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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ANN D. CLARK, Petitioner/Appellee,

                                         v.

                 RICHARD A. CLARK, Respondent/Appellant.

                            No. 1 CA-CV 15-0068 FC
                              FILED 03-22-2016


            Appeal from the Superior Court in Maricopa County
                           No. FC2012-093630
              The Honorable Bethany G. Hicks, Retired Judge

                                   AFFIRMED


                                    COUNSEL

By Scott L. Patterson, Tempe
Counsel for Petitioner-Appellee

Johnson Hendrickson & Lallis, PLLC, Mesa
By David Johnson
Counsel for Respondent-Appellant


                        MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
                            CLARK v. CLARK
                           Decision of the Court

G E M M I L L, Judge:

¶1          Richard Clark (“Father”) appeals the family court’s decree
modifying child support. For the following reasons, we affirm.

                             BACKGROUND

¶2            In 2012, Ann Clark (“Mother”) filed a petition for dissolution
of her marriage to Father. A default decree was entered against Father in
December 2012, along with a child support order and parenting plan
concerning the couple’s two children. Primary physical custody of the
children was awarded to Mother, and Father was ordered to pay child
support in the amount of $1013.48 per month, commencing January 1, 2013.

¶3             After the divorce, Father relocated to New York to seek
employment and found a job in September 2013. In March 2014, Father
filed a petition to modify his child support obligation, alleging he was
earning $3464 per month and his relocation and new employment
constituted a substantial and continuing change in circumstances. The
family court granted a hearing, and decreased Father’s child support
obligation to $619.04 per month, effective September 1, 2014. The family
court ordered that Father be allowed to claim one of the children as a
dependent on his income taxes two out of every three tax years, conditioned
upon payment in full of all current support obligations and arrearage
payments. The court also found, however, that Father had failed to make
any child support payments and entered judgment for more than $20,000
in arrearages due Mother. Finally, the court awarded Mother her attorney
fees and costs, finding that Father had taken unreasonable positions
throughout the litigation.

¶4           Father timely appealed the order modifying child support.
We have jurisdiction under Article 6, Section 9 of the Arizona Constitution
and Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(5).

                              DISCUSSION

¶5            Because our resolution of the attorney fees issue merits
publication, we have addressed that issue in a published opinion issued
contemporaneously with this unpublished memorandum decision. We
address all other issues on appeal in this decision. See ARCAP 28(c); Ariz.
R. Sup. Ct. 111(h).




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                            Decision of the Court

I.     Calculation of Mother’s Gross Monthly Income

¶6            First, Father argues that the family court erred in calculating
Mother’s gross income under the Child Support Guidelines, A.R.S. § 25-320
(“Guidelines”). Father contends the Court’s calculation is clearly erroneous
because it does not include all of Mother’s income from her secondary
employment. A decision to modify an existing child support award is
within the “sound discretion” of the family court, and, “absent an abuse of
that discretion, will not be disturbed on appeal.” Jenkins v. Jenkins, 215 Ariz.
35, 36, ¶ 8 (App. 2007); see also Strait v. Strait, 223 Ariz. 500, 502, ¶ 6 (App.
2010). We review de novo, however, the family court’s application of the
Guidelines. Engle v. Landman, 221 Ariz. 504, 510, ¶ 21 (App. 2009).

¶7            Mother is employed as a dental hygienist at two different
dental practices. At the first practice, Mother is required to be present
during specific hours, but is paid only for the hours during which her
patients are actually present. Mother consistently averages 27 hours per
week and earns $43 per hour. Mother also works with a second dental
practice at which she earns $41 per hour. Her hours there are “variable”
depending on need, but do not exceed 13 hours per week. She generally
works at the second practice at most only one day per week and sometimes
not at all.

¶8             On her Affidavit of Financial Information (AFI), Mother listed
her total gross monthly income as $4,718.31. At the hearing, Mother
testified that as of April 20, 2014, she had earned approximately $24,048,
which reflects significantly more income per month than the amount shown
on her AFI. After considering the evidence presented at the hearing and
Mother’s AFI, the family court found that Mother’s gross monthly income
was $4,876.20.

¶9            Father argues the family court misapplied the Guidelines by
failing to consider the entirety of Mother’s earnings from both her jobs in
calculating her gross monthly income. In relevant part, the Guidelines
provide as follows:

       Gross income includes income from any source . . . . Income
       from any source which is not continuing or recurring in
       nature need not necessarily be deemed gross income for child
       support purposes. Generally, the court should not attribute
       income greater than what would have been earned from full-
       time employment. Each parent should have the choice of



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                           Decision of the Court

      working additional hours through overtime or at a second job
      without increasing the child support award. The court may,
      however, consider income actually earned that is greater than
      would have been earned by full-time employment if that
      income was historically earned from a regular schedule and is
      anticipated to continue into the future.

      The court should generally not attribute additional income to
      a parent if that would require an extraordinary work regimen.
      Determination of what constitutes a reasonable work regimen
      depends upon all relevant circumstances including the choice
      of jobs available within a particular occupation, working
      hours and working conditions.

Guidelines § 5(A) (emphasis added).

¶10           Father claims that because Mother’s income from her second
job is regular and recurring, it should be included, in its entirety, in her
gross monthly income. At the hearing, however, Mother testified that she
has worked for the second practice for less than one year and that her work
there is on an as-needed basis and not consistent. The family court could
have found, therefore, that this additional income was not “historically
earned from a regular schedule.” See Guidelines § 5(A).

¶11           Father also asserts that Mother’s second job does not
constitute “overtime,” because her total working hours do not exceed 40
hours per week. In support, Father cites McNutt v. McNutt, 203 Ariz. 28
(App. 2002), in which this court held that employment exceeding 40 hours
per week did not necessarily include overtime. Father argues that,
accordingly, a work week of less than 40 hours must necessarily be
considered less than full-time.

¶12            We disagree, because in some situations full time
employment may constitute less than 40 hours per week. McNutt explained
that the 40-hour work week is an “artificial construct.” Id. at 32, ¶ 15.
Rather than strictly applying the number of hours worked to determine
what is or is not full-time employment, McNutt looked to the nature of the
job and what constituted a “regular schedule” for the type of employment
in question. Id. at ¶ 14. Similarly, the Guidelines require that the court
consider all relevant factors surrounding the employment to determine a
“reasonable work regimen.” Guidelines § 5(A).




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                            Decision of the Court

¶13            Although the record does not compel the family court’s
conclusion in this case, the court did not abuse its discretion when it found
that Mother’s primary job is in fact full-time employment, even though it
consists of less than 40 hours compensable time per week. Consistent with
the Guidelines, the family court attributed to Mother an income consistent
with full-time employment while still allowing her the choice to seek
supplemental income from additional sources. See Guidelines § 5(A); see
also McNutt, 203 Ariz. at 32, ¶ 17 (explaining that a child support award
should “leave to each parent the choice of working additional hours—
whether overtime or at a second job—without exposing that parent to the
‘treadmill’ effect of an ever-increasing child support obligation”). Given
Mother’s testimony about the nature of her employment, the court did not
abuse its discretion when it determined that her primary job constituted
full-time employment.

¶14           Although we are not able on this record to determine
precisely how the family court calculated Mother’s gross monthly income,
there was substantial evidence presented at the hearing to support the
amount it ultimately attributed to Mother. See Kocher v. Dep’t of Revenue,
206 Ariz. 480, 482, ¶ 9 (App. 2003) (explaining that a finding of fact is not
clearly erroneous if substantial evidence supports it, even when substantial
conflicting evidence also exists). The court’s determination of Mother’s
gross income for full-time employment is supported by her testimony
regarding the consistent hours in her primary position, coupled with the
requirement that she be present during specified hours even if there were
no patients for whom she would be compensated, plus the lack of
consistency in the availability of hours for which she could be compensated
at her additional job. In addition, the family court found that Mother’s
gross income was greater than the amount listed on her AFI. Because the
amount ultimately determined by the court is supported by reasonable
evidence, the family court did not err in calculating Mother’s gross monthly
income.

II.    Start Date of Child Support Modification

¶15            Next, Father asserts the court erred when it delayed the start
date of the child support modification. He argues that the court’s
determination that a later start date was in the best interests of the children
is insufficient to constitute “good cause” for a delayed modification under
A.R.S. § 25-503.




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                            Decision of the Court

¶16            Under A.R.S. § 25-503(E), modifications of child support
obligations are presumptively “effective on the first day of the month
following the petition for modification.” The court may order the change
effective on a different date, however, for “good cause shown.” A.R.S. § 25-
503(E). Father’s petition for modification was filed in March 2014, making
the presumptive start date for the modification April 1, 2014. The family
court determined, however, that it was “in the children’s best interest” to
delay the modification, making it effective September 1, 2014.

¶17            Father argues that the best interests of the children is not
sufficient to constitute “good cause” to delay modification, because it will
arguably always be in the best interests of the children to delay a reduction
in child support payments. We disagree. The paramount concern in family
law proceedings involving children is the best interests of those children.
See Engle v. Landman, 221 Ariz. 504, 514, ¶ 38 (App. 2009). Furthermore, a
modification to child support does not automatically serve the best interests
of a child simply because it increases the amount of money the children
receive. Cf. Nash v. Nash, 232 Ariz. 473, 479 n.8, ¶ 22 (App. 2013) (explaining
that child support in excess of the standard needs of the children is not
necessarily in children’s best interests). Other considerations, such as the
parent’s ability to pay and the standard of living to which the children are
accustomed, also factor into the best interests determination. Id.

¶18           Although the family court did not make an express finding of
good cause for departing from the presumptive April 1 start date, the court
specifically found that a delayed start date was in the children’s best
interests. Father did not request detailed findings, and there is nothing in
the record to contradict the court’s determination that delaying the
modification serves the children’s best interests. The court acted within its
discretion when it chose September 1, 2014 as the start date for the child
support modification.

III.   Child Support Tax Credits

¶19           Next, Father argues the family court erred as a matter of law
when it barred him from claiming child tax credits on his federal income
taxes until he has paid his child support arrearages in full. We review de
novo the family court’s application of the Guidelines, Engle, 221 Ariz. at 510,
¶ 21, and interpret the Guidelines in the same way as statutes, Patterson v.
Patterson, 226 Ariz. 356, 358, ¶ 4 (App. 2011).




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                            CLARK v. CLARK
                           Decision of the Court

¶20          The relevant portion of Section 27 of the Guidelines,
addressing the family court’s role in allocating federal tax exemptions,
provides:

      The court may deny the right to present or future tax exemption
      when a history of nonpayment of child support exists. The
      allocation of the exemption may be conditioned upon
      payment by December 31 of the total court-ordered monthly
      child support obligation for the current calendar year and any
      court-ordered arrearage payments due during that calendar year for
      which the exemption is to be claimed. . . . If the noncustodial
      parent has paid the current child support, but has not paid the
      court-ordered arrearage payments, the noncustodial parent shall
      not be entitled to claim the exemption.

(Emphasis added.) Father argues the family court erred in ordering him to
pay the entirety of his arrearage payments before claiming the child income
tax credit. He asserts that because the Guidelines condition the allocation
of tax exemptions on payment of child support arrears due “during that
calendar year for which the exemption is to be claimed,” the court erred by
requiring him to pay all of the arrearages and not just those attributable to
the year for which he is claiming a tax exemption.

¶21            The language cited by Father, however, does not represent the
entirety of the Guidelines for the dependent child tax exemption. The first
sentence of the portion of Section 27, quoted above, broadly authorizes the
court in its discretion to “deny the right to present or future tax exemption
when a history of nonpayment of child support exists.” The record here
demonstrated such a “history of nonpayment.” The last sentence also
provides that a noncustodial parent who has not paid the court-ordered
arrearage payments is not entitled to claim the tax exemption, even if he or
she is current in child support. We conclude, therefore, the plain language
of the Guidelines supports the family court’s order in this case. Cf. New Sun
Bus. Park v. Yuma Cty., LLC, 221 Ariz. 43, 46, ¶ 12 (App. 2009) (explaining
that the “plain language” of a statute is the best indicator of its meaning).
The court did not err.

IV.   Travel Costs

¶22           Finally, Father argues the family court erred by taking
“judicial notice” of Mother’s inability to pay travel expenses for the
children’s parenting time visits with Father. Facts may be judicially noted



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                           Decision of the Court

when they are “so notoriously true as to not be subject to reasonable
dispute.” In re Anthony H., 196 Ariz. 200, 201 (App. 1999) (quoting State v.
Lynch, 115 Ariz. 19, 22 (App. 1977)).

¶23            After the dissolution decree was entered, Father moved from
Arizona to New York to pursue employment. In the initial Child Support
Order, the family court ordered Father to pay 95 percent of travel expenses
related to his parenting time with the children. At the hearing on Father’s
petition to modify, Father argued that the money he paid for plane tickets
should be counted toward his child support obligations. While attempting
to elicit testimony from Mother on this subject, the following exchange
occurred:

      [FATHER’S COUNSEL]: Or sometimes [Father] flies them to
      see -- the girls to see him?

      [MOTHER]: Uh-huh.

      [FATHER’S COUNSEL]: Do the girls get a benefit from that?

      [MOTHER]: Yes.

      [FATHER’S COUNSEL]: It’s important for them to have that
      parenting time?

      [MOTHER]: They enjoy their time with him.

      [FATHER’S COUNSEL]: Do you contribute at all to those
      flights there?

      [MOTHER]: No, that’s his job, that’s his -- what he does.

      [FATHER’S COUNSEL]: Okay. Do you think he should get
      any credit for that being his job, he’s paid $5,126.88 in the last
      14 months, should he be given any credit for that?

      [MOTHER]: For his visitation with them, yeah.

      [MOTHER’S COUNSEL]: Can you clear that -- are you talking
      about for child support, in lieu of child support?




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                            Decision of the Court

       [FATHER’S COUNSEL]: No, I’m just asking what she thinks
       is appropriate in providing for the kids.

       [MOTHER]: Yes, they need to see him.

       [FATHER’S COUNSEL]: But you haven’t contributed to that?

       [MOTHER]: No, I don’t get any child support, I don’t have
       the money to do that.

       [FATHER’S COUNSEL]: Do you -- how much money did you
       make last year?

       [MOTHER]: I don’t know.

       [FATHER’S COUNSEL]: Between both of your jobs?

       [MOTHER]: You know, I -- truthfully, I don’t know.

       THE COURT: I think we’ve been over this and I don’t know
       how it’s relevant to the issue --

       [FATHER’S COUNSEL]: Well, she just --

       THE COURT: -- of child support arrearages.

       [FATHER’S COUNSEL]: Your Honor, she just indicated she
       doesn’t have money to contribute to plane tickets that --

       THE COURT: The Court will take judicial notice that she does
       not have money to contribute to plane tickets and I don’t think
       that’s relevant.

¶24            We agree with Father that Mother’s inability to contribute to
the cost of transportation was not a fact of which it was proper for the court
to take judicial notice. Nevertheless, we do not find that this purported
taking of judicial notice prejudiced Father. Father did not, in his petition or
at the hearing, request that the court modify its allocation of travel
expenses, nor does the court’s order modifying child support reference
such expenses. Furthermore, any discussion during the hearing regarding
travel costs focused on determining the amount of Father’s child support
arrearages, not on the allocation of travel costs. Any error from the court’s



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use of the term “judicial notice” in reference to travel expenses was
therefore harmless and of no consequence to the issues contested by Father.

                              CONCLUSION

¶25          We find no reversible error in the family court’s order. For
these reasons and for those set forth in the accompanying published
opinion, we affirm.

¶26            Both Father and Mother request awards of attorney fees on
appeal. Father’s request is based on A.R.S. §§ 25-324 and -503(E), and
Mother’s request is based on § 25-324. We have considered the criteria
established under both statutes, and in our discretion we decline to award
fees to either party. As the prevailing party on appeal, Mother is entitled to
an award of taxable costs contingent upon her compliance with Arizona
Rule of Civil Appellate Procedure 21.




                                   :RT




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