MARRIAGE OF RICHARDSON v. RICHARDSON

No. 1 CA-CV 16-0215 FC.

In re the Marriage of: GINA LEE RICHARDSON, Petitioner/Appellee, v. SCOTT MICHAEL RICHARDSON, Respondent/Appellant.

Court of Appeals of Arizona, Division One.


Attorney(s) appearing for the Case

Adam C. Rieth, PLLC, Gilbert, By Adam C. Rieth , Counsel for Petitioner/Appellee.

Johnson Hendrickson & Lalliss, PLLC, Mesa, By David E. Johnson , Counsel for Respondent/Appellant.

Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.


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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

MEMORANDUM DECISION

PORTLEY, Judge.

¶1 Scott Michael Richardson ("Father") appeals the ruling directing him to pay child support arrearages. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Gina Lee Richardson ("Mother") were divorced in 2009. The default decree awarded Mother sole custody of their child, gave Father parenting time once a week, and ordered him to pay $390 per month for child support. Father did not challenge the decree or file an appeal.

¶3 Sometime after Father stopped paying child support, the parties informally agreed to modify their parenting plan to a week on/week off parenting schedule in 2010. They did not seek to have the family court approve their agreement, and Father did not seek to modify child support.

¶4 By 2014, Mother insisted the parties adhere to the court-ordered parenting plan. After that plan resumed, Father filed an emergency petition seeking joint legal decision-making and equal parenting time. In response, Mother filed a petition for contempt and sought a judgment of arrears because Father had failed to pay child support for more than four years.

¶5 Following an evidentiary hearing, the family court modified the decree, by awarding joint legal decision-making and equal parenting time (one week on/one week off). The court also modified child support directing Mother to pay monthly child support of $82.63, beginning December 1, 2015. The court found that Father had not paid child support as ordered and directed him to pay Mother $500 per month for the child support arrears that accrued between March 1, 2009 and April 30, 2015.2

¶6 Father filed an unsuccessful motion for new trial. He then filed a timely notice of appeal challenging the denial of his motion, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2) and (5)(a) (2017).3

DISCUSSION

¶7 Parents have to support their children. Parties have no authority to modify child support by agreement that is not adopted by the trial court. See Schnepp v. State ex rel. Dep't of Econ. Sec., 183 Ariz. 24, 27, 899 P.2d 185, 188 (App. 1995). "Only the court has the authority to determine whether the facts justify modification of a support award." Id. (citations omitted). And a court may only modify child support prospectively, not retroactively. See A.R.S. § 25-327(A); Hatch v. Hatch, 113 Ariz. 130, 134, 547 P.2d 1044, 1048 (1976) ("It is well established that support payments may not be retroactively decreased.").

¶8 In challenging the family court's arrearages determination, Father wants us to determine whether the equitable defenses of waiver and estoppel prevent the enforcement of Mother's claim for child support arrearages. He also challenges the effective date of the child support modification and the court's denial of his request for attorneys' fees.

I. Waiver.

¶9 Arizona courts have consistently held that waiver is "a question of fact to be determined by the trier of fact." Chaney Bldg. Co. v. Sunnyside Sch. Dist. No. 12, 147 Ariz. 270, 273, 709 P.2d 904, 907 (App. 1985). We will not disturb a family court's factual findings supported by the record, even if based on conflicting evidence, and will give due regard to the court's opportunity and ability to judge witness credibility. See Concannon v. Yewell, 16 Ariz.App. 320, 321, 493 P.2d 122, 123 (1972); Ariz. R. Fam. L.P. 82(A) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.").

¶10 Waiver is "the express, voluntary, intentional relinquishment of a known right" or conduct that "warrants an inference of such an intentional relinquishment." Am. Cont'l Life Ins. Co. v. Ranier Const. Co., 125 Ariz. 53, 55, 607 P.2d 372, 374 (1980). To establish a waiver of child support, the facts must demonstrate waiver by "clear and compelling evidence." See Ray v. Mangum, 163 Ariz. 329, 332, 788 P.2d 62, 65 (1989) (citation omitted). "Where conflicting testimony exists and the parties' unspoken assumptions and intentions conflict, one party's belief cannot provide clear and convincing evidence of the parties[`] agreement." Id. at 333, 788 P.2d at 66.

¶11 Here, there is conflicting testimony. Father testified that when the parties agreed to equal parenting time, they further agreed they "wouldn't do child support." He also testified that their arrangement continued unchanged for four and one-half years. Conversely, Mother admitted the parties agreed to equal parenting time, but did not remember agreeing to end child support. The family court had to determine witness credibility in resolving the factual dispute, given that their agreement was not reduced to writing

¶12 Father contends that text messages exchanged by the parties in 2014, four years after the purported agreement, make "explicit [Mother's] agreement to waive child support." Both at trial and on appeal, he relies on the following exchange:

Father: You are the one ta[l]king about restrictions. Not me. I simply want things to be fair. I want you to stick [to] your . . . agreement that we both made, drop the whole child support thing and get our 50/50 on paper and settled. I'm not trying to get anything that isn't fair to everyone involved. You are the one that keeps bringing up the past. And for no good reason. Mother: I was simply reminding [you] of the scolding we got about coming to agreement [before] court. I've told you in [] past that releasing past due support was conditional . . . [you] don't mention that part. Father: Was conditional upon what? You never said that. You said once we went 50/50 years ago that you would drop it. And you never did. You said you would take care of it. And you didn't. There were no[] conditions mentioned. You said that you weren't [pursuing] it so then I shouldn't worry about it and you [would] drop it if I filed the paperwork and paid the fees. Mother: Yeah that was a long time ago on filing [with you] paying, but we have since argued stupidly so that desire goes away easily. It was conditional that I get to continue to claim him every year on taxes . . . and yes [you] have agreed to that multiple times. Father: I have no problem with the taxes thing. I've told you that many times. So with that being said I will take it as you will be dropping the child support as we discussed when we go to court. Right? Mother: Like I said, it's conditional on that.

The text messages can be read to provide the inference of an earlier agreement between the parties regarding child support. Moreover, the messages reflect that Father understood the necessity of filing "paperwork" with the court in order to effectuate their agreement. Neither party sought to reduce their agreement to writing and have it approved by the court. Moreover, even if these text messages might have supported a waiver finding, they do not mandate such a finding as Father argues here.

¶13 We have reviewed the hearing transcript and the text messages that Father contends mandates a finding of waiver. Although there is some evidence four years after the informal modification suggesting Mother may have agreed to forego child support for a period of time, the evidence is not clear and compelling. See State ex rel. Dep't of Econ. Sec. on Behalf of Dodd v. Dodd, 181 Ariz. 183, 186, 888 P.2d 1370, 1373 (App. 1994). The evidence does not, as a result, mandate waiver; there is no "waiver in writing or an admission by the custodial parent of an intent to waive child support arrearages." Ray, 163 Ariz. at 333, 788 P.2d at 66 (citations omitted). Consequently, because there is no clear and compelling evidence of Mother's express relinquishment of child support, the family court did not abuse its discretion in refusing to find waiver.

II. Estoppel.

¶14 Father next argues that Mother is estopped from claiming child support arrears.4 The requirements for estoppel are:

1) conduct by which one induces another to believe in certain material facts; and 2) the inducement results in acts in justifiable reliance thereon; and 3) the resulting acts cause injury.

Ray, 163 Ariz. at 333, 788 P.2d at 66 (citations omitted). Like waiver, equitable estoppel bars the recovery of child support "only when there is clear and compelling evidence in the record to support such a determination." Dodd, 181 Ariz. at 187, 888 P.2d at 1374. We review the equitable estoppel ruling for an abuse of discretion. See City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 190, ¶ 65, 181 P.3d 219, 237 (App. 2008).

¶15 Father argues that Mother's failure to demand child support induced him to believe she waived child support, and that he acted in justifiable reliance on that inducement. The record reflects, however, that Father understood that "all the court stuff needs to [b]e amended" in order to release him from his child support obligation. As a result, it was not reasonable for Father to rely on Mother's alleged verbal promise to forego child support when he understood the necessity of formalizing their agreement in court. Accordingly, the court did not abuse its discretion in refusing to apply the defense of equitable estoppel.

III. Effective Date of Child Support Modification.

¶16 Father next argues the family court erred by establishing the effective date for child support modification, claiming the court should have made the modification effective on September 1, 2014, the first day of the month following notice of his petition.

¶17 Under Arizona law, child support modification is:

[E]ffective 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."

A.R.S. § 25-503(E) (emphasis added); see also A.R.S. § 25-327(A). As we have previously explained, "an award of child support does not need to be tied to the filing date of a petition for modification." Heidbreder v. Heidbreder, 230 Ariz. 377, 381, ¶ 12, 284 P.3d 888, 892 (App. 2012).

¶18 In this case, the court stated that child support modification would take effect on December 1, 2015, the first day of the month following entry of the court's order. Father argues the court "offered no justification at all for the delay to the start date of the modification, let alone the required `good cause' required" under the statute. Neither party, however, requested findings of fact. See Ariz. R. Fam. L.P. 82. Therefore, given the absence of written findings on the effective date of child support, we may infer the findings necessary to sustain the court's determination "if such additional findings do not conflict with express findings and are reasonably supported by the evidence." Thomas v. Thomas, 142 Ariz. 386, 390, 690 P.2d 105, 109 (App. 1984) (citation omitted). And in reviewing the decision, we view the evidence "in favor of the appellee, and if there is any reasonable evidence to support the judgment of the [family] court, it will be sustained." Id. (citation omitted).

¶19 The family court's decision to choose December 1, 2015 as the effective modification date does not conflict with the court's express findings and is supported by the evidence. The parties began equal parenting time on November 13, 2015. The modified child support was based on an equal parenting time schedule. Therefore, it was reasonable for the court to select the first date of the month following the modification. Accordingly, we affirm the chosen effective date.

IV. Attorneys' Fees.

¶20 Finally, Father argues the court abused its discretion by not awarding him attorneys' fees and costs. Specifically, Father relies on A.R.S. § 25-324(B), which provides:

If the court determines that a party filed a petition under one of the following circumstances, the court shall award reasonable costs and attorney fees to the other party: 1. The petition was not filed in good faith. 2. The petition was not grounded in fact or based on law. 3. The petition was filed for an improper purpose, such as to harass the other party, to cause an unnecessary delay or to increase the cost of litigation to the other party.

¶21 The family court expressly found that "the provisions of A.R.S. § 25-324(B) do not apply." We agree. Father has not shown that the court abused its discretion in tacitly finding that Mother's contempt petition was not filed in bad faith nor for an improper purpose. Indeed, the record shows her petition sought to enforce the decree. Consequently, and after our review of the record, the court did not abuse its direction by denying Father's request for attorneys' fees. See Engel v. Landman, 221 Ariz. 504, 514, ¶ 45, 212 P.3d 842, 852 (App. 2009) ("We will not disturb the family court's decision regarding attorneys' fees absent an abuse of discretion.").

¶22 Both parties request attorneys' fees on appeal pursuant to A.R.S. § 25-324. In the exercise of our discretion, we deny their requests. As prevailing party, Mother is entitled her costs on appeal upon compliance with ARCAP 21.

CONCLUSION

¶23 Based on the foregoing, we affirm the family court's ruling.

FootNotes


1. The Honorable Maurice Portley and the Honorable Patricia A. Orozco, Retired Judges of the Court of Appeals, Division One, have been authorized to sit in this matter pursuant to Article VI, Section 3 of the Arizona Constitution.
2. The Family Court Conference Center calculated child support arrears in the principal amount of $24,640.52 plus interest of $7,668.75 for the period from March 1, 2009 through April 30, 2015.
3. We cite the current version of applicable statutes when no revisions material to this decision have since occurred.
4. Mother argues that Father did not raise the defense of equitable estoppel in his pretrial statement or at the hearing and, therefore, he waived the issue on appeal. Because Father raised estoppel as a defense in response to Mother's contempt petition and in his motion for new trial, we consider the issue.

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