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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                CHE NIKOLAI LYNUM, Petitioner/Appellant,

                                         v.

            TIFFANY TELANA TAVARES, Respondent/Appellee.

                            No. 1 CA-CV 17-0342 FC
                                  FILED 7-26-18


            Appeal from the Superior Court in Maricopa County
                           No. FC2009-000705
                   The Honorable Dewain D. Fox, Judge

                                   AFFIRMED


                                    COUNSEL

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Erica L. Gadberry
Counsel for Petitioner/Appellant

Udall Shumway, PLC, Mesa
By Sheri D. Shepard
Counsel for Respondent/Appellee
                           LYNUM v. TAVARES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


C A T T A N I, Judge:

¶1            Che Lynum (“Husband”) appeals from the superior court’s
decision awarding Tiffany Tavares (“Wife”) spousal maintenance
arrearages of $388,000. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The superior court entered a consent decree of dissolution
(the “Decree”) for Husband and Wife in January 2010. Under the Decree,
Wife received spousal maintenance of $3,500 per month plus a percentage
of every dollar Husband earned between $100,000 and $999,999 annually.1

¶3             Wife petitioned to enforce the Decree’s child support and
spousal maintenance provisions in 2010 and again in 2011, but in both
instances, Husband became current on his payments shortly after Wife’s
filing. Wife again petitioned the superior court to enforce child support and
spousal maintenance in August 2015. Representing herself, and using a
form petition provided by the superior court, Wife asserted that Husband
had not paid spousal maintenance or child support from June 2013 to
August 2015, and was thus in arrears $87,500 for spousal maintenance
($3,500 per month) and $30,000 for child support ($1,500 per month).
Within days of filing her petition to enforce, Wife requested Husband’s
financial information from 2012 to 2014 to enable her to determine the total
amount of spousal support owed. Husband did not respond to Wife’s
petition to enforce but instead petitioned the court to modify child support,
alleging that his income had “precipitously fallen since entry of the decree.”

¶4          In October 2015, the State notified both parties that a
determination of Husband’s income was necessary to calculate Husband’s


1      Under the Decree, Husband also agreed to $1,500 monthly child
support. Although the superior court also found that Husband was in
arrears regarding child support, Husband did not challenge that aspect of
the court’s ruling.


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                            Decision of the Court

arrearages, and requested that the parties provide that information.
Similarly, Wife asserted in her response to Husband’s petition to modify
that Husband owed more than $200,000, and that she could not address
Husband’s assertion that his income had dropped until Husband disclosed
information that could be analyzed by a forensic accountant.

¶5            After an evidentiary hearing, the superior court concluded
that Husband’s income for child support and spousal maintenance
purposes was $327,120.72 in 2012; $702,132.60 in 2013; $548,256.60 in 2014;
$496,483.38 in 2015; and $496,483.38 in 2016, and that the total arrearages
for spousal maintenance were $388,689.72. The court attributed to Husband
income beyond the amount he claimed, reasoning that because Husband’s
companies paid for nearly all of his personal expenses, such expenses
should be attributed to him as income. The court also denied Husband’s
petition to modify child support. Husband moved for, and was denied, a
new trial. He then timely appealed, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(2), (5)(a).

                                DISCUSSION

I.     Total Arrearages.

¶6             Husband argues that the superior court erred by awarding
Wife spousal maintenance arrearages of $388,000 because he did not receive
proper notice, and that Wife was judicially estopped from claiming a
greater total of arrearages than was stated in her petition. We review issues
of notice and other matters of law de novo. Wilmot v. Wilmot, 203 Ariz. 565,
569, ¶ 10 (2002); In re Estate of Dobert, 192 Ariz. 248, 252–53, ¶ 18 (App. 1998).

¶7             Husband asserts that because Wife’s petition to enforce
claimed that the total spousal maintenance owed was $87,500—which
would have been the minimum owed under the Decree—he did not receive
notice that his income was in dispute or that he owed more than $87,500 in
spousal maintenance. But the petition was to enforce the terms of the
Decree as agreed upon by Husband. And those terms unequivocally stated
that spousal maintenance was dependent on Husband’s income and that as
his income increased, so too would spousal maintenance. Thus, Husband
cannot claim he had no notice that his income was at issue or that he could
be liable for an amount beyond the minimum spousal maintenance
contemplated in the Decree.

¶8           Moreover, nearly a year before the evidentiary hearing, Wife
requested Husband’s financial information to determine his income, and
the State informed the parties that Husband’s income needed to be


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determined before the spousal maintenance arrearages could be calculated.
And, as previously noted, when Husband requested modification of child
support shortly after Wife filed her petition to enforce, Wife asserted that
Husband’s income was in dispute and that he owed at least $200,000 in
spousal maintenance.

¶9            To the extent Husband argues untimely disclosure of Wife’s
expert witness report caused insufficient notice, we disagree. Mother
timely disclosed her expert witness, and although the expert’s report was
delayed—it was not disclosed until one week before trial—the delay was
caused primarily by Husband’s failure to respond to Wife’s requests that
he produce documents (including, for example, Husband’s corporate credit
card statements) needed for the expert’s analysis.

¶10            Husband further argues that under Armer v. Armer, 105 Ariz.
284, 288 (1970), Mother cannot claim arrearages beyond the amount
specifically pled. But Armer simply noted that “[p]arties are bound by their
pleadings” and a party may not introduce evidence in contradiction of
express allegations in the party’s complaint. Id. The court held that because
the defendant in that case had not designated in his responsive pleading
any specific household items he believed were separate property, the trial
judge validly presumed that all of the property in the house was
community property. Id. Here, in contrast, Wife’s pleadings made clear
that Husband’s income was in dispute and that the potential amount owed
was greater than $87,500. Thus, Husband’s reliance on Armer is misplaced.

¶11           Husband’s claim that Wife was judicially estopped from
arguing greater arrearages than she asserted in her petition is similarly
unavailing. Judicial estoppel requires, inter alia, that a party have
successfully asserted, in a prior judicial proceeding, a position that was
inconsistent with a newly asserted position. In re Marriage of Thorn, 235
Ariz. 216, 222, ¶ 27 (App. 2014). Wife’s petition is not a prior judicial
proceeding and Husband does not cite any prior judicial proceeding that
was resolved in Wife’s favor based on a position inconsistent with what
Wife has asserted in the instant proceedings. Accordingly, judicial estoppel
is inapplicable.

II.   Attribution of Income.

¶12          Husband next argues that the superior court erred in
determining his income. We review the superior court’s computation of
income for an abuse of discretion. See Engel v. Landman, 221 Ariz. 504, 514,
¶ 42 (App. 2009). We view the evidence in the light most favorable to



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upholding the superior court’s findings and will uphold those findings if
supported by any reasonable evidence. Mitchell v. Mitchell, 152 Ariz. 317,
323 (1987).

¶13           Husband argues that because the Decree unambiguously
states that his “gross income” is to be used to determine spousal
maintenance, his gross income for tax purposes is the relevant amount to
be used in the calculation. But gross income may be calculated differently
in different contexts. For example, under the Arizona Child Support
Guidelines, A.R.S. § 25-320 app. (“Guidelines”), gross income for purposes
of child support is expressly different than gross income for tax purposes
and may include “[e]xpense reimbursements or benefits received . . . in the
course of employment . . . or operation of a business . . . if they are
significant and reduce personal living expenses.” See Guidelines § 5(D).
And here, the court used the Guidelines to calculate Husband’s income for
purposes of his petition to modify child support, and Husband offers no
compelling reason for the court to have departed from that calculation for
purposes of spousal maintenance.

¶14           Husband argues that applying the Guidelines definition of
gross income might artificially inflate a spouse’s income such that the
resulting maintenance amount is beyond the former spouse’s ability to pay.
But Husband had an opportunity to show that attribution of additional
income would render an inappropriate or unjust result, and the record here
supports the superior court’s conclusion to the contrary. In the context of
Husband’s ownership interest in over 100 entities conducting business
amongst themselves, the court could reasonably conclude that the
businesses’ payments for Husband’s living expenses were in effect
distributions, salaries, and benefits that were shielded by this business
scheme.

¶15            And the superior court’s specific attribution of income to
Husband was not an abuse of discretion. Husband claimed a $60,000
annual salary on his affidavit of financial information, but his bank account
included $15,000 in unidentifiable cash deposits, and his companies paid
$17,000 annually for his car lease. His companies also paid roughly $81,500
annually for his housing—including housing in Phoenix, Los Angeles, and
Chicago. The value of housing paid for by an employer or as part of the
operation of a business may be considered part of a parent’s gross income
if it reduces personal living expenses. See Guidelines § 5(D); Patterson v.
Patterson, 226 Ariz. 356, 359–60, ¶ 10 (App. 2011). Although Husband
asserts that the Chicago residence was only used for business, he did not
dispute that the children stayed there with him during some of his parental


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visitation time, and the superior court only attributed a portion (5/12) of
the Chicago rent as income to Husband. Thus, the superior court did not
abuse its discretion by attributing income of $81,500 to Husband based on
housing expenses paid for by his business entities.

¶16           The superior court similarly did not abuse its discretion by
attributing as income monies spent on Husband’s corporate credit card.
Husband used the corporate credit card for personal expenses, and his
personal bank account showed few withdrawals for personal expenses.
Although Husband did not substantiate any business expenses on his credit
card, the superior court attributed only 44% of the expenditures as non-
business expenses and therefore income to Husband, including, for
example, expenses for cars and transport, phones, television, utilities,
entertainment, food and dining, gifts and donations, health and fitness,
personal care, books, clothing, electronics and software, sporting goods,
and travel. These expenses amounted to $107,000 in 2012, $243,000 in 2013,
$312,000 in 2014, $204,000 in 2015, and $204,000 in 2016.

¶17           Husband argues that the superior court further erred because
(1) only six months of credit card statements were used to determine his
income for a five-year period and (2) attributing income based on the credit
card expenses amounted to a discovery sanction for not providing
documentation to substantiate the charges as business expenses. But
Husband does not claim that expenses reflected in the sample were
atypical, and he did not otherwise provide support for his argument that
using a six-month sample of statements was inappropriate. Husband’s
sanctions argument is likewise unavailing; the amounts attributed as
income were limited to expenditures determined to be for personal use.

¶18            Husband also argues that because his employment did not
change after he and Wife entered the Decree, and because the Decree
incorporated a 2010 child support worksheet that stated Husband’s annual
income was $96,000, the law of the case doctrine should have precluded an
inconsistent finding regarding his income. But the law of the case doctrine
only applies to issues previously decided in the same case by the same or a
higher court. Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176
Ariz. 275, 278 (App. 1993). And here, Husband’s income was never decided
by any court. To the contrary, the terms of the Decree contemplated that
Husband’s income would vary, even to the point of exceeding $1,000,000
annually, far above the $96,000 Husband asserts was decided at the time of
the Decree.




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                         Decision of the Court

                             CONCLUSION

¶19            For the foregoing reasons, we affirm. Wife requests fees on
appeal under A.R.S. § 25-324. In an exercise of our discretion, we deny
Wife’s request for fees on appeal. Nevertheless, as the prevailing party,
Wife is entitled to an award of costs upon compliance with ARCAP 21.




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

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