Morrison v. Morrison

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANIEL RICHARD MORRISON, Petitioner/Appellant,

v.

HEATHER MARIE MORRISON, Respondent/Appellee.

No. 1 CA-CV 21-0035 FC
FILED 10-14-2021

Appeal from the Superior Court in Maricopa County
No. FC2019-003019
The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Kristi A. Reardon
Counsel for Petitioner/Appellant

The Cavanagh Law Firm, P.A., Phoenix
By Christina S. Hamilton
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.

C R U Z, Judge:

¶1 Daniel Richard Morrison (“Father”) appeals from the
superior court’s ruling and the decree of dissolution awarding $8,000 in
monthly child support to Heather Marie Morrison (“Mother”). For the
following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Father married in 2009 and signed a prenuptial
agreement that divided the parties’ property and awarded Mother a
spousal maintenance amount that depended upon the length of the parties’
marriage in the event of dissolution. Mother and Father had four children
together and, throughout the marriage, Mother was unemployed while
Father supported the family as a technology entrepreneur.

¶3 After ten years of marriage, Father filed for divorce. Under
the terms of the prenuptial agreement, Mother received a lump sum
spousal maintenance amount of $750,000, in addition to $500,000 for the
purchase of a home. Though Father entered the marriage with about $28
million in assets, at the time of the dissolution proceedings he claimed that
he had just over $2 million in assets remaining. Father further alleged he
had not been employed with a regular income since 2009, and he had been
drawing from his savings account to pay the family’s expenses.

¶4 The parties agreed to equal parenting time. A hearing was
held to determine the amount of child support to be awarded to Mother.
Both parties hired expert witnesses to testify regarding the parties’ gross
incomes and the family’s expenses to be used in the court’s computation of
child support. Mother’s expert testified that Mother required $9,140 in
child support. Father’s expert argued the children’s expenses were only
$2,700 per month, which should be split equally between the two
households.

¶5 Under the Arizona Child Support Guidelines, Arizona
Revised Statutes (“A.R.S.”) section 25-320 app. (2018) (“Guidelines”), the

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court determined Mother would be entitled to $1,494 in monthly child
support. Finding the Guideline amount to be inappropriate in this case, the
court deviated upward and awarded Mother $8,000 in monthly child
support. A decree of dissolution of marriage reflecting this ruling was
subsequently entered.

¶6 Father timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶7 Father argues the court erred in deviating from the
Guidelines. We generally review child support awards for an abuse of
discretion. Kelsey v. Kelsey, 186 Ariz. 49, 53 (App. 1996). An abuse of
discretion occurs when the superior court commits an error of law, or when
the record, viewed in the light most favorable to upholding the court’s
conclusions, is devoid of competent evidence. Hurd v. Hurd, 223 Ariz. 48,
52, ¶ 19 (App. 2009). “We accept the trial court’s findings of fact unless they
are clearly erroneous, but draw our own legal conclusions from facts found
or implied in the judgment.” McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6 (App.
2002) (internal quotation marks and citation omitted). We review de novo
the superior court’s interpretation of the Guidelines. Clay v. Clay, 208 Ariz.
200, 202, ¶ 5 (App. 2004).

I. The Superior Court Made Sufficient Written Findings When It
Deviated from the Guidelines

¶8 Father first contends the superior court erred when it failed to
make written findings on each factor in A.R.S. § 25-320(D) before it deviated
from the amount recommended under the Guidelines. The Guidelines
state:

The court shall deviate from the guidelines, i.e., order child
support in an amount different from that which is provided
pursuant to these guidelines, after considering all relevant
factors, including those set forth in Arizona Revised Statutes
Section 25-320, and applicable case law, only if all of the
following criteria are met:

1. Application of the guidelines is inappropriate or unjust in
the particular case,

2. The court has considered the best interests of the child in
determining the amount of a deviation. A deviation that

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reduces the amount of child support paid is not, by itself,
contrary to the best interests of the child,

3. The court makes written findings regarding 1. and 2. above
in the Child Support Order, Minute Entry or Child Support
Worksheet,

4. The court shows what the order would have been without
the deviation, and

5. The court shows what the order is after deviating.

A.R.S. § 25-320 app. § 20(A) (emphasis in italics added). Section 25-320(D)
identifies the following factors:

1. The financial resources and needs of the child.

2. The financial resources and needs of the custodial parent.

3. The standard of living the child would have enjoyed if the
child lived in an intact home with both parents to the extent it
is economically feasible considering the resources of each
parent and each parent’s need to maintain a home and to
provide support for the child when the child is with that
parent.

4. The physical and emotional condition of the child, and the
child’s educational needs.

5. The financial resources and needs of the noncustodial
parent.

6. The medical support plan for the child. The plan should
include the child’s medical support needs, the availability of
medical insurance or services provided by the Arizona health
care cost containment system and whether a cash medical
support order is necessary.

7. Excessive or abnormal expenditures, destruction,
concealment or fraudulent disposition of community, joint
tenancy and other property held in common.

8. The duration of parenting time and related expenses.

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¶9 Here, the court did not make express written findings as to
each § 25-320(D) factor. However, it was not required to do so. The
Guidelines require the court only consider these factors when deviating
from the Guidelines. See A.R.S. § 25-320 app. § 20(A); see also A.R.S. § 25-
320(D); Elliott v. Elliott, 165 Ariz. 128, 131 n.1 (App. 1990). The superior
court noted that it considered the “child support guidelines, and the
applicable case law, statutes and rules of court.” The court was presented
with evidence related to the § 25-320(D) factors, and we presume the court
considered a factor if the record contains such evidence. See Fuentes v.
Fuentes, 209 Ariz. 51, 55-56, ¶¶ 17-18 (App. 2004).

¶10 The Guidelines’ requirement that the court make written
findings pertains exclusively to (1) whether application of the Guidelines is
inappropriate or unjust; (2) whether deviation is in the best interests of the
children; (3) what the child support order would be without deviation; and
(4) the child support order after deviation. A.R.S. § 25-320 app. § 20(A)(1)-
(5).

¶11 In the ruling, the superior court noted that application of the
Guidelines would be inappropriate or unjust and that deviation is in the
children’s best interests because the “family was living a very lavish
lifestyle prior to the parties’ separation and Mother will need additional
financial resources to ensure that she can provide for the children in a
manner closer to what the children previously enjoyed.” The court further
found that “Father has the resources to provide Mother with the additional
child support,” and “Mother’s economic future is not as bright as Father’s
and she will need to go to school to improve her vocational future.” The
superior court also noted what the child support amount would have been
without deviation ($1,494), and what the amount is after deviation ($8,000).
See A.R.S. § 25-320 app. § 20(A)(4), (5). The superior court’s findings
complied with the Guidelines.

II. The Child Support Award is Supported by the Evidence

¶12 Father next contends the deviated child support award is not
supported by the evidence.

¶13 Father contends the court erred by relying on the parties’
“lavish lifestyle,” to determine that an upward deviation of child support
was appropriate. However, one of the factors for the court to consider in
deviating from the Guidelines is “[t]he standard of living the child would
have enjoyed if the child lived in an intact home with both parents to the
extent it is economically feasible considering the resources of each parent

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and each parent’s need to maintain a home and to provide support for the
child when the child is with that parent.” A.R.S. § 25-320(D)(3). It was
appropriate for the court to consider the parties’ lifestyle before the
dissolution proceedings when determining whether to deviate from the
Guidelines.

¶14 Father also contends he and Mother chose not to overindulge
their children, and that the child support award gives the children a higher
standard of living than they previously enjoyed. However, there was
evidence that the family lived in a multi-million-dollar home, took
luxurious vacations, and that they historically spent about $63,000 a month
on expenses, which included expensive toys, food, entertainment, activities,
and the children’s clothing.

¶15 Mother’s expert testified Mother required $9,140 per month
to support the children. Father argues that expert’s report contains multiple
errors and disputes the expert’s conclusion that Mother requires $2,540 in
household expenses, $1,515.50 in childcare expenses, and $427 in medical
expenses. But the court did not adopt Mother’s expert’s child support
recommendation amount dollar for dollar. Father’s claim that the court
awarded Mother these amounts and that such an award was unwarranted
is speculative at best.

¶16 First, Father contends the amount of household expenses
should be reduced by half, to $1,270, because Mother only has the children
for half of the month. Assuming arguendo that the court gave Mother a
credit for household expenses as recommended by her expert, Mother’s
expert testified that in calculating Mother’s expected expenses, she
accounted for the equal parenting time plan. And certain household
expenses like cable subscriptions, home maintenance, etc., were not
dependent upon the amount of time Mother had the children; these
expenses stay the same no matter how often Mother has the children. The
expert reduced these expenses by one-fifth to account for Mother’s share,
which Father is not responsible to pay, but the remaining four-fifths
accounts for the expense attributed to each of the children. See Nash v. Nash,
232 Ariz. 473, 480, ¶ 25 (App. 2013) (finding that expenses associated with
households must be considered in marriages involving significant wealth,
to allow the “children who have enjoyed such benefits to continue to receive
them after the dissolution.”). We find no error.

¶17 Father argues that Mother’s award should be reduced by
another $1,515.50 per month, because this is the amount the expert testified
Mother required in nanny expenses and Mother does not currently have a

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nanny, nor does she need one because she is unemployed. Even if the court
awarded Mother childcare expenses, Mother testified that she would need
a nanny to provide childcare because she will now have to work full time,
and the parties had always used a nanny in the past. While it was true that
Mother did not have a nanny at the time of the dissolution proceedings, the
Guidelines allow the superior court to attribute hypothetical income and
childcare expenses when calculating child support. A.R.S. § 25-320 app.
§ 5(E) (“If income is attributed to the parent receiving child support,
appropriate childcare expenses may also be attributed.”); see also Engel v.
Landman, 221 Ariz. 504, 510-11, ¶¶ 22, 24 (App. 2009). Here, the expert
looked at the parties’ prior childcare expenses and found the parties
historically spent over $57,000 on nannies in a nineteen-month period.
Taking into account the equal parenting time, this equates to about $1,500
per month. This childcare expense is supported by the evidence.

¶18 Father argues the child support amount should be reduced by
$427, because this is the amount attributed to medical expenses in the expert
report, and Father has been ordered to pay one hundred percent of the
children’s insurance and medical and dental costs. Again, there is no
evidence the court adopted this portion of Mother’s expert’s report in
determining the reduced $8,000 child support amount. We find no error.

¶19 The superior court’s child support award is supported by the
evidence.

III. The Superior Court Did Not Err in its Income Determinations

¶20 We review the superior court’s determination that a
particular source of funds should be considered as part of a parent’s gross
income for an abuse of discretion. See Milinovich v. Womack, 236 Ariz. 612,
615, 617, ¶¶ 7, 16 (App. 2015). We do not reweigh the evidence and “[w]e
must give due regard to the trial court’s opportunity to judge the credibility
of the witnesses.” Hurd, 223 Ariz. at 52, ¶ 16.

A. Father’s Income

¶21 Father argues the superior court erred when calculating his
income. The superior court attributed about $120,000 in monthly income to
Father based upon his affidavit of financial information, in which he
reported an income of $1.4 million for 2019. Father argues he received this
money from a one-time capital gain from the sale of his separate real estate
property, and he used most of the funds to pay his spousal maintenance
obligation under the premarital agreement. Father asserts the court erred
in including this one-time sale in his income computation.

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¶22 The Guidelines state that “[g]ross income includes income
from any source,” which may include “capital gains.” A.R.S. § 25-320 app.
§ 5(A). The Guidelines further state that “[i]ncome from any source which
is not continuing or recurring in nature need not necessarily be deemed gross
income for child support purposes.” Id. (emphasis added). While it is true
the “Guidelines do not declare that every capital gain is gross income for
child support purposes,” it is within the discretion of the superior court to
make this determination. Burnette v. Bender, 184 Ariz. 301, 304-05 (App.
1995), superseded by statute on other grounds as recognized in Myrick v. Maloney,
235 Ariz. 491, 494, ¶ 8 (App. 2014). When making an income determination,

[t]he crucial inquiry is whether the parent received “actual
money or cash-like benefits . . . available for expenditures.”
In other words, the question is whether the parent acquired a
source of funds for living and personal expenses, from which
the children would have benefitted had their parents not
divorced.

Sherman v. Sherman, 241 Ariz. 110, 114, ¶ 15 (App. 2016) (citation omitted).
Here, Father received cash for the sale of the property, from which his
children would have benefited. The superior court did not err in including
this capital gain in Father’s income.

¶23 Father contends that at the time of the dissolution
proceedings he had no income aside from the one-time sale of the building.
He argues the court should have instead attributed to him a salary of
$40,000 per month, which was the amount of money he was drawing from
his savings account to support the family. The superior court is in the best
position to weigh the evidence and judge the credibility of the parties. See
Hurd, 223 Ariz. at 52, ¶ 16. The court heard evidence that the family spent
significantly more than $40,000 in monthly expenses, and considering
Father was a successful technology entrepreneur who previously owned
and then sold his own business, the court did not err in discounting Father’s
contention that he had “no employment or other income.” We find no
error.

B. Mother’s Income

¶24 Finally, Father argues the court erred when calculating
Mother’s income by failing to “include spousal maintenance and minimum
wage earnings.”

¶25 Mother received a lump sum of spousal maintenance in the
amount of $750,000. The superior court may consider spousal maintenance

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when calculating gross income. See A.R.S. § 25-320 app. § (5)(A). Further,
though not obligated to do so, the superior court may also consider income
that “is not continuing or recurring in nature.” Id. At a minimum, the court
is generally required to attribute minimum wage to an unemployed parent.
Id. § 5(E).

¶26 Father argues the court was required to attribute to Mother
$75,000 a year to account for the lump sum spousal maintenance award, in
addition to minimum wage, for a total yearly income of $99,960. Father
cites no legal support for the proposition that the superior court must
attribute a lump sum of spousal maintenance in this manner, and that the
court must also combine spousal maintenance and minimum wage when
calculating a parent’s income. The superior court is given discretion in its
income determinations, and the Guidelines do “not specify or limit the
items that the court may consider in determining a parent’s financial
resources.” Cummings v. Cummings, 182 Ariz. 383, 386 (App. 1994) (internal
quotation marks omitted). But even if Mother had been attributed $99,960
in income, the change in Mother’s proportionate share of responsibility for
the total child support amount would be so insignificant given the disparity
in income between the parties that any reduction in Father’s child support
obligation per the Guidelines would be de minimis. Moreover, the court’s
deviated child support order was based on the court’s finding that Mother
would need $8,000 per month to support the children. Evidence in the
record supports the court’s finding. (See ¶¶ 12-15 supra).

¶27 Additionally, Mother was unemployed, and the court
attributed a salary of $40,750 per year, which exceeds a minimum wage
salary of $24,960. There was no evidence that Mother had any other source
of funds at her disposal besides the spousal maintenance award. Thus, it
appears the superior court considered Mother’s spousal maintenance as an
additional source of income. The superior court was required, at a
minimum, to attribute minimum wage to Mother, and it did. The court did
not abuse its discretion.

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CONCLUSION

¶28 For the foregoing reasons, we affirm. Both parties request
their attorneys’ fees and costs on appeal. In the exercise of our discretion,
and after considering the reasonableness of the parties’ positions and their
financial resources, we decline to award attorneys’ fees. We award Mother
her costs upon compliance with ARCAP 21.

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

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