Logo
Call Now(480)305-8300

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

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.

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.
A Google User
A Google User
20:31 20 Sep 17
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.
A Google User
A Google User
21:41 07 Nov 17
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.
Google User
Google User
14:58 04 Oct 17
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.
A Google User
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
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
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
A Google User
17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

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.

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.



What’s Hot – Blog