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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DALYNNE DOLE, Petitioner/Appellee,
v.
PHILLIP DOLE, Respondent/Appellant.
No. 1 CA-CV 21-0665 FC
FILED 6-14-2022
Appeal from the Superior Court in Maricopa County
No. FC2018-005549
The Honorable Bradley H. Astrowsky, Judge
VACATED IN PART AND REMANDED
APPEARANCES
Dalynne Dole, Gilbert
Petitioner/Appellee
Phillip Dole, Gilbert
Respondent/Appellant
DOLE v. DOLE
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
H O W E, Judge:
¶1 Phillip Dole (“Father”) appeals the trial court’s order
modifying a decree dissolving his marriage with Dalynne Dole (“Mother”).
For the following reasons, we vacate the child support portion of the
modification order and remand for proceedings consistent with this
decision.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Mother divorced in October 2019 after a 24-year
marriage that produced five children. After an appeal of the dissolution
decree, Father had to pay Mother $3,000 a month in spousal maintenance
and $1,469 a month in child support for 17-year-old J.D., 15-year-old K.D,
and 12-year-old E.D. See Dole v. Dole, No. 1 CA-CV 19-0833 FC, 2020 WL
7392988 (Ariz. App. Dec. 17, 2020) (unpublished). The court, using a single
worksheet, based the child-support obligation on Father’s having, on
average, 75 days of parenting time with the three children. The court also
allocated federal and state tax benefits for J.D. and E.D. to Father and the
benefits for K.D. to Mother. The court was silent in the dissolution decree,
however, on how the cost of the children’s extra-curricular activities would
be paid.
¶3 A year later, Father moved to modify the dissolution decree,
requesting, in part, equal parenting time and modification of his
child-support obligations because J.D. had become emancipated in spring
2020, ending his obligation to pay child support for her. Mother objected
and requested that the court order Father to pay his proportional share of
the cost of E.D.’s gymnastics.
¶4 At trial, Father testified that he and Mother had never agreed
that the payment for the children’s extra-curricular activities was part of
their separation agreement. He said that he would agree to divide the cost
of any extracurricular activities only if he agreed to the activity “in writing”
before the costs were incurred. He claimed, though, that he did not agree to
pay for E.D.’s gymnastics because he was financially unable to do so.
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DOLE v. DOLE
Decision of the Court
Mother testified that she had paid for all of E.D.’s gymnastics costs and did
not offer evidence that Father had agreed to share the cost.
¶5 The trial court denied Father’s request for equal parenting
time and decreased Father’s parenting time with K.D. In calculating
Father’s new child support obligation after J.D.’s emancipation, the trial
court prepared separate worksheets for each child. For E.D., it found that
Father had 140 days of parenting time with a support obligation of $527 a
month. For K.D., it found that Father had 19 days of parenting time with a
support obligation of $899 a month. It therefore calculated Father’s total
obligation under the two-worksheet methodology as $1,426 and found that
Father had been making $43 overpayments since June 1, 2020. The trial
court also found that Father had agreed to pay the costs of extra-curricular
activities, including the cost of E.D.’s gymnastics. In addition, the court
modified its tax benefit allocation, giving Father the federal and state tax
benefits for K.D. from 2021 through 2023 and for E.D. for 2024 and 2025.
Mother received the benefits for E.D. from 2021 through 2023.
¶6 Father timely moved for a new trial/modification of a
judgment under Family Rule of Procedure (“Rule”) 83 because, among
other things, the trial court erred in calculating child support, finding that
Father agreed to share in the cost of E.D.’s gymnastics, and allocating the
tax benefits so that he did not receive a benefit in proportion to his income
contribution. The trial court denied the motion for “no good cause
appearing.” Father timely appealed and Mother did not file an answering
brief.
DISCUSSION
¶7 Father appeals the trial court’s modification order and the
denial of his Rule 83 motion. He contests that the trial court erred in
(1) using two child support worksheets instead of one, (2) requiring him to
share the cost of E.D.’s gymnastics, and (3) allocating the tax benefits such
that he did not as a practical matter receive a pro-rata benefit. Child support
awards are reviewed for an abuse of discretion. Sherman v. Sherman, 241
Ariz. 110, 112 ¶ 9 (App. 2016). This court accepts the family court’s factual
findings unless clearly erroneous, Little v. Little, 193 Ariz. 518, 520 ¶ 5 (1999)
(quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)) (affirm unless “devoid of
evidentiary support”), but reviews de novo the court’s conclusions of law
and interpretation of the Arizona Child Support Guidelines (“Guidelines”),
Nia v. Nia, 242 Ariz. 419, 422 ¶ 7 (App. 2017).
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DOLE v. DOLE
Decision of the Court
I. The Trial Court Erred in Using Two Child Support Worksheets.
¶8 Father argues that the trial court’s use of two worksheets to
determine his child support obligation violated the Guidelines. The
supreme court adopted the Guidelines to “provide procedural guidance in
applying the substantive law” for establishing and modifying child support
obligations, A.R.S. § 25–320; Guidelines § I1; Milinovich v. Womack, 236 Ariz.
612, 615 ¶ 8 (App. 2015), and to establish consistent child support standards
that adapt to the children’s needs and their parents’ ability to pay, Engel v.
Landman, 221 Ariz. 504, 513 ¶ 38 (App. 2009).
¶9 The Guidelines’ plain language is the most reliable indicator
of the supreme court’s intent. Milinovich, 236 Ariz. at 615 ¶ 10. This court
interprets the Guidelines’ relevant section, however, “in conjunction with
other provisions of the Guidelines and consistent with their overall
purpose.” Birnstihl v. Birnstihl, 243 Ariz. 588, 591 ¶ 8 (App. 2018). A court
may deviate from the Guidelines only if it finds in writing that applying
them is inappropriate or unjust and that the deviation is in the child’s best
interests. Guidelines § IX(B)(3). A trial court’s mere compromise on any
individual figure incorporated in the Guidelines calculation is not a
deviation, however. Guidelines § IX(E)(2). When applying the Guidelines,
the children’s best interests is paramount. Milinovich, 236 Ariz. at 615 ¶ 8.
¶10 When parents have multiple children with different
parenting plans and only one parent has more than half the parenting time
with all the children, the trial court prepares only one worksheet.
Guidelines § V(F). Under the one-worksheet method, the court must add
up all the parenting days for each child of the non-primary parent and
divide that sum by the number of children to find the average parenting
days under the different plans. Id. This figure is then used to determine the
parenting time adjustment percentage under the Guidelines’ Parenting
Time Table found in section V(C). Id. But if each parent exercises more than
half of the parenting time with at least one of the children, the court must
use two worksheets to determine the child support obligations. Id.
¶11 In this circumstance, the Guidelines required the trial court to
use only one worksheet. Because E.D. (140 days) and K.D. (19 days) were
subject to different parenting plans, and Father did not have the majority of
parenting days with either child, the trial court should have used a single
1 The Guidelines were renumbered January 1, 2022. Because
the Guidelines remain substantively the same after the renumbering, we
use the current numbering.
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DOLE v. DOLE
Decision of the Court
worksheet and averaged the parenting days. See Guidelines § V(F).
Although the Guidelines permit limited deviation, the court provided no
written explanation, much less a finding, regarding why following the
Guidelines was unjust and no other deviation exception applies. Guidelines
§ IX(B)(3); see also Guidelines § IX(C)–(D) (providing for deviation under
agreement, (C), and permissive deviation for factual scenarios that are not
present here, (D)). Although a court may compromise an “individual
figure” in its Guidelines calculation, using two worksheets is not a
compromise but error. Guidelines § IX(E)(2). Because the record does not
support a deviation, we remand to the trial court to calculate child support
using a single worksheet and to recalculate any resulting overpayments.
Guidelines § V(F).
II. The Trial Court Erred in Finding Father Agreed to Pay for
E.D.’s Gymnastics.
¶12 Father argues that insufficient evidence supports the trial
court’s conclusion that he agreed to pay for E.D.’s gymnastics. Father
testified that he would agree to pay extra-curricular activities only if he
acknowledged the extra-curricular expense in writing before the cost
accrued. No other evidence shows that the parties had considered splitting
extra-curricular activities costs, including the cost of E.D.’s gymnastics.
Indeed, neither the Dissolution Decree nor any other child support order or
Rule 69 agreement included language about the parties sharing
extra-curricular costs. Mother provided no evidence that Father had agreed
to pay gymnastics costs after dissolution. Thus, nothing shows that Father
agreed to share the cost of E.D.’s gymnastics. Little, 193 Ariz. at 520 ¶ 5; c.f.
Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 493 ¶ 17 (App. 2020) (finding that
the record reflected that Father said during a deposition that he would pay
“a hundred a month” or “1200 per year” for “each child’s gymnastics
classes and that his statements were placed on the record in accordance
with [Rule] 69(a)(2)”).
III. The Trial Court’s Tax Benefit Allocation was Erroneous.
¶13 Father argues that the trial court’s tax benefit allocation
violated the Guidelines because he did not receive three-fifths of the
available child tax credits. Under the Guidelines, parents were historically
entitled to claim children as personal exemptions on income tax returns.
Guidelines § XI(A). The exemptions were suspended for tax years 2018
through 2025, however, and parents instead may be eligible to claim a child
tax credit and an additional child tax credit. Id. Accordingly, the Guidelines
refers to these credits as “tax benefits.” Id.
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DOLE v. DOLE
Decision of the Court
¶14 Unless otherwise agreed, the federal and state tax benefits are
“allocated in a manner that allows each parent” a benefit “in proportion to
the income of the parents.” Guidelines § XI(B)(1)(a). A court does this by
allocating benefits for the child in a single tax year or specific tax years.
Guidelines § XI(B)(1)(b). Under the federal tax code, a parent is eligible for
a child tax credit if a child is less than 17-years-old at the end of that year.
See 2020 IRS Form 1040, Schedule 8812; see also Porter v. Hall, 34 Ariz. 308,
329 (1928) (taking judicial notice of federal law). But for the year 2021, the
federal government extended the credit for a child who does not turn 18
before the first of the next year. 2021 IRS Form 1040, Schedule 8812.
Although no Arizona case has held that failure to consider the child tax
credit is error, this court found error when the trial court failed to allocate
federal tax exemptions under the Guidelines’ requirements. See McNutt v.
McNutt, 203 Ariz. 28, 34 ¶ 26 (App. 2002). And no substantive difference
between an exemption and a tax credit exists under the Guidelines.
Guidelines § XI(A).
¶15 Here, the trial court correctly determined that Father earned
three-fifths of the income attributable to the child support calculation and
allocated him tax benefits for K.D. from 2021 through 2023, and E.D. for
2024 and 2025, while Mother received the exemptions for E.D. from 2021 to
2023. But Father will receive only one year of the child tax credit for the
years he can claim K.D—2021—and will not receive a benefit for the years
he can claim E.D. Mother, however, receives three years of the child-tax
credit benefit for E.D. Under the trial court’s order, Father merely receives
one-fourth the child tax benefit, far from the three-fifths to which he is
entitled under the Guidelines. Accordingly, the trial court abused its
discretion, see Lincoln v. Lincoln, 155 Ariz. 272, 276 (App. 1987) (holding that
the trial court abused its discretion by refusing to allocate the dependency
exemption), and we therefore remand to the trial court to allocate the tax
benefits consistent with this decision.
CONCLUSION
¶16 For the reasons stated, we vacate the child support order and
remand to the trial court for proceedings consistent with this decision.
Father requests his costs on appeal, which we grant upon compliance with
ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA 6