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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

JAY DAVID STEIN, Petitioner/Appellant, 

v.

JILL LYNN STEIN, Respondent/Appellee. 

No. 1 CA-CV 16-0493 FC 

 

Appeal from the Superior Court in Maricopa County 

No. FC2012-003130 

The Honorable Joseph P. Mikitish, Judge 

REVERSED AND REMANDED 

COUNSEL 

Jensen, Schmidt, McElwee & Gordon, P.L.L.C., Phoenix 

By Therese R. McElwee 

Mark J. DePasquale P.C., Phoenix 

Mark J. DePasquale 

Co-Counsel for Plaintiff/Appellant 

John L. Popilek P.C., Scottsdale 

By John L. Popilek 

Counsel for Respondent/Appellee
STEIN v. STEIN 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Paul J. McMurdie delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined. 

M c M U R D I E, Judge: 

¶1 Jay Stein (“Father”) appeals from a superior court order 

awarding Jill Stein (“Mother”) $6240 per month in child support, as well as 

the denial of his Motion for New Trial on that issue. For the following 

reasons, we reverse and remand. 

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties married in 2005 and divorced in 2014. They have 

four children together, 10-year-old triplets and an 11-year-old (“the 

Children”). Father’s annual gross income is $3 million, and at the time of 

dissolution, Mother was not working. Under their premarital agreement, 

neither party was entitled to spousal maintenance. In the divorce decree, 

the superior court established Father as the primary residential parent, 

allowing Mother supervised parenting time consisting of one afternoon per 

week, one overnight on alternating weekends, and two weeks of summer 

vacation time. The superior court ordered Father to pay child support in the 

amount of $7500 per month.

¶3 Father appealed the divorce decree in 2014, arguing the 

superior court did not set forth facts supporting its deviation from the Child 

Support Guidelines despite his request for findings of fact and conclusions 

of law under Arizona Rule of Family Law Procedure 82(A). This court 

agreed, and remanded the child support award to the superior court for 

additional findings. Stein v. Stein, 238 Ariz. 548 (App. 2015). 

¶4 The superior court subsequently issued a more detailed 

ruling reducing Mother’s child support to $6240 per month. The superior 

court subsequently denied Father’s Motion for New Trial. This timely 

appeal followed and we have jurisdiction pursuant to Arizona Revised 

Statutes (“A.R.S.”) section 12-2101(A)(1) and (5)(a).1

 

1 We cite to the current version of applicable statutes and rules when 

no revision material to this case has occurred. 
STEIN v. STEIN 

Decision of the Court 

3 

DISCUSSION 

¶5 Father argues the superior court’s order awarding child 

support is unsupported by the evidence and applicable law, and the 

superior court failed to sufficiently set forth the basis for the 80/20 

allocation of child support between Father and Mother. “We review a child 

support order for an abuse of discretion.” Stein, 238 Ariz. at 549–50, ¶ 5. 

A. Waiver. 

¶6 Mother claims Father waived his argument regarding the 

sufficiency of the evidence because it was not argued at trial and he failed 

to provide his own suggested amount of child support. This argument is 

inconsistent with the record on appeal. 

¶7 Father testified at the original trial that he believed $1200 per 

month was a reasonable amount for child support. This figure was echoed 

in Father’s proposed findings and in his closing argument. After the decree 

awarded Mother $7500 per month, Father objected to that amount in his 

Motion for New Trial. After Father’s successful appeal of the first child 

support order, his objections were raised again before the instant appeal in 

his second Motion for New Trial, filed after the superior court awarded 

Mother $6240 per month in child support. Accordingly, Father has not 

waived the issue. 

B. Child Support Expenses.

¶8 Father contends the superior court disregarded the Child 

Support Guidelines when it ordered child support in an amount greater 

than what would have been spent on the Children if the parents and 

Children were living together. See A.R.S. § 25-320 app. “Background” (2015) 

(“Guidelines”). 

¶9 Under A.R.S. § 25-320, parents may be ordered to “pay an 

amount reasonable and necessary for support” of their children. The 

Guidelines “establish a standard of support for children consistent with the 

reasonable needs of children.” Guidelines § 1(A). However, the superior 

court must deviate from the Guidelines if application of the guidelines is 

inappropriate or unjust, and must consider the best interests of the children 

when doing so. A.R.S. § 25-320(D); Guidelines § 20(A). In addition, the 

superior court must consider the factors listed in A.R.S. § 25-320(D). 

Guidelines § 20(A). 
STEIN v. STEIN 

Decision of the Court 

4 

¶10 The superior court analyzed each of the factors listed in 

section 25-320(D). Under § 25-320(D)(3),2 a court considers the standard of 

living the children would have enjoyed if the parents were not divorced. In 

making that determination, the superior court attributed for Mother: $4250 

per month for home expenses; $900 per month for auto expenses; $20,000 

per year for vacation expenses; $500 per month for nanny expenses; and 

$500 per month for the Children’s monthly expenses including clothing, 

shoes, school supplies, games, electronics, equipment, extracurricular 

activities, and community events. 

¶11 Father argues the evidence at trial did not support a 

reasonable finding of the vacation expenses. We agree, and find the 

superior court’s finding of $20,000 per year for vacation expenses to be an 

abuse of discretion. The superior court order found the Children “went on 

luxurious trips, including ski trips and cruises, during the marriage.” While 

the superior court may consider these expenses for children who have 

enjoyed such benefits before dissolution of the marriage, Nash v. Nash, 232 

Ariz. 473, 480, ¶ 25 (App. 2013), there is no evidence in the record to support 

a finding that the parties took “luxurious trips,” much less the amount 

attributed by the court. 

¶12 The only evidence to support this finding is Mother’s 

Affidavit of Financial Information, which provided for the expense under 

“other” expenses and requested $25,000 annually for four vacations a year. 

However, at trial, Mother did not provide any evidence that such spending 

was part of the standard of living the Children were accustomed to before 

dissolution. See In re Marriage of Kells, 182 Ariz. 480, 484 (App. 1995) 

(without evidence supporting the court’s deviation, it must be set aside for 

an abuse of discretion); see also Elliot v. Elliot, 165 Ariz. 128, 135 (App. 1990) 

(“[W]e must be able to determine which evidence formed the bases of the 

awards before we can affirm them.”). Nor did Mother provide any 

delineation between the Children’s expenses, and her own. See Reed v. Reed, 

 

2 Section 25-320(D)(3) reads: 

The standard of living the child would have enjoyed if the 

child lived in an intact home with both parents to the extent 

economically feasible considering the resources of each 

parent and each parent’s need to maintain a home and to 

provide support for the child when the child is with that 

parent. 
STEIN v. STEIN 

Decision of the Court 

5 

154 Ariz. 101, 106 (App. 1987) (reversing a superior court order for 

insufficient evidence where there was no breakdown between the 

children’s and parent’s separate needs). 

¶13 The superior court abused its discretion by factoring vacation 

expenses into the child support calculus without evidentiary support for 

the expense. 

C. Allocation of Child Support Expenses. 

¶14 Father also maintains the 80/20 allocation between Mother 

and Father for child support expenses was not sufficiently supported by 

any mathematical basis. He argues the superior court made the 

determination “without any reference to evidence supporting the 

allocation.” 

¶15 The superior court order found Mother personally benefited 

from many of the expenses awarded as child support, and therefore found 

it “equitable and appropriate” for Father to pay 80 percent of the required 

child support expenses, with Mother paying the other 20 percent. 

¶16 We find this allocation to be an abuse of discretion. While 

there is evidence in the record supporting the superior court’s 

determination that Mother benefited personally from many of the expenses 

awarded as child support, and a court may offset some amount of child 

support based on a parent’s personal benefit, there is no showing how the 

court arrived at its mathematical allocation in offsetting some of the child 

support ordered. See Stein, 238 Ariz. at 551, ¶ 10 (“One of the purposes of 

Rule 82(A) is to give the appellate courts the ability to examine the basis for 

a mathematical figure awarded as child support.”). Furthermore, the 

allocation fails to account for Mother’s limited, supervised parenting time. 

D. Attorney’s Fees.

¶17 Mother requested Attorney’s Fees pursuant to A.R.S. 

§ 25-324, which allows this court to award fees to a party based on the 

financial resources of both parties, and the reasonableness of their 

positions. We find Mother did not take an unreasonable position in 

defending this appeal, and the record shows a large financial disparity 

between the parties. Accordingly, we will award reasonable attorney’s fees 

for this appeal to Mother, in an amount to be determined upon compliance 

with Arizona Rule of Civil Appellate Procedure 21(b). 
STEIN v. STEIN 

Decision of the Court 

6 

CONCLUSION 

¶18 Because the upward deviation of child support was based on 

unsupported vacation expenses and an unsupported allocation of expenses, 

which was part of the overall calculation of child support obligation, we 

remand to the superior court for new child support findings. The superior 

court on remand should consider all the expenses awarded in the order, 

and may require a new hearing given the length of time that has passed 

since the original order. For the foregoing reasons, we reverse the superior 

court’s order and remand for further proceedings consistent with this 

decision.