                                    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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                            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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                             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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                             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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