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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


   STATE OF ARIZONA ex rel. THE DEPARTMENT OF ECONOMIC
            SECURITY (RACHEL DENICE WOLFORD),
                      Petitioners/Appellees,

                                        v.

              ALEXANDER GURULE, Respondent/Appellant.

STATE OF ARIZONA ex rel. ARIZONA DEPARTMENT OF ECONOMIC
  SECURITY (MONICA MARIE CARAVALHO), Petitioners/Appellees,
                              v.

              ALEXANDER GURULE, Respondent/Appellant.

                           No. 1 CA-CV 15-0298 FC
                           No. 1 CA-CV 15-0345 FC
                                (Consolidated)
                               FILED 1-28-2016


          Appeal from the Superior Court in Maricopa County
                  No. FC2010-002771, FC2010-000893
          The Honorable Steven K. Holding, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By JoAnn Falgout
Counsel for Petitioner/Appellee ADES
The Murray Law Offices, Scottsdale
By Stanley D. Murray
Counsel for Respondent/Appellant Gurule

The Harrian Law Firm PLC, Glendale
By Daniel S. Riley
Counsel for Petitioner/Appellee Wolford



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.


J O N E S, Judge:

¶1          Alexander Gurule appeals the trial court’s orders reducing his
monthly child support obligations for three children-in-common with
Rachel Wolford and Monica Caravalho, and awarding all future tax
exemptions to Wolford and Caravalho. For the following reasons, we
affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In May 2014, Gurule filed petitions to modify parenting time
and child support regarding his child-in-common with Wolford and his
two children-in-common with Caravalho. At that time, Gurule was
responsible for monthly child support payments of $244.50 to Wolford and
$489.00 to Caravalho. In his petitions, Gurule sought to reduce his monthly
child support obligations to $290.75 to Caravalho and to $191.64 to Wolford,
and requested he be allowed to claim the federal tax exemptions for the
children “every three out of four years.” He is also the custodial parent of
one child-in-common with his current wife and recently legally adopted her
four other children, and he is currently ordered to provide $474.00 and
$244.00 per month to the mothers of his two other children. Thus, Gurule
is legally responsible for seven other children who are not subject to the
modification orders at issue here. See Ariz. Rev. Stat. (A.R.S.) § 25-501(A)1



1     Absent material changes from the relevant date, we cite a statute’s
current version.


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                            WOLFORD v. GURULE
                             Decision of the Court

(“[E]very person has the duty to provide all reasonable support for that
person’s natural and adopted minor, unemancipated children . . . .”).

¶3            A joint hearing on the petitions was held in February 2015.
See Ariz. R. Fam. L.P. 5(A) (authorizing the family court to consolidate
actions or hold a joint hearing in cases where “actions within the scope of
these rules involving a common child, common parties, or a common
question of law or fact, are pending before the court”). At the hearing,
Gurule admitted he owed over $10,000 in back child support to Caravalho
and did not dispute he owed $5,000 in back child support to Wolford.
Counsel for the State explained that, under strict application of the Arizona
Child Support Guidelines and the self-support reserve test, A.R.S. § 25-320
app. § 15 (Guidelines), Gurule was financially unable to pay any child
support and “maintain at least a minimum standard of living;” therefore,
his calculated child support obligations to Wolford and Caravalho were
zero. However, both mothers testified regarding their financial situations
and requested Gurule’s child support obligation remain the same.

¶4            Noting the difficulty of fashioning orders which would treat
all of Gurule’s children fairly without the participation of all affected
parties,2 the trial court entered orders reducing Gurule’s monthly child
support obligations to $350.00 and $175.00 to Caravalho and Wolford
respectively, effective March 1, 2015.3 The orders also awarded all future
tax exemptions to the mothers, subject to future petitions to modify.

¶5         Gurule filed a motion for new trial in each case, and both
motions were denied. Gurule timely appealed, and the appeals were




2      One of the child support orders not subject to the trial court’s
modification order originated in Maricopa County, and the other in Pinal
County. Had Gurule filed petitions to modify all the child support orders
simultaneously, and the mother in Pinal County agreed to proceed in
Maricopa County, see A.R.S. § 12-405 (“A superior court may, upon written
consent of the parties or their attorneys . . . transfer the action for trial to the
superior court of another county.”), the court could have consolidated the
cases, and the outcome would have likely been more manageable,
comprehensive, and equitable with respect to all ten children, see Ariz. R.
Fam. L.P. 5(A).

3    In each order, the trial court additionally assessed monthly arrearage
payments of $50.00 and monthly clearinghouse fee payments of $5.00.

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                            Decision of the Court

consolidated. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),
-2101(A)(1) and (A)(5)(a).

                               DISCUSSION

¶6             On appeal, Gurule argues: (1) the trial court abused its
discretion in deviating from the child support guidelines, (2) the court erred
in awarding all future tax exemptions for the children to Caravalho and
Wolford, and (3) the court’s effective date for the modification order was
legally invalid. We review an order setting child support obligations for an
abuse of discretion. In re Marriage of Berger, 140 Ariz. 156, 167 (App. 1983)
(citing Bender v. Bender, 123 Ariz. 90, 92 (App. 1979)). A trial court abuses
its discretion when it commits an error of law in reaching a discretionary
conclusion. In re Marriage of Robinson & Thiel, 201 Ariz. 328, 331, ¶ 5 (App.
2001) (quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456 (1982)).

I.     Deviation from the Child Support Guidelines

¶7             Gurule first argues the trial court improperly deviated from
the Guidelines because application of the self-support reserve test shows he
is unable to pay Wolford and Caravalho child support while maintaining a
minimum standard of living. Gurule’s current position is inconsistent with
the position he took with the trial court, and he is thus judicially estopped
from asserting a different position on appeal. See State v. Towery, 186 Ariz.
168, 182 (1996) (noting judicial estoppel “is invoked to protect the integrity
of the judicial process by preventing a litigant from using the courts to gain
an unfair advantage”) (citations omitted).

¶8              To apply judicial estoppel: “(1) the parties must be the same,
(2) the question involved must be the same, and (3) the party asserting the
inconsistent position must have been successful in the prior judicial
proceeding.” Id. (citing Standage Ventures, Inc. v. State, 114 Ariz. 480, 483-84
(1977)). For purposes of judicial estoppel, success means, “the party gained
judicial relief as a result of asserting the particular position in the first
proceeding.” Id. at 183 (citing Standage, 114 Ariz. at 484, and State Farm Auto
Ins. v. Civil Serv. Emps. Ins., 19 Ariz. App. 594, 600 (1973)).

¶9             Here, the parties to the appeal were also parties to the
proceeding at the trial court, and the question regarding the applicability of
the Guidelines is the same question the court addressed in its modification
order, satisfying the first two requirements of the judicial estoppel doctrine.
As to the third requirement, Gurule obtained judicial relief by successfully
obtaining a downward modification of his child support obligation, albeit
less than the reduction he requested.


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                          WOLFORD v. GURULE
                           Decision of the Court

¶10             Indeed, the record reflects Gurule effectively argued against
applying the self-support reserve test by asserting in his petition, and at
trial, that his child support obligations be reduced to $290.75 and $191.64.
Gurule never asserted that the self-support reserve test be used to calculate
his child support obligations, nor that his child support obligations to
Caravalho and Wolford be reduced to zero. Even after the State explained
its calculation under the self-support reserve test would result in Gurule
having no child support obligations to Caravalho and Wolford, when the
court thereafter asked Gurule how much child support he thought the
children should receive in light of that calculation, Gurule said he was
willing to pay $150.00 per child. We therefore conclude Gurule is judicially
estopped from arguing on appeal that the trial court improperly
disregarded the self-support reserve test.

¶11            Furthermore, although a court is obligated to perform the
self-support reserve test “to verify that the noncustodial parent is
financially able both to pay the child support order and to maintain at least
a minimum standard of living,” Guidelines § 15, the trial court is also
obligated to deviate from the amount calculated pursuant to the Guidelines
if, after considering all relevant factors and applicable case law, all the
following criteria are met:

      1. Application of the guidelines is inappropriate or unjust in
         the particular case,

      2. The court has considered the best interests of the child in
         determining the amount of a deviation. . . .

      3. The court makes written findings regarding 1. and 2.
         above in the Child Support Order, Minute Entry or Child
         Support Worksheet,

      4. The court shows what the order would have been without
         the deviation, and

      5. The court shows what the order is after deviating.




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                           Decision of the Court

Guidelines § 20(A). Our review reveals the trial court made the required
findings in its modification orders and, given the unique circumstances
presented in this case, did not abuse its discretion.4

II.    Allocation of Federal Tax Exemptions

¶12           Gurule also argues the trial court erred in allocating all future
tax exemptions to Wolford and Caravalho. We disagree. When a history
of nonpayment of child support exists, “[t]he court may deny the right to a
present or future tax exemption.” Guidelines § 27. At the hearing, Gurule
admitted he owed over $10,000 in back child support to Caravalho and did
not dispute owing approximately $5,000 in back child support to Wolford.
It was therefore within the court’s discretion to award future tax
exemptions, subject to future petitions to modify, to Wolford and
Caravalho, and we find no error.

III.   Effective Date of the Modification Order

¶13            Finally, Gurule argues the trial court erred in setting the
effective date of its modification order as March 1, 2015 — the month
following the hearing and order — and the effective date should have been
June 1, 2014 under A.R.S. §§ 25-327(A) and -503(E). These statutes direct
that modifications and terminations “are effective on the first day of the
month following notice of the petition for modification or termination
unless the court, for good cause shown, orders the change to become
effective at a different date.” A.R.S. §§ 25-327(A), -503(E).

¶14           Following the presentation of evidence at the hearing, the trial
court announced on the record, “My orders are going to take place in the
equity situation March 1 of this year.” The record reflects the court was
cognizant of the hardship a retroactive reduction of child support payments


4      Our review reveals the trial court’s calculation of Gurule’s child
support obligation to Caravalho included credit given to Gurule for
$1,207.00 in monthly court-ordered child support paid to other
relationships. However, he was only entitled to credit for $962.50. Giving
Gurule proper credit results in a finding that, after applying the self-
support reserve test, Gurule was able to pay $200.30 — as opposed to zero
— in child support payments to Caravalho while maintaining a minimum
standard of living. The court’s miscalculation was harmless error; using the
correct figure would have only reduced the amount of the court’s deviation
from the Guidelines rather than change the amounts ordered.



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                          WOLFORD v. GURULE
                           Decision of the Court

would place upon Caravalho and Wolford, each of whom have low
incomes. It is also apparent the court was balancing the necessary reduction
of Gurule’s child support obligations with the best interests of the three
children affected by its modification order, the $718.00 Gurule was ordered
to provide for just two of his other children, and the fact that the five
children in Gurule’s home would benefit from the balance of Gurule’s
income and assets. The court specifically articulated its concern that it
would be unfair to “use one child against another child to penalize a child
outside [Gurule’s] house.”

¶15           The court determined equity required that it not make the
modification order retroactive but, rather, allow it to begin on the first day
of the following month. Our review of the record reveals the trial court had
good cause to do so and did not abuse its discretion.

                              CONCLUSION

¶16           The orders of the trial court reducing Gurule’s child support
obligation to Wolford and Caravalho are affirmed.

¶17           Wolford requests an award of attorneys’ fees and costs
pursuant to A.R.S. § 25-324. After considering the financial resources of the
parties and the reasonableness of each party’s position pursuant to A.R.S.
§ 25-324, we decline to award attorneys’ fees. As the prevailing parties,
however, Wolford and Caravalho are entitled to recover their costs on
appeal upon compliance with ARCAP 21(b). See A.R.S. § 12-341.




                                  :ama




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