Burden of Proof on a Modification of Child Support Case
Posted on : September 13, 2016, By: Christopher Hildebrand
Burden of Proof on a Modification of Child Support Case
In the case of Lambesis vs. Lambesis, the parties were divorced in 2013. Father was ordered to pay Mother $100.00 per month in child support to Mother. Father subsequently filed a Petition to Modify Child Support requesting the court order Mother to pay him child support. The mother requested a hearing on Father’s Petition to Modify Child Support and asked the court to increase Father’s child support to $123.00 per month.
An evidentiary hearing was held and the court increased Father’s child support obligation to $149.30 per month. Father filed a Motion for a New Trial arguing Mother did not disclose her financial documentation in a timely manner. He also argued the court’s erred in its’ child support calculations.
Burdens of Proof in a Modification of Child Support Case.
The court denied Father’s Motion for New Trial and ordered Father to pay Mother’s attorney fees incurred in the modification action. Father filed a Motion for Reconsideration, which was also denied. Father then appealed the trial court’s decision to the Arizona Court of Appeals.
Father filed his opening brief, Mother filed her response, and father filed his reply in the Arizona Court of Appeals addressing the issues on appeal. Mother, however, filed a Motion to Strike Father’s Reply Brief on the basis that it raised new issues not raised in Father’s opening brief.
The Arizona Court of Appeals agreed with Mother and ruled that it will not consider issues or evidence not raised in Father’s Opening Brief. Father’s Motion for a new trial was denied. He contends this decision was in error due to Rule 83 of Arizona Rules of Family Law Procedure, which he states would entitle him to “conduct a thorough review of the information brought forth”.
He argues he was not provided the opportunity to argue or “vet” any relevant information. He feels that as a result of these errors, the family court was led to assume information presented was accurate when it was not. Prior to the evidentiary hearing, the parties met and agreed on what issues were in dispute: 1) Mother’s income and 2) Mother’s child care costs.
Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
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Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
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Child Support Obligation is Affected by Childcare Expenses
Father states that the court should consider the full-time working potential of Mother without deducting work-related childcare costs. His calculations of Mother’s gross monthly income is $5,950. Mother’s affidavit of financial information summarized her position and was received by Father in a timely manner. On appeal, the record suggests that Mother did not fully comply with pretrial disclosure, as required by the court, and produced some information late.
Mother’s pay stubs were admitted into evidence at trial without objection from Father. They reflected her year-to-date income. This late disclosure was not addressed at the hearing, nor was it cited in Father’s Motion for New Trial. This issue was first raised on appeal, therefore the Court of Appeals of Arizona will not address Father’s argument that the late disclosure of these documents impaired Father’s ability to properly prepare and challenge Mother’s evidence regarding her income or the court’s findings based on her income.
As evidence of childcare costs, Mother provided checks written to the babysitter. Father objected, claiming this was not an accurate representation of Mother’s childcare costs. The family court admitted them as evidence stating the court would hear testimony from the parties on that issue.
The submission of Mother’s calculations (including childcare costs represented by the checks) was submitted days after the Affidavit of Financial Income was provided to Father. Father claimed he was not provided with enough time to figure out Mother’s position in relation to childcare costs.
He insisted there was no evidence to support her claimed child care expenses. His arguments were addressed by the court and then advised that there was evidence on the record indicating that Mother did work on the days she claimed childcare expenses.
The burden of Proof Falls on the Individual Seeking to Modify Child Support
The court came to the conclusion that as Father filed the request for modification, he bears the burden of proof. They invited him to ask additional questions, to which Father replied that he had child care expenses as well. The court explained that as Father’s child care costs were not included in the position statement at the beginning of the hearing and agreed upon as an item in dispute, they were not something before the court.
Millstones of Proof Modification of Child Support Case in Arizona.
In contradiction to the court’s ruling, Father proceeded to testify that he had $3,000 in childcare costs in 2013 during the couples’ separation. The court reminded him that his childcare expenses were not currently a contested issue to be considered. After considering the evidence, the court defined Mother’s monthly income as $5,443.17. After excluding three checks as non-work related child care, the child care expenses were determined as $168.30 per month. No findings were made regarding Father’s child care expenses.
Using the Child Support Worksheet, the court found Father’s child support obligation to be $149.30 per month. In Father’s Motion for New Trial, he argued that the court’s calculations were incorrect. He also argued regarding the spirit of fairness of considering Mother’s childcare costs while disregarding Father’s testimony of his own childcare costs in 2013, 2014 and 2015 (of which there is no evidence of him paying).
As no new evidence was presented on appeal, The Arizona Court of Appeals relied upon the family court’s examination of existing evidence regarding Father’s claims that late disclosure left him without adequate time to prepare. The Arizona Court of Appeals finds that the family court did not abuse its discretion in not considering child care expenses of which there was no evidence.
They also found that as the presented evidence supported the family court’s determination of Mother’s childcare expenses, the appeals court upholds the family court’s denial of Father’s Motion for New Trial. The appeals court also upholds the award of attorney fees to Mother finding that the family court acted within its discretion in determining financial disparity and reasonableness of the parties’ positions.
In requesting the allocation of parenting coordinator fees consistent with child support percentages, the family court agreed with Mother’s argument that the “discretionary credit” for the support of Father’s infant son with his current wife should be considered when allocating parenting coordinator fees as Father lives with the infant’s mother, who contributes to the support of Father’s new child, but whose income is not included or considered as a part of the child support worksheet.
Father argued that the court was not using “updated” financial information and that the allocation should be proportionate to incomes. A.R.S. Section 25-406(B) states that costs for court-ordered parenting coordinators be allocated based on “financial circumstances” of the parties. The family court has discretion in determining the allocation of fees between the involved parties.
The Court of Appeals of Arizona finds that the family court did not abuse its discretion on this matter. Mother was awarded her attorney’s fees on appeal. The Arizona Court of Appeals affirmed the family court’s award of attorney’s fees to Mother, the award of child support, denial of Motion for New Trial, and allocation of parenting coordinator fees.