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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAVIER MILLAN VEGA, Petitioner/Appellant,

v.

MANUELA ISLAS CIPRES, Respondent/Appellee.

No. 1 CA-CV 19-0335 FC

Appeal from the Superior Court in Maricopa County

No. FC2018-007113

The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Michael L. Gertell LLC, Phoenix

By Michael L. Gertell

Counsel for Petitioner/Appellant

FILED 01-28-2020
VEGA v. CIPRES

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.

C R U Z, Judge:

¶1 Javier Millan Vega (“Father”) appeals from the superior 

court’s Decree of Dissolution of Marriage.1 For the following reasons, we 

affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father and Mother were married in March 2008 and have 

three minor children together. Father filed for divorce in September 2018, 

and the court held an evidentiary hearing in March 2019.2 The court entered 

a Decree of Dissolution of Marriage shortly after. The court found that 

during the marriage, Father was the primary wage earner and Mother 

worked to supplement the family’s income. The court also found that 

Mother had the majority of responsibility for the children, which included 

caring for their child with complex medical needs.

¶3 Accordingly, the court ordered that the children live 

primarily with Mother, and it granted Father parenting time every 

1 Manuela Islas Cipres (“Mother”) did not file an answering brief, 

which we may, in our discretion, deem a confession of reversible error. 

McDowell Mountain Ranch Cmty. Ass’n, Inc. v. Simons, 216 Ariz. 266, 269, ¶ 13 

(App. 2007). We decline to exercise our discretion to do so.

2 In his opening brief Father explains there is no record of the March 

2019 evidentiary hearing due to some likely audio recording error by the 

superior court. When the record of proceedings is unavailable for some 

unexpected reason, the proper procedure “is to file in the court in which the 

appeal is pending, a motion to suspend the progress of the appeal and to 

reinstate the [superior] court’s jurisdiction over the case for the limited 

purpose of reconstructing the record.” Rodriquez v. Williams, 104 Ariz. 280, 283 

(1969) (emphasis added). Here, Father did not so request. Therefore, in the 

absence of a transcript, we assume the record supports the superior court’s 

findings. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).
VEGA v. CIPRES

Decision of the Court

3

weekend. Additionally, the court granted Mother $400 per month in child 

support and $800 per month in spousal maintenance for a term of thirty-six 

months.

¶4 Father timely appealed. We have jurisdiction pursuant to

Arizona Revised Statutes section 12-2101(A)(1).

DISCUSSION

¶5 Father argues the court incorrectly determined Father’s and 

Mother’s incomes when calculating spousal maintenance and child 

support, and the income the court attributed to both parties was not 

supported by the evidence. The superior court is in the best position to 

properly calculate an award of spousal maintenance and child support, and 

it is given broad discretion in determining what is a reasonable amount.

Ruskin v. Ruskin, 153 Ariz. 504, 507 (App. 1987); Nash v. Nash, 232 Ariz. 473,

478, ¶ 16 (App. 2013). We view the evidence in the light most favorable to 

upholding the superior court’s findings, and absent an abuse of discretion, 

we will uphold those findings if supported by any reasonable evidence.

Mitchell v. Mitchell, 152 Ariz. 317, 323 (1987); Sherman v. Sherman, 241 Ariz. 

110, 112-13, ¶ 9 (App. 2016).

I. Father’s Income

¶6 Father contends that he historically earned a significantly 

lower income than the court attributed to him. The court found Father’s 

earning ability to be $35 per hour full time or $72,240 annually. Father 

argues there is insufficient evidence to support the court’s finding that he 

had the ability to earn $72,240 annually, as the most Father has ever earned 

was $64,680 with his previous employer, Steel Placers, in 2018. However,

Father does not contest that he was working full time and earning $35 per 

hour with Steel Placers, until he left that employment mid-year for a lowerpaying job. Father alleged he left this job due to health reasons, including 

diabetes and back problems, and that he was currently only capable of 

earning minimum wage.

¶7 A court may decline to attribute income to an individual if 

that person is physically disabled. Sherman, 241 Ariz. at 113, ¶ 12. 

However, here, the court believed Father to be underemployed and 

“financially motivated” to maintain that status as a result of these 

proceedings, and it did not find him to be credible in regard to the reasons 

he left his employment with Steel Placers. Father failed to present credible 

evidence, such as medical documentation, to support his claim that he was 

physically unable to earn more than minimum wage. The court noted that 
VEGA v. CIPRES

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Father testified he presently was involved in physical, construction-related

work, which was similar to the work he had performed at Steel Placers. 

Father also did not include his most recent pay stubs in his Affidavit of 

Financial Information (“AFI”), and while Father’s opening brief concedes 

he earned $64,680 in 2018, Father’s AFI states his gross monthly pay with 

Steel Placers was only $2,980.78. Thus, it was appropriate for the court to 

conclude that Father was not completely forthcoming in his testimony 

regarding employment and earning abilities. See Goats v. A.J. Bayless Mkts., 

Inc., 14 Ariz. App. 166, 171 (1971) (“The trial court is in the best position to 

judge the credibility of the witnesses, the weight of evidence, and also the 

reasonable inferences to be drawn therefrom.”).

¶8 Reasonable evidence in the record supports the court’s 

finding that Father was voluntarily underemployed. When an individual 

is found to be underemployed or working below his full earning capacity, 

the superior court may attribute his prior income to him in calculating 

spousal maintenance and child support. See Pullen v. Pullen, 223 Ariz. 293, 

299, ¶ 26 (App. 2009); see also Little v. Little, 193 Ariz. 518, 521, ¶ 6 (1999). 

On this record, the court did not abuse its discretion in finding that Father 

had the ability to earn $35 per hour, or $72,240 annually.

II. Mother’s Income

¶9 Father next argues that the court abused its discretion in 

calculating Mother’s gross income. The court found that Mother had the 

ability to work thirty hours per week at $11.50 per hour. Father argues that

Mother regularly worked forty hours per week and had listed $1,907.67 for 

her gross monthly income on her Proposed Resolution Statement. 

However, the court found that Mother would have the majority of

responsibility for the children, and Father worked in Tucson, which 

precluded him from assisting Mother during the week. Further, one of the 

children has complex medical needs for muscular dystrophy, epilepsy, 

asthma, dysphagia and feeding disorder with G Tube dependent feeding, 

and bilateral hearing loss. The court found that under these circumstances, 

Mother would be precluded from working a full-time schedule. We find 

no abuse of discretion in the court’s findings relative to Mother’s earning 

capacity.

III. Social Security Payments

¶10 Father also argues that the court erred in its consideration of

social security payments Mother received when determining child support.

“The superior court has broad latitude to fashion an appropriate award of 
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Decision of the Court

5

child support.” Nash, 232 Ariz. at 478, ¶ 16. We will uphold the award 

unless it is “devoid of competent evidence.” Jenkins v. Jenkins, 215 Ariz. 35, 

37, ¶ 8 (App. 2007) (citation omitted) (internal quotation marks omitted).

¶11 Mother receives monthly social security payments for one of 

the parties’ children, and the court appropriately deviated from the Arizona 

Child Support Guidelines (“Guidelines”) to account for these payments.

The court found that under the Guidelines, Father would be obligated to 

pay $610 per month for all three of their children. However, because 

Mother receives social security payments to provide for one of their 

children, the court reduced Father’s obligation by one-third, to the amount 

of $400 per month.

¶12 Father claims that the court erred because it did not deduct 

the actual amount of the social security payment from $610 when 

computing Father’s child support obligation. However, Mother receives 

the social security payments to provide for the needs of only one of the 

children; the payments do not account for the needs of the other two 

children. Thus, the court credited the social security payments 

appropriately.

CONCLUSION

¶13 For the foregoing reasons, we affirm. Father requests his 

reasonable attorneys’ fees and costs on appeal. In the exercise of our 

discretion, we decline to grant his request.