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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

         LINDA GRIMSLAND (fka JARRIN), Petitioner/Appellant,

                                         v.

            GREGORY THOMAS JARRIN, Respondent/Appellee.

                            No. 1 CA-CV 15-0526 FC
                              FILED 5-17-2016


            Appeal from the Superior Court in Coconino County
                          No. S0300DO20050042
            The Honorable Ted Stuart Reed, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

McCarthy Weston, P.L.L.C., Flagstaff
By Philip (Jay) McCarthy, Jr.
Counsel for Petitioner/Appellant

Aspey, Watkins & Deisel, P.L.L.C., Flagstaff
By Staci L. Foulks, Zachary J. Markham
Counsel for Respondent/Appellee
                         GRIMSLAND v. JARRIN
                          Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.


P O R T L E Y, Judge:

¶1            Linda Grimsland (“Mother”) appeals from a post-decree
order denying modification of child support and her request for attorney
fees and costs. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           Mother and Gregory Thomas Jarrin (“Father”) were divorced
in Arizona in 2005. The decree of dissolution incorporated, but did not
merge, the parties’ mediated Marital Settlement Agreement and Parenting
Plan (“MSA”).       The MSA resolved property distribution, spousal
maintenance, child support, parenting time, and custody of their three
minor children. Under the agreement, Father was only required to pay $50
per month as child support, a deviation from the Arizona Child Support
Guidelines1 (“Guidelines”) approved by the court, given that he agreed to
pay the mortgage on the family residence and other expenses until the
youngest child turned 18 years old.2

¶3            Mother subsequently filed a motion to modify child support.
After an evidentiary hearing, the court found that the property-equalization
payments were contractual child-support payments. Noting that under the
MSA Father paid more than the Guidelines require, the court concluded
that there was no substantial and continuing change in circumstances
warranting modification of child support. As a result, the court denied
Mother’s motion and both parties’ requests for attorneys’ fees. Mother


1 The Arizona Child Support Guidelines are found in the Appendix to
Arizona Revised Statutes section 25-320.
2 Father agreed to pay $4,700 per month to cover the mortgage and other

expenses. The parties referred to these funds as a “property equalization
payment.” After the house was refinanced, they agreed, in a post-decree
agreement not challenged here, to increase Father’s payment to $4,946 per
month and then to $5,023 per month until November 2019.



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                            Decision of the Court

appealed, and we have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(2).3

                                 DISCUSSION

¶4             Mother argues the family court erred by denying her motion.
Specifically, she contends the court erred: 1) in its interpretation of the
MSA; 2) by failing to find that there was a substantial change in
circumstances and improperly applying A.R.S. § 25-320 and the Guidelines
to calculate the parties’ gross income; and 3) by failing to award her
attorney fees and costs. She also argues the ruling should be reversed under
the “law-of-the-case” doctrine.

I.       The Marital Settlement Agreement

¶5            Mother argues the “law-of-the-case” doctrine precludes the
family court from ruling that Father’s equalization payments were
contractual child support. Additionally, she argues the court incorrectly
interpreted the MSA by concluding that the equalization payments were
contractual child support.

A. Law-of-the-Case Doctrine

¶6            Mother argues that because the family court previously found
the equalization payments were not child support, the issue cannot be re-
litigated under the “law of the case” doctrine. The law-of-the-case doctrine
is a prudential policy of “refusing to reopen questions previously decided
in the same case by the same court or a higher appellate court.” Powell-
Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278, 860 P.2d
1328, 1331 (App. 1993) (citations omitted).

¶7            In a 2007 ruling denying Father’s motion to set aside the
decree, the court did not, as Mother asserts, address the issue of property
equalization on its merits. Instead, the ruling recognized that the parties’
agreement for a child-support downward deviation did not preclude the
court from considering a modification petition or from finding, after a
showing of substantial and continuing change in circumstances, that a
modification was warranted. The court noted that the MSA child-support
provision had been approved because it was in the best interests of the
children and because of the “Property Settlement Agreement which covers
child support.” Because the court did not decide whether the property
equalization payments were child support in the 2007 ruling, Mother has

3   We cite to the current version of the statute unless otherwise noted.

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                           Decision of the Court

not shown the 2015 ruling ran counter to the law-of-the-case. See id. at 279,
860 P.2d at 1332 (“we will not apply law of the case if the prior decision did
not actually decide the issue in question . . . or if the prior decision does not
address the merits”) (citation omitted).

B. Interpretation of the MSA

¶8            Mother also argues the family court incorrectly interpreted
the MSA. We review the court’s interpretation of a decree de novo. Cohen
v. Frey, 215 Ariz. 62, 66, ¶ 10, 157 P.3d 482, 486 (App. 2007) (citation
omitted).    When parties settle their rights through an agreement
incorporated into a decree, the terms of the agreement are governed by
contract law. MacMillan v. Schwartz, 226 Ariz. 584, 588, ¶ 12, 250 P.3d 1213,
1217 (App. 2011). Because the MSA was incorporated, but not merged, into
the decree, we must determine the contractual intent of the parties. Id. at
589, ¶ 15, 250 P.3d at 1218.

¶9             In Arizona, contracts will be reasonably construed and will be
“read in light of the parties’ intentions as reflected by their language and in
view of all circumstances.” Chopin v. Chopin, 224 Ariz. 425, 427, ¶ 6, 232
P.3d 99, 101 (App. 2010) (citation omitted). In construing a contract, we first
determine whether it is ambiguous. Cohen, 215 Ariz. at 66, ¶ 11, 157 P.3d at
486. A contract is ambiguous when its language “can reasonably be
construed to have more than one meaning.” Id. (citation omitted). And
whether the language is “reasonably susceptible to more than one
interpretation,” and thus requiring the admission of extrinsic evidence, “is
a question of law for the court, but the intent of the parties is a question of
fact left to the fact finder.” Chopin, 224 Ariz. at 428, ¶ 7, 232 P.3d at 102
(internal quotes and citations omitted). As a result, we look at the
language’s “natural and legal import,” referring to related provisions in the
contract. Cohen, 215 Ariz. at 66, ¶ 11, 157 P.3d at 486 (citations omitted); see
Nichols v. State Farm Fire & Cas. Co., 175 Ariz. 354, 356, 857 P.2d 406, 408
(App. 1993) (when we review a contract, it “must be read as a whole in
order to give a reasonable and harmonious meaning and effect to all of its
provisions.”).

¶10           It is undisputed that there was no need for an equalization
payment when the decree was entered because the parties, in the MSA, had
fairly and equitably divided the community property and debt. But the
MSA provided that Father would pay a “property equalization payment,”
in addition to $50 per month for child support and spousal maintenance
that expired in 2011. Despite the nomenclature, the “property equalization
payment” was to be “utilized by [Mother] to pay the mortgage, insurance,


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                         GRIMSLAND v. JARRIN
                          Decision of the Court

taxes and other costs associated with the family residence, payment on the
2004 Ford Explorer, the minor children’s tuition and costs for St. Mary’s
Catholic School and other expenses incurred by [Mother].” Initially, these
payments were to continue through February 2011, but at the time the
decree was entered, the parties amended the agreement to reflect that the
payments would continue until “the youngest child reaches eighteen years
old.” In fact, Mother testified that the equalization payments were intended
to cover the mortgage payments for the family residence, the children’s
school expenses, and other expenses related to the children. During a
hearing, Mother’s counsel asked her:

             Question:     Now, as part of the marital
             settlement agreement, you have requested a
             deviation to lower child support?

             Answer:       That’s correct.

             Question:    That’s based upon the property
             equalization payment that [Father] is making;
             correct?

             Answer:       Yes.

The court, as a result, approved the deviation from the Guidelines because
the parties had agreed to a parenting plan that was in the children’s best
interests and the “Property Settlement Agreement” covered child support.
In these circumstances, in substance, the parties intended the monthly
equalization payment to serve as additional child support. Consequently,
the court did not err in finding that the portion of the equalization payment
not used to cover Father’s half of the mortgage payment constituted child
support.4

II.   Child Support and Change In Circumstances

¶11          Arguing that Father’s monthly income had significantly
increased, Mother contends the family court erred in finding there was no
substantial and continuing change in circumstances warranting
modification of child support.




4As a result, based on the court-ordered child support and the contractual
amounts, Father was paying $3,145 in monthly child support payments.

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                         GRIMSLAND v. JARRIN
                          Decision of the Court

¶12            “The decision to modify an award of child support rests
within the sound discretion of the trial court,” and we will not disturb the
court’s ruling absent an abuse of discretion. Little v. Little, 193 Ariz. 518,
520, ¶ 5, 975 P.2d 108, 110 (1999). “An abuse of discretion exists when the
record, viewed in the light most favorable to upholding the trial court’s
decision, is devoid of competent evidence to support the decision.” Jenkins
v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App. 2007) (internal
quotes and citations omitted).

¶13           Although the parties agreed to a combined court-ordered and
contractual child-support amount of $3,145, the court can modify that
amount after a showing of changed circumstances that are substantial and
continuing. See A.R.S. §§ 25-317(F), -327(A); Randolph v. Howard, 16 Ariz.
App. 118, 120, 491 P.2d 841, 843 (1971) (“The child support provisions of a
property settlement agreement incorporated into a decree are subject to
modification by the court.”) (citations omitted). The court is not bound by
any agreement, and may take into consideration any change in
circumstances resulting from the parties’ agreements and the parties’
wishes. Evans v. Evans, 17 Ariz. App. 323, 326, 497 P.2d 830, 833 (1972). And
the court has to be mindful that the “paramount and controlling
consideration is the welfare of the children.” Id. at 325, 497 P.2d at 832
(citation omitted).

¶14           Here, after the evidentiary hearing, the court made factual
findings, noting that: 1) Father had consistently made his contractual child-
support and mortgage payments; 2) one of the children had turned eighteen
and graduated from high school; 3) the parenting plan had been modified,
and since December 15, 2014, Father was the primary custodial parent of
the two minor children; 4) Mother’s gross income was significantly less than
Father’s gross income;5 5) Father paid the children’s medical, dental, and
vision insurance costs; and 6) childcare expenses were no longer necessary,
and there were no extra education or child expenses. In addition, there was
undisputed evidence that Father also paid for the children’s computers,
cellphones, basketball games and trips, summer camp, and piano and flute
lessons. Moreover, despite the fact that the children were living with
Father, Mother continued to receive $3,145 per month in child support, was
earning more money than when the decree was entered, and no longer had




5The court noted that although Father’s monthly gross income was $33,477,
Mother expressly was not seeking an adjustment to use Father’s income
over the default of $20,000 a month.

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                         GRIMSLAND v. JARRIN
                          Decision of the Court

a car payment. She also did not have to pay school tuition for the children,
and did not need any more money to provide for their necessities.

¶15           Even though Father’s income increased after the entry of the
decree, the increase alone does not mandate a finding of a substantial and
continuing change in circumstances. Evidence of a substantial and
continuing change of circumstance can be demonstrated “if application of
the guidelines results in an order that varies 15% or more from the existing
amount.” Guidelines § 24. At the time the decree was entered, the
combined monthly income of both parents was less than $20,000, and under
the Guidelines, Mother would have been entitled to $1,340 in child support.
However, Father was paying $3,145 per month in child support under the
MSA; an amount far in excess of what the Guidelines required.

¶16            Although Father’s gross income increased from $9,000 to
more than $33,000 per month, the court, using the Guidelines, calculated
that Father’s increased income would result in a lower basic child support
obligation than what was required under the MSA. After completing child
support worksheets and considering all the evidence, the court found
Father paid “much more than the guideline amounts in child support to
[Mother]” under the MSA, and, as a result, found that there had not been a
substantial and continuing change in circumstances warranting
modification of child support.6 Accordingly, the court did not abuse its
discretion.


6 Mother argues the court erred in listing Father’s monthly gross income as
$20,000 instead of $33,476.66. The Guidelines provide that when the
combined adjusted gross income of the parents is more than $20,000 per
month, the amount set forth in the schedule of basic child support
obligations for a combined adjusted gross income of $20,000 is the
presumptive basic child support obligation. Guidelines § 8. Mother and
Father’s basic child support obligation, as a result, would have been $2,421
for two children, and $2,795 for three children. Guidelines Schedule (2011).
As noted above, before the family court, Mother expressly disavowed
seeking an adjustment to use Father’s income over the default of $20,000 a
month. Even if the court erred by entering $20,000 instead of $33,476.66,
thereby lowering the percentage of the basic child support obligation Father
was responsible for paying, he was still paying more than what the total
basic child support obligation would have been under the Guidelines.
Consequently, Father’s increased monthly income does not support
Mother’s argument of a substantial and continuing change in
circumstances.

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                          GRIMSLAND v. JARRIN
                           Decision of the Court

¶17            Mother also argues the family court erred by failing to comply
with the requirements of A.R.S. § 25-320(D), and failing to properly
calculate child support pursuant to the Guidelines. Section 25-320(D) states
that the application of the Guidelines will determine a parent’s child
support obligation “unless a written finding is made, based on criteria
approved by the supreme court.” Contrary to Mother’s assertion, the
family court made the required written findings when it approved the
deviation from the Guidelines, and because the court found no substantial
and continuing change of circumstances, it was not required to re-calculate
child support. See Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1,
3 (1982) (citations omitted).

III.   Attorneys’ Fees and Costs

¶18            Mother argues the family court abused its discretion when it
failed to award her attorney fees and costs under A.R.S. § 25-324. Although
a court, after considering the parties’ financial resources and the
reasonableness of the positions taken by each party throughout the
proceedings, may award attorneys’ fees, it is “not required to do so.” Alley
v. Stevens, 209 Ariz. 426, 429, ¶ 12, 104 P.3d 157, 160 (App. 2004); see A.R.S.
§ 25-324(A); Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 9, 333 P.3d 818, 821
(App. 2014).

¶19            Here, the court found that although Father had greater
financial resources than Mother, Mother had taken an unreasonable
position in the proceedings; namely, she acknowledged that despite the
title, the “property equalization payments” were intended to provide the
children with housing and financial support, and yet chose to “[press] this
tactical advantage to try to obtain even more money from [Father] when
none is justified under [the Guidelines].”7 The court then denied both
parties’ requests for attorney fees. Mother has shown no abuse of
discretion.




7 In the three parent-child support worksheets she submitted, Mother
calculated and acknowledged that even without accounting for all the
money given to her under the MSA, Father’s child support obligation
would be lower than the amount he was paying pursuant to the MSA.

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                          Decision of the Court

                    ATTORNEYS’ FEES ON APPEAL

¶20          Mother requests an award of attorney fees and costs on
appeal under A.R.S. §§ 25-503(E),8 25-324, and Arizona Rules of Civil
Appellate Procedure (“ARCAP”) 21, and Father requests attorney fees
pursuant to A.R.S. § 25-324 and ARCAP 21.

¶21          Having considered the requests, the reasonableness of their
arguments on appeal, and the results, in the exercise of our discretion, we
deny Mother’s request for an award of appellate fees and grant Father’s
request for an award of reasonable appellate fees, in an amount to be
determined, and his taxable costs on appeal, subject to his compliance with
ARCAP 21.

                             CONCLUSION

¶22         Based on the foregoing, we affirm the denial of Mother’s
motion to modify child support and her request for attorney fees and costs.




                                 :ama




8 Section 25-503(E) authorizes a court to award attorney’s fees and costs to
the prevailing party when modifying or terminating child support. Because
there was no support modification or termination, the provision is
inapplicable. A.R.S. § 25-503(E).

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