JOHNSEN, Chief Judge.
¶ 1 This is an appeal from a child-support order entered in the dissolution of a marriage of two persons of considerable wealth. We hold the superior court in such a case may not limit child support to an amount required to meet the children's minimal needs. To the contrary, child support should permit the children of such a marriage to continue to enjoy the reasonable benefits they had while their parents were married. Because the superior court did not apply this principle, we vacate and remand its child-support order. Addressing two post-decree orders also at issue on appeal, we affirm an order prohibiting the parents from posting disparaging remarks about each other on social media, but vacate a sua sponte order barring the parents from disclosing any document or information in any document filed in the proceeding.
¶ 2 Stephen John Nash ("Father") and Alejandra Amarilla Nash ("Mother") married in 2005. In 2010, when Father filed for dissolution, the parties had an infant son and two six-year-old daughters. Although the parties resolved issues of custody and parenting time by agreement, they could not agree on child support, and the superior court held a one-day trial on the issue.
¶ 3 The parties jointly asked the court to close the trial to the public, and it did so. Shortly after the court issued its judgment and decree, it reiterated a prior sua sponte order that sealed all proceedings and sua sponte ordered that "[d]ocuments, records, and transcripts sealed by the Court, and information contained in the sealed material, may not be disseminated to any third party without an Order of the Court." The court also affirmed a parenting coordinator's report that rebuked Mother for "tweeting" a
¶ 4 We consolidated Mother's timely appeals of the decree and the post-trial orders. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (West 2013) and -2101(A)(1), (2) (West 2013).
¶ 5 "[W]e will not disturb a court's award of child support absent an abuse of discretion." Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 21, 202 P.3d 481, 486 (App.2008). We will accept the court's findings of fact unless they are clearly erroneous, but we draw our own legal conclusions from facts found or implied in the judgment. McNutt v. McNutt, 203 Ariz. 28, 30, ¶ 6, 49 P.3d 300, 302 (App.2002).
¶ 6 Pursuant to A.R.S. § 25-320(A) (West 2013), the superior court "may order either or both parents owing a duty of support to a child ... to pay an amount reasonable and necessary for support of the child." In subpart (D) of the same statute, the legislature directed the supreme court to "establish guidelines for determining the amount of child support." A.R.S. § 25-320(D). The result is the Arizona Child Support Guidelines ("Guidelines"), Appendix to A.R.S. § 25-320 (West 2013). Id. "The amount resulting from the application of [the] guidelines is the amount of child support ordered unless a written finding is made, based on criteria approved by the supreme court, that application of the guidelines would be inappropriate or unjust in a particular case." A.R.S. § 25-320(D).
¶ 7 The Guidelines establish a framework for determining the amount of child support "consistent with the reasonable needs of children and the ability of parents to pay." Guidelines, § 1. The premise of the Guidelines is the Income Shares Model, which itself is based on two principles: (1) "The total child support amount approximates the amount that would have been spent on the children if the parents and children were living together," and (2) "Each parent contributes his/her proportionate share of the total child support amount." Id., Background.
¶ 8 Attached to the Guidelines is a "Schedule of Basic Support Obligation" ("Schedule"), which sets out presumptive amounts of child support, called the "Basic Child Support Obligation," derived from the parents' combined gross incomes.
¶ 9 As applicable here, after determining the Basic Child Support Obligation from the Schedule, the superior court then must add to that figure "the cost of the children's medical, dental and/or vision insurance coverage, if any" and also may add childcare costs "appropriate to the parents' financial abilities" and "reasonable and necessary" education expenses "when such expenses are incurred by agreement of both parents or ordered by the court." Id. § 9(A), (B)(1), (2). Except in the event of a court-ordered deviation, the resulting sum is the "Total Child Support Obligation," for which the parents share responsibility in proportion to their respective gross incomes. Id. § 10.
¶ 10 Pursuant to the Schedule, when, as here, the parents' combined monthly gross income is $20,000 a month or more, the Basic Child Support Obligation for three children is $2,795. As noted above, to this amount, the court must add certain medical and dental expenses (and may add childcare and education expenses) to derive the Total Child Support Obligation.
¶ 11 The decree in this case acknowledges the children's monthly medical and dental insurance expenses of $1,314 and education expenses of $1,750, and, according to the record, monthly childcare expenses were $2,000. But the record does not show that the court added those amounts to the Basic Child Support Obligation, as the Guidelines require. The child support worksheet the court completed did not take into account any of those expenses. Instead, the worksheet endorsed the presumptive Basic Child Support Obligation amount of $2,795 as the Total Child Support Obligation without recognizing any insurance, education and/or childcare expenses.
¶ 12 As noted, the Guidelines also require the court to divide the Total Child Support Obligation between the two parents based on their proportionate gross monthly incomes. Although the superior court imputed to Mother a specific income in excess of $20,000 a month, it did not determine Father's monthly gross income; as a result, it could not and did not determine the proportionate relationship between the parties' respective gross incomes.
¶ 13 Without making a finding of each parent's income and then allocating the Total Child Support Obligation in proportion to their respective incomes, as the Guidelines instruct, the decree ordered Father to continue to pay the children's medical and dental insurance expenses and their educational expenses. The decree then continued:
The decree does not clarify the nature of the "other costs and expenses divisible between the parties" to which the final provision above applies, and at oral argument before this court, neither party expressed a clear understanding of the meaning of the provision. The parties do agree, however, that beyond the responsibility for insurance, education, health-care and parenting-coordinator expenses recited above, the decree imposes no child-support obligations on Father.
¶ 14 Although Mother also takes issue with the superior court's rejection of her request for an upward deviation in child support (see infra ¶¶ 16-20), she argues the court erred in the first instance by failing to follow the analytical process set out in the Guidelines. See ¶¶ 8-9 supra. Mother contends the court erred by failing to determine whether childcare costs should be added to the Basic Child Support Obligation in calculating the Total Child Support Obligation, by failing to determine Father's monthly gross income, and then by failing to allocate the Total Child Support Obligation between the parties in proportion to their monthly gross incomes.
¶ 15 As Mother argues, the record does not demonstrate that the superior court followed the analytical process dictated by the Guidelines, and to the extent the court failed to follow that process, it erred. See Little v.
¶ 16 Mother argues the superior court also erred by failing to grant an upward deviation in child support. The Guidelines provide that a parent seeking more than the presumptive child-support amount derived from the Guidelines and the Schedule "shall bear the burden of proof to establish that a higher amount is in the best interests of the children." Guidelines, § 8. The superior court has broad latitude to fashion an appropriate award of child support, and we will uphold the award unless it is "devoid of competent evidence." Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App.2007) (quotation omitted).
¶ 17 At trial, Mother called Michael Miskei, a certified public accountant, who testified that based on the family's historical expenditures, Mother was entitled to receive $22,500 in monthly child support.
¶ 18 As the decree states, Mother had the burden to prove that her request for a higher amount of child support was in the children's best interests. Contrary to the statement in the footnote, however, nothing in the Guidelines or other law provides that a parent who does not prove every penny of a specific requested amount of upward deviation is entitled to no deviation whatsoever. Instead, in asking the court to establish a child-support amount in excess of the amount derived from the Schedule, Mother only had to prove that some upward deviation was in the best interests of the children. For its part, as the trier of fact, the superior court shall grant whatever amount of upward deviation it finds is supported by the evidence under the applicable legal principles.
¶ 19 Although Father argues that notwithstanding the footnote, the superior court went on to conclude that Mother failed to prove any amount of upward deviation was appropriate, the decree does not so state. To the contrary, the decree supports Mother's assertion that, consistent with the footnote, the court denied any upward deviation because it found she had not proved that the best interests of the children required the specific amount of upward deviation she sought. For example, in analyzing the key factor under the Guidelines, § 8, of "the needs of the children in excess of the presumptive amount," the decree concludes,
¶ 20 Because we cannot determine that the court gave due consideration to Mother's request for an upward deviation in child support, we vacate the decree's treatment of that issue and remand for further proceedings consistent with this decision. Below, we address certain issues that may arise again on remand.
¶ 21 Although the superior court concluded that Miskei's qualifications and testimony did not satisfy Arizona Rule of Evidence 702, it nevertheless considered Miskei's testimony, but ultimately declined to accept his opinions because it found they were "neither reliable nor correct."
¶ 22 In considering Mother's request for an upward deviation in child support pursuant to § 8 of the Guidelines, the superior court heard testimony by Mother and Father relating to "the standard of living the children would have enjoyed if the parents and children were living together [and] the needs of the children in excess of the presumptive amount." Guidelines, § 8. On appeal, Mother argues the court erred because it considered only whether the presumptive child-support amount was sufficient to satisfy the children's "basic needs." She points to the conclusion in the decree that, given both parents' resources, "the basic needs of the children will be more than adequately met without an upward deviation." As Mother argues, in explaining its analysis, the court described this factor as whether "additional money is needed to provide for the basic standard of living for the minor children."
¶ 23 Under the circumstances presented here, to the extent the court rejected an upward deviation in child support because it concluded the presumptive amount satisfied the children's basic needs, it erred. In determining child support, the superior court must consider the reasonable needs of the children in light of the parents' resources. In determining whether an upward deviation in child support is appropriate in a case such as this, the court must give considerable regard to the reasonable benefits, beyond their "basic needs," accorded to the children during the marriage. See Guidelines, Background ("The total child support amount approximates the amount that would have been spent on the children if the parents and children were living together."); id. ¶ 8.
¶ 24 Even though the court in this case rejected the opinions of Mother's expert witness, it received considerable other evidence of the expenses of the parents' respective households in Arizona and elsewhere. Both parties agreed they wanted to continue to expose their children to diverse cultures and cultural events. While travel expenses were
¶ 25 Expenses associated with international travel and households such as those of these parties usually are not relevant to the child-support needs of children in less affluent households. But in deciding child support after the dissolution of marriages such as this one, involving significant wealth, the superior court must consider the expense of allowing children who have enjoyed such benefits to continue to receive them after the dissolution.
¶ 26 As other state courts have concluded, in such a situation, the court must look beyond the "basic necessities of survival" because children are entitled to share reasonably in their parents' economic good fortune. See Miller v. Schou, 616 So.2d 436, 438-39 (Fla.1993); accord Hansel v. Hansel, 802 So.2d 875, 882-83 (La.App.2001) (correct standard is pre-divorce standard, not "basic needs"); Isaacson v. Isaacson, 348 N.J.Super. 560, 792 A.2d 525, 537, 539 (N.J.Super.A.D.2002) (beyond bare necessities, a wealthy parent must "share with the children the benefit of his financial achievement," including reasonable but "non-essential items" such as "tutoring, summer camps, sports clinics, music or art lessons, vacations [and] study abroad") (quotation omitted); Montgomery v. Montgomery, 481 N.W.2d 234, 236 (N.D.1992) ("needs of a child in a family with substantial income are more expansive because of the standard of living the family has enjoyed") (quotation omitted); Branch v. Jackson, 427 Pa.Super. 417, 629 A.2d 170, 171 (1993) ("reasonable needs of a child whose parent or parents are wealthy may well include items which would be considered frivolous to parents who are less well off"); Harris v. Harris, 168 Vt. 13, 714 A.2d 626, 633 (1998) (needs of affluent children grow along with their parents' good fortune).
¶ 27 In declining to grant Mother's request for an upward deviation, the superior court stated it accepted Father's contention that "overindulging the children is not in their best interest." We do not mean to say that the court must provide child support that matches historical spending patterns, dollar-for-dollar. See In re Patterson, 22 Kan.App.2d 522, 920 P.2d 450, 455 (1996) ("no child, no matter how wealthy the parents, needs to be provided more than three ponies"). Because the touchstone always is the best interests of the child, a child's share in the good fortune of his or her parents must be subject to the limitation that the award be "consistent with an appropriate lifestyle." Miller, 616 So.2d at 439; see also Isaacson, 792 A.2d at 539 (supporting parent has the "right to participate in the development of an appropriate value system for a child" by limiting expenses to those that are reasonable). Under circumstances such as these, the court may conclude that the pre-dissolution lifestyle of the children need not be precisely replicated, particularly when, as here, one parent persuasively argues in favor of more modest conditions.
¶ 28 Finally, the superior court may not avoid this analysis by simply concluding that the parent seeking the upward deviation has sufficient resources by herself to provide the children the lifestyle they enjoyed during the marriage. The issue is not whether the parent who seeks the upward
¶ 29 The parties' joint custody agreement, which the court approved, included the following language:
¶ 30 The day the decree issued, Mother used her Twitter account to "tweet" a biting criticism of Father's integrity, the specifics of which are not relevant here. A few days later, at Father's request, the court-approved parenting coordinator issued the following recommendation:
¶ 31 The superior court issued the following order adopting the parenting coordinator's recommendations:
Mother argues the order violates her First Amendment right to free speech. We review alleged constitutional violations de novo. State v. McGill, 213 Ariz. 147, 159, ¶ 53, 140 P.3d 930, 942 (2006).
¶ 32 The order prohibits the parties from posting "disparaging comments" about each other in social media. Prior restraints on speech are the most serious and least tolerable infringement on First Amendment rights. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Although not all prior restraints are invalid, they come with a heavy presumption
¶ 33 Orders barring a parent from disparaging the other in front of the children are common in dissolution matters. See, e.g., In re Marriage of Hartmann, 111 Cal.App.4th 1247, 111 Cal.Rptr.3d 242, 245 (2010); In re Marriage of Olson, 69 Wn.App. 621, 850 P.2d 527, 532 (1993). Nevertheless, general concern for the best interests of the children will not necessarily allow a court to broadly restrain a parent from making disparaging comments about the other to third parties. See, e.g., In re K.D., 929 N.E.2d 863, 871-72 (Ind.App.2010) (reversing as overbroad an order barring mother from talking to "any media source or others" about allegations in custody case, citing lack of evidence that child "would suffer if Mother continued to talk to the media"); In re T.T., 18 Neb.App. 176, 779 N.W.2d 602, 621 (2009) (vacating order barring parents from disclosing information about their child for lack of evidence "to satisfy the State's heavy burden to justify this prior restraint on free speech"); see generally Brown v. Entm't Merchs. Ass'n, ___ U.S. ___, 131 S.Ct. 2729, 2736, 180 L.Ed.2d 708 (2011) (although government "possesses legitimate power to protect children from harm," "that does not include a free-floating power to restrict the ideas to which children may be exposed").
¶ 34 Mother argues the order at issue here cannot survive constitutional scrutiny. But in the joint custody agreement that the court entered as an order upon their request, she and Father agreed to certain restrictions on their speech by pledging to "model respect for the other parent in their interactions with the children" and not to "disparage the other party to the children." Mother argues the order at issue goes beyond her agreement not to disparage Father in comments made directly to the children. As she argues, the order encompasses comments she might make to others outside the presence of the children, by way of Twitter or any other social medium.
¶ 35 We take judicial notice, however, of the fact that, depending on the circumstances, comments Mother posts on social media about Father may not remain private but may make their way to the children, perhaps in very short order.
¶ 37 Mother also challenges the court's sua sponte order that "[d]ocuments, records, and transcripts sealed by the Court, and information contained in the sealed material, may not be disseminated to any third party without an Order of the Court." Not only does the order bar either party from disclosing copies of any court filing, it also prevents them from discussing the outcome of the proceeding or disclosing any information contained in documents, records or transcripts without prior court approval. It broadly applies to all such information, without regard to its source and without identifying any significant interest sought to be protected.
¶ 38 Because the order preemptively forbids speech concerning a public proceeding, it is a classic prior restraint on speech. See, e.g., Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). Father does not argue the order is required to protect his interest in a fair trial. Cf. Neb. Press Ass'n, 427 U.S. at 570, 96 S.Ct. 2791 (order prohibiting media accounts of criminal proceeding invalid on First Amendment grounds). Instead, Father argues the order is a "logical extension" of stipulations the parties entered prior to trial asking the superior court to seal particular filings.
¶ 39 But the order at issue bars disclosure of any matter in the court's record, not just documents the parties agreed would be sealed or kept confidential. Moreover, Father does not point to any stipulation by which the parties agreed not to disclose the outcome of the dissolution proceeding or, more broadly, any information contained in any filing they made in the proceeding. Nor does Father identify any specific information contained in the court's file whose disclosure would threaten the best interests of the children or any factual finding by the court that would justify the order.
¶ 40 Pursuant to Arizona Rule of Family Law Procedure 13(D), the records relating to a dissolution proceeding "shall be maintained and disclosed in accordance" with Rule 123(c)(1) of the Rules of the Arizona Supreme Court, which in turn provides that court records "are presumed to be open to any member of the public for inspection."
¶ 41 To the extent the order at issue bars the parties from disclosing the decree or any other filings made in the case, it fails because it is unsupported by the findings that Rule 13(D) or Rule 123(c)(1) of the Arizona Supreme Court requires. Moreover, to the extent the order bars the parties from disclosing any information contained in any court filing, it cannot withstand scrutiny under applicable First Amendment principles. We therefore vacate the order.
¶ 42 For the reasons stated above, we vacate the decree insofar as it addresses child support. We affirm the order the superior court entered restricting the parties' comments about the other on social media, but vacate its order barring the parties from disclosing any information or document in the court's file. We deny both parties' requests for attorney's fees incurred in this appeal pursuant to A.R.S. § 25-324(A) (West
CONCURRING: SAMUEL A. THUMMA, Presiding Judge and MICHAEL J. BROWN, Judge.
