her
presence in the home, (3) there was no evidence presented to the court
showing that the cost of child care would be prohibitive, and (4) the court
wrongly came to its calculation based on its findings that Mother should
continue to homeschool the children.

¶29 Generally, the court presumes that a parent can earn at least
the state or federal minimum wage. A.R.S. § 25-320 ("Guidelines") §
II.A.4.b. But "[i]n determining whether to attribute income, the court
considers the child's best interests and all other relevant factors." Id. §
II.A.4.e. (emphasis added); see Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 8
(App. 2015) ("When applying the Guidelines, the 'paramount factor' a court
must consider is the best interests of the child."). And in determining
whether unemployment that is "voluntary with reasonable cause" serves
the child's best interests, the court considers "whether the parent's decision
and its benefits outweigh the effect that the reduced income has on the
child's best interests." Guidelines § II.A.4.e.ii.

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¶30 The court found it was inappropriate to attribute income to
Mother because (1) their child with a cleft palate has unusual emotional or
physical needs based on his need for medical treatment, (2) Mother is
homeschooling their three youngest children, requiring her presence in the
home, and (3) the cost of childcare is prohibitive.

¶31 In its best-interest findings, the court found it was in the
children's best interests for Mother to continue homeschooling the three
youngest children. Further, Mother testified she could not both
homeschool the children and work either full or part-time. Cf. McNutt v.
McNutt, 203 Ariz. 28, 33, ¶ 20 (App. 2002) ("[T]rial courts should generally
not attribute additional income to a parent that would require an
extraordinary work regimen."). Thus, the court could have concluded that
any job would impair Mother's ability to homeschool, counter to the
children's best interests. See Guidelines § II.A.4.e.ii. (stating that the court
considers whether unemployment "and its benefits outweigh the effect that
the reduced income has on the child's best interests").

¶32 Alternatively, and contrary to Father's assertions, the court
heard conflicting evidence about Mother's employment potential.
Although Father's expert testified that Mother could find remote work,
Mother testified that post-separation, she applied to 12 entry-level positions
paying between $18–$20 per hour and received only one interview with no
offer. See Lehn, 246 Ariz. at 284, ¶ 20 (noting we do not reweigh the evidence
or witness credibility). In light of the factors and evidence considered by
the court, supra ¶ 30, Father has failed to demonstrate the court abused its
discretion by declining to attribute income to Mother. See Guidelines §
II.A.5.b.iii. (explaining that, in determining whether to attribute income,
courts should consider whether a child has unusual physical needs
requiring the parent's presence in the home).

B. Support Overpayment.

¶33 Father also argues the superior court erred by not
reimbursing his child-support overpayment. After the court issued its
dissolution decree, Father filed a motion to amend because the court, in
calculating his income for child support, increased instead of reduced his
income by his spousal maintenance obligation. See Ariz. R. Fam. L. P.
83(a)(1). Because of the mathematical error, the court found good cause to
amend the judgment and reduced his child support obligation from $3,762
to $2,192 per month. The court did not, however, order reimbursement for
Father's overpayment.

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¶34 Once the court issues a final child-support order, the court
may not order reimbursement for the overpayment until after Father's
child-support obligation terminates. See A.R.S. § 25-527(B) ("The court may
enter a judgment for reimbursement against the obligee if the court finds
that the obligor's obligation to pay support has terminated . . . ."); Brucklier
v. Brucklier, 253 Ariz. 579, 585, ¶ 33 (App. 2022) ("The statute encapsulates
the rule that child support overpayments cannot be credited against future
support obligations."). The court did not err by declining Father's request
for reimbursement.

III. Spousal Maintenance.

¶35 Father argues the superior court erred when it calculated
spousal maintenance by declining to attribute income to Mother.
Essentially, Father repeats his arguments regarding child support—i.e.,
Mother is capable of working, their children do not have special medical
needs, and Mother would have time to work had the court ordered an equal
parenting-time schedule. We review spousal-maintenance awards for
abuse of discretion. Sherman, 241 Ariz. at 112, ¶ 17.

¶36 In determining whether to attribute income to a party who is
voluntarily unemployed with reasonable cause, the spousal maintenance
guidelines instruct the court to consider "whether the party's decision and
its benefits outweigh the impact of the reduced income on the party's ability
to become self-sufficient . . . ." Ariz. Spousal Maintenance Guidelines §
III.B.2.f.ii. The court also considers the ability of the party to find
employment and the wage they could receive. Id. § III.B.2.d–e.

¶37 Here, the superior court found spousal maintenance was
appropriate because the Webbers homeschool their young children and
Mother could not find suitable employment because of her long absence
from the workforce. And as discussed supra ¶¶ 31–32, the court both found
that continuing to homeschool the three youngest children is in their best
interests and heard Mother testify she could not both work and homeschool
the children. Thus, on this record, the court could conclude the benefits of
Mother's decision to homeschool the children "outweigh the impact of the
reduced income on the party's ability to become self-sufficient." Ariz.
Spousal Maintenance Guidelines § III.B.2.f.ii. The court did not abuse its
discretion by declining to attribute income to Mother for its spousal-
maintenance calculation.

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IV. Community Debt.

¶38 The court declined to treat Father's medical-school loan as
community debt and assigned the entire debt to Father. Father and Mother
dispute how the proceeds from his loan were used.

¶39 As discussed supra ¶ 5, the parties only contest the portion of
Father's medical-school loan that was not used for tuition or schooling
purposes. Father argues that Mother should share in the portion of the
student-loan debt they used for living expenses during his time in medical
school. At trial, Father claimed that his student loan from college was paid
off before he took out the medical-school loan. Mother claimed that Father's
college loans were rolled into the medical-school loan. She also claimed she
had worked for a year and a half while Father was in medical school. The
superior court also considered Father's testimony that his student loans
could be forgiven in ten years.

¶40 The superior court has broad discretion to divide community
property equitably upon dissolution. Boncoskey v. Boncoskey, 216 Ariz. 448,
451, ¶ 13 (App. 2007). Regarding debt, the court may, but is not required
to, attempt an equitable distribution. Styers v. Superior Ct. In & For County
of Mohave, 161 Ariz. 478, 479 (App. 1989). We review the court's allocation
of community debt for an abuse of discretion. Boncoskey, 216 Ariz. at 451, ¶
13. The court abuses its discretion "when the record is 'devoid of competent
evidence to support the decision,' or when the court commits an error of
law in the process of reaching a discretionary conclusion." Engstrom v.
McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018) (citing Hurd v. Hurd, 223 Ariz.
48, 52, ¶ 19 (App. 2009).

¶41 Although the parties dispute whether a portion of Father's
medical-school loan is comprised of separate debt, they did not dispute that
part of the medical-school loan funded at least some of the family's living
expenses during Father's time in medical school.

¶42 But, beyond showing the portion of the medical-school loan
attributed to tuition, neither party produced evidence showing how the
remainder of the loan was used. In Mother's testimony, she only contested
the amount of the loan that funded the community and asserted that part of
the non-tuition loan was used for other educational expenses, for which
Father acknowledged responsibility. Her testimony impliedly
acknowledges that some portion of the medical-school loan covered the
family's living expenses.

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¶43 "Debts incurred during marriage are presumed to be
community debts." Lorenz-Auxier Fin. Grp., Inc. v. Bidewell, 160 Ariz. 218, 220
(App. 1989). Accordingly, the superior court erred in identifying the
entirety of the medical-school loan as separate property and assigning the
entire debt to Father. The court heard conflicting testimony about whether
Father's undergraduate loans incurred before marriage were rolled into his
medical-school loans. Although it credited Mother's testimony that Father's
separate, premarital debt comprised part of the medical-school loan, the
court did not evaluate how much of the loan was separate versus
community debt.

¶44 We vacate and remand the community debt finding to allow
the court to determine (a) what portion of the medical-school loan is
separate property, and (b) the amount of the remaining community debt
that was used for community purposes.2

¶45 Of course, any reallocation of the debt on remand may also
alter the court's spousal-maintenance determination. See A.R.S. § 25-
319(B)(9). Accordingly, if the court reallocates the debt, it may also
reconsider its calculation of the spousal-maintenance award.

V. Attorney Fees on Appeal.

¶46 Mother requests attorney fees for this appeal under A.R.S. §
25-324 based on the financial disparity between the parties. In our
discretion, we decline to award Mother attorney fees. We award costs to
Mother upon compliance with Arizona Rule of Civil Appellate Procedure
21.

2 We note the court's finding that Father's medical-school loan will
qualify for loan forgiveness after ten years of public service. At oral
argument, the parties indicated that Father's loans are eligible for
forgiveness in seven years. As Father acknowledges, Mother would also
benefit from such loan forgiveness. Father's counsel also assured this Court
that, in the event that the superior court divides the debt and it is later
forgiven, Father would agree to apply any loan forgiveness proportionally
to Mother's portion of the debt. On remand, the court may consider this in
its evaluation and any reallocation of community debt.
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CONCLUSION

¶47 For the foregoing reasons, we affirm in part, and vacate and
remand in part for further proceedings on the community debt
determination.

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

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