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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
BETH JAMISON, Petitioner/Appellant,
v.
BLAIR ROBERT JAMISON, Respondent/Appellee.
No. 1 CA-CV 20-0705 FC
FILED 10-14-2021
Appeal from the Superior Court in Maricopa County
No. FC2019-053784
The Honorable Dawn M. Bergin, Judge (retired)
AFFIRMED
COUNSEL
The Law Office of Carrie M. Wilcox, PLLC, Phoenix
By Carrie M. Wilcox
Counsel for Petitioner/Appellant
James Portman Webster Law Office, PLC, Mesa
By James Portman Webster
Counsel for Respondent/Appellee
JAMISON v. JAMISON
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.
M c M U R D I E, Judge:
¶1 Beth Jamison appeals from the superior court’s dissolution
decree. She argues that the court erred in determining parenting time and
child support, dividing community assets and debt, allocating child tax
exemptions, and failing to award her attorney’s fees. We reject the
arguments raised and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Beth (“Mother”) and Blair Jamison (“Father”) were married in
2005 and have two minor children. In 2019, Mother petitioned for
dissolution of the marriage. The parties agreed to a temporary parenting
schedule, and the court awarded parenting time to Father every other
weekend and one evening a week. In addition, given his past mental health
issues, Father agreed to a psychological evaluation and assessment of his
parenting abilities.
¶3 In the joint pretrial statement, Mother requested the parenting
schedule continue as provided under the court’s temporary order. Father
asked for equal parenting time under a 5-2-2-5 plan. The psychological
evaluation found that Father had experienced some delusions in the past
but was currently in complete remission.
¶4 At the trial, Mother testified she bought a home during the
marriage with a down payment gifted from her mother. She argued that the
house was her separate property and asserted Father deserved no interest
in it.
¶5 Following the trial, the court found that Father’s home had
less structure and routine, which was not conducive to remedying some
behavioral issues with one child. The court also found that the children
were sometimes tired and irritable at school when they spent the previous
night with Father. The court noted that it would not limit Father’s parenting
time based on the psychological evaluation. Even so, the court determined
that the children should spend most school nights with Mother.
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JAMISON v. JAMISON
Decision of the Court
¶6 The court ordered parenting time for Father beginning
Fridays after school and ending Tuesdays before school, except that Mother
would have parenting time one weekend per month. In addition, Mother
and Father would have parenting time during alternate weeks in the
summer. Under the order, Father also had parenting time during fall and
spring breaks. The court said that Father’s parenting time during the breaks
was intended to equalize parenting time during the year as much as
possible.
¶7 The court found per the Arizona Child Support Guidelines
that Father would have to pay Mother $13 per month but ordered that
Father pay no child support. The court also ordered that Mother provide
the children with medical insurance and pay 62% of medical expenses not
covered by insurance. Each parent was made financially responsible for
childcare expenses incurred during his or her parenting time. Mother was
awarded three-fifths, and Father was awarded two-fifths of the state and
federal child tax exemptions.
¶8 The court ordered Father solely responsible for the student
loan debt he incurred during the marriage and other obligations owed to
Merrick Bank, Credit One, and his parents. The community was allocated
the debts owed to Wells Fargo, Capital One, and PayPal.
¶9 Though both parties requested attorney’s fees, the court
found that neither party had met its burden under A.R.S. § 25-324(A) and
declined to award fees.
¶10 Mother moved to alter or amend the judgment under Rule of
Family Law Procedure 83(a) following the decree. The superior court
denied the motion. Mother appealed, and we have jurisdiction under A.R.S.
§§ 12-2101(A)(1), -120.21(A)(1), and Arizona Rule of Family Law Procedure
78(c).
DISCUSSION
¶11 We review the superior court’s parenting-time, child-support,
property-division, and attorney’s fees orders for an abuse of discretion.
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013) (parenting time); Birnstihl
v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018) (child support); Hefner v.
Hefner, 248 Ariz. 54, 57, ¶ 6 (App. 2019) (property division and attorney’s
fees).
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JAMISON v. JAMISON
Decision of the Court
A. The Superior Court Did Not Abuse its Discretion in Awarding
Parenting Time.
¶12 When parenting time is contested, “the court shall adopt a
parenting plan that . . . maximizes [the parents’] respective parenting time”
and determine parenting time based on the best interests of the children.
A.R.S. §§ 25-403.02(B), -403(A). To determine a child’s best interest, the
court must consider a non-exhaustive list of factors. See A.R.S.
§ 25-403(A)(1)–(11). Without evidence to the contrary, generally equal or
near-equal parenting time is presumed to be in a child’s best interests.
Woyton v. Ward, 247 Ariz. 529, 531, ¶ 6 (App. 2019). We will affirm the
superior court’s determination of best interests unless the appellant shows
the court “commit[ed] legal error or when the record is devoid of competent
evidence to support the court’s decision.” Id. at ¶ 5.
¶13 Mother argues the superior court failed to weigh the
recommendations in the psychological evaluation. One of the factors the
court must consider when determining the child’s best interests is the
mental and physical health of the individuals involved. A.R.S.
§ 25-403(A)(5). In considering Father’s mental health, the court found that
Father’s had bouts of delusional thinking that peaked in 2016. The court
noted that Father’s psychological evaluation reported that “without
professional treatment, he may experience another episode with which he
has anxiety, depression, and delusions” and that “without psychiatric
professionals involved, Father may not know he is in need of help and may
place the children in harm’s way, even if unintentionally.” But the court
also recognized that Father had not shown aggression toward or paranoid
thoughts involving the children, there was no credible evidence that Father
had recently suffered from delusions, and the psychological evaluation
reported that Father’s symptoms were in complete remission. Thus, the
superior court’s findings about Father’s mental health were supported by
the evidence and did not constitute an abuse of discretion.
¶14 Mother argues the court’s parenting plan is not in the
children’s best interests because, as recognized by the court, the children’s
school reported that they are tired and irritable after spending the night
with Father. The court found there was no valid basis to limit Father’s
parenting time, but the “children are better served by being in Mother’s care
the majority of the school week” and awarded Father two out of five school
nights per week during the school year. Thus, the court did not abuse its
discretion by awarding Father parenting time two school nights per week.
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JAMISON v. JAMISON
Decision of the Court
¶15 Mother also argues that the court abused its discretion by
awarding Father parenting time during the children’s fall and spring
breaks. The court granted Father this added time to “equalize parenting
time to the extent possible.” The extra time accounts for Mother’s other
parenting time the second weekend of every month during the school year.
Mother argues that because Father has more parenting time each week of
the school year, an award of parenting time to Father during the children’s
fall and spring breaks is unnecessary for equalization. But during the school
year, Mother and Father each have four days of parenting time per week as
calculated under the Arizona Child Support Guidelines. A.R.S. § 25-320
app. § 11(A), (C)(1)–(2) (2018) (“Guidelines”) (defining a parenting period
of 12 hours or more as one day and a period between 6 and 11 hours as a
half-day). The parents were allocated an equal amount of parenting time
during the school week, but Mother received more time on the second
weekend of each month. As a result, the superior court’s allocation of
parenting time to Father during the children’s fall and spring breaks was
not an abuse of discretion.
B. The Superior Court Did Not Abuse Its Discretion by Determining
that Father Did Not Have to Pay Child Support.
¶16 Mother argues the court erred by failing to order Father to pay
child support and by failing to divide childcare expenses equally between
the parties. Mother concedes that the Guidelines allow for a reduction of
Father’s obligation from $13 to $0. But Mother asserts the court should have
determined Father’s obligation based on the parties’ agreement concerning
after-school care expenses.
¶17 The Guidelines permit but do not require a court to add to the
basic child support obligation amounts for childcare costs. Guidelines
§ 9(B)(1). So the court did not have to add to Father’s obligation to account
for Mother’s more significant share of the after-school childcare costs under
the parenting schedule.
¶18 Mother claims the court abused its discretion by failing to
order that childcare costs be shared equally between the parties after they
agreed on the record to an equal division of childcare costs. However, the
superior court is not bound by the parties’ agreement on child support. It
therefore did not abuse its discretion by ordering Mother and Father to pay
for the childcare expenses incurred during parenting time. A.R.S.
§ 25-317(B).
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JAMISON v. JAMISON
Decision of the Court
C. The Superior Court Did Not Abuse its Discretion by Allocating
Father Two-Fifths of the Child Tax Exemptions.
¶19 Mother argues that Father should not have been allocated
two-fifths of the child-tax exemptions. She makes the claim because she
provides medical insurance for the children, pays for certain childcare
expenses, and the court did not order Father to pay child support. Under
the Guidelines, child tax exemptions are allocated according to the parties’
relative income, with each parent receiving exemptions proportionate to his
or her percentage of the combined adjusted gross income. Guidelines § 27.
The Guidelines only allow for a deviation from this calculation method if
one parent will not derive a tax benefit from the exemption or has a history
of nonpayment of child support. Id. The superior court correctly allocated
the child tax exemptions.
D. The Superior Court Did Not Err by Allocating the Wells Fargo,
Capital One, and PayPal Debts Equally between the Parties.
¶20 Mother asserts that because Father failed to produce all the
credit card statements associated with the Wells Fargo, Capital One, and
PayPal accounts, it was error for the court to allocate those debts to the
community to be equally divided between the parties. Debts incurred
during marriage are presumed to be community debts. Schlaefer v. Fin.
Mgmt. Serv., Inc., 196 Ariz. 336, 339, ¶ 10 (App. 2000). But “[t]his
presumption may be overcome by clear and convincing evidence that the
debt is intended as the separate debt of one of the spouses rather than
both.” Id.
¶21 Father testified and provided statements showing that the
accounts were opened before the service of Mother’s petition. He also
testified that some of the debt was incurred to pay for his living expenses
after the parties separated. Mother testified that she lacked access to these
accounts, and the charges did not benefit the community. But the amount
of debt allocated to the community from the accounts was based on the
balances on the service date. The court thus did not err by assigning to the
community the balances of the three credit accounts as of the date of service
and ordering each party to be responsible for an equal share of that debt.
¶22 Mother also argues Father committed misconduct by failing
to produce all credit card statements as ordered by the court and that,
because of Father’s misconduct, the court should have allocated the debt to
Father. If a party fails to obey an order to provide discovery, the court may
enter sanctions, including directing those particular facts to be taken as
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JAMISON v. JAMISON
Decision of the Court
established. Ariz. R. Fam. Law P. 65(b)(1)(A). While such a sanction is
allowed under Rule 65, it is not mandatory. Thus, the court did not abuse
its discretion by refusing to allocate the debts to Father as a sanction for his
failure to provide the statements.
E. The Superior Court Did Not Err by Calculating Father’s Equitable
Lien on Wife’s Home Using the Full Mortgage Payment Rather
Than the Amount Paid Toward the Principal When Mother Failed
to Introduce Evidence of the Amount Paid Toward the Principal.
¶23 After the parties separated, Mother bought a home and Father
signed a disclaimer deed to the property. The superior court found that the
house was Mother’s separate property but that Father was entitled to an
equitable lien for the value of the principal payments made during the
marriage by the community to be calculated according to Drahos v. Rens,
149 Ariz. 248, 250 (App. 1985). In her pretrial statement, Mother asserted
that the community had paid around $28,000 in mortgage payments before
she served her petition. Yet mother introduced no other evidence about the
amount contributed by the community to reduce the principal balance. The
court, therefore, used the amount in Mother’s pretrial statement to calculate
Father’s equitable lien.
¶24 In her motion to alter or amend the judgment, Mother
asserted that the $28,000 figure included interest together with the
principal, and the court should instead calculate Father’s lien using a figure
representative of the amount of the principal paid by the community. The
court did not recalculate Father’s lien, and Mother argues this was an error.
Although a Drahos calculation is correctly performed using the amount of
principal paid by the community, it was not error for the court to perform
the analysis using the only figure provided by Mother.
F. The Superior Court Did Not Err by Denying Both Parties’
Requests for Attorney’s Fees.
¶25 Under A.R.S. § 25-324(A), the court may award reasonable
attorney’s fees after considering the financial resources of both parties and
the reasonableness of the positions each party has taken throughout the
proceedings. Mother argues that Father’s positions throughout the
proceedings were unreasonable and that the court abused its discretion by
finding that she had not met her burden under A.R.S. § 25-324(A). Yet, an
award of attorney’s fees under A.R.S. § 25-324(A) is discretionary. Mother
has a higher annual income than Father, and the superior court found that
Mother had not established that an award was appropriate under the
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JAMISON v. JAMISON
Decision of the Court
statute. The superior court thus did not abuse its discretion by denying
Mother’s fee request.
ATTORNEY’S FEES AND COSTS
¶26 Both parties request an award of attorney’s fees and costs.
Because Father is the successful party on appeal, we award his costs but
decline to award his attorney’s fees per our discretion. A.R.S. § 12-341.
CONCLUSION
¶27 We affirm the superior court’s dissolution decree.
AMY M. WOOD • Clerk of the Court
FILED: AA
8