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Mead v. Holzman8/29/2000
the amount of support is not, by itself, contrary to the best interests of the child,
3. The court makes written findings regarding 1 and 2 above,
4. The court shows what the order would have been without the deviation, and
5. The court shows what the order is after deviating.
Thus, section 17 provides the trial court with the flexibility to deviate from the Guidelines when unique circumstances of a particular case so demand. Moreover, it is prudent to make any needed adjustments after application of the Guideline calculations as the court can then assess the impact of any atypical situation, such as the existence of a significant amount of tax-free income, in context with other features of the case. Finally, because the amount of non-taxed income may be insignificant, having no impact on the final child support order, judicial economy favors making necessary adjustments in some cases under section 17 rather than accounting for every disparity in a section 4(a) calculation.
It appears from its order that the trial court believed it was constrained from making any adjustments to the child support order due to the tax-free status of Holzmann's income because section 4(a) does not provide for imputation of a pre-tax income. No mention is made by the court of its ability to deviate from the Guidelines under section 17. Holzmann argues that Mead was granted generous concessions in the child support order and that any additional adjustments are therefore unjustified. Holzmann may be correct, but this is a determination that must be made by the trial court with the knowledge that it can consider Holzmann's tax status in determining whether deviations must be made under section 17 of the Guidelines. For this reason, we remand this case to the trial court to consider whether any deviations must be made to the child support order under section 17. We do not intend by this remand to suggest that the trial court must modify its prior order to account for the tax-free status of Holzmann's disability income. We instead hold that if the court determines that application of the Guidelines would be inappropriate or unjust in this case due to the tax-free status of Holzmann's disability income, the court must deviate from the Guidelines in accordance with section 17.
C. Attorneys' Fees
Both parties request an award of attorneys' fees on appeal. We deny both requests for attorneys' fees on appeal, "deferring this request to the trial court's discretion pending resolution of the matter on the merits." San Tan Irrigation District v. Wells Fargo Bank, 313 Ariz. Adv. Rep. 18, 20, 18 (App. 2000).
Conclusion
We hold that the trial court did not err by refusing to impute a pre-tax income to Holzmann in calculating his gross income under section 4(a) of the Guidelines. However, because the record reflects that the trial court believed it could not consider the tax-free status of Holzmann's income in entering its child support order, we remand this case. If the court determines on remand that application of the Guidelines would be inappropriate or unjust in this case due to the tax-free status of Holzmann's disability income, the court must deviate from the Guidelines in accordance with section 17.
ANN A. SCOTT TIMMER, Judge
CONCURRING: REBECCA WHITE BERCH, Presiding Judge, RUDOLPH J. GERBER, Judge
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