                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                                In re the Matter of:

                    RODRIGO MEJIA, Petitioner/Appellant,

                                          v.

                     GLORIA MEJIA, Respondent/Appellee.

                              No. 1 CA-CV 13-0126
                               FILED 05/06/2014


           Appeal from the Superior Court in Maricopa County
                          No. FC2010-001136
               The Honorable Thomas L. LeClaire, Judge

    AFFIRMED IN PART, VACATED IN PART, AND REMANDED


                                    COUNSEL

Law Offices of John R. Zarzynski, Phoenix
By John R. Zarzynski
Counsel for Petitioner/Appellant

Gloria Mejia
Respondent/Appellee in Propria Persona
                             MEJIA v. MEJIA
                           Decision of the Court




                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.




P O R T L E Y, Judge:

¶1           Rodrigo Mejia (“Husband”) appeals the orders in the
amended decree of dissolution requiring him to pay spousal maintenance
and child support. For the following reasons, we affirm in part, vacate in
part, and remand.

                FACTS AND PROCEDURAL HISTORY

¶2            Husband and Gloria Mejia (“Wife”) married in 2003, and
have two minor children. Husband filed a petition to dissolve the
marriage, which was dismissed but later reinstated. After a trial, the
family court entered its decree of dissolution.

¶3            Husband filed a motion for new trial. After consideration of
the pleadings, the court amended the decree. Specifically, the court
modified the child support award to $528.46 from $441.00, after
attributing full-time minimum wage to Husband, as well as $1300 per
month as an in-kind gift because Husband was living rent free with his
parents. In reaching the new child support award, the court considered
but did not change the spousal maintenance award of $500 per month for
thirty-six months. Husband then filed this appeal.




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                            Decision of the Court

                               DISCUSSION 1

    I.    Spousal Maintenance

¶4             We review the award of spousal maintenance for an abuse of
discretion. Deatherage v. Deatherage, 140 Ariz. 317, 319, 681 P.2d 469, 471
(App. 1984). We view the evidence in the light most favorable to
sustaining the award and affirm if any reasonable evidence supports it.
Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9, 166 P.3d 929, 931 (App. 2007).
A court abuses its discretion if the record is devoid of evidence supporting
the trial court’s decision, Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d
108, 110 (1999), or the court made an error of law. Grant v. Ariz. Pub. Serv.
Co., 133 Ariz. 434, 455-56, 652 P.2d 507, 528-29 (1982).

¶5             To determine whether the court abused its discretion in
making a spousal maintenance award, we will consider whether the
spouse who received the award is statutorily qualified to receive
maintenance. Thomas v. Thomas, 142 Ariz. 386, 390, 690 P.2d 105, 109 (App.
1984); see Ariz. Rev. Stat. (“A.R.S.”) § 25-319(A). 2 We will then consider
whether the court properly evaluated the statutory factors in considering
the amount of the award and its duration. Thomas, 142 Ariz. at 390, 690
P.2d at 109; see A.R.S. § 25-319(B). The court need not consider § 25-319(B)
factors that do not apply, Cullum v. Cullum, 215 Ariz. 352, 355, ¶ 15, 160
P.3d 231, 234 (App. 2007), but must consider any evidence presented on
an applicable factor. See Elliott v. Elliott, 165 Ariz. 128, 136, 796 P.2d 930,
938 (App. 1990) (noting that the court was required to consider evidence
that wife presented regarding factors six and seven of § 25-329(B)).

¶6           Husband does not dispute that Wife qualified for spousal
maintenance under § 25-319(A). Rather, he argues that the family court
abused its discretion by awarding her any spousal maintenance because
the court improperly analyzed factors four and five in § 25-319(B).



1 Wife did not file an answering brief before. After the scheduled
conference date, she filed a motion to continue so that she could file a brief
arguing that her lawyer had abandoned her. After considering the
response of Husband, we granted the motion and Wife filed her brief on
April 29, 2014.
2We cite to the current version of the applicable statute absent any
material revisions.



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      A. Factor Four

¶7            Section 25-319(B)(4) provides that the court consider “[t]he
ability of the spouse from whom maintenance is sought to meet that
spouse’s needs while meeting those of the spouse seeking maintenance.”
Here, the court initially found in the decree that: “Father was employed
and was the primary bread winner for the family. Prior to losing his job
or leaving his job, depending upon which version of facts prevails, Father
earned approximately $60,000 per year.”

¶8           There was, however, no evidence in the record to support
the family court’s finding that Father may have left his job voluntarily.
Instead, the undisputed record shows that he was involuntarily laid off
from his job as an architectural drafter from three different drafting jobs
because two companies filed for bankruptcy and the third did not have
enough business. And, although Husband was applying for drafting jobs,
employers were not hiring.

¶9             Moreover, there was no evidence to support the finding that
Husband earned “approximately $60,000 per year.” The evidence
demonstrated that Husband made $56,000 in 2008; that he testified that he
earned about $44,000 in 2009, even though his tax return for that year
stated that he made $21,000; that he earned $12,000 in 2010; and that at the
time of trial he was earning $10.00 per hour for part-time work at Home
Depot. Moreover, a vocational consultant testified that Husband could
only earn between $9 and $13 per hour with his current marketable skills.

¶10          After acknowledging that it had incorrectly found that
Husband’s annual earning potential was $60,000, the court, in granting the
new trial motion, attributed a full-time, monthly minimum wage of $1326
as Husband’s present income and added the in-kind gift of free housing
with his parents of $1300 per month for a total of $2626 per month for the
child support calculation. The court, however, reiterated its spousal
maintenance award to Wife.

¶11          The record, however, does not reflect that the court
considered Husband’s actual earnings in reiterating the spousal
maintenance award. Although he only earned $800 per month, and was
attributed $2626 per month, he was still required to pay $500 a month in
spousal maintenance, and $528.46 in child support. Generally, and in the
absence of evidence that Husband voluntarily reduced his income, which
does not exist here, the court was required to consider his actual income
while calculating spousal maintenance. See Pullen v. Pullen, 223 Ariz. 293,



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                            Decision of the Court

297-98, ¶¶ 14-18, 222 P.3d 909, 913-14 (App. 2009) (noting that the court
must balance five factors and other evidence to determine whether to use
actual income or earning capacity to calculate spousal maintenance when
a spouse has voluntarily reduced income). Because there is no evidence
that Husband voluntarily reduced his income, the court should have
determined spousal maintenance in light of his actual income and the
other factors under § 25-319. Cf. id.; see Leathers, 216 Ariz. at 377, ¶ 13, 166
P.3d at 932.

       B. Factor Five

¶12           The fifth factor of § 25-319(B) requires that the court examine
“[t]he comparative resources of the spouses, including their comparative
earning abilities in the labor market.” The family court correctly found
that Husband had the greater comparative earning ability.

¶13           The court found that: “Father has a far greater capability of
earning a significant amount of money. Mother’s lack of work experience
and her demands as the primary custodial parent preclude her earning a
significant amount of money in the labor market.” The evidence supports
the finding. Husband, an architectural drafter, was enrolled at Arizona
State University and if he completed his civil engineering studies, his
estimated salary would be in the low to mid $50,000’s by 2014 or 2015.
Mother, on the other hand, quit her job for part of their marriage to care
for the children, was working part-time at Catholic Charities for $9.96 per
hour, and had primary physical custody of the children.

¶14           Although Husband’s current earnings are just pennies more
than Wife’s, it is not our job to re-weigh all of the evidence. See Pullen, 223
Ariz. at 298, ¶ 22, 222 P.3d at 914. Given Husband’s education, skill and
experience, even though he was only working for Home Depot, the
reasonable evidence supports the finding that Husband has a greater
earning capacity than Wife.

¶15            Accordingly, given that the court did not weigh Husband’s
actual earning ability with the other factors under § 25-319(B) to
determine the spousal maintenance award, we vacate the spousal
maintenance award and remand the issue for the court’s consideration.
See Leathers, 216 Ariz. at 377, ¶ 13, 166 P.3d at 932 (finding that the court
abused its discretion in determining the amount of spousal maintenance
owed to the wife when earnings attributed to husband were not
supported by the record).




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    II.    Child Support

¶16           We also review the child support award for an abuse of
discretion. Cummings v. Cummings, 182 Ariz. 383, 385, 897 P.2d 685, 687
(App. 1994). A court abuses its discretion if the record lacks evidence
supporting the trial court’s decision, Little, 193 Ariz. at 520, ¶ 5, 975 P.2d at
110, or the court made an error of law. Grant, 133 Ariz. at 455-56, 652 P.2d
at 528-29. We interpret the Arizona Child Support Guidelines, A.R.S. §
25-320 app. (the “Guidelines”), de novo. 3 Strait v. Strait, 223 Ariz. 500, 502,
¶ 6, 224 P.3d 997, 999 (App. 2010). We affirm the court’s ruling if legally
correct for any reason. Forszt v. Rodriguez, 212 Ariz. 263, 265, ¶ 9, 130 P.3d
538, 540 (App. 2006).

¶17           Husband argues that the family court erred by attributing
$1300 per month income to him as an in-kind gift under the Guidelines to
calculate child support. The amount represents the monthly rent his
parents allow him to forego while living with them for free. Husband
contends that the court erred by relying on Patterson v. Patterson, 226 Ariz.
356, 248 P.3d 204 (App. 2011), in its order to calculate his gross income
and amend his child support obligation.

¶18          The Guidelines require the court to consider the gross
income of each parent; which is “the actual money or cash-like benefits
received by the household which is available for expenditures.”
Cummings, 182 Ariz. at 385, 897 P.2d at 687. Gross income is defined in the
Guidelines as:

              [I]ncome from any source, and may include,
              but is not limited to, income from
              salaries, . . . recurring gifts, prizes, and spousal
              maintenance. Cash value shall be assigned to
              in-kind or other non-cash benefits . . . . Income
              from any source which is not continuing or
              recurring in nature need not necessarily be
              deemed gross income for child support
              purposes.

Guidelines § 5(A). Gross income could also include any employment
benefits if the benefits are “significant and reduce personal living


3 We cite to the current version of the Guidelines absent any material
revisions.



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                           Decision of the Court

expenses.” Guidelines § 5(D); Patterson 226 Ariz. at 360, ¶ 11, 248 P.3d at
208 (noting that the value of military housing could be considered as gross
income if the value was significant and reduced husband’s living
expenses).

¶19           Gross income can also include a continuous and recurring
gift a spouse receives from his or her parents. Cummings, 182 Ariz. at
384-85, 897 P.2d at 686-87. In Cummings, in addition to the gifts mother
received from her parents, she was living rent free in a house they owned
and were still paying the mortgage. Id. The court included the mortgage
payments to determine the mother’s gross income as recurring gifts
because she had lived there rent free for eighteen months while her
parents paid the mortgage payments. Id. at 385, 897 P.2d at 687.

¶20           Although Patterson, which as noted above concerned the
value of military housing, is not directly applicable here, we can affirm the
child support award if otherwise legally correct. Perez, 141 Ariz. at 464,
687 P.2d at 1219 (noting that it does not matter if the court relied on the
wrong reason provided the correct legal result is reached). And,
Cummings supports the court’s decision.

¶21           The trial testimony revealed that the couple was paying
about $1400 per month for the two years they were living with Husband’s
parents. Once they separated, Wife remained in the house with the
children, while Husband continued to pay rent and utilities. After Wife
and the children left, Husband moved back in but rent free. 4

¶22          The court considered the free rent in ruling on Husband’s
motion for new trial, and attributed $1300 per month to Husband’s
income as an in-kind gift. Although Husband argues that the in-kind gift
undermines the charity of his parents, Cummings recognizes that the
argument “is speculative and outweighed by the statutory policy that
child support orders be equitably based on the financial resources of each
parent.” 182 Ariz. at 387, 897 P.2d at 689. Consequently, the court did not
abuse its discretion when including the free rent as a recurring gift to
Husband from his parents.




4 The affidavit of financial information at the time of trial noted that
Husband was not paying rent, though he anticipated having to pay $200
per month in the future.



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                           Decision of the Court

¶23             Husband next contends that it would be “inappropriate or
unjust” to include the value of his free rent in his gross income. Husband,
however, did not argue that the family court should consider a deviation
and presented no evidence that such a deviation would be in the best
interests of his children. See Guidelines §§ 3, 20. We will not examine an
issue first raised on appeal. Cullum, 215 Ariz. at 355 n.5, ¶ 14, 160 P.3d at
234. Consequently, we find no abuse of discretion.

¶24         The court, however, may need to recalculate the child
support award after resolving how much, if any, spousal maintenance to
award Wife. See Guidelines § 5(A).

                              CONCLUSION

¶25            Based on the foregoing, we vacate the spousal maintenance
award and remand the case to the family court for consideration of the
issue and, if necessary, to recalculate the child support award.




                                     :gsh




                                     8
