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In re Coleman

Court of Appeals of Arizona, First Division, Department A

October 17, 2013

In re the Matter of: DANIEL N. COLEMAN, Appellant,
v.
KAREN SUE ROBINSON, Appellee.

Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. FC2007-000773 The Honorable J. Justin McGuire, Judge Pro Tempore

Daniel N. Coleman Phoenix Appellant In Propria Persona

Karen Sue Robinson Phoenix Appellee In Propria Persona

MEMORANDUM DECISION

KENT E. CATTANI, Judge

¶1 Daniel N. Coleman ("Father") appeals from the superior court's decisions on remand denying his motion to sanction Karen Sue Robinson ("Mother") for an alleged disclosure violation and granting his petition to modify child support but imposing a child support obligation of $250 per month. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Father and Mother are the parents of one minor child born in 2001. In 2008, the superior court entered orders establishing joint custody and equal parenting time, and setting child support obligations pursuant to the Arizona Child Support Guidelines ("Guidelines"), Arizona Revised Statutes ("A.R.S.") § 25-320 app.[1] At that time, the court found Father s income to be $12, 500 per month and Mother's income to be $8, 833 per month, and ordered Father to pay $450 per month in child support.[2]

¶3 In 2010, Father filed a petition to modify child support in light of a new child and a "long-term change in compensation." One day before the hearing on the petition, Father filed a "Motion for Sanction of [Mother] Pursuant to Rule 65 / Motion for Summary Judgment" ("Motion for Sanctions") alleging, as relevant here, that Mother had failed to timely disclose any financial documentation pertaining to her side business as a dance instructor. Both Mother and Father then testified at the evidentiary hearing, and the court denied Father's petition to modify support because the change in circumstances was not "substantial and continuing" as required for a modification of the support order. The court thereafter denied the Motion for Sanctions as untimely. After the superior court denied Father's motion for reconsideration and motion for new trial, Father appealed.

¶4 On appeal, this court concluded the superior court had erred by denying the Motion for Sanctions as untimely and remanded for consideration of that motion on the merits. Coleman v. Robinson, 1 CA-CV 11-0034, 2011 WL 6101825, at *1-2, ¶¶ 7, 9 (Ariz. App. Dec. 8, 2011) (mem. decision). This court also "vacate[d] the superior court's judgment denying Father's petition to modify child support because the [superior] court did not address Father's contention that Mother failed to make pretrial disclosure of financial documentation concerning her proprietorship in connection with the petition to modify." Id. at *3, ¶ 15. This court then addressed several issues likely to arise on remand, noting that no record evidence supported the superior court's finding that Father's monthly income remained $12, 500 and directing the superior court on remand to reconsider the issue of Mother's income in light of its resolution of the Motion for Sanctions. Id. at *3-4, ¶¶ 15, 18-19, 22.

¶5 On remand, without further briefing, the superior court addressed the merits of Father's Motion for Sanctions. On the basis of the parties' testimony at the 2010 evidentiary hearing, the court considered Father's allegation that Mother had failed to disclose an IRS 1099 form related to her business as a dance instructor for 2009. The court found that both parties testified Mother's dance-instructor income was included in her 2009 tax return, which Father possessed before the hearing. In addition, the court, in its discretion, excluded Mother's income from her second job as a dance instructor from the child support calculation because mother has a full-time job, which rendered the additional sole-proprietorship income irrelevant to the modified support determination. See Guidelines § 5(A). Accordingly, the court denied the Motion for Sanctions because any alleged discovery violation was harmless.

¶6 The superior court also reassessed the merits of Father's petition to modify child support on remand. Relying on evidence presented at the 2010 evidentiary hearing, the court found Father's income to be $5, 892.86 per month (which accounted for Father's personal use of a company car and airplane using IRS guidelines), accounted for Father's expenses for his new child, found Mother's income to be $9, 228.42 per month, and attributed to Father 152 days of parenting time yearly. The court noted that a calculation pursuant to the Arizona Child Support Guidelines would result in Father paying $43.52 per month, but concluded an upward deviation to $250 per month was appropriate. See infra ¶¶ 19-20.

¶7 Father timely appealed.[3] We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and ...


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