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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  MONICA J. MATHIS, Petitioner/Appellant,

                                         v.

                   JAMES A. MATHIS, Respondent/Appellee.

                            No. 1 CA-CV 19-0143 FC
                              FILED 12-10-2019


           Appeal from the Superior Court in Yavapai County
                       No. V1300DO201680249
         The Honorable Christopher L. Kottke, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Law Offices of Robert L. Frugé, P.C., Prescott
By Robert L. Frugé
Counsel for Petitioner/Appellant

James A. Mathis, Clarksdale
Respondent/Appellee
                           MATHIS v. MATHIS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.


C R U Z, Judge:

¶1             Monica J. Mathis (“Mother”) appeals three aspects of the
superior court’s order of past child support for the eight months between
the filing of the petition for dissolution and the temporary child support
orders. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Mother and James A. Mathis (“Father”) were married in
December 1997 and have four children. Towards the end of the marriage,
there were multiple periods of separation and multiple petitions for
dissolution of the marriage. On July 29, 2016, Mother filed her last petition
for dissolution of the marriage, seeking, inter alia, child support that
deviates from the Arizona Child Support Guidelines, Arizona Revised
Statutes (“A.R.S.”) section 25-320 app. (2019) (“Guidelines”).

¶3            Later, Mother filed a motion for temporary orders. At the
temporary orders hearing in April 2017, the parties entered an agreement
pursuant to Arizona Rule of Family Law Procedure 69. Under the
agreement, Father was to pay Mother $1,900 in monthly child support and
$5,000 in spousal maintenance pending trial and final orders.

¶4            Trial was held in two parts. The court first addressed legal
decision making and parenting time. Four months later, the court heard
evidence on child support, spousal maintenance and, again, parenting time.
Mother advanced claims of child support for three separate time periods:
(1) separation prior to the filing of the petition for dissolution; (2) eight
months from the filing of the petition for dissolution to the beginning of
support payments under the temporary orders; and (3) going forward post-
dissolution. Mother maintained that, given the life to which the children
were accustomed during the marriage—one she described as a life of
wealth and privilege—an upward deviation from the Guidelines was
warranted.




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                          Decision of the Court

¶5            After hearing conflicting testimony on Father’s income, the
amount of Father’s actual parenting time, and the dates of the couple’s
separations and reunifications, the court denied Mother’s request for child
support for the period before the petition for dissolution. But the court
found that Father should pay both past child support, for the eight months
between the petition and the temporary orders, and future support from
the date of dissolution until the children reach the age of majority.

¶6             As to the eight-month pre-dissolution period, the court
ordered Father to pay past child support in the amount of $1,900 per month
with no deviation from the Guidelines and ordered a $4,500 credit to him.
For future child support, per the Guidelines, the court calculated a child
support amount of $1,586 per month. Finding that it was in the children’s
best interests, the court granted Mother’s request for an upward deviation,
ordering Father’s final child support obligation at $3,200 per month.

¶7            The court denied Mother’s request for continued spousal
maintenance and her subsequent motion for partial reconsideration, issuing
a child support order conforming to the minute entry and incorporating a
single child support worksheet. This appeal timely followed, and we have
jurisdiction pursuant to A.R.S. § 12-120.21(A)(1).

                             DISCUSSION

¶8            On appeal, Mother only seeks review of the past child support
order pertaining to the eight months from the filing of the petition for
dissolution to the beginning of support payments under the temporary
orders. Specifically, Mother contends the court erred in (1) not making the
required findings for past child support, (2) finding that Father made
creditable voluntary support payments to Mother, and (3) denying an
upward deviation for past child support but granting one as to future
support. “We review child support awards for abuse of discretion.”
Sherman v. Sherman, 241 Ariz. 110, 112, ¶ 9 (App. 2016).

I.    Findings for Past Child Support Amount

¶9          Mother argues the superior court erred when it did not make
findings or create a worksheet for past support, as required by the
Guidelines.

¶10          Under A.R.S. § 25-320(B), a court may order a parent to pay
child support back to the petition date:




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                           Decision of the Court

      If child support has not been ordered by a child support order
      and if the court deems child support appropriate, the court
      shall direct, using a retroactive application of the child
      support guidelines to the date of filing a dissolution of
      marriage . . . the amount that the parents shall pay for the past
      support of the child and the manner in which payment shall
      be paid, taking into account any amount of temporary or
      voluntary support that has been paid. Retroactive child
      support is enforceable in any manner provided by law.

¶11          The Guidelines provide that “[t]he court shall make findings
in the record as to: Gross Income, Adjusted Gross Income, Basic Child
Support Obligation, Total Child Support Obligation, each parent’s
proportionate share of the child support obligation, and the child support
order.” Guidelines § 22. The court may “incorporat[e] a worksheet
containing this information into the file.” Id.

¶12           In this case, the court directed that a single worksheet be
created based upon the evidence. The court then incorporated the
worksheet in its child support order for both past and future support. The
child support order specifically provided that “[t]he required financial
factors and any discretionary adjustments pursuant to the Arizona Child
Support Guidelines are as set forth in the Parent’s Worksheet.” And the
incorporated worksheet did, in fact, have the required findings. Although
the worksheet’s calculation equaled $1,586 per month in support and the
court ordered Father to pay $1,900 per month in past support, resulting in
a windfall to Mother, Father does not appeal this ruling. Therefore, we do
not address it further.

¶13          Accordingly, the court did make the requisite findings by
incorporating a child support worksheet, as allowed by the Guidelines.

II.   Voluntary Support Credit

¶14          Mother also argues that the court erred when it credited
Father with $4,500 in voluntary payments, which were not made during
that same eight-month period.

¶15          Section 25-320(B) provides that the court shall take “into
account any amount of temporary or voluntary support that has been
paid.” A.R.S. § 25-320(B). While often voluntary support will have been
paid during the same time period for which the retroactive request is made,
nothing in section 25-320(B) requires that the voluntary payments be paid
exclusively during that period before the court may give a parent credit for


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                            Decision of the Court

such payments. It is within the court’s discretion, as finder of fact, to weigh
the conflicting evidence and consider the parties’ credibility in determining
the character of any payments made by the parties. See Gutierrez v.
Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998).

¶16           In this case, the record shows that Father paid Mother $3,000
for a three-month period, or $9,000, prior to the filing of the petition for
dissolution, while the parties were separated but seeking reconciliation.
The court found that “[n]either party disputes such payments were made”
and “that additional payments were made to [Mother] from [Father], going
further back to and beyond the date of separation,” and the court
“considered income, expenses, other payments and the uncertainties of
back and forth reconciliation of [the] parties based upon evidence in
reaching its conclusion.” Therefore, the court credited Father with half of
the voluntary contributions made to Mother, crediting $4,500 to his past
child support obligation. The credit was not an abuse of discretion.

III.   Deviation

¶17           Lastly, Mother argues that, because the court granted her
request for an upward deviation in the calculation of future child support
and the circumstances were the same, the court should have also deviated
from the Guidelines for past support.

¶18            Section 25-320(D) provides that in every case, “[t]he amount
resulting from the application of these guidelines is the amount of child
support ordered unless a written finding is made . . . that application of the
guidelines would be inappropriate or unjust in a particular case.” A.R.S.
§ 25-320(D). “The party seeking a sum greater than [the] presumptive
amount shall bear the burden of proof to establish that a higher amount is
in the best interests of the children . . . .” Guidelines § 8.

¶19          Mother is not entitled to a deviation for past support, but the
court may grant one if it deems it appropriate. See Nia v. Nia, 242 Ariz. 419,
424, ¶ 19 (App. 2017) (“If the amount calculated under the Guidelines
appears adequate under the circumstances, the superior court does not
need to consider a deviation allowed by the Guidelines.”). In this case, the
court found that an upward deviation for past child support was not
appropriate based upon:

       [T]estimony, and documentary evidence concerning
       payments in such timeframe, irrespective of characterization
       and specifically concluded that the amount going forward
       ($3,200) as granted by [the] Court as a deviation after a similar


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                           Decision of the Court

       comprehensive review, or any other number, shall not be used
       to calculate back payments, largely in part because of all other
       payments and general support made from [Father] to
       [Mother] in this matter.

¶20           The court did not err in rejecting Mother’s request for a
deviation as to past child support.

                              CONCLUSION

¶21           We affirm the superior court’s child support order in its
entirety.




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




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