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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHE NIKOLAI LYNUM, Petitioner/Appellant,

v.

TIFFANY TELANA TAVARES, Respondent/Appellee.

No. 1 CA-CV 17-0342 FC

Appeal from the Superior Court in Maricopa County

No. FC2009-000705

The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Berkshire Law Office, PLLC, Tempe

By Keith Berkshire, Erica L. Gadberry

Counsel for Petitioner/Appellant

Udall Shumway, PLC, Mesa

By Sheri D. Shepard

Counsel for Respondent/Appellee

FILED 7-26-18
LYNUM v. TAVARES

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

C A T T A N I, Judge:

¶1 Che Lynum (“Husband”) appeals from the superior court’s 

decision awarding Tiffany Tavares (“Wife”) spousal maintenance 

arrearages of $388,000. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The superior court entered a consent decree of dissolution 

(the “Decree”) for Husband and Wife in January 2010. Under the Decree, 

Wife received spousal maintenance of $3,500 per month plus a percentage 

of every dollar Husband earned between $100,000 and $999,999 annually.

1

¶3 Wife petitioned to enforce the Decree’s child support and 

spousal maintenance provisions in 2010 and again in 2011, but in both 

instances, Husband became current on his payments shortly after Wife’s 

filing. Wife again petitioned the superior court to enforce child support and

spousal maintenance in August 2015. Representing herself, and using a 

form petition provided by the superior court, Wife asserted that Husband 

had not paid spousal maintenance or child support from June 2013 to 

August 2015, and was thus in arrears $87,500 for spousal maintenance 

($3,500 per month) and $30,000 for child support ($1,500 per month). 

Within days of filing her petition to enforce, Wife requested Husband’s 

financial information from 2012 to 2014 to enable her to determine the total 

amount of spousal support owed. Husband did not respond to Wife’s 

petition to enforce but instead petitioned the court to modify child support, 

alleging that his income had “precipitously fallen since entry of the decree.”

¶4 In October 2015, the State notified both parties that a 

determination of Husband’s income was necessary to calculate Husband’s

 

1 Under the Decree, Husband also agreed to $1,500 monthly child 

support. Although the superior court also found that Husband was in 

arrears regarding child support, Husband did not challenge that aspect of 

the court’s ruling.
LYNUM v. TAVARES

Decision of the Court

3

arrearages, and requested that the parties provide that information. 

Similarly, Wife asserted in her response to Husband’s petition to modify 

that Husband owed more than $200,000, and that she could not address

Husband’s assertion that his income had dropped until Husband disclosed 

information that could be analyzed by a forensic accountant.

¶5 After an evidentiary hearing, the superior court concluded 

that Husband’s income for child support and spousal maintenance 

purposes was $327,120.72 in 2012; $702,132.60 in 2013; $548,256.60 in 2014; 

$496,483.38 in 2015; and $496,483.38 in 2016, and that the total arrearages

for spousal maintenance were $388,689.72. The court attributed to Husband 

income beyond the amount he claimed, reasoning that because Husband’s 

companies paid for nearly all of his personal expenses, such expenses 

should be attributed to him as income. The court also denied Husband’s 

petition to modify child support. Husband moved for, and was denied, a 

new trial. He then timely appealed, and we have jurisdiction under 

Arizona Revised Statutes (“A.R.S.”) § 12-2101(A)(2), (5)(a).

DISCUSSION

I. Total Arrearages.

¶6 Husband argues that the superior court erred by awarding 

Wife spousal maintenance arrearages of $388,000 because he did not receive 

proper notice, and that Wife was judicially estopped from claiming a 

greater total of arrearages than was stated in her petition. We review issues 

of notice and other matters of law de novo. Wilmot v. Wilmot, 203 Ariz. 565, 

569, ¶ 10 (2002); In re Estate of Dobert, 192 Ariz. 248, 252–53, ¶ 18 (App. 1998).

¶7 Husband asserts that because Wife’s petition to enforce 

claimed that the total spousal maintenance owed was $87,500—which 

would have been the minimum owed under the Decree—he did not receive 

notice that his income was in dispute or that he owed more than $87,500 in 

spousal maintenance. But the petition was to enforce the terms of the 

Decree as agreed upon by Husband. And those terms unequivocally stated

that spousal maintenance was dependent on Husband’s income and that as 

his income increased, so too would spousal maintenance. Thus, Husband 

cannot claim he had no notice that his income was at issue or that he could 

be liable for an amount beyond the minimum spousal maintenance 

contemplated in the Decree.

¶8 Moreover, nearly a year before the evidentiary hearing, Wife 

requested Husband’s financial information to determine his income, and 

the State informed the parties that Husband’s income needed to be 
LYNUM v. TAVARES

Decision of the Court

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determined before the spousal maintenance arrearages could be calculated. 

And, as previously noted, when Husband requested modification of child 

support shortly after Wife filed her petition to enforce, Wife asserted that 

Husband’s income was in dispute and that he owed at least $200,000 in 

spousal maintenance.

¶9 To the extent Husband argues untimely disclosure of Wife’s 

expert witness report caused insufficient notice, we disagree. Mother 

timely disclosed her expert witness, and although the expert’s report was 

delayed—it was not disclosed until one week before trial—the delay was 

caused primarily by Husband’s failure to respond to Wife’s requests that 

he produce documents (including, for example, Husband’s corporate credit 

card statements) needed for the expert’s analysis.

¶10 Husband further argues that under Armer v. Armer, 105 Ariz. 

284, 288 (1970), Mother cannot claim arrearages beyond the amount 

specifically pled. But Armer simply noted that “[p]arties are bound by their 

pleadings” and a party may not introduce evidence in contradiction of 

express allegations in the party’s complaint. Id. The court held that because 

the defendant in that case had not designated in his responsive pleading 

any specific household items he believed were separate property, the trial 

judge validly presumed that all of the property in the house was 

community property. Id. Here, in contrast, Wife’s pleadings made clear 

that Husband’s income was in dispute and that the potential amount owed 

was greater than $87,500. Thus, Husband’s reliance on Armer is misplaced.

¶11 Husband’s claim that Wife was judicially estopped from 

arguing greater arrearages than she asserted in her petition is similarly 

unavailing. Judicial estoppel requires, inter alia, that a party have 

successfully asserted, in a prior judicial proceeding, a position that was 

inconsistent with a newly asserted position. In re Marriage of Thorn, 235 

Ariz. 216, 222, ¶ 27 (App. 2014). Wife’s petition is not a prior judicial 

proceeding and Husband does not cite any prior judicial proceeding that 

was resolved in Wife’s favor based on a position inconsistent with what 

Wife has asserted in the instant proceedings. Accordingly, judicial estoppel 

is inapplicable.

II. Attribution of Income.

¶12 Husband next argues that the superior court erred in 

determining his income. We review the superior court’s computation of 

income for an abuse of discretion. See Engel v. Landman, 221 Ariz. 504, 514, 

¶ 42 (App. 2009). We view the evidence in the light most favorable to 
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upholding the superior court’s findings and will uphold those findings if 

supported by any reasonable evidence. Mitchell v. Mitchell, 152 Ariz. 317, 

323 (1987).

¶13 Husband argues that because the Decree unambiguously 

states that his “gross income” is to be used to determine spousal 

maintenance, his gross income for tax purposes is the relevant amount to 

be used in the calculation. But gross income may be calculated differently 

in different contexts. For example, under the Arizona Child Support 

Guidelines, A.R.S. § 25-320 app. (“Guidelines”), gross income for purposes 

of child support is expressly different than gross income for tax purposes 

and may include “[e]xpense reimbursements or benefits received . . . in the 

course of employment . . . or operation of a business . . . if they are 

significant and reduce personal living expenses.” See Guidelines § 5(D). 

And here, the court used the Guidelines to calculate Husband’s income for 

purposes of his petition to modify child support, and Husband offers no 

compelling reason for the court to have departed from that calculation for 

purposes of spousal maintenance.

¶14 Husband argues that applying the Guidelines definition of 

gross income might artificially inflate a spouse’s income such that the 

resulting maintenance amount is beyond the former spouse’s ability to pay. 

But Husband had an opportunity to show that attribution of additional 

income would render an inappropriate or unjust result, and the record here 

supports the superior court’s conclusion to the contrary. In the context of 

Husband’s ownership interest in over 100 entities conducting business 

amongst themselves, the court could reasonably conclude that the 

businesses’ payments for Husband’s living expenses were in effect 

distributions, salaries, and benefits that were shielded by this business 

scheme.

¶15 And the superior court’s specific attribution of income to 

Husband was not an abuse of discretion. Husband claimed a $60,000 

annual salary on his affidavit of financial information, but his bank account 

included $15,000 in unidentifiable cash deposits, and his companies paid 

$17,000 annually for his car lease. His companies also paid roughly $81,500 

annually for his housing—including housing in Phoenix, Los Angeles, and

Chicago. The value of housing paid for by an employer or as part of the 

operation of a business may be considered part of a parent’s gross income 

if it reduces personal living expenses. See Guidelines § 5(D); Patterson v. 

Patterson, 226 Ariz. 356, 359–60, ¶ 10 (App. 2011). Although Husband 

asserts that the Chicago residence was only used for business, he did not 

dispute that the children stayed there with him during some of his parental 
LYNUM v. TAVARES

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visitation time, and the superior court only attributed a portion (5/12) of 

the Chicago rent as income to Husband. Thus, the superior court did not 

abuse its discretion by attributing income of $81,500 to Husband based on 

housing expenses paid for by his business entities.

¶16 The superior court similarly did not abuse its discretion by 

attributing as income monies spent on Husband’s corporate credit card. 

Husband used the corporate credit card for personal expenses, and his 

personal bank account showed few withdrawals for personal expenses. 

Although Husband did not substantiate any business expenses on his credit 

card, the superior court attributed only 44% of the expenditures as nonbusiness expenses and therefore income to Husband, including, for 

example, expenses for cars and transport, phones, television, utilities, 

entertainment, food and dining, gifts and donations, health and fitness, 

personal care, books, clothing, electronics and software, sporting goods, 

and travel. These expenses amounted to $107,000 in 2012, $243,000 in 2013, 

$312,000 in 2014, $204,000 in 2015, and $204,000 in 2016.

¶17 Husband argues that the superior court further erred because 

(1) only six months of credit card statements were used to determine his 

income for a five-year period and (2) attributing income based on the credit 

card expenses amounted to a discovery sanction for not providing

documentation to substantiate the charges as business expenses. But 

Husband does not claim that expenses reflected in the sample were 

atypical, and he did not otherwise provide support for his argument that 

using a six-month sample of statements was inappropriate. Husband’s 

sanctions argument is likewise unavailing; the amounts attributed as 

income were limited to expenditures determined to be for personal use.

¶18 Husband also argues that because his employment did not 

change after he and Wife entered the Decree, and because the Decree 

incorporated a 2010 child support worksheet that stated Husband’s annual 

income was $96,000, the law of the case doctrine should have precluded an 

inconsistent finding regarding his income. But the law of the case doctrine 

only applies to issues previously decided in the same case by the same or a 

higher court. Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 

Ariz. 275, 278 (App. 1993). And here, Husband’s income was never decided 

by any court. To the contrary, the terms of the Decree contemplated that 

Husband’s income would vary, even to the point of exceeding $1,000,000 

annually, far above the $96,000 Husband asserts was decided at the time of 

the Decree.
LYNUM v. TAVARES

Decision of the Court

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CONCLUSION

¶19 For the foregoing reasons, we affirm. Wife requests fees on 

appeal under A.R.S. § 25-324. In an exercise of our discretion, we deny 

Wife’s request for fees on appeal. Nevertheless, as the prevailing party, 

Wife is entitled to an award of costs upon compliance with ARCAP 21.