Sherman v. Sherman
241 Ariz. 110
| Ariz. Ct. App. | 2016Background
- Parties married 2001; three children; Mother sought dissolution in 2013; trial in Nov. 2014.
- Father suffered a serious medical event in Jan. 2014, became unable to work in his former occupation, and received short-term disability through July 2014.
- Father entered a revolving credit agreement with relatives (up to $100,000); by trial he had drawn about $35,000 and used it for living and medical expenses.
- The superior court found Father not intentionally unemployed but observed he had not reduced lifestyle/expenditures and concluded his withdrawals suggested expectation of returning to work or debt forgiveness.
- For child support the court attributed income to Father based on average monthly checking deposits (largely from the line of credit) and ordered $675/month.
- For spousal maintenance the court made a nominal award of $50/month for 48 months to preserve the issue for later reconsideration; Father appealed both awards.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether court may attribute income to involuntarily unemployed parent | Court may attribute income only when earnings are reduced by choice; Father is involuntarily unemployed so attribution was improper | Court may attribute income under Guidelines even if unemployment is involuntary; discretion exists | Court affirmed: Guidelines permit attribution to disabled/unemployed parent; court did not err in attributing income (did not attribute full prior earning capacity) |
| Whether loan proceeds used for living expenses can be treated as "income" for child support | Loan proceeds are debt, not income, and cannot be treated as gross income | Money from loans that provided cash-like benefits available for expenditures may be considered in computing gross income | Court affirmed: substance matters — actual disposable cash-like benefits supporting expenditures may be attributed as income for child support |
| Whether nominal spousal maintenance may be awarded to "hold the door open" for future changes | Father: nominal award improper; maintenance cannot be used to preserve future claims | Mother: award allows later revisiting if circumstances change | Court reversed: nominal maintenance to preserve future reconsideration is impermissible; court may not award maintenance based on speculation about future ability to pay |
| Whether court abused discretion by awarding maintenance given findings | Father: award was speculative and legally erroneous | Mother: award modest and protective of future rights | Court held abuse of discretion: maintenance must be based on present facts and factors, not speculation; vacated maintenance award |
Key Cases Cited
- Cummings v. Cummings, 182 Ariz. 383 (App. 1994) (defines gross income for Guidelines as actual money or cash-like benefits available for expenditures)
- McNutt v. McNutt, 203 Ariz. 28 (App. 2002) (first step in child support is determining gross income)
- Taliaferro v. Taliaferro, 188 Ariz. 333 (App. 1996) (upheld attribution of income to a disabled parent who was found capable of employment)
- Boyle v. Boyle, 231 Ariz. 63 (App. 2012) (affirmed modest maintenance where supported by facts)
- Neal v. Neal, 116 Ariz. 690 (App. 1977) (spousal maintenance cannot be used merely to hold open the courtroom door for possible future eligibility)