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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                           EMILY MARIE KOTARA,
                              Petitioner/Appellee,

                                         v.

                          RICHARD DUEY FRANCO,
                             Respondent/Appellant.

                            No. 1 CA-CV 14-0380 FC
                                 FILED 7-30-2015


            Appeal from the Superior Court in Maricopa County
                           No. FC2006-005253
                The Honorable Suzanne E. Cohen, Judge

                                   AFFIRMED


                                    COUNSEL

Emily Marie Kotara, Mesa
Petitioner/Appellee

Escolar Law Office, Phoenix
By M. Philip Escolar
Counsel for Respondent/Appellant
                          KOTARA v. FRANCO
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Andrew W. Gould joined.


O R O Z C O, Judge:

¶1            Richard Duey Franco appeals from a judgment modifying
child support Franco owes to Emily Marie Kotara. Franco also challenges
an award of attorney fees and the denial of his motion for new trial. For the
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           Franco and Kotara divorced in 2007. Franco filed a petition to
modify child custody, parenting time, and child support in 2012. An
evidentiary hearing took place, at which the family court admitted evidence
and heard testimony. The family court subsequently ordered Franco to pay
$902 per month in child support and awarded Kotara $10,000 in attorney
fees.

¶3            Following the child support order but before entry of the
attorney fees award, Franco filed a notice of appeal and a motion for relief
from the support order under Arizona Rule of Family Law Procedure (Rule)
85.C. At a June 2, 2014 hearing before entering judgment for attorney fees,
the family court informed Franco that it could not address the Rule 85.C.
motion regarding child support because Franco had filed a notice of appeal.
After the family court awarded attorney fees, Franco filed a second Rule
85.C. motion requesting relief from the fees award. The family court later
noted that “[Franco] handed the Court the [second Rule 85.C. motion] at the
[June 2] hearing and the Court inquired as to whether [Franco wished] the
Court to consider this motion a ‘Motion for reconsideration.’ [Franco]
answered in the affirmative.”

¶4             Before the family court ruled on the motion, Franco filed a
second notice of appeal regarding the attorney fees award. The family
court, citing the then-current Arizona Rule of Civil Appellate Procedure
9(b)(2)(B) (2014), converted Franco’s second Rule 85.C. motion to a motion
for new trial or amended judgment under Rule 83.A.4. and denied the




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                           Decision of the Court

motion.1 Franco filed an amended notice of appeal, and we have
jurisdiction under Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (A.R.S.) section 12-120.21.A.1. (West 2015).2

                              DISCUSSION3

I.     Child Support

¶5            Franco first argues that “given the evidence presented
regarding [Franco and Kotara’s] respective incomes,” the family court
abused its discretion in ordering Franco to pay $902 a month in child
support. We review an order modifying child support for an abuse of
discretion. Strait v. Strait, 223 Ariz. 500, 502, ¶ 6 (App. 2010). Although we
abide by the family court’s factual determinations unless clearly erroneous,
we review de novo legal issues, including interpretations of the Arizona
Child Support Guidelines (the Guidelines). Id. (citations omitted).

¶6            Franco contends the trial court erred in calculating child
support because it relied solely on his income tax returns for 2012 and 2013.
Franco asserts that although the family court understood that his income
“may be volatile from year to year” due to his financial sector employment,
the family court nevertheless ignored his evidence that showed the first
three months of his 2014 income was lower on average than the 2013
average the family court used to calculate child support. Franco argues that
“[c]hild support amounts should be set according to a payor’s current
income,” citing in support this court’s decision in Pearson v. Pearson, 190
Ariz. 231 (App. 1997). Accordingly, Franco contends that any support


1      Although the family court acted in accordance with the relevant
rules in effect at that time, we note that ARCAP 9 now includes motions
filed under Arizona Rule of Family Law Procedure 85 as among those that
the superior court may dispose of, even if a notice of appeal is filed before
the court does so. See ARCAP 9(e)(1)(E), (e)(2) (2015).

2      Unless noted otherwise, we cite the current version of applicable
statutes and rules when no revisions material to this decision have since
occurred.

3      Kotara did not timely file an answering brief, nor did she request
leave to file a late appeal. Although we may treat this as a confession of
error, we instead exercise our discretion to decide this appeal on the merits
relying on the opening brief and our review of the appellate record. See
Patterson v. Patterson, 226 Ariz. 356, 358 n.2 (App. 2011).


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                           Decision of the Court

amount “should have been recalculated” in accordance with his 2014
average monthly income.

¶7            Under A.R.S. § 25-327.A., a child support obligation “may be
modified or terminated only on a showing of changed circumstances that
are substantial and continuing[.]” In Pearson, this court affirmed a child
support modification order that increased the amount of support owed.
Pearson, 190 Ariz. at 232. The parent whose child support obligation
increased argued that the family court erred by imputing rental income to
his salary for child support purposes because it was possible the parent
would lose that income in the upcoming year, and thus the rental income
was not a “continuing” changed circumstance. Id. at 235-36. The family
court rejected that argument and “implicitly decided” that the rental
income “was ‘continuing’ within the meaning of A.R.S. § 25-327 and the
Guidelines.” Id. at 236. This court affirmed that decision, specifically
noting:

      The requirement that the increase in income must be
      “continuing” means that the trial court must base an increase
      in child support only on the payor's current income. It may
      not increase a child-support award to compensate for the
      payor's higher income in past years if the payor's current
      income is substantially lower. Nevertheless, the court need not
      restrict its view of the evidence to a few isolated months after the
      filing of the modification petition in order to determine a party's
      current income, particularly when such income is controlled by
      the party himself and is subject to possible manipulation
      upon the filing of the modification petition . . . Rather, a court
      reasonably may consider evidence of income prior to the
      modification petition to assist in determining the individual's
      current income and whether it has “substantially” changed
      since the existing child support award was set.

Id. (citations omitted) (emphasis added).

¶8            Here, although there is no evidence that Franco was
manipulating his 2014 income, we conclude the family court’s
determination was not clearly erroneous. The family court determined
Franco owed $902 per month in child support beginning in April 2014,
which is the same monthly amount the family court also found was owed
Kotara in child support from January 2013 through March 2014. This
resulted in Franco owing Kotara past due support for which the family
court ordered additional payments. Accordingly, the family court


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                          Decision of the Court

modified child support not only going forward, but also retroactively for
the previous year. In doing so, the family court reasonably concluded that
Franco’s 2013 income was “continuing” within the meaning of A.R.S. § 25-
327.A. Moreover, section 5.A. of the Guidelines states that “[s]easonal or
fluctuating income shall be annualized.” The family court was required to
make a child support determination that relied on an annual income figure.
The family court’s decision to rely on evidence of Franco’s full income for
2013, rather than partial income for the few months of 2014, was therefore
neither clearly erroneous nor an abuse of discretion.

II.   Attorney Fees

¶9           Franco next contends the family court erred by awarding
Kotara $10,000 in attorney fees. We review an attorney fee award for an
abuse of discretion. Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 35 (App.
2007).

¶10           Franco argues the family court based the fees award on an
apparent financial disparity between the parties, and “not . . . based on the
reasonableness of the parties’ positions[.]” Franco asserts that “the
evidence clearly demonstrated that there was no actual financial
disparity[.]”

¶11          As stated in A.R.S. § 25-324.A.:

      The [family] court from time to time, after considering the
      financial resources of both parties and the reasonableness of
      the positions each party has taken throughout the
      proceedings, may order a party to pay a reasonable amount
      to the other party for the costs and expenses of maintaining or
      defending any proceeding under this chapter[.]

In awarding Kotara fees, the family court found a “substantial disparity of
financial resources between the parties.” But the family court also
specifically found that Franco had acted unreasonably “during the
pendency of the proceedings[,]” that “Father's written communication . . .
with [Kotara], [Franco and Kotara’s daughter], [Kotara's] attorney and
[Daughter’s] school personnel [was] unprofessional, rude, and insulting[,]”
that “[t]his level of rancor is clear evidence of [Franco's] unreasonableness
during the pendency of the proceedings,” and that “both parties have been
somewhat unreasonable.”

¶12          Based on the family court’s explanation for granting fees, we
cannot conclude the fees award was based solely on the apparent financial


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                           Decision of the Court

disparity of the parties. The relevant statute requires the family court to
consider both the reasonableness of the parties’ positions and financial
resources and weigh them accordingly. The family court’s finding that both
parties had taken unreasonable positions does not necessarily mean the fees
award was based solely on the apparent disparity of financial resources.
Franco has not provided a transcript of the hearing at which the family
court awarded fees, and we therefore presume any record of the hearing
supports the family court’s ruling. See Myrick v. Maloney, 235 Ariz. 491, 495,
¶ 11 (App. 2014). Because the family court obviously considered both
factors, we will not attempt to reweigh whether Franco’s unreasonable
positions during litigation were more or less important in awarding fees
than disparity of financial resources.

¶13            Nevertheless, even if the family court based the fees award
solely on apparent financial disparity, Franco only contends that he can
show “there is not significant disparity between the parties’ [financial]
resources.” But the family court need not determine whether the disparity
is “significant.” Rather, this court has previously construed A.R.S. § 25-324
to require “that all a spouse need show is that a relative financial disparity
in income and/or assets exists between the spouses.” Magee v. Magee, 206
Ariz. 589, 589, ¶ 1 (App. 2004). Because a disparity exists, even using
Franco’s calculations, the family court did not abuse its discretion in
awarding Kotara fees.

III.   Motion for New Trial

¶14           Finally, Franco argues the family court erred by denying his
motion for new trial. We review a denial of a motion for a new trial for an
abuse of discretion. Kirby v. Rosell, 133 Ariz. 42, 46 (App. 1982).

¶15          Franco relies on evidence discovered after the family court
awarded fees to argue the family court erred by denying his motion. The
newly discovered evidence concerned a purchase agreement and credit
application Kotara executed with a car dealership in which Kotara reported
a higher income than she had reported to the family court. Franco contends
that given the potential criminal penalties for falsifying information on a
loan document, “it is reasonable to assume that the information contained
on loan statements is true unless proven otherwise.”

¶16          The family court rejected Franco’s argument, noting that
although the evidence “certainly impacts Mother’s credibility[,]” the family
court would have reached the same conclusions regarding child support
and fees using the same calculations. The family court found no “evidence



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                           KOTARA v. FRANCO
                           Decision of the Court

of fraud or misrepresentation to this Court for determining child support
or attorney’s fees.”

¶17           On this record, we find no error in the family court’s analysis.
Franco’s argument again seeks to show the fees award was unreasonable
under the assumption that Kotara must establish “significant” disparity in
financial resources. Because this is not the legal standard, see supra ¶ 13, the
newly discovered evidence goes to Kotara’s credibility, which is the family
court’s responsibility to weigh. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App.
2009) (noting that the appellate court’s “duty on review” does not include
re-weighing conflicting evidence or re-determining preponderance of
evidence). And because the family court’s determinations are not clearly
erroneous, the family court did not abuse its discretion by denying Franco’s
motion for new trial.

                               CONCLUSION

¶18          On appeal, Franco requests an award of attorney fees and
costs, which we deny. We affirm the family court’s child support
modification and the award of attorney fees to Kotara.




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