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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

         MICHELLE LYNN STALLWORTH, Petitioner/Appellant,

                                        v.

          RHETT LAMAR STALLWORTH, Respondent/Appellee.

                           No. 1 CA-CV 16-0135 FC
                               FILED 2-7-2017


             Appeal from the Superior Court in Yuma County
                        No. S1400DO201200196
              The Honorable Lawrence C. Kenworthy, Judge

                                  AFFIRMED


                                   COUNSEL

Meerchaum & Orduno PLLC, Yuma
By Candice Orduno-Crouse
Counsel for Petitioner/Appellant

S. Alan Cook, PC, Phoenix
By S. Alan Cook, Sharon Ottenberg
Counsel for Respondent/Appellee
                    STALLWORTH v. STALLWORTH
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.


H O W E, Judge:

¶1            Michelle Lynn Stallworth (“Mother”) appeals from the trial
court’s order modifying the parties’ parenting plan and child support
obligation. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In 2012, the trial court dissolved Mother’s marriage to Rhett
Lamar Stallworth (“Father”) and ordered joint custody over the parties’
children. The court ordered Father to pay $1,500 monthly in child support,
noting that the amount was an upward deviation from the Arizona Child
Support Guidelines. See A.R.S. § 25–320 app.

¶3           The court ordered equal parenting time with a weekly
exchange on Fridays. The parenting plan provided for a holiday schedule
with no set exchange time and ordered that each parent may have
telephone contact with the children during normal waking hours. The court
awarded Father final decision-making authority regarding educational and
medical decisions. The court ordered that the parents consult each other
regarding extra activities.

¶4             In 2015, Father filed an emergency motion for temporary
orders without notice to modify the parenting plan to permit the children
to participate in registered sports activities, which the trial court granted.
At the same time, Father petitioned to modify the parenting plan and child
support. Specifically, Father requested that the parenting plan be modified
to establish a Sunday exchange day and an exchange time for holidays.
Father also requested an order that the parties have telephone access to the
children via the children’s cell phones. Father sought to fine tune the right
of first refusal order by making it effective when the exercising parent is
absent more than three hours. Father requested an order that the children
take part in special events regardless of the parenting time schedule. Father
also sought to modify child support in accordance with the Guidelines.




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                    STALLWORTH v. STALLWORTH
                         Decision of the Court

¶5            Mother agreed that the parenting time order should be
modified but requested the children reside primarily with her and opposed
Father’s request to modify child support. At trial, Mother argued that the
court should include in Father’s income his bonuses and his new spouse’s
income. Father testified that his bonuses were not guaranteed and that his
current wife does not pay any of his bills or contribute to the mortage.

¶6            After the trial, the trial court modified the parenting plan in
accordance with Father’s requests and modified child support to $285 per
month. The trial court continued its order awarding joint legal
decision-making authority with Father having final authority over
educational and medical decisions after consultation with Mother. The
court also ordered that the earlier emergency orders become final. Mother
timely appealed.

                               DISCUSSION

              1. Temporary Order

¶7             Mother argues that the trial court erred by granting its
emergency temporary order without notice to permit the children to
participate in registered sports activities, contending that Father showed no
irreparable harm. Because the parties stipulated to hear the matter with
Father’s petition to modify, Mother waived any objection to the temporary
order. Further, because the court ruled that the temporary order had
become final, the issue is moot, and we do not consider it. See Slade v.
Schneider, 212 Ariz. 176, 179 ¶ 15, 129 P.3d 465, 468 (App. 2006) (“Generally,
a court will not consider moot questions.”).

              2. Parenting Time

¶8           Mother argues that the trial court erred by modifying
parenting time.1 We review such orders for abuse of discretion. Baker v.
Meyer, 237 Ariz. 112, 116 ¶ 10, 346 P.3d 998, 1002 (App. 2015). Mother
contends that the trial court failed to make the prerequisite change in
circumstances findings and best interests analysis as Arizona law requires.



1      To the extent Mother challenges the trial court’s legal
decision-making ruling, we do not address this argument because the court
did not alter the decree provisions concerning legal decision-making
authority.



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                     STALLWORTH v. STALLWORTH
                          Decision of the Court

No such findings or analysis were required, however, because the court did
not alter parenting time.

¶9            Although Mother believes that the trial court’s ruling
modified parenting time, what Father sought and what the court ultimately
ordered were additional details and clarification to the parenting plan. The
court’s post-decree parenting plan merely altered the exchange date, which
had been the parties’ practice since entry of the decree, and set a holiday
exchange time when previously no time had been set. Further, the ruling
provided that the previously ordered telephone access be on the children’s
cell phones and that the previously ordered right of first refusal be effective
for periods over three hours with notification. Finally, the parenting plan
provided that the children could attend special events with a makeup time
option and that the children could participate in sports for which they are
registered. Mother acknowledges that these modifications were “minor”
and did not “reflect[] anything different than from what was already
determined in the decree.”

¶10            To the degree the ruling differed from the initial parenting
plan by mandating attendance at special events regardless of the parenting
time schedule, the trial court’s order reasonably provided a makeup time
option. The ruling differed from the initial parenting plan by requiring the
parents to ensure that the children could participate in registered sporting
activities, regardless of parenting time. However, the ruling does not
preclude either parent from registering the children in sporting activities
but implicitly requires that the parents consult regarding which sports the
children are registered for. Thus, we find no abuse of discretion with the
court’s order that reasonably clarifies how the parties should implement the
pre-existing parenting plan.2

              3. Child Support

¶11           Mother also challenges the trial court’s award modifying
child support, contending that Father failed to prove a substantial and
continuing change in circumstances warranting modification and that the
court erred by calculating Father’s income. We review for abuse of
discretion the modification of child support. Little v. Little, 193 Ariz. 518, 520
¶ 5, 975 P.2d 108, 110 (1999). We view the evidence in the light most


2     Because the trial court did not modify parenting time, we do not
address Mother’s argument that the court erred by admitting an audio
recording.



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                    STALLWORTH v. STALLWORTH
                         Decision of the Court

favorable to upholding the order and will affirm unless the record is
“devoid of competent evidence to support” the decision. Id.

¶12           Mother argues that no evidence supported a change in
circumstances to modify child support as A.R.S. §§ 25–327(A) and –503(E)
require. The trial court found a change of circumstances justifying
modification, however, because Father had been paying 100% of the
children’s schooling and extracurricular activities, which the decree did not
contemplate. The record supports those findings. Moreover, because the
modified child-support order based on application of the Guidelines varied
more than 15% from the existing child support order, the requisite change
requirement is satisfied. Guidelines § 24(B). Guidelines § 24(B) states that a
15% variation “will be considered evidence of substantial and continuing
change of circumstances.” Thus, a change of circumstances existed.

¶13            Relying on Little, Mother argues that the trial court ignored
the effect the child support modification would have on the children. In
Little, the Arizona Supreme Court adopted a balancing test—the primary
factor of which is the effect on the children—to determine whether a
voluntary employment change constitutes a sufficient change in
circumstances justifying child support modification. 193 Ariz. at 522–24
¶¶ 11–18, 975 P.2d at 112–14. The balancing test has no application in this
case because Father has not voluntarily reduced his income.

¶14            As for the income calculation, Mother contends that the trial
court erred by excluding Father’s bonus income. In determining income for
child support purposes, the Guidelines provide that “[i]ncome 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).
Father testified that his bonuses were not guaranteed. The court thus did
not abuse its discretion by excluding Father’s bonus income from the child
support calculation.

¶15           Mother further argues that the trial court erred by excluding
Father’s current spouse’s income from the child support calculation. The
Guidelines provide that “[o]nly income of persons having a legal duty of
support shall be treated as income.” Guidelines § 5(F). “[I]ncome of a
parent’s new spouse is not treated as income of that parent.” Id. Although
Mother relies on In re Marriage of Pacific, 168 Ariz. 460, 815 P.2d 7 (App.
1991) in support of her position, that case interpreted the version of the
Guidelines in effect in 1987 and is inapposite here. Thus, the trial court did
not err.




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                  STALLWORTH v. STALLWORTH
                       Decision of the Court

                            CONCLUSION

¶16         For the foregoing reasons, we affirm. In our discretion, we
deny each party’s request for attorneys’ fees.




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




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