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In re Carmack

Court of Appeals of Arizona, First Division

December 26, 2013

In re the Matter of: LUDMILA CARMACK, Petitioner/Appellee,
v.
GARY DAVID CARMACK, Respondent/Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. FC2003-090415 The Honorable Thomas L. LeClaire, Judge

Ludmila Carmack, Phoenix Petitioner/Appellee In Propria Persona

Law Office of Harry P. Friedlander, Mesa By Harry P. Friedlander Counsel for Respondent/Appellant

Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined.

MEMORANDUM DECISION

KESSLER, Judge:

¶1 Gary D. Carmack ("Father") appeals the family court's dismissal of his petition to modify child support. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father and Ludmila Carmack ("Mother") divorced in 2004. A key issue during the proceedings was the amount of income to be attributed to Father for calculating child support. Father is the original founder of Southwest Laboratories, and until 2002, owned seventy percent of the company's stock. Prior to the initiation of the divorce proceedings, Father divested himself of all of his ownership interest in the company, and throughout the proceedings, he resisted divulging any information regarding benefits he received in addition to his wages.

¶3 The parties ultimately entered into a consent decree under which they agreed to deviate from the Arizona Child Support Guidelines ("the Guidelines") so that Father would pay $750.00 per month in child support. See Ariz. Rev. Stat. ("A.R.S.") section 25-320 app. (Supp. 2013). In addition, Father was given six days of parenting time for every two-week block.

¶4 In 2010, Father filed a petition to modify parenting time to reflect the 50/50 parenting time plan that the parties had informally observed for three years. Father also requested a modification of the child support obligation so that Mother would pay him $166.61 per month. Mother agreed to equal parenting time, but did not agree to modify Father's child support obligation. After an evidentiary hearing, the family court ordered that it could not make a decision as to modification without a forensic accounting of the economic benefits Father derived from his business over and above his general wages.

¶5 The family court ordered Father to comply with Mother's discovery requests and to cooperate with Mother's forensic accountant on five separate occasions, but Father did not provide the information as ordered. In the last of the five orders, the family court warned Father that failure to comply with the disclosure deadlines could result in the petition being dismissed.

¶6 In August 2012, the family court held another evidentiary hearing to determine whether Father had complied with the court's orders in anticipation of yet another evidentiary hearing to determine Father's income. At that hearing, Mother's forensic accountant testified that he was unable to complete a forensic accounting and determine Father's actual income because Father did not produce the necessary documents or allow him to examine Southwest Laboratories' business records, as ordered by the court.

¶7 The family court held that Father "failed to affirmatively provide required financial information pursuant to [Arizona Rule of Family Law Procedure 49]" and he "intentionally failed to follow the Court's Orders with respect to production of documents." The family court noted that it could dismiss Father's petition (1) as a sanction for failure to produce his financial records, or (2) for failure to produce evidence that would support modification. The court denied ...


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