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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STATE OF ARIZONA, ex rel, DES

ELLIE CARAN GUARDIOLA, Petitioners/Appellees,

v.

MARK PENNINGTON, Respondent/Appellant.

No. 1 CA-CV 22-0512 FC

Appeal from the Superior Court in Maricopa County

No. FC2020-053923

The Honorable John R. Doody, Judge Pro Tempore

AFFIRMED

APPEARANCES

R.J. Peters & Assoc., P.C., Phoenix

By Rich J. Peters

Counsel for Respondent/Appellant

Ellie Caran Guardiola, Scottsdale

Petitioner/Appellee

Arizona Attorney General’s Office, Tucson

By Jennifer R. Blum

Counsel for ADES

FILED 4-27-2023
STATE/GUARDIOLA v. PENNINGTON

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Michael S. Catlett joined.

B R O W N, Judge:

¶1 Mark Pennington (“Father”) appeals from the superior 

court’s post-paternity establishment judgment ordering him to pay child 

support to Ellie Caran Guardiola (“Mother”). Father also appeals the 

court’s denial of his request for attorneys’ fees under A.R.S. § 25-324. For 

the reasons that follow, we affirm. 

BACKGROUND 

¶2 Mother and Father are the parents of one child (“Child”), born 

in August 2007. On December 31, 2020, Mother petitioned to establish 

paternity and obtain a judgment for retroactive and ongoing child support.

The parties later stipulated that Father is Child’s natural father and that

Mother would have sole legal decision-making authority, with no 

parenting time for Father. The parties also agreed that Father would pay, 

on an interim basis, monthly child support of $1,000 beginning on 

December 1, 2021. 

¶3 In May 2022, the superior court held a child support 

establishment hearing. Mother and Father testified about their incomes.

Mother explained that her wage as a full-time nurse had recently increased

to $47.10 per hour, which was more than the rate reflected in her affidavit 

of financial information (“AFI”). But most of the hearing centered on 

Father’s income. He testified (and offered numerous exhibits) about his 

employment history, the failure of his long-haul truck business, and his 

current employment search. He also offered testimony from his accountant 

and insurance agent relating to his financial records and truck insurance 

costs. Ultimately, Father requested that he be attributed minimum wage 

income because he was shutting down his business. 

¶4 In its minute entry ruling, the superior court attributed a 

monthly income of $3,640 to Father for (1) the “past support period,” which 

was January 2018 through November 2021; (2) the period from December 

2021 through May 2022; and (3) the “[c]urrent support” period starting June 

1, 2022. As pertinent here, the court attributed a monthly income of $8,900
STATE/GUARDIOLA v. PENNINGTON

Decision of the Court

3

to Mother for calculating Father’s current child support obligation. In its 

subsequent order, the court entered judgment against Father in the amount 

of $23,494.75, which took into account his interim payments, for past child 

support from January 2018 through May 2022. The court also ordered 

Father to pay $538 per month as current child support. Father timely 

appealed, and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(2). 

DISCUSSION 

¶5 We review an award of child support for an abuse of 

discretion. Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994). The 

superior court abuses its discretion when it “commits an error of law” in 

reaching a discretionary decision or if the record does not support its 

decision. Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018). We review 

de novo the court’s conclusions of law and interpretation of the Arizona 

Child Support Guidelines (“Guidelines”). A.R.S. § 25-320 app. (2022); 

Sherman v. Sherman, 241 Ariz. 110, 113, ¶ 9 (App. 2016). 

A. Father’s Income 

¶6 Father argues the court abused its discretion by attributing 

him $3,640 in monthly income because there was “no evidence” to support 

this finding. Mother counters that sufficient evidence exists in the record,

which Father himself presented, to support the court’s ruling.1

¶7 As an initial matter, we view Father’s opening brief as 

challenging only the portion of the court’s judgment for the “current 

support” period. While he references facts concerning his failed trucking 

business, he does not tie those facts to any specific child support period.

Nor does he challenge the court’s arrears judgment of $23,494.75. Instead, 

he contends the court erred because he took the position at trial that “he 

currently was unable to earn even minimum wage,” which was allegedly 

supported by testimony and exhibits about his business. Because Father 

1 Mother argues the court abused its discretion in determining 

Father’s income because it failed to account for his “total financial resources 

or income from any and all sources.” She therefore asks that we remand 

for reconsideration under the Guidelines. Because she has not raised these 

issues in a cross-appeal, her request for affirmative relief from the judgment 

is not properly before us. See ARCAP 13(b)(2) (An appellate court may 

“modify a judgment to enlarge the rights of the appellee or reduce the rights 

of the appellant only if the appellee has filed a notice of cross-appeal.”); 

Hoffman v. Greenberg, 159 Ariz. 377, 380 (App. 1988).
STATE/GUARDIOLA v. PENNINGTON

Decision of the Court

4

has not presented any meaningful argument challenging the court’s arrears 

judgment, we address only whether the evidence supports the court’s

attribution of income to Father for the “current support” period. See 

ARCAP 13(a)(7) (stating that a brief must present arguments that explain 

an appellant’s contentions on each issue presented for review with 

supporting reasons, legal citations, and appropriate references to the 

record); J.W. v. Dep’t of Child Safety, 252 Ariz. 184, 188, ¶ 11 (App. 2021) (“We 

may reject an argument based on lack of proper and meaningful argument 

alone.”); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (explaining 

that appellants abandon claims when they do not establish their position 

on a particular issue in question).

¶8 In deciding child support, a court first considers a parents’ 

gross income, Sherman, 241 Ariz. at 113, ¶ 14, which includes income from 

any source, Guidelines § II.A.1.b. By allowing courts to consider “all aspects 

of a parent’s income the Guidelines ensure that the award is ‘just’ and based 

on the total financial resources of the parents.” Cummings, 182 Ariz. at 386. 

¶9 Before 2019, Father was employed as a truck driver and 

earned $21.50 per hour. But in 2019, he left that job and started his own

business, which he could do because of a $500,000 line of credit from a 

family member and an additional $115,000 federal loan. Between 2019 and 

2021, Father claims his business did not generate profits, and he was 

therefore unable to receive any income. However, the extent to which 

Father did not make money during those years is irrelevant because he has 

not challenged the arrearage portion of the court’s judgment. 

¶10 Moreover, although Father claimed at the hearing that he was 

not earning even a minimum wage, and that his business had failed, it does 

not mean the court was obligated to accept Father’s claim. The court heard 

evidence that Father had previously earned $21.50 an hour, or roughly 

$3,727 monthly, and that he was in the process of seeking similar 

employment at this hourly rate. On that evidence alone, the court did not 

abuse its discretion in attributing Father an income of $3,640 for the current 

child support period. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009) 

(noting that the trial court is in the best position to weigh the evidence and 

evaluate the parties’ credibility). 

B. Mother’s Income 

¶11 Mother is employed as a full-time registered nurse. At the 

evidentiary hearing, she submitted an AFI, her 2021 W-2 form, tax returns 

dating back to 2018, and her two most recent earnings statements from 2022. 
STATE/GUARDIOLA v. PENNINGTON

Decision of the Court

5

¶12 Father argues the superior court abused its discretion in 

determining that Mother’s monthly income is $8,900. He argues that based 

on her 2021 W-2, her total compensation was $111,658.21, or $9,304.85

monthly. He also contends that Mother “presented no evidence that her 

2021 earnings included overtime, and the pay stubs she did submit do not 

include overtime.” See Guidelines § II.A.3.b. (“The court generally does not 

include more income than earned through full-time employment.”). 

¶13 Father, however, has waived this issue because he has not 

identified, nor have we discerned, any point in the superior court record 

where he raised these arguments. See Cullum v. Cullum, 215 Ariz. 352, 355, 

¶ 14 n.5 (App. 2007) (noting that “a party cannot argue on appeal legal 

issues not raised” in the trial court); Hahn v. Pima Cnty., 200 Ariz. 167, 172, 

¶ 13 (App. 2001) (explaining that the failure to raise an issue at the trial level 

constitutes waiver of that issue). Father’s counsel cross-examined Mother 

on her earnings, but he never asked the court to find that her monthly 

income was $9,304.85 or that it should be based solely on the 2021 W-2. Nor 

did he present any evidence or argument that none of Mother’s attested pay 

was based on overtime pay. Waiver aside, Father fails to account for 

Mother’s testimony that after she completed her AFI in October 2021, her 

hourly rate increased from $43.26 to $47.15, which means she could not 

have earned $111,658.21 without overtime pay. 

¶14 For her part, Mother argues the superior court erred because 

it overstated her income by necessarily including her overtime pay. She 

explains that the court’s determination of $8,900 of monthly income would 

be based on an hourly rate of $51.35, and there was no evidence supporting 

that rate of pay. Mother therefore asserts that her monthly income should 

have been calculated at $8,172.67, based on working 2,080 hours at $47.15 

per hour. Because Mother has not cross-appealed, we cannot address her 

arguments. See supra, n.1.

¶15 On this record, reasonable evidence supports the court’s

determination that Mother’s monthly income is $8,900 for purposes of the 

current child support order. Father has not shown that the court abused its 

discretion. 

C. Attorneys’ Fees 

¶16 Under A.R.S. § 25-324, the superior court may award 

attorneys’ fees after considering the financial resources of both parties and 

the reasonableness of the positions taken by each party throughout the 

proceedings. See Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 36 (App. 2007). 
STATE/GUARDIOLA v. PENNINGTON

Decision of the Court

6

We review the issue of attorneys’ fees for an abuse of discretion. Mangan v. 

Mangan, 227 Ariz. 346, 352, ¶ 26 (App. 2011). 

¶17 Father argues the court abused its discretion in denying his 

request for attorneys’ fees because he established financial disparity 

between himself and Mother, and she took several unreasonable positions. 

He also contends the court erroneously applied a “prevailing party 

standard” to evaluate his request for fees, instead of the § 25-324 factors. 

But Father does not inform us where he raised these issues in the superior 

court. See Cullum, 215 Ariz. at 352, n.5; Hahn, 200 Ariz. at 172, ¶ 13. 

¶18 During the evidentiary hearing, the court advised the parties

not “to spend a lot of time talking about fees, that’s something I have to 

decide who it’s going to be of the prevailing party, if anyone. . . .” Father 

did not ask the court to clarify its statement nor did he object to the court’s 

framing of how it would decide whether to award fees. Later, in its minute 

entry, the court did not mention attorneys’ fees or § 25-324 but again stated 

that “neither party was the prevailing party.” The court then directed the 

submittal of a proposed form of judgment, to which the parties could “file 

written objections.” The court added that it would sign the findings and 

orders as final, appealable judgments “after considering any objections.” 

Father did not object to the proposed judgment, which did not address 

attorneys’ fees. Under these circumstances, he has waived any challenge to 

the court’s implicit denial of his fee request. Trantor v. Fredrikson, 179 Ariz. 

299, 300 (1994) (“Because a trial court and opposing counsel should be 

afforded the opportunity to correct any asserted defects before error may 

be raised on appeal, absent extraordinary circumstances, errors not raised 

in the trial court cannot be raised on appeal.”).

CONCLUSION

¶19 We affirm the superior court’s child support establishment 

judgment.