Johnson v. Malone

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

REBECCA LEE JOHNSON,
Petitioner/Appellee,

v.

MASAKELA MALONE,
Respondent/Appellant.

No. 1 CA-CV 18-0309 FC
FILED 8-22-2019

Appeal from the Superior Court in Maricopa County
No. FC2016-051274
The Honorable Lisa Ann VandenBerg, Judge

AFFIRMED

COUNSEL

Rebecca Lee Johnson, Warrensville Heights, OH
Petitioner/Appellee

Rosov Law, PLLC, Phoenix
By Elijah W. Rosov
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jennifer B. Campbell joined.

J O H N S E N, Judge:

¶1 Masakela Malone ("Father") appeals various aspects of the
dissolution decree ending his marriage to Rebecca Johnson ("Mother"). For
the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother, a long-time member of the Air Force, and Father, a
truck driver, married in 2013 and lived together in Illinois and Ohio. They
had a child ("Child") in February 2015. Mother and Child moved to
Maricopa County a few months later; meanwhile, Father was living with
his girlfriend in Kansas City, Missouri. In January 2016, Mother petitioned
the superior court to dissolve the marriage, seeking, inter alia, sole legal
decision-making authority, a parenting plan in which she is the primary
residential parent, and child support. During the course of the proceedings,
Mother asked the court for leave to relocate Child to Cleveland.

¶3 The court held a one-day trial in March 2018, at which Mother,
Father and a counselor testified. Father was represented at trial; Mother
was not. The dissolution decree awarded Mother sole legal decision-
making and made her Child's primary residential parent, approved her
request to relocate Child, and granted her child support and attorney's fees.
Father timely appealed. We have jurisdiction pursuant to Article 6, Section
9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.")
sections 12-120.21(A)(1) (2019) and -2101(A)(1) (2019).1

DISCUSSION

A. Due Process.

¶4 Father first argues the superior court violated his due-process
rights by initially setting the dissolution hearing for a full day, then

1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.

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reducing the time to a half day, only to grant more time on the day of the
hearing. He complains that as a result, his presentation of evidence was
disrupted. Although the superior court may impose reasonable time limits
on proceedings, it must afford parties "an opportunity to be heard at a
meaningful time and in a meaningful manner." Volk v. Brame, 235 Ariz. 462,
468, ¶ 20 (App. 2014) (quoting Curtis v. Richardson, 212 Ariz. 308, 312, ¶ 16
(App. 2006)); see also Ariz. R. Fam. Law. P. 22(a). Even when a court's
management of a hearing violates a party's due-process rights, we will
reverse only if the party shows resulting prejudice. Volk, 235 Ariz. at 470,
¶ 26.

¶5 Father's argument fails. The hearing ultimately lasted a full
day, which he acknowledges was the time originally allotted. Mother and
Father each presented their cases, and the court allowed Father to call a
counselor who is a parenting supervisor to testify on his behalf. Father does
not identify any prejudice from the manner in which the hearing proceeded,
id., and the record shows the court gave him "an opportunity to be heard at
a meaningful time and in a meaningful manner," id. at 468, ¶ 20 (quoting
Curtis, 212 Ariz. at 312, ¶ 16).

B. Evidentiary Issues.

¶6 In his pretrial statement, Father invoked the Arizona Rules of
Evidence pursuant to Arizona Rule of Family Law Procedure 2. On appeal,
he argues the superior court abused its discretion by failing to admit Exhibit
27 and part of Exhibit 9. We review evidentiary rulings for an abuse of
discretion. Davis v. Davis, 246 Ariz. 63, 65, ¶ 6 (App. 2018). Even if the court
abused its discretion, we will not reverse unless the party challenging the
court's ruling shows prejudice. Id.

¶7 Exhibit 27 was a collection of W-2 and 1099 tax documents
Father offered to show his income and a job change in 2017. Mother
objected, arguing Father had not filed an updated Affidavit of Financial
Information ("AFI") and contending that the exhibit might not reflect his
total income for 2017. Offered the opportunity to lay a proper foundation
for the exhibit, Father testified that he had not yet filed his tax return for
2017, and his lawyer did not ask him whether the exhibit reflected all of his
earnings during the year. The court excluded the exhibit, finding it
unreliable.

¶8 Father argues the court abused its discretion by refusing to
admit Exhibit 27 because the exhibit constituted the "best evidence" of his
2017 income. Knowing child support would be at issue in the hearing,

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Father failed to file an updated AFI (the most recent one in the court's file
was dated February 2017, nearly a year before the hearing). An AFI is a
sworn "comprehensive statement of [a party's] income and expenses,"
which the court may consider as evidence. See Ariz. R. Fam. L. P. 2(d),
76.1(g)(1)(B). Although Father argued at trial that the tax documents in
Exhibit 27 would show his income had changed since the year before, as
stated, after invoking the Rules of Evidence, he failed to lay a proper
foundation for the exhibit. On this record, we cannot say the court abused
its discretion by declining to admit the exhibit. Davis, 246 Ariz. at 65, ¶ 6.

¶9 Exhibit 9 consisted of two reports created by private
investigators. Mother sought to have the court admit the second report, but
the court sustained Father's hearsay objection. Father later offered the first
report from Exhibit 9, but the court refused to admit it, pointing out that
Father had objected to admission of the other report.

¶10 The superior court did not abuse its discretion in declining to
admit the report. Father argues it would have been relevant to Child's best
interests, from which we infer that he sought to offer the report for the truth
of its contents. The report plainly was hearsay, and Father does not contend
otherwise; nor does he argue it was admissible under any exception to the
rule against hearsay. See Ariz. R. Evid. 801(c), 802; Davis, 246 Ariz. at 65, ¶
6.

C. Legal Decision-Making and Parenting Time.

1. General principles.

¶11 We review the superior court's determinations about legal
decision-making and parenting time for an abuse of discretion. Engstrom v.
McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018). An abuse of discretion occurs
when the court commits legal error, Arpaio v. Figueroa, 229 Ariz. 444, 447,
¶ 7 (App. 2012), 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) (quoting
Fought v. Fought, 94 Ariz. 187, 188 (1963)). "[W]e defer to the court's findings
of fact unless they are clearly erroneous." Engstrom, 243 Ariz. at 471, ¶ 4.

2. The superior court's best-interests findings.

¶12 After assessing the factors enumerated in A.R.S. § 25-403(A)
(2019) and A.R.S. § 25-403.01(B) (2019), the superior court must determine
legal decision-making and parenting time "in accordance with the best
interests of the child." A.R.S. § 25-403(A). In a contested case, § 25-403(B)

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states that "the court shall make specific findings on the record about all
relevant factors and the reasons" for the court's best-interests
determination. Failure to make such findings on the record constitutes an
abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).

¶13 Father argues the superior court's findings were
"deficient/insufficient." He acknowledges the decree addressed each of the
relevant factors, but asserts the court erred by failing to specify how it
weighed its various findings. We disagree. Although the court did not
explicitly state its conclusion as to each factor, the court cited specific
evidence relevant to certain factors and pointed out the absence of credible
evidence as to other factors or the irrelevance of the remaining factors.

¶14 Contrary to Father's contention, § 25-403(B) does not require
the superior court to state whether or how each given factor weighs in favor
of a specific ruling on legal decision-making or parenting time. Father cites
Owen v. Blackhawk, 206 Ariz. 418 (App. 2003), but there, unlike in this case,
we were unable to assess whether the superior court focused unduly on one
factor to the exclusion of others. Id. at 669-70, 671, ¶¶ 8, 12. Here, the court
made findings on each relevant factor, and, as shown below, we can
determine the weight the court gave each factor. Nold, 232 Ariz. at 273, ¶
11.

3. Legal decision-making.

¶15 To begin with, the evidence amply supported the superior
court's decision to order sole legal decision-making based on its finding that
"the parents have not demonstrated an ability to make joint legal decisions
for the child." See A.R.S. § 25-403.01(B)(3) (ability of parents to cooperate in
making decisions). Among other evidence the court cited, there were
allegations of mutual domestic violence between the parents in April 2014.

¶16 Under § 25-403.01(B)(1), (2), in deciding competing requests
for legal decision-making authority, the court may consider whether one of
the parents has acted unreasonably or has been "influenced by an issue not
related to the child's best interests" in failing to agree about decision-
making. In considering that factor, the court recounted that Father
admitted at trial that he had shut off the electricity at the home in which
Mother was staying with Child because Mother had failed to comply with
his request to change the name on the account, and that he would do so
again under the same circumstances. Father argues the court erred by
considering the electricity issue because it was not relevant, but the court
did not abuse its discretion under the circumstances. Further, the court

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noted that the parents lived in different states, and, as Mother testified,
Father had a history of not timely responding to issues concerning Child
while he was away for work.

¶17 Addressing § 25-403(A)(2) (child's relationship with siblings
"and any other person who may significantly affect the child's best
interests"), the court expressed concern that Father does not afford Child
the same care he gives to his other children. It found "a strong distinction"
between how Father provides for Child and how he provides for his other
children. The record supports this distinction: Father testified he lives with
and provides for his other children; meanwhile, Father had seen Child only
"six or seven times" since Child and Mother moved to Arizona, and for "no
more than a day" each time.

¶18 Addressing § 25-403(A)(5) ("mental and physical health of all
individuals involved"), the court found that "Father may be in need of anger
management or Domestic Violence counseling," based on testimony by
both parents about "past events in which Father was either exerting or
accuse[d] of exerting control and or anger with Mother and Father's past
wives." Mother also testified that, when Father was upset with her, he
would try to limit her sources of financial support.

¶19 Father argues the court erred by disregarding the opinion of
the best-interests attorney that "Mother has shown unreasonable distrust
and acrimony" toward Father, which he argues weighed against Mother
under § 25-403(A)(6) (which parent is more likely to allow child to have
contact with the other). Father also argues the court disregarded other
evidence that Mother effectively put up roadblocks to keep him from Child.

¶20 It is not this court's role, however, to reweigh the evidence.
See Lehn v. Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019). Because
reasonable evidence supports the court's findings, it did not abuse its
discretion in awarding Mother sole legal decision-making.

4. Parenting time.

¶21 Under A.R.S. § 25-403.02(B) (2019), the superior court must
adopt a parenting plan that is "[c]onsistent with the child's best interests in
§ 25-403" and "maximizes [each parent's] respective parenting time." The
court makes this determination based on its assessment of the factors set
out in § 25-403(A). Here, the court ordered that Mother would be Child's
primary residential parent and granted Father one weekend a month of
visitation in his home state. The court also made Father solely responsible
for the transportation expenses of those visits.

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¶22 Father first seems to contest the court's order to the extent that
it endorses or presumes that the parents will “remain separate in
parenting." Contrary to Father’s contention, however, given the evidence
of conflict between the parties, the court did not err by declining to order
"co-parenting."

¶23 Otherwise, Father acknowledges the court granted him
"essentially everything" he wanted with respect to parenting time, except
that he argues that monthly visits will impose a greater financial burden on
him than if the court had granted him two or three "large visits, plus
holidays." Father argues that because of travel expenses, the result of the
ruling will be that he either will "fail to exercise his regular visitation, or fail
to comply with child support obligations."

¶24 Father, however, offered no evidence to show that a handful
of visits a year with a three-year-old child are the substantial equivalent of
monthly visits when it comes to maintaining a healthy parenting
relationship. Thus, we cannot say the court abused its discretion by
awarding Father one weekend per month of visitation in his home state and
requiring him to bear all the associated travel costs. Engstrom, 243 Ariz. at
471, ¶ 4.

D. Past Child Support.

1. Preliminary issues.

¶25 Father does not challenge the superior court's award of child
support going forward from the date of the decree, but argues the court
erred by ordering back child support of $11,336 for the period of January 6,
2016 through March 1, 2017 (roughly $810 a month).

¶26 As an initial matter, Father argues the court did not have
"jurisdiction to hear the issue of final orders on child support" because the
matter should have been decided by "the IV-D court." But the "IV-D court"
is not a distinct court from the superior court. It is a division of the superior
court, usually presided over by a commissioner, that rules on child support
involving a parent who receives public assistance. See A.R.S. §§ 25-502(A)
(2019) (superior court has "original jurisdiction in proceedings . . . to
establish, enforce or modify" any child-support order); 12-298(A), (C) (2019)
(superior court appoints "commissioners . . . to provide for the expeditious
establishment . . . of support orders"); see also A.R.S. §§ 25-328 (2019), -509
(2019), 46-295 (2019) and -407 (2019) (collectively establishing a process by
which State may intervene in a child-support matter involving family
receiving public assistance; commissioner decides issue after the superior

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court has bifurcated the issue from a dissolution proceeding). Therefore, if
the IV-D court had jurisdiction, the family court did too.

¶27 Father next argues he had no notice before the dissolution
hearing that past support would be at issue, and thus did not know he
needed to present evidence of his payment of past support. The record does
not support his contention.

¶28 In January 2016, the parties entered, and the court later
adopted as an order, a Rule 69 agreement requiring Father to pay Mother a
specified amount each month until September 2017. After Mother moved
to enforce the agreement as a temporary support order, the court entered a
separate temporary order on child support in February 2017 but stated the
validity of the agreement would be resolved at trial.

¶29 As the dissolution trial approached, Mother listed the
enforcement of the parties' Rule 69 agreement as an issue in her pretrial
statement. More significantly for this purpose, Father's pretrial statement
noted that he would seek "retroactive modification of his child support
obligation already ordered." Finally, Father does not point to any evidence
of payments he made that he failed to offer because he did not know past
support would be at issue at the dissolution trial.

2. Amount of past support.

¶30 Father also raises several arguments challenging the
substance of the superior court's determination of his past child-support
obligation for January 6, 2016 through March 1, 2017. The Arizona Child
Support Guidelines, A.R.S. § 25-320 app. (2019) ("Guidelines"), instruct the
superior court how to determine child support. The court may award
retroactive child support "if the court deems [such] support appropriate"
and may consider any "temporary or voluntary support that has been paid."
A.R.S. § 25-320(B) (2019). "[T]he amount resulting from application of [the
Guidelines] shall be the amount of child support ordered," unless a
deviation, as specified under the Guidelines, is warranted because strict
application would be "inappropriate or unjust." A.R.S. § 25-320 app. § 3.
"We review child support awards for abuse of discretion. . . . We accept the
court's factual findings unless clearly erroneous but review de novo the
court's conclusions of law and interpretation of the . . . Guidelines." Sherman
v. Sherman, 241 Ariz. 110, 112-13, ¶ 9 (App. 2016).

¶31 Father first argues the superior court abused its discretion by
failing to deviate from the Guidelines to account for the expense of his
"regular monthly visit" with Child. But he cites no evidence to support the

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premise of that contention, which is that before entry of the dissolution
decree, he incurred expenses associated with regular monthly visits with
Child.

¶32 Father next argues the court failed to credit him under the
Guidelines with expenses associated with his two other children, with
whom he lives. The Guidelines state that "[a]n amount may be deducted
from the gross income of a parent for support of . . . children . . . not covered
by a court order." A.R.S. § 25-320 app. § 6(D) (emphasis added). The
evidence supported the court's finding that Father made significantly more
in income than Mother; moreover, Father testified his girlfriend also
provided support for his other children. On this evidence, we cannot say
the court abused its discretion when it chose not to take into account the
expenses Father incurred in caring for his other children. See Sherman, 241
Ariz. at 112-13, ¶ 9.

¶33 Father also argues the superior court failed to make findings
on the parents' income, as the Guidelines required. See A.R.S. § 25-320 app.
§ 22. But the court did make those findings on its Child Support Worksheet,
which the court "incorporate[d] and adopt[ed] as its findings," as the
Guidelines permit. Id. On the worksheet, the court found Father earned
$62,500 a year, roughly equal to $5,208 per month, and attributed income to
Mother of $21,840 a year, or $1,820 per month, equal to fulltime
employment paid at Arizona's minimum wage. See A.R.S. § 23-363(A)
(2019).2

¶34 Father further argues the court abused its discretion in
calculating the parties' incomes. As discussed above, Father failed to
submit an updated AFI for trial, and the court explicitly rejected his Exhibit
27 as unreliable evidence of his income. Father now points to paystubs in
evidence and argues those showed his income. Mother argued the
paystubs did not reflect all of Father's income, and, in the absence of a
current AFI or Father's most recent tax return, the court was not obligated
to accept Father's contention that they did. This is particularly true because
the record contained evidence that Father's income had fluctuated over
recent years. Transcripts of Father's tax returns in evidence showed his
income was $62,565 in 2011, $69,540 in 2012, $85,393 in 2013, $37,350 in 2014
and $47,585 in 2015. And in a child-support worksheet Father submitted in
connection with the February 2017 hearing, he claimed $60,000 in annual

2 Mother's AFI stated she only earned $525.91 per month, but she does
not challenge the court's decision to attribute minimum wage income to her.
A.R.S. § 25-320 app. § 5(E).

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income ($5,000 a month). Based on this record, we cannot say the court
abused its discretion in estimating Father's income during the period at
issue. See Sherman, 241 Ariz. at 112-13, ¶ 9.

¶35 Regarding Mother's income, Father argues the court erred by
failing to find her income was $41,372.38. In support, he cites Exhibit 65,
Mother's 2017 W-2, but that document designated $21,890.63 of Mother's
2017 income as "Nontaxable combat pay." Internal Revenue Service,
Publication 3 Armed Forces' Tax Guide at *9 (2018); see also 26 U.S.C. § 112
(2019). Mother testified she was deployed from July 2017 to January 2018,
that deployment is not a regular occurrence and that she does not want to
be redeployed. Given Mother's testimony that she was not deployed
during the period at issue for purposes of the court's past child-support
calculation (January 6, 2016 through March 1, 2017), the court did not abuse
its discretion in declining to take the combat pay into account in
determining Mother's income. See Sherman, 241 Ariz. at 112-13, ¶ 9.

¶36 Father contends the court otherwise abused its discretion by
failing to attribute income greater than minimum wage to Mother. The
Guidelines permit the court to decline to attribute income to a parent when
the parent is earning less than his or her full capacity. A.R.S. § 25-320 app.
§ 5(E). For example, the court may choose not to attribute income when "[a]
parent is engaged in reasonable career or occupational training to establish
basic skills or reasonably calculated to enhance earning capacity."
Guidelines § 5(E)(2). Here, Mother testified she was pursuing occupational
training because her current qualifications did not allow her to secure a
position. Based on that testimony, the court had a valid reason not to
attribute additional income to Mother.

¶37 Father also argues the superior court abused its discretion
when it granted Mother undue credit for what she paid for health insurance
for Child during 2016. The Guidelines state the court must add the cost of
a child's insurance coverage to the total child-support obligation, but "only
the amount of the insurance cost attributable to the child[]." A.R.S. § 25-320
app. § 9(A).

¶38 Mother's health insurance covered Mother, Father, Child and
one of Father's other children, and Mother testified she paid a lump-sum
amount to insure all family members other than herself, regardless of their
number. As Father argues, under the Guidelines, the court in this situation
should credit the parent with having paid only one-third the price of the
"family plan" (because Child was one of three additional family members
covered by the plan). See id. Any error the court made on this issue was

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harmless, however. Mother testified her insurance plan did not allow her
to remove Father and his child until the dissolution became effective.
Under these circumstances, if the court had chosen to credit Mother for
child-support purposes with only one-third of the cost of the family plan, it
could have ordered Father to make an equalization payment to Mother to
account for the other two-thirds as a post-petition payment by her of
insurance on Father's behalf. Cf. Bobrow v. Bobrow, 241 Ariz. 592, 596-97, ¶
20 (App. 2017).

¶39 Father also argues the court abused its discretion because it
did not credit him with having paid $9,995 in child support before February
2017, a payment he asserts Mother acknowledged at the dissolution trial.
We disagree with Father's contention that his payment of that sum must be
credited to him as child support. Contrary to his contention, Mother did
not testify the payment was child support; she testified Father characterized
it as child support. As she explained it, Father told her the money "was for
child support" (i.e., not spousal maintenance) when the parties were
disputing the enforceability of their Rule 69 agreement.

¶40 Father finally argues the court also erred by failing to credit
him with child-support payments withheld from his paychecks. As
evidence, however, Father points to paystubs showing withholdings no
earlier than June 2017; he cites no evidence to support his contention that
amounts were withheld from his paychecks during the period of January 6,
2016 through March 1, 2017, the period encompassed by the court's past-
support ruling.

E. Attorney's Fees.

¶41 Father argues the court abused its discretion by awarding
attorney's fees to Mother and by failing to address his request for attorney's
fees. Mother sought $13,604 in fees, all of it incurred before the dissolution
hearing; the court awarded her $2,000. "We review an award of attorney's
fees for an abuse of discretion." Murray v. Murray, 239 Ariz. 174, 179, ¶ 20
(App. 2016). "We will not reverse such an award if there is any reasonable
basis for it." In re Marriage of Gibbs, 227 Ariz. 403, 410, ¶ 20 (App. 2011)
(quotation omitted). Under § 25-324(A) (2019), a court may award
attorney's fees "after considering the financial resources of both parties and
the reasonableness of the positions each party has taken throughout the
proceedings." A court may award attorney's fees solely on the basis of a
disparity of financial resources. See Myrick v. Maloney, 235 Ariz. 491, 494, ¶
9 (App. 2014).

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¶42 The decree shows the superior court considered both
statutory factors. The court found Father had "considerably more
resources" than Mother, and thus a "substantial disparity of financial
resources" existed between the parties. The court also found Father had
acted unreasonably, citing his failure to comply with the Parent Information
Program and failure to pay child support, which required Mother to go to
court to enforce that obligation. Although Father contends the court
improperly disregarded unreasonable positions taken by Mother, on this
record, the court did not abuse its discretion. See Murray, 239 Ariz. at 179,
¶ 20; Myrick, 235 Ariz. at 494, ¶ 9. Finally, although Father argues the court
did not address his request for fees, the decree expressly denied "any
affirmative relief . . . that is not expressly granted above."

CONCLUSION

¶43 For the foregoing reasons, we affirm the decree and the award
of fees.

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

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