In Re the Support of V.L.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

IN RE THE SUPPORT OF V.L.

JASON LOVE,
Petitioner/Counter-Respondent/Appellee,

v.

JENEVIA LEAL,
Respondent/Counter-Petitioner/Appellant.

No. 2 CA-CV 2023-0199-FC
Filed October 1, 2024

Appeal from the Superior Court in Maricopa County
No. FC2016008552
The Honorable James Drake, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Hoffman Legal LLC, Phoenix
By Amy W. Hoffman
Counsel for Petitioner/Counter-Respondent/Appellee

kdlaw P.C., Scottsdale
By Kiilu David
Counsel for Respondent/Counter-Petitioner/Appellant

IN RE SUPPORT OF V.L.
Opinion of the Court

OPINION

Presiding Judge O’Neil authored the opinion of the Court, in which Judge
Vásquez and Judge Kelly concurred.

O’ N E I L, Presiding Judge:

¶1 Jenevia Leal appeals from the trial court’s order requiring
Jason Love to pay her child support. She challenges the amount of income
the court attributed to both parties, the start date of the child support, and
the court’s decision not to deviate from the presumptive child support
amount. She also asserts that the court abused its discretion in failing to
award her attorney fees. We affirm in part, reverse in part, and remand for
proceedings consistent with this opinion.

Background

¶2 We view the facts in the light most favorable to upholding the
trial court’s child support award. See Milinovich v. Womack, 236 Ariz. 612,
¶ 7 (App. 2015). Leal and Love share a child, V.L., who was born in 2016.
After Love petitioned the court to determine paternity, legal decision-
making authority, parenting time, and child support, he and Leal reached
an agreement regarding those issues. See Ariz. R. Fam. Law P. 69. The court
entered a stipulated order incorporating their agreement in 2017. In part,
Leal and Love agreed to no child support payments. The parties lived
together until they separated in July 2019.

¶3 In November 2021, the state filed a petition to establish child
support on behalf of Leal. In February 2022, Love filed a petition to modify
legal decision-making authority, parenting time, and child support. Leal
then filed a counter-petition for modification in May. Both parties
requested an award of attorney fees and costs. After an evidentiary hearing
in June 2023, the trial court entered an order in July requiring Love to pay
Leal child support starting in August. Leal appeals from that order.1 We

1Before filing her notice of appeal, Leal moved to alter or amend the

judgment under Rule 83, Ariz. R. Fam. Law P. The trial court denied her
motion. Leal’s notice of appeal does not refer to this ruling. To the extent
Leal challenges this ruling, we lack jurisdiction to address it. See Ariz. R.

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IN RE SUPPORT OF V.L.
Opinion of the Court

have jurisdiction. See A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1); see also Ariz.
R. Fam. Law P. 78(a)(1), (c).

Child Support

¶4 “Child support awards are within the discretion of the trial
court and will not be disturbed on appeal absent an abuse of that
discretion.” Simpson v. Simpson, 224 Ariz. 224, ¶ 4 (App. 2010). “An abuse
of discretion exists when the court commits an error of law in reaching a
discretionary conclusion,” Coconino County v. Antco, Inc., 214 Ariz. 82, ¶ 6
(App. 2006), 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,’” Milinovich, 236 Ariz. 612, ¶ 7 (quoting Little v. Little, 193 Ariz. 518, ¶ 5 (1999)).

I. Income Calculations

¶5 Leal argues the trial court “failed to properly calculate the
parties’ incomes” and, as a result, incorrectly calculated child support.
Specifically, she asserts that the court erred by calculating Love’s income
using his year-to-date income as presented at the evidentiary hearing in
June 2023 instead of his total income for the previous year. She also argues
the court’s assessment of each party’s income included miscalculations. For
the reasons that follow, we cannot conclude that the method the court used
to calculate Love’s income was an abuse of discretion. Leal has, however,
correctly identified a miscalculation in the income attributed to each party.

¶6 Love testified his annual base pay is $160,000 and his gross
pay varies depending on his commission. In his 2022 affidavit of financial
information, he reported gross income ranging from around $169,000 in
2019 to nearly $327,000 in 2021. In an updated affidavit filed in June 2023,
he reported that his gross income was just over $346,000 in 2022 and his
year-to-date income was almost $121,000. At the evidentiary hearing, he
estimated his gross pay in 2023 would be “about a third” of what he made
in 2022 due to “economic challenges.” He testified that his commission is
unreliable, explaining that in some quarters he receives commission checks

Civ. App. P. 9(e)(3) (“party intending to appeal one or more of the orders
disposing of one or more of the motions listed in Rule 9(e)(1) must file a
notice of appeal”); see also Ariz. R. Civ. App. P. 9(e)(1)(C) (specifying
motions under Rule 83(a)).

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IN RE SUPPORT OF V.L.
Opinion of the Court

and in other quarters he does not. Leal also testified that Love’s commission
“is very up and down.”

¶7 Love asked the trial court to calculate his child support
income at $13,423.09 per month, based on his $160,000 annual base pay.
Leal requested that Love be attributed monthly child support income of
$32,617.95, based on his total income from 2022. The court, however,
concluded that both parties were using “income numbers that likely do not
reflect actual income.” It therefore attributed $20,000 per month to Love
based on his year-to-date earnings in 2023. It is true, as Leal suggests, that
Love’s 2023 income by the time of the evidentiary hearing in June did not
include income from certain sources that had significantly impacted his
2022 income. But Love testified that his commission payments “drastically
can change and range” and that he expected to receive less income from
those sources in 2023. We do not reweigh evidence on appeal, and we “give
due regard to the trial court’s opportunity to judge the credibility of the
witnesses.” Hurd v. Hurd, 223 Ariz. 48, ¶ 16 (App. 2009). The child support
guidelines give courts discretion to decide whether to consider
commissions and other forms of “non-continuing or non-recurring”
income. A.R.S. § 25-320 app. § II(A)(1)(b), (d). The court here did not abuse
its discretion in determining Love’s income based on his 2023 year-to-date
income. See Milinovich, 236 Ariz. 612, ¶ 7.

¶8 Leal also argues the trial court miscalculated Love’s monthly
income because it divided his year-to-date earnings by six when those
earnings did not reflect a full six months of pay. Indeed, the court stated
that Love’s earnings “for half the year” were “$120,991.21, or about twenty
thousand a month.” Based on Love’s pay stubs, however, that amount
represented his earnings through only May 27, 2023. Love was receiving
paychecks every other week. Thus, the pay period ending on May 27, 2023,
was his eleventh of the year. Assuming twenty-six total pay periods per
year, this left fifteen paychecks remaining. See Martin v. Reinstein, 195 Ariz.
293, n.28 (App. 1999) (Kleinschmidt, J., dissenting) (“Judicial notice as to
matters of common knowledge is a broad concept in Arizona.”).

¶9 The record does not support the trial court’s conclusion that
the 2023 year-to-date earnings represented Love’s income for “half the
year.” The court therefore undercalculated Love’s child support income
when it concluded that he had so far earned “about twenty thousand a
month” in 2023. Thus, we vacate the court’s finding and remand for the
court to recalculate Love’s child support income for the purpose of
recalculating the appropriate child support obligation.

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IN RE SUPPORT OF V.L.
Opinion of the Court

¶10 Additionally, Leal contends the “trial court erred in
calculating [her] income.” The court found that she had “earned $38,438
this year, or about six thousand dollars a month.” She asserts that the
court’s conclusion that she had earned $38,438 in the first six months of 2023
is not supported by the evidence, such that the court erred by calculating
her monthly income at $6,000 per month.

¶11 Leal testified that she had a full-time job at which she made
$15 per hour. She also testified that she could make approximately $3,400
in tips in a “good month.” Love argues that this testimony supports the
trial court’s finding that she had made about $6,000 a month. However, this
evidence does not support the court’s finding that Leal’s year-to-date
income in 2023 was $38,438. Rather, this number appears to have been
derived from Leal’s affidavit filed on December 14, 2022, indicating that her
year-to-date income by that time in 2022 was $38,438.2 Although Leal filed
an affidavit on June 14, 2023, identifying her year-to-date income for 2023,
that affidavit was not admitted into evidence at the hearing and indicates
earnings of only $21,927. We can identify no support in the record for the
court’s calculation, which appears to have been an error. We remand for
the court to recalculate Leal’s child support income for the purpose of
recalculating child support.

II. Retroactivity

¶12 Leal argues the trial court erred in declining to award
retroactive child support beginning July 2019, the month of the parties’
physical separation, or, in the alternative, beginning on the date the state
filed its petition for child support on her behalf in November 2021. The
question, in essence, is whether the July 2023 order amounts to: 1) an order
for support entered upon establishment of paternity, subject to retroactivity
under A.R.S. § 25-809(B); 2) an order for support in a proceeding where
“child support has not been ordered by a child support order,” subject to
retroactivity under A.R.S. § 25-320; or 3) a modification of child support
whose effective date is governed by A.R.S. § 25-503(E). We conclude the

2For this reason, Leal asserts the trial court improperly “used income

data for different years for each party.” She cites no authority and does not
develop an argument that the court had an obligation to use data from the
same year. See Boswell v. Fintelmann, 242 Ariz. 52, n.3 (App. 2017) (failure
to develop and support argument results in waiver); Ariz. R. Civ. App. P.
13(a)(7)(A) (argument section of opening brief must contain contentions
with “supporting reasons” and “citations of legal authorities”).

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IN RE SUPPORT OF V.L.
Opinion of the Court

order was a modification. The court erred, therefore, in failing to make the
child support modification effective as provided in § 25-503(E) without a
showing of good cause.

¶13 Leal cites § 25-809(B), which permits a trial court to award
child support retroactive up to three years before commencement of a
paternity proceeding. See Gelin v. Murray, 251 Ariz. 544, ¶ 14 (App. 2021)
(holding that § 25-809(A) “grants the superior court general authority in
paternity actions to award past child support”). But § 25-809(B) does not
apply here. This was not a proceeding to establish paternity; rather, it was
a proceeding to modify existing legal decision-making authority, parenting
time, and child support orders.

¶14 In the alternative, Leal relies on § 25-320 to argue that the trial
court should have awarded child support retroactive to the date of
separation in July 2019. See § 25-320(C). At a minimum, she argues support
should have commenced in November 2021, the month the state filed its
petition. See § 25-320(B). In a child support proceeding, “[i]f child support
has not been ordered by a child support order and if the court deems child
support appropriate,” then “the court shall direct, using a retroactive
application of the child support guidelines to the date of filing . . . , the
amount that the parents shall pay for the past support of the child.” Id. In
addition, “[i]f the parties lived apart before the date of the filing for . . . child
support and if child support has not been ordered by a child support order,
the court may order child support retroactively to the date of separation.”
§ 25-320(C). Leal argues that child support was “never adjudicated” in the
2017 stipulated order for parenting time, child support, and legal decision-
making authority, which stated that child support was “a non-issue at [that]
time” because Love and Leal were “continuing to cohabitate.”

¶15 The trial court had no discretion to leave child support
undetermined when it entered its parenting time order in 2017. See A.R.S.
§ 25-403.09(A) (court required to “determine an amount of child support”
“[f]or any parenting time order”). Thus, Leal’s theory that child support
was “never adjudicated” depends on the court having done what it lacked
the discretion to do. Further, despite its language that child support was “a
non-issue,” the 2017 order does not clearly indicate that the court intended
to leave child support unresolved rather than determining that the
appropriate amount of child support at that time was zero. If the court’s
order amounted to a non-adjudication of child support, then presumably
either party could have petitioned for child support at any time. The court’s
order here, however, placed express conditions on either party’s ability to

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IN RE SUPPORT OF V.L.
Opinion of the Court

seek a modification of child support. It required that the parties must
“choose to no longer cohabitate” and a party “seeking” support must file a
petition.

¶16 In the 2017 order, the trial court adopted the parties’
stipulation that no child support would be paid unless and until the parties
stopped living together and one party filed a petition. In so doing, the court
determined an amount of child support, as it was required to do when it
entered its parenting time order. See § 25-403.09(A). It ordered, in effect,
that the amount of child support would be zero until the relevant
circumstances changed—namely, when the parties no longer lived together
and one party petitioned the court. See Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9
(App. 2006) (“We may affirm the trial court’s ruling if it is correct for any
reason apparent in the record.”).

¶17 The 2017 order, therefore, was a child support order
providing for monetary support of V.L., and the 2023 order was a child
support modification.3 See § 25-503(E); cf. Ali v. Ali, 253 Ariz. 102, ¶ 13
(App. 2022) (“An order providing that neither parent is required to pay
child support to the other parent for the benefit of a child is an order
providing for monetary support for that child.”). Because § 25-320(B)
allows for retroactive child support only when it “has not been ordered by
a child support order,” it does not apply here.4

¶18 Leal argues that even if the 2023 order was a modification,
“retroactive support should still be awarded as of December 2021,” the
month following the petition. When a child support order is “modified,”

3For this reason, we do not address Leal’s argument that a waiver of

child support is against public policy. Regardless, policy arguments are for
the legislature to address. State ex rel. Ariz. Dep’t of Revenue v. Tunkey, 254
Ariz. 432, ¶ 20 (2023).
4Likewise, because there was a prior child support order, we reject

Leal’s argument, raised for the first time in her reply brief, that § 25-320(C)
provides retroactive child support as of the date of separation. See § 25-
320(C) (“[I]f child support has not been ordered by a child support order,
the court may order child support retroactively to the date of separation,
but not more than three years before the date of the filing for . . . child
support.”); see also State v. Lopez, 217 Ariz. 433, n.4 (App. 2008) (within
appellate court’s discretion to address issues raised for first time in reply
brief).

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IN RE SUPPORT OF V.L.
Opinion of the Court

the modification is “effective on the first day of the month following notice
of the petition for modification . . . unless the court, for good cause shown,
orders the change to become effective at a different date but not earlier than
the date of filing the petition for modification.” § 25-503(E).

¶19 The trial court denied Leal’s request for retroactive child
support going back to the time of separation because “the parties had
previously agreed to waive child support” and the court would “not
intrude on their prior agreement.” Love asserts this was a finding of good
cause to set a later effective date than what § 25-503(E) otherwise would
have required. But a prior child support order does not preclude later
modification. In fact, the 2017 order expressly contemplated modification
upon either party’s petition, “[s]hould the parties choose to no longer
cohabitate.” Thus, although the court had discretion to set an effective date
for the modification other than the “first day of the month following notice
of the petition for modification,” id., the mere existence of a prior child
support order—stipulated or otherwise—cannot have amounted to good
cause. We therefore remand for the court to determine whether good cause
justifies an alternative effective date and, if so, to make the required finding.
See id.

III. Deviation

¶20 Leal argues the trial court erred in declining to deviate from
the child support guidelines. A court must deviate from the guidelines if it
“find[s] that the strict application of the Guidelines is inappropriate or
unjust.” § 25-320 app. § I(A) (Step 11). In making this determination, the
court must consider “all relevant factors, including those set forth in . . . [§]
25-320.” § 25-320 app. § IX(B). Section 25-320(D) enumerates factors
including “[t]he financial resources and needs of the child,” “[t]he physical
and emotional condition of the child, and the child’s educational needs,”
“[t]he financial resources and needs” of each parent, and “[t]he standard of
living the child would have enjoyed if the child lived in an intact home.”

¶21 The trial court denied Leal’s upward deviation request,
finding that it was not “appropriate.” On appeal, Leal asserts that the
relevant factors under § 25-320(D) favor an upwards deviation from the
amount specified in the guidelines. She asserts that V.L. had “grown
accustomed to” an “upper-class lifestyle” “due to [Love’s] significant
income” and that she is not able to provide him “the same lifestyle.”
Additionally, she argues that V.L., who has been diagnosed with autism,
“has extraordinary expenses, including specialized therapy and toys and
educational aids.” She further states that a deviation is warranted because

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IN RE SUPPORT OF V.L.
Opinion of the Court

she “earns the majority of her funds” through “cash tips which have proved
to be inconsistent and unpredictable.” In contrast, she asserts that Love is
“a significant earner.”5

¶22 Leal’s argument is essentially a request to reweigh the
evidence, which we will not do. See Hurd, 223 Ariz. 48, ¶ 16. There was
evidence in the record to support the trial court’s finding that a deviation
was not warranted. See Nash v. Nash, 232 Ariz. 473, ¶ 5 (App. 2013) (“We
will accept the court’s findings of fact unless they are clearly erroneous.”);
Davis v. Zlatos, 211 Ariz. 519, ¶ 18 (App. 2005) (“Factual findings ‘are not
clearly erroneous if substantial evidence supports them,’ and ‘[s]ubstantial
evidence is evidence which would permit a reasonable person to reach the
trial court’s result.’” (alteration in Davis) (quoting In re $26,980 U.S.
Currency, 199 Ariz. 291, ¶ 9 (App. 2000))). The court did not abuse its
discretion in declining to deviate. See Simpson, 224 Ariz. 224, ¶ 4.

Attorney Fees

¶23 Leal argues the trial court erred in denying her request for an
award of attorney fees. We will not disturb a decision regarding attorney
fees absent an abuse of discretion. Engel v. Landman, 221 Ariz. 504, ¶ 45
(App. 2009). We find no such abuse here.

¶24 Leal argues that “an award of [attorney] fees was warranted”
because Love earns “nearly ten times” what she does. She suggests
disparity in income alone required the trial court to award her attorney fees
under § 25-324. That statute, however, “requires the court to consider both
the parties’ resources and the reasonableness of their positions.” Nicaise v.
Sundaram, 244 Ariz. 272, ¶¶ 33-34 (App. 2018), vacated in part on other

5To the extent Leal argues the parties’ combined income supports a

deviation, we do not address this argument because, pursuant to our
remand, the trial court must first recalculate each party’s child support
income. See § 25-320 app. § IX(D)(2) (circumstances potentially warranting
deviation include cases in which parties’ “combined income exceeds
$30,000 monthly and there is a significant disparity in income between the
parents”). Then, if the combined child support income of the parties is
greater than $30,000 per month, it is for the court to determine whether that
income and any significant income disparity between the parties warrants
a deviation under the particular circumstances of this case. See id.; § 25-320
app. § III(A)(1)(c)(ii); see also Coburn v. Rhodig, 243 Ariz. 24, ¶ 15 (App. 2017)
(trial court determines questions of fact “in the first instance”).

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grounds, 245 Ariz. 566, ¶ 17 (2019); § 25-324(A). Leal incorrectly relies on
Arizona cases addressing a prior version of § 25-324, under which the
disparity in the parties’ financial resources was the “exclusive or
predominant consideration for . . . an [attorney fee] award.” Myrick v.
Maloney, 235 Ariz. 491, ¶ 8 (App. 2014). In Myrick, we explained that the
relevant language in cases such as Burnette v. Bender, 184 Ariz. 301 (App.
1995), on which Leal relies, had been superseded by the current version of
§ 25-324(A), which—since its amendment in 1996—has included “the
reasonableness of the parties’ positions as a second factor to consider when
determining whether to award fees.” 235 Ariz. 491, ¶ 8.

¶25 Additionally, Leal argues the trial court should have awarded
attorney fees under § 25-324 because Love took unreasonable positions at
the evidentiary hearing. Leal has not demonstrated that Love’s positions
were unreasonable, much less that the court abused its discretion in
implicitly determining otherwise.

¶26 Finally, Leal also argues the trial court should have ordered
Love to pay her attorney fees as a sanction because he “unnecessarily
delayed and prolonged the proceedings” by repeatedly failing to timely
provide her with his income and other information as required under Rule
49, Ariz. R. Fam. Law P. Even assuming a violation of a party’s obligation
to provide disclosure or discovery, imposition of sanctions is a matter of
discretion for the trial court. See Ariz. R. Fam. Law P. 65(b); see also Seidman
v. Seidman, 222 Ariz. 408, ¶ 18 (App. 2009). Leal has demonstrated no abuse
of discretion here.6

Disposition

¶27 In our discretion, we deny Love’s request for attorney fees
under § 25-324. We also deny Leal’s request, which cites no supporting
authority. See Ezell v. Quon, 224 Ariz. 532, ¶ 31 (App. 2010); see also Ariz. R.
Civ. App. P. 21(a)(2). Because each party has prevailed in part, we award
neither party’s costs on appeal. See Compassionate Care Dispensary, Inc. v.
Ariz. Dep’t of Health Servs., 244 Ariz. 205, ¶ 44 (App. 2018). We affirm in

6To the extent Leal argues she was entitled to an award of attorney

fees pursuant to A.R.S. §§ 12-349, 25-403.08(B), and 12-350, she waives these
arguments by failing to “develop and support” them on appeal. Boswell,
242 Ariz. 52, n.3; see also Ariz. R. Civ. App. P. 13(a)(7)(A).

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part, vacate in part, and remand for proceedings consistent with this
opinion.

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