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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHELLEY TRENNON CAREY, Petitioner/Appellee, 

v.

JUANITA SUZANNA CAREY, Respondent/Appellant. 

No. 1 CA-CV 20-0552 FC 

Appeal from the Superior Court in Maricopa County

No. FC2019-092603 

The Honorable Marvin L. Davis, Judge

VACATED AND REMANDED

COUNSEL

High Desert Family Law Group, LLP, Phoenix

By Craig Peter Cherney

Counsel for Petitioner/Appellee

Juanita S. Chleboun (Carey), Gilbert

Respondent/Appellant

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the court, in which Presiding 

Judge D. Steven Williams and Judge James B. Morse Jr. joined.

FILED 8-19-2021
CAREY v. CAREY

Decision of the Court

2

G A S S, Judge:

¶1 Mother, Juanita Suzanna Carey, appeals the superior court’s 

order modifying child support. We vacate the order and remand for further 

consideration.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and father, Shelley Trennon Carey, were divorced in 

2011 in Florida. The dissolution decree ordered the parents to share 

parental responsibility for their two minor children, designated mother the 

primary residential parent, and gave father parenting time during school 

breaks. The Florida court ordered father to pay monthly child support of 

$1,700. After the Florida court entered the decree, mother and the children 

moved to Arizona, and father moved to Hawaii.

¶3 In 2019, father registered the Florida decree and child support 

order in Arizona and petitioned to modify parenting time and child 

support. Father sought modification because both parents left Florida, the 

parents were not strictly following the Florida decree’s parenting-time 

provisions, the children were substantially older and could travel to father’s 

home in Hawaii, and both parents’ incomes had changed.

¶4 Mother agreed with some of father’s requested changes but 

disputed others. She opposed father’s request to reduce his child support 

obligation, arguing he earned more now than when the Florida court set the 

original child support amount. She urged the superior court to recalculate 

child support based on father’s current income. 

¶5 Ultimately, the parties partially resolved the parenting time 

issues and the superior court adopted their agreement under Rule 69 of the 

Arizona Rules of Family Law Procedure. After a hearing, the superior court 

found no significant and continuing change of circumstances to support 

modifying the parenting plan outside of the Rule 69 agreement. 

¶6 The superior court, however, found modification of the 

existing child support order appropriate and reduced father’s monthly 

child support payment from $1,700 to $857. The superior court incorporated 

a child support worksheet showing the income it attributed to each parent 

and the allocation of parenting time.

¶7 Mother timely appealed. This court has jurisdiction under 

article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 

and 12-2101.A.1.
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ANALYSIS

¶8 Generally, this court reviews a child support award for an 

abuse of discretion, and accepts the superior court’s factual findings unless 

clearly erroneous. Sherman v. Sherman, 241 Ariz. 110, 112, ¶ 9 (App. 2016).

In addition, this court defers “to the trial court’s determination of witnesses’ 

credibility and the weight to give conflicting evidence.” Gutierrez v. 

Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998). De novo review, however, 

applies to conclusions of law, including whether specific income or 

expenses should be included in the child support calculation. Sherman, 241 

Ariz. at 113, ¶ 9; see also Patterson v. Patterson, 226 Ariz. 356, 358–59, ¶¶ 4, 7 

(App. 2011). And this court reviews de novo the superior court’s 

interpretation of the 2018 Arizona child support guidelines in A.R.S. § 25-

320 appendix (guidelines). Sherman, 241 Ariz. at 113, ¶ 9.

¶9 When, as here, the parties did not request findings of fact or 

conclusions of law, this court presumes the superior court “found every fact 

necessary to support the judgment” and will affirm if any reasonable 

construction of the evidence justifies the decision. Neal v. Neal, 116 Ariz. 590, 

592 (1977) (citation omitted).

I. Gross Income

A. Father’s Income

¶10 Mother challenges the superior court’s decision to attribute 

$6,748 per month—$80,976 per year—to father as income. She argues the

superior court failed to include a $32,000 salary father received from his 

ownership of a business entity and a $622,500 “gift/loan” from his parents. 

Our review shows no error.

¶11 Father retired from the military effective June 1, 2020, and his 

monthly retirement pay is $4,081. Upon retirement, he also began receiving 

a $32,000 annual salary from Merrill, Inc., a company his family owns. The 

superior court attributed a total monthly gross income of $6,748 to father, 

including $4,081 per month for father’s military retirement pay and $2,667 

per month for his Merrill, Inc. salary. In short, the superior court calculated 

father’s income correctly.

¶12 Mother also argues the superior court should have treated as 

income the $622,500 father received from paternal grandmother. Father 

testified paternal grandmother loaned him and his current wife the money 

to purchase several businesses and submitted a promissory note 

documenting the terms of the loan. Because the promissory note was not 
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notarized, mother argues the funds were a gift to father and should be

included in his gross income. 

¶13 Depending on the circumstances, the superior court may

attribute gifts and loan proceeds to a parent as gross income in the child 

support calculation. Sherman, 241 Ariz. at 114, ¶ 15. “The crucial inquiry is 

whether the parent received ‘actual money or cash-like benefits . . . available 

for expenditures.’” Id. (citing Cummings v. Cummings, 182 Ariz. 383, 385 

(App. 1994)). If the parent acquired “a source of funds for living and 

personal expenses, from which the children would have benefited had their 

parents not divorced[,]”those monies constitute gross income. Sherman, 241 

Ariz. at 114, ¶ 15.

¶14 Father did not use those funds to pay his living expenses, and 

no evidence establishes the children would have benefited from the funds 

if their parents had not divorced. The superior court did not abuse its 

discretion when it concluded father acquired $622,500 from paternal 

grandmother to purchase a business and fund its operations, not for living 

and personal expenses. 

B. Mother’s Income

¶15 In 2019, mother received two forms of income from State 

Farm Mutual Automobile Insurance Company. First, she received $39,976 

in wages. Beginning June 1, 2019, she received $130,856 in revenue for her 

work as an insurance agent operating as an independent contractor.

Mother’s insurance agency incurred $172,694 in business expenses in 2019, 

resulting in a loss of $41,838. 

¶16 The superior court attributed income of $7,418 per month—

$89,018 annually—to mother. Mother disputes this calculation, claiming

she received no income in 2019 after accounting for her $172,694 business 

expenses, which exceeded the $130,856 revenue her insurance agency 

generated plus her $39,976 earned income as a State Farm employee. She 

argues the superior court erred by attributing $7,418 in monthly income to 

her rather than minimum wage.

¶17 The guidelines define gross income as “income from any 

source,” including salaries, wages, and unemployment insurance benefits. 

Guidelines § 5.A. For “self-employment[,] . . . gross income means gross 

receipts minus ordinary and necessary expenses required to produce 

income.” Guidelines § 5.C. Mother’s wages constitute gross income 

separate and apart from her self-employment income. See guidelines § 5.A.

Mother’s self-employment gross income, calculated separately, is 
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determined by subtracting gross losses and expenses from gross receipts. 

See guidelines § 5.C.

¶18 We reject mother’s suggestion the superior court was 

required to offset her earned wages with her business losses. The guidelines 

only allow self-employment or other business income to be offset by the 

expenses necessary to generate that income. See guidelines § 5.C. Nothing 

in the guidelines requires the superior court to offset wages with losses 

incurred in the operation of a business. See generally guidelines § 5; see also 

Cummings, 182 Ariz. at 385 (“[G]ross income for child support purposes is 

not determined by the gross income shown on the parties’ income tax 

returns, but rather on the actual money or cash-like benefits received by the 

household which is available for expenditures.”).

¶19 Applying the above, mother had two sources of income: 

wages and self-employment. Mother earned $39,976 in wages in 2019, but 

she had no income from her self-employment because her $172,694 business 

expenses exceeded her $130,856 revenue. The superior court, however, 

attributed $89,018 income to mother—an amount equal to her $130,856 

business revenue minus her $41,838 losses. As a matter of law, this 

calculation is incorrect. See guidelines § 5.

¶20 Accordingly, we vacate the superior court’s child support 

award and remand for a redetermination of mother’s gross income. Because 

we remand, we note the record shows mother’s agency earned $128,024 in 

revenue from January 1, 2020, through June 30, 2020. The record does not 

contain mother’s 2020 business expenses. Effective July 1, 2020, State Farm

did not extend mother’s agent agreement. Mother testified she was 

receiving unemployment benefits—considered part of gross income—since 

then. See guidelines § 5.A.

II. Parenting-Time Costs Adjustment

¶21 Mother contends the superior court erred by crediting father 

with 73 days of parenting time per year. 

¶22 The guidelines require the superior court to adjust a parent’s 

proportionate share of the total child support obligation to account for costs 

associated with parenting time. Guidelines § 11. To adjust the child support 

obligation, the superior court must determine the total amount of parenting 

time awarded to, or historically enjoyed by, the parent with less parenting 

time—here father. Guidelines § 11.
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¶23 The superior court credited father with 73 days of parenting 

time and reduced his proportionate share of the monthly total support 

obligation by $199.08. Mother challenges the credit, arguing the parenting 

time schedule reduced father’s parenting time from 73 days to 41 days.

Father argues “the [c]ourt simply reaffirmed the parties’ prior allocation of 

[p]arenting [t]ime days as detailed in the original Florida state court 

custody orders.” According to father, the only change involved the

adoption of the parties’ agreement giving each parent more parenting time 

for each parent’s respective birthday. 

¶24 The Florida decree granted father parenting time with the 

children over summer break, beginning 5 days after school ends until 5 

days before school resumes. The decree also provided for alternating

Thanksgiving, winter, and spring breaks, and gave mother and father

parenting time on their birthdays and on Mother’s Day and Father’s Day, 

respectively. 

¶25 Father sought to modify the parenting plan to give him 

parenting time for one-half of each spring, winter, and fall break, and to 

alternate Thanksgiving break. Father sought additional parenting time by 

alternating extended or holiday weekends. Father also asked for parenting 

time for certain milestone events and to permit the children to visit with his 

wife or parents if father could not use his parenting time. 

¶26 In her response to the petition, mother agreed to divide the 

seasonal school breaks, alternate the Thanksgiving holiday, and allow

parenting time access for milestone events. But mother did not agree to

father’s other requests. 

¶27 The parties met for a resolution conference on October 14, 

2019, and reached an agreement on some of the parenting-time issues. Their 

agreement is not included in the record, though father provided it to the 

superior court during an evidentiary hearing. Despite their agreement, the 

parties requested clarification and resolution of outstanding parenting-time 

issues at the evidentiary hearing.

¶28 At the hearing, the parties agreed each parent would have 

additional parenting time on his or her birthday. Outside the birthday

agreement, the superior court found no substantial and continuing change 

of circumstances warranting modification of the parenting time schedule to 

which the parties had agreed at the October 14, 2019 resolution conference. 

The superior court then adopted the parties’ October 14, 2019 parenting 

plan and incorporated it by reference in its order. Father, therefore,
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incorrectly argues the only modification involved additional birthday 

parenting time, because the superior court also incorporated the October 

14, 2019 agreement.

¶29 We cannot determine whether any evidence supported the

superior court’s use of 73 days in the child support calculation because the 

October 14, 2019 agreement is not in the record. Typically, if evidence is 

omitted from the record, this court presumes the evidence supports the 

superior court’s ruling. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995). 

Because we vacate the child support order and remand for the superior 

court to determine mother’s gross income and recalculate child support, we 

direct the superior court to further consider the parenting-time issue on 

remand and suggest the better practice is to ensure a court-approved 

parenting plan be filed in the superior court’s docket.

ATTORNEY FEES ON APPEAL

¶30 Father requests his attorney fees on appeal under A.R.S. § 25-

324.A. After considering the relevant factors, we decline to award father 

attorney fees without prejudice, but the superior court may consider any 

requests for fees on remand, including fees incurred in this appeal, pending 

the outcome of this litigation. See Eans-Snoderly v. Snoderly, 249 Ariz. 552, 

559, ¶ 27 (App. 2020).

¶31 As the successful party on appeal, we award mother her 

reasonable costs under A.R.S. § 12-342 upon compliance with ARCAP 21.

CONCLUSION

¶32 We vacate the superior court’s child support order and 

remand to the superior court for recalculation consistent with this decision.