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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

            DOMINICA M. RODRIGUEZ, Petitioner/Appellant,

                                        v.

            VICTOR ANTONIO GARCIA, Respondent/Appellee.

                           No. 1 CA-CV 18-0698 FC
                             FILED 11-12-2019


           Appeal from the Superior Court in Maricopa County
                          No. FC2017-007850
              The Honorable Katherine M. Cooper, Judge

      AFFIRMED IN PART; VACATED IN PART; REMANDED


                                   COUNSEL

Dominica M. Rodriguez, Phoenix
Petitioner/Appellant
                        RODRIGUEZ v. GARCIA
                         Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.


J O N E S, Judge:

¶1           Dominica Rodriguez (Mother) appeals from the family
court’s orders requiring Victor Garcia (Father) to pay child support and
denying her request for an award of attorneys’ fees. For the following
reasons, we vacate the order of child support for the period between
September 1, 2017 and April 30, 2018 and remand for recalculation of the
support award for that period. The remainder of the court’s orders are
affirmed.

                FACTS AND PROCEDURAL HISTORY

¶2            In August 2017, Mother petitioned the family court for an
order establishing paternity and child support for her four-year-old son
(Child).1 Paternity was confirmed in February 2018, and the court held an
evidentiary hearing in July.

¶3            At the hearing, Mother testified she told Father she was
pregnant in January 2013 and that Child was born the following September.
Mother sent an email to Father advising that Child needed surgery in
February 2014 but received no response. Later that year, Mother’s friend
exchanged text messages with Father’s significant other about Child’s
medical status. Mother never requested Father pay child support and did
not try to contact him again until shortly before she filed her August 2017
petition. Mother suggested she would have pursued support earlier had
she “ha[d] enough information on him” but acknowledged that she had
known Father since junior high school, that Father had had the same
telephone number for twelve years, and that she eventually obtained his
phone number through a private investigator.

¶4           Father testified he ended his relationship with Mother in 2012
and did not hear from her again until shortly before she filed her petition


1     Father responded by requesting joint legal decision-making and
shared parenting time but later withdrew these requests.


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                          Decision of the Court

for paternity and child support. Father’s significant other testified she
never told him about the messages from Mother’s friend.

¶5           Father expressed regret that he had been deprived of the
opportunity to bond with and care for Child and agreed an award of child
support moving forward was appropriate. He testified he had been earning
$21 per hour but experienced health conditions that forced him to stop
working entirely in June of 2018.

¶6            After taking the matter under advisement, the family court
found Father was unaware of his possible parentage until he received
Mother’s petition. The court ordered Father to pay $250.42 per month in
child support beginning the first of the month following the filing of
Mother’s petition — September 1, 2017. Application of this order resulted
in a judgment of arrears totaling $2,754.42. The court also found “both
parties acted unreasonably to some extent” and ordered they bear their own
attorneys’ fees. After her post-trial motions were denied, Mother timely
appealed the final judgment. We have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 -2101(A)(1), and (A)(5)(a).

                               DISCUSSION

I.     Child Support

       A.     Retroactivity

¶7            Mother first argues the family court erred by failing to require
Father to pay support accruing over the entire period since Child’s birth.3
We review a child support order for an abuse of discretion, which may
occur when the decision is not supported by the record or is premised upon
an error of law. See Birnstihl v. Birnstihl, 243 Ariz. 588, 590-91, ¶ 8 (App.
2018).

¶8           As relevant here, A.R.S. § 25-809(A) provides that, after
parentage is established, “the court shall direct, subject to applicable
equitable defenses . . . the amount, if any, the parties shall pay for the past

2      Absent material changes from the relevant date, we cite the current
version of rules and statutes.

3      Father did not file an answering brief. Although we could regard
this failure as a confession of error, see ARCAP 15(a)(2); Thompson v.
Thompson, 217 Ariz. 524, 526, ¶ 6 n.1 (App. 2008), in our discretion, we
decline to do so, see Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994).


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                          RODRIGUEZ v. GARCIA
                           Decision of the Court

support of the child.” The family court determined Father proved the
equitable defense of laches, justifying relief from arrearages that accrued
while Father was unaware of his parentage. “Laches is recognized in
Arizona as an equitable defense to a claim for child support arrearages.”
State ex rel. Dep’t of Econ. Sec. v. Dodd, 181 Ariz. 183, 187 (App. 1994). The
parent asserting the defense must prove, by clear and convincing evidence,
“both (1) that the [requesting parent] unreasonably delayed bringing a
claim for arrearages, and (2) that the [paying parent] was prejudiced by this
delay.” Id. at 188 (citation omitted); see also A.R.S. § 25-320(C) (directing the
family court, before ordering retroactive support, to “first consider all
relevant circumstances, including the conduct or motivation of the parties
in that filing and the diligence with which [notice] was attempted”).

¶9            “Evidence is clear and convincing if it makes ‘the thing to be
proved highly probable or reasonably certain.’” Parker v. City of Tucson, 233
Ariz. 422, 436, ¶ 39 (App. 2013) (quoting Kent K. v. Bobby M., 210 Ariz. 279,
284-85, ¶ 25 (2005)). “The determination of whether evidence is ‘clear and
convincing’ is committed to the trial court,” and its findings “will be
sustained on appeal as long as the record contains substantial evidence to
support them.” O’Dea v. Litzenburg (Estate of Page), 177 Ariz. 84, 92 (App.
1993) (citing Hopper v. Indus. Comm’n, 27 Ariz. App. 732, 735 (1976)).
Substantial evidence may exist “even though there might be substantial
conflicting evidence.” Moore v. Title Ins. Co. of Minn., 148 Ariz. 408, 413
(App. 1985) (citing Lewis v. Midway Lumber, Inc., 114 Ariz. 426, 429 (App.
1977)). And, where the question of whether a party has met his burden of
proof “is a matter of determining which body of conflicting evidence to
accept and which to reject,” we defer to the trier of fact. Brewer v. Peterson,
9 Ariz. App. 455, 458 (1969) (citing Tonelson v. Haines, 2 Ariz. App. 127, 129
(1965)).

¶10           In a six-page decision that detailed the evidence at length, the
family court here accepted Father’s version of events and found Mother’s
assertion that she told Father about Child initially and then could not track
him down was unsupported by the evidence, “not credible,” and
“contrived.” The court further found Father had been prejudiced by
Mother’s unexcused delay and, specifically, that “he had no opportunity
for a relationship with [Child] for three years . . . [and] no chance to stop
child support from accruing because he did not know that he had a child.”
Although Mother disputes the weight and credence to be given to various
evidence, the court is in the “best position to weigh the evidence, observe
the parties, judge the credibility of witnesses, and make appropriate
findings.” Christina G. v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 231, 234, ¶ 13
(App. 2011) (citing Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280, ¶ 4


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                         RODRIGUEZ v. GARCIA
                          Decision of the Court

(App. 2002)). On appeal, we will not reweigh the evidence or second-guess
the fact-finder’s resolution of competing evidence. See Reeck v. Mendoza, 232
Ariz. 299, 303, ¶ 14 (App. 2013).

¶11          Substantial evidence supports the family court’s decision to
apply the equitable defense of laches to Mother’s claim for child support
arrears. Accordingly, we find no error in its order limiting retroactive child
support to the period beginning with the filing of Mother’s petition.

       B.     Father’s Income

¶12           Mother argues the family court erroneously attributed
Father’s income, for purposes of calculating child support, at no more than
minimum wage based upon a “vague medical leave of absence.” We again
review for an abuse of discretion. McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6
(App. 2002) (citation omitted). In the course of our review, we accept the
court’s findings of fact unless they are clearly erroneous but draw our own
legal conclusions from the facts and review de novo the interpretation of the
Arizona Child Support Guidelines. Id.

¶13            By attributing Father’s income at minimum wage, the family
court implicitly accepted Father’s assertion that he is unable to work. See
Quijada v. Quijada, 246 Ariz. 217, 220, ¶ 8 (App. 2019) (recognizing a tacit
finding necessary to sustain the family court’s order) (citing Great W. Bank
v. LJC Dev., L.L.C., 238 Ariz. 470, 479, ¶ 31 n.9 (App. 2015)). This finding is
supported by substantial evidence — namely, Father’s testimony and
documentation from his employer that he had been granted an indefinite
medical leave of absence. See Pyeatte v. Pyeatte, 21 Ariz. App. 448, 453 (1974)
(noting that a party’s “testimony alone” may be sufficient to support a
court’s conclusion). Given this finding, the court acted in its discretion to
attribute minimum-wage income to Father. See A.R.S. § 25-320 app. § 5(E)
(Guidelines).

¶14           Mother also argues the family court erred in applying the
decrease to Father’s income retroactively. We agree. In calculating Father’s
arrearage, the court should have determined Father’s income during the
period of the arrearage. See A.R.S. § 25-809(A) (directing the court to
calculate past support “using a retroactive application of the current child
support guidelines”). And although the court may properly attribute
income to Father when he is unable to work, the record does not support a
finding that Father was unemployed or earning less than $21 per hour
before April 2018. Thus, the court abused its discretion in using a reduced
income to calculate Father’s child support obligation between September 1,



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                          Decision of the Court

2017 and April 30, 2018. The child support order for that period is vacated
and remanded for recalculation.

II.    Childcare Costs

¶15           Mother also argues the family court erred in failing to include
childcare costs within its child support calculation. We again review for an
abuse of discretion. See supra ¶ 7.

¶16             Pursuant to the Guidelines, the family court “[m]ay add to the
Basic Child Support Obligation amounts for . . . [c]hildcare expenses that
would be appropriate to the parents’ financial abilities.” Guidelines
§ 9(B)(1). The decision to do so is discretionary. See id. Here, Mother
presented evidence of childcare costs. The court chose not to include them
in its calculation. These circumstances do not represent any clear abuse of
discretion.

III.   Attorneys’ Fees

¶17           Finally, Mother argues the family court erred in declining her
request for an award of attorneys’ fees. We review the denial of attorneys’
fees under A.R.S. § 25-324(A) for an abuse of discretion. See Lehn v. Al-
Thanayyan, 246 Ariz. 277, 286, ¶ 29 (App. 2019) (citing Myrick v. Maloney,
235 Ariz. 491, 494, ¶ 6 (App. 2014)).

¶18           Pursuant to A.R.S. § 25-324(A):

       The 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 [in family court].

The court here determined that “both parties acted unreasonably to some
extent” — Father for abandoning his request for parenting time
immediately before the evidentiary hearing and Mother for seeking years’
worth of retroactive child support after failing to timely notify Father of his
parentage. Although Mother disputes the court’s characterization of her
delay in pursuing support as unreasonable, we have already determined its
findings are supported by the record. See supra ¶ 10. Moreover, those
findings provide a sufficient factual basis to decline an award of fees under
A.R.S. § 25-324(A). Accordingly, we find no error.



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                         RODRIGUEZ v. GARCIA
                          Decision of the Court

                               CONCLUSION

¶19            The child support order for the period between September 1,
2017 and April 30, 2018 is vacated, and the case is remanded for
recalculation of child support during that period. The family court’s other
orders, including those denying Mother’s request for attorneys’ fees and
setting child support going forward, are affirmed.

¶20           Mother requests an award of attorneys’ fees incurred on
appeal pursuant to A.R.S. §§ 12-348 (authorizing an award of fees to the
successful party in a civil action against a municipality), 35-213 (authorizing
an award of fees to a taxpayer who initiates an action to recover illegally
paid public monies), and the private attorney general doctrine, see Arnold v.
Ariz. Dep’t of Health Servs., 160 Ariz. 593, 537 (1989) (recognizing “the
existence of a ‘private attorney general doctrine’ that allows an award [of
attorneys’ fees] to a prevailing plaintiff for vindicating an important public
policy”). These authorities are not applicable to the immediate case, and
we decline the request. Because Mother was only partially successful on
appeal, we likewise decline her request for costs pursuant to A.R.S. § 12-
341.




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




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