Stein v. Stein

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Marriage of:

JAY DAVID STEIN, Petitioner/Appellant,

v.

JILL LYNN STEIN, Respondent/Appellee.

No. 1 CA-CV 14-0748 FC

FILED 12-8-2015

Appeal from the Superior Court in Maricopa County

No. FC2012-003130

The Honorable Joseph P. Mikitish, Judge

VACATED AND REMANDED

COUNSEL

DePasquale & Schmidt, PC, Phoenix

By Mark J. DePasquale

Co-Counsel for Petitioner/Appellant

Therese R. McElwee, PC, Phoenix

By Therese R. McElwee

Co-Counsel for Petitioner/Appellant

Jill Lynn Stein, Scottsdale

Respondent/Appellee

STEIN v. STEIN

Opinion of the Court

OPINION

Presiding Judge Margaret H. Downie delivered the Opinion of the Court,

in which Judge Patricia A. Orozco and Judge Maurice Portley joined.

D O W N I E, Judge:

¶1 Jay David Stein (“Father”) appeals a child support order.

Because he filed a timely request for findings of fact and conclusions of law,

the family court was required to set forth the facts supporting its substantial

deviation from the Child Support Guidelines (“Guidelines”).1 It did not do

so. We therefore vacate the child support order and remand to the family

court for additional findings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Father and Jill Lynn Stein (“Mother”) married in 2005 and

divorced in 2014. They have four minor children. Father’s annual gross

income exceeds $3 million. At the time of dissolution, Mother did not work

outside the home. The parties signed a premarital agreement that stated

neither party would receive spousal maintenance if they divorced.

¶3 Before trial, Father made a request for findings of fact and

conclusions of law. The family court subsequently entered a decree that,

among other things, awarded Father sole legal decision-making authority

and named him the primary residential parent. Mother received limited

supervised parenting time consisting of one afternoon per week and one

overnight on alternating weekends. Father is responsible for 90% of the

supervision costs associated with Mother’s parenting time.

¶4 The court concluded that a deviation from the Guidelines was

appropriate and ordered Father to pay child support to Mother in the sum

of $7500 per month. Father moved for additional findings of fact and a new

trial. The family court denied the motion for new trial and granted the

request for additional findings only as to the attorneys’ fees awarded to

1 The Arizona Child Support Guidelines, adopted by the Arizona

Supreme Court, are found in the Appendix to Arizona Revised Statutes

(“A.R.S.”) section 25-320.

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STEIN v. STEIN

Opinion of the Court

Mother. This timely appeal followed. We have jurisdiction pursuant to

A.R.S. § 12-2101(A)(1), (5)(a).

DISCUSSION

¶5 Father contends the family court erred by failing to set forth

specific factual findings that support its deviation from the Guidelines, and

he argues the court abused its discretion in awarding child support “in an

amount almost 40 times that recommended in the Guideline.”2 We review

a child support order for an abuse of discretion. Hetherington v.

Hetherington, 220 Ariz. 16, 21, ¶ 21 (App. 2008). Where, as here, a party has

made a timely request for findings of fact pursuant to Arizona Rule of

Family Law Procedure (“Rule”) 82(A), we must be able to determine the

factual underpinnings of the family court’s ruling. See Elliott v. Elliott, 165

Ariz. 128, 135 (App. 1990).

A. The Child Support Guidelines

¶6 Parents may be ordered to pay child support in an amount

“reasonable and necessary” for the support of their children. A.R.S. § 25-

320(A). The Guidelines establish a method for calculating reasonable and

necessary child support. See A.R.S § 25-320(D) (“supreme court shall

establish guidelines for determining the amount of child support”). The

court is required to award the amount of support that results from

application of the Guidelines unless it finds that such application would be

inappropriate or unjust in a particular case. A.R.S § 25-320(D)

¶7 If the court deviates from the Guidelines, it must consider “all

relevant factors, including those set forth in Arizona Revised Statutes

Section 25-320, and applicable case law.”3 Guidelines §§ 3, 20(A). After

2 The notice of appeal suggests Father is also challenging the attorneys’

fees awarded to Mother. He did not, however, address that issue in his

opening brief and has therefore waived it. See Ritchie v. Krasner, 221 Ariz.

288, 305, ¶ 62 (App. 2009); ARCAP 13(a)(7)(A) (opening brief must include

“contentions concerning each issue presented for review, with supporting

reasons for each contention, and with citations of legal authorities and

appropriate references to the portions of the record”).

3 The factors set forth in A.R.S. § 25-320(D) are:

1. The financial resources and needs of the child.

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

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Opinion of the Court

considering those factors, the court is required to make written findings

that: (1) “Application of the guidelines is inappropriate or unjust in the

particular case;” and (2) “The court has considered the best interests of the

child in determining the amount of a deviation.” Guidelines § 20; see also

A.R.S. § 25-320(D). In addition, the court’s order must reflect the amount

of child support both before and after the deviation. Guidelines § 20(A)(4),

(5).

¶8 The family court concluded that a deviation from the

Guidelines was appropriate, stating:

When child support is calculated according [to] the

Guidelines, the amount of child support owed is $184.24

payable by Mr. Stein to Ms. Stein.4 It would be unjust, not in

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.

4 The parties’ combined gross monthly income exceeded $20,000. In

such a case, the Guidelines establish a presumption that child support

should be calculated based on this figure. See Guidelines § 8. A parent

advocating for a greater amount bears the burden of proving that such an

order is in the best interests of the children, considering factors such as: (1)

the standard of living the children would have enjoyed if the parents and

children were living together; (2) the needs of the children in excess of the

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STEIN v. STEIN

Opinion of the Court

the interests of justice, and not in the best interests of the

Children to order child support in this amount because of the

significant disparity in financial resources between the

parties. The Court, therefore, is deviating from the

Guidelines.

Based on all of these factors, IT IS THEREFORE ORDERED

that Mr. Stein shall pay to Ms. Stein as and for child support

the sum of $7,500.00 per month. . . .

The court’s findings satisfy the requirements of Guidelines § 20. Our

inquiry does not end there, however, because Father timely invoked Rule

82(A), which obligated the family court to make additional findings.5

B. Rule 82(A)

¶9 Prior to trial, Father filed a timely request for findings of fact

and conclusions of law pursuant to Rule 82(A). That rule provides: “In all

family law proceedings tried upon the facts, the court, if requested before

trial, shall find the facts specially and state separately its conclusions of law

thereon. . . .”

¶10 One of the purposes of Rule 82(A) is to give appellate courts

the ability to examine the basis for a mathematical figure awarded as child

support. See Elliott, 165 Ariz. at 135. “[W]e must be able to determine which

evidence formed the bases of the awards before we can affirm them.” Id.

As our supreme court has explained:

An appellate court must be able to discern more than a

permissible interpretation of the trial court’s analysis. The

reviewing court needs a sufficient factual basis that explains

how the trial court actually arrived at its conclusion. Without

this explanation, “an appellate court cannot effectively review

the decision-making process of the trial court.”

Miller v. Bd. of Supervisors, 175 Ariz. 296, 299 (1993) (quoting Urban Dev. Co.

v. Dekreon, 526 P.2d 325, 328 (Alaska 1974)). If a proper Rule 82(A) request

presumptive amount; and (3) any significant disparity in the respective

gross income of each party. Id.

5 Father raised the deficiencies in the family court’s findings of fact

prior to appealing. See Elliott, 165 Ariz. at 134 (party must object to

deficiencies in findings of fact before appealing to allow opportunity for

correction).

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STEIN v. STEIN

Opinion of the Court

is made, but the family court’s findings are insufficient, we do not infer

additional findings necessary to sustain the award. See Elliott, 165 Ariz. at

135.

¶11 The family court made factual findings regarding the parties’

incomes. It attributed income of $3 million per year to Father and $60,000

per year to Mother. The court concluded the disparity in financial resources

was significant, justifying a deviation from the Guidelines. The record

supports these findings. However, the findings do not explain how or why

the court settled on the $7500 per month figure. As this Court has stated:

When the issue of child support or spousal maintenance is

resolved, the result is a mathematical figure that represents

the amount of the award. As we explained in Reed v. Reed, 154

Ariz. 101, 740 P.2d 963 (App. 1987), such a figure does not

inform an appellate court of the basis for the trial court’s

decision. Consequently, it does not enable an appellate court

to conduct the type of review that Rule 52(a) requires.6

Elliott, 165 Ariz. at 132; see also Reed, 154 Ariz. at 106 (trial court failed to

comply with Arizona Rule of Civil Procedure 52(a) because it did not ”set

forth even the most rudimentary arithmetic basis” for the monthly increase

it ordered).

¶12 Although we might infer reasons for an upward deviation in

some amount, when a party has invoked Rule 82(A), appellate courts do not

employ such inferences. See Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 1996) (“If

the trial court’s basis for a conclusion is unclear, this Court may not affirm

simply because we may find some possible basis for that conclusion in the

record.”). It must be clear from the family court’s findings how the court

arrived at its mathematical figure. See Elliott, 165 Ariz. at 135. Moreover,

Mother has very limited time with the children, and her supervision costs

are largely underwritten by Father. Because we cannot ascertain the basis

for the family court’s award of $7500 per month, we remand for additional

findings. See Miller, 175 Ariz. at 300 (“Where possible, when a trial court in

a non-jury case fails to make or makes insufficient findings of fact and

conclusions of law, a reviewing court should remand the case to the trial

court for further findings.”).

6 Arizona Rule of Civil Procedure 52(a) is the civil counterpart to Rule

82(A).

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Opinion of the Court

CONCLUSION

¶13 For the reasons stated, we vacate the family court’s child

support order and remand for further proceedings consistent with this

opinion.

:ama

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