In Re the Marriage of Kells

897 P.2d 1366, 182 Ariz. 480, 183 Ariz. Adv. Rep. 21, 1995 Ariz. App. LEXIS 15
CourtCourt of Appeals of Arizona
DecidedJanuary 31, 1995
Docket2 CA-CV 94-0239
StatusPublished
Cited by6 cases

This text of 897 P.2d 1366 (In Re the Marriage of Kells) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Kells, 897 P.2d 1366, 182 Ariz. 480, 183 Ariz. Adv. Rep. 21, 1995 Ariz. App. LEXIS 15 (Ark. Ct. App. 1995).

Opinions

OPINION

DRUKE, Chief Judge.

Two issues are raised in this appeal from the dissolution of the marriage of David and Aleñe Kells. David contends that the trial court’s child support award is unsupported by the evidence; Aleñe contends that the court incorrectly valued David’s business interest. We agree with both contentions and reverse.

CHILD SUPPORT AWARD

David and Aleñe were married in 1977 and have five children. David is a medical doctor, specializing in obstetrics/gynecology, with a gross income at the time of trial of approximately $415,000 annually, or $34,600 per month. Although this monthly income exceeded the Arizona Child Support Guidelines of $12,000 per month, David argued in his post-trial memorandum that the trial court “should apply the Guidelines Basic Child Support obligation calculated from a TWELVE THOUSAND DOLLAR ($12,000) per month income for five (5) children” and limit child support to approximately $2,718 per month. Aleñe, on the other hand, argued to the court that “[b]y extrapolating from the Guidelines, ... [David] would owe a basic child support obligation of approximately $7,824.00” per month. Notwithstanding these arguments, the court ruled that it was “obligated to make an award of child support ‘... based upon the facts of the individual case[,] ... consistent with the theory of the[se] Guidelines and the factors set out in ARS § 25-320,’” (quoting from the Guidelines; emphasis added), and concluded that “a child support award of $5,000 per month for the five minor children is appropriate.” In support of its conclusion, the court found in pertinent part that “[d]uring trial [Aleñe] testified that the children’s needs amount to $9,000 per month.”

On appeal, David contends that Aleñe never gave such testimony, which Aleñe does not dispute and our own review of the record confirms. Accordingly, unless other evidence supports the court’s award, it must be set aside as an abuse of discretion. In re Marriage of Berger, 140 Ariz. 156, 680 P.2d 1217 (App.1983).

Aleñe contends that the court’s award is supported by her spousal affidavit, which shows that she and the children had expenses of over $9,000 per month. Although not offered or admitted in evidence, Aleñe argues that the affidavit could properly be considered by the court because: (1) Rule 6.4(b) of the Maricopa County Local Rules (MCLR), 17B A.R.S., requires the affidavit to be filed when child support will be an issue in a domestic relations trial; (2) the affidavit was “before the court” under MCLR 6.4(d); (3) the affidavit was filed with the pre-trial statement as required by MCLR 6.5(b); and (4) the court could take judicial notice of the affidavit. We find these arguments unpersuasive.

Aleñe first argues that the trial court could properly treat her spousal affidavit as testimony because it “should be considered as a trial affidavit” under MCLR 6.4(b). We disagree. Although MCLR 6.4(b) does bear the heading “Trial Affidavit,” its text simply requires each party to file a spousal affidavit when child support will be an issue at trial. Nothing in the text expressly provides that the mere filing of the affidavit obviates the usual requirements for proof at trial, nor is that reasonably implied by the heading. It simply denotes one of the four circumstances when an affidavit must be filed under MCLR [483]*4836.4.1 In none of those circumstances, except perhaps for default proceedings or uncontested matters, is there any suggestion that the affidavit has any greater evidentiary value than interrogatory answers or deposition testimony, both of which are given under oath but, absent agreement, may not properly be considered by the court without being offered in evidence. See Ariz.R.Civ.P. 32 and 33, 16 A.R.S.; Ariz.R.Evid. 613 and 801(d)(1) and (2), 17A A.R.S.

Aleñe nevertheless argues that the affidavit was “before the court” because MCLR 6.4(d) provides in pertinent part that at trial, “a party may present to the court by way of testimony or amended affidavit any change in that party’s financial circumstances.” The rule is inapplicable here, however, because Alene’s affidavit was never “present[ed] to the court.” Reasonably construed, we believe this language means that the spouse who wants the court to consider the affidavit when child support is in issue must introduce it into evidence, rather than simply filing it with the clerk of the court, as was done here when the pre-trial statement was filed. MCLR 6.4(d) permits evidence of changed financial circumstances to be presented by either testimony or affidavit. If the former, the testimony is offered in evidence and subject to cross-examination. Nothing in MCLR 6.4(d) suggests that any less should be required if such evidence is presented by affidavit, and, as noted above, no lesser evidentiary requirement is established for the affidavit by our rules of evidence.

Aleñe next argues that the court could properly consider the affidavit because MCLR 6.5(d) requires it to be filed with the pre-trial statement when child support will be an issue at trial. For the reasons stated above, this argument is unpersuasive. Unless the affidavit is offered and admitted in evidence, it has no evidentiary value at trial absent the parties’ agreement. No such agreement is asserted here and the record suggests a contrary conclusion. In the pretrial statement, the parties simply listed their affidavits as exhibits along with such other exhibits as the appraisal of the parties’ residence and the business valuations by their respective experts, and during trial, these latter exhibits were all offered and admitted in evidence.

Aleñe further argues that the court properly took judicial notice of the affidavit. We disagree. The court could judicially notice only the procedural fact that the affidavit had been filed, not the truth of its assertions. See Matter of Ronwin, 139 Ariz. 576, 581, n. 4, 680 P.2d 107, 112, n. 4, cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983) (“We take notice that the cases exist, that allegations are made, etc. We cannot and do not take notice of the truth or falsity of specific allegations except as established by final judgment.”); State v. Lynch, 115 Ariz. 19, 22, 562 P.2d 1386, 1389 (App.1977) (proper to take judicial notice of procedural facts reflected in record, but not truth of testimony); Morris K. Udall et al., Arizona Practice: Law of Evidence § 152 (3d ed. 1991). Moreover, even if we assume the court took judicial notice of the affidavit, David was entitled “to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed” under Ariz. R.Evid. 201. This rule further states that “[i]n the absence of prior notification, the request may be made after judicial notice has been taken.” Here, David filed a motion for reconsideration after the court’s ruling, requesting

to reopen solely for the purpose of offering Wife’s deposition transcript which the Court has.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gillette v. Arzola
Court of Appeals of Arizona, 2020
Stein v. Stein
Court of Appeals of Arizona, 2017
Walsh v. Walsh
286 P.3d 1095 (Court of Appeals of Arizona, 2012)
Gersten v. Gersten
219 P.3d 309 (Court of Appeals of Arizona, 2009)
Marriage of Gutierrez v. Gutierrez
972 P.2d 676 (Court of Appeals of Arizona, 1998)
In Re the Marriage of Kells
897 P.2d 1366 (Court of Appeals of Arizona, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
897 P.2d 1366, 182 Ariz. 480, 183 Ariz. Adv. Rep. 21, 1995 Ariz. App. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-kells-arizctapp-1995.