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Child Support Cannot Be a Percentage of a Parents Income in Arizona | Voted “Best of The Valley”

Posted on : May 9, 2018, By:  Christopher Hildebrand
Child Support Cannot Be a Percentage of a Parents Income in Arizona.

Child Support Cannot be a Percentage of a Parent’s Income in Arizona

The Short Answer

The short answer to whether an Arizona judge may order child support based upon a percentage of a parent’s income is no, an Arizona court cannot simply order a parent to pay a percentage of his or her income for child support according to the Arizona Court of Appeals in the case of Brevick v. Brevick. Instead, a judge must follow the Arizona Child Support Guidelines when establishing child support in Arizona.

The Long Answer

When either a marriage is dissolved in Arizona that involves children conceived from that marriage, or a Paternity Judgment and Order are entered establishing a Father’s rights, the Court will also enter an Order for child support pursuant to the Arizona Child Support Guidelines. In Brevick v. Brevick, 129 Ariz. 51, 628 P.2d 599 (1981), The Arizona Court of Appeals, Division 2, considered factors regarding establishing child support, as well as factors necessary for child support modification when Father appealed the Trial Court’s decision regarding a modification of a child support award.

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.
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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.
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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.
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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!
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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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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.
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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.
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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
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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

Background of the Case

The parties divorced in 1975. Mother was awarded custody of their two children and Father was obligated to pay Mother $175

Child Support Cannot Be a Percentage of a Parents Income in Arizona.

Child Support Cannot Be a Percentage of a Parents Income in Arizona.

per month per child for child support until the children became eighteenyears old or otherwise emancipated. Thereafter, in 1980, Mother petitioned for a modification to increase the amount of the child support award which was granted after a hearing. Effective September 1980, Father’s child support obligation for the two children was to increase from $350 to $400 per month. Effective January 1981, the support obligation was to increase to $435 per month. Effective January 1982, and every January thereafter, the child support for the coming year for the two children was to be set at 30% of Father’s net income from his employment averaged over the preceding twelve months.

 

Upon the emancipation of the first child, the support obligation would become 20% of Father’s net income. On Appeal, Father argued that the Trial Court abused its discretion regarding the child support award for three reasons: (1) there was insufficient evidence upon which to base a finding to justify the modification; (2) the court did not consider all the factors set forth in A.R.S. § 25-320 in ordering the increase; and (3) the court was not authorized by law to base future child support on a percentage of Father’s income. The Court of appeals agreed only with Father’s third argument.

Child Support Modification in Arizona

Arizona Child Support Guidelines.

Arizona Child Support Guidelines.

As set forth under A.R.S. § 25-327, A.R.S. § 25-503 and the Arizona Child Support Guidelines, a prerequisite to modification of a child support order is a showing of changed circumstances which are substantial and continuing. Father argued that the court’s determination that sufficiently changed circumstances existed was not supported by the evidence. On this contention, the Court of Appeals did not agree. The evidence presented at trial showed that since the 1975 dissolution decree the income of each party had increased. The increase in Mother’s income was due to the fact she had become employed. The evidence also showed the current living expenses of the parties and their children.

The increase in the cost of living and its effect as to child support payments was also discussed. Although there was no direct evidence comparing the cost of supporting the children in 1980 with the numbers in 1975, an inference was drawn from the evidence. Mother testified that she thought the original child support award was adequate in 1975 but was no longer an appropriate award. She had been receiving financial assistance from her parents to meet expenses for herself and the children. She presented an accounting of her expenses showing the separate expenses of the children and those she shares with them. Father testified that, in 1975, $350 per month was the absolute maximum he was able to pay. Since his income at the time of modification was substantially greater, that was no longer the case.

In 1975, the children were three and five years old. At the time of the modification hearing, they were eight and ten. The current expenses for the children listed by Mother reflected needs not likely to have existed when they were pre-school age. Such expenses included school tuition, uniforms and supplies, orthodontist and dentist charges, dance lessons, hobbies, and religious needs. The Court of Appeals found the Trial Court’s implicit finding of changed circumstances sufficient to justify modifying the child support award as it was supported by the evidence. Father’s assertion of insufficient evidence was based on the fact that most of Mother’s evidence of her income and expenses came from her testimony. However, the credibility of witnesses is a matter peculiarly within the province of the trier of facts as the Trial Court is able to view the witnesses and gauge their credibility, and since the Trial Court’s conclusion was reasonably supported by the evidence, the Court of Appeals did not disturb its conclusions on this issue.

Calculating Child Support in Arizona.

Calculating Child Support in Arizona.

Father also argued that the court’s increase of the child support award was arbitrary and capricious because it failed to consider all the factors listed in A.R.S. § 25-320. The Court is authorized to order either or both parents to pay an amount reasonable and necessary for the support of their child after considering all relevant factors, including the following: (1) The financial resources and needs of the child; (2) The financial resources and needs of the custodial parent; (3) The standard of living the child would have enjoyed had the marriage not been dissolved; (4) The physical and emotional condition of the child, and their educational needs (5) The financial resources and needs of the noncustodial parent; (6) The medical support plan for the child. The plan should include the child’s medical support needs, the availability of medical insurance or services provided by the Arizona Health Care Cost Containment System and whether a cash medical support order is necessary; (7) Excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common; and (8) The duration of parenting time and related expenses.

Calculation of Child Support in Arizona

Father’s argument that the Court based its decision solely on his income was not supported by the record. The Court received evidence pertaining to the factors listed above and concluded that an increase was appropriate and was not based on Father’s increased income only. The evidence showed that the cost of supporting the children had increased and that although Mother’s income also had increased, she was unable to meet the children’s needs with her income and the support payment. Father’s income had increased from approximately $19,128 to $28,247. The court implicitly found that the children’s cost of support had increased and that Father was capable of paying more. Considering all the necessary factors, the evidence supported such a conclusion.

The Court has broad discretion to determine the appropriate amount of child support and the Court of Appeals will not disturb the Trial Court’s decision if there is any reasonable evidence to support it. The Court of Appeals held that the evidence supported the award of child support of $400 from September through December 1980 and the increase to $435 effective January 1981. Father’s last argument was a challenge to the Trial Court’s provision for child support beginning January 1982 as not authorized by A.R.S. § 25-320(A).

He pointed to the language of the statute which authorizes the court to order a parent “to pay an amount” for child support. He contends that setting his child support obligation as a percentage of his income does not qualify as “an amount.” Here, the Court of Appeals agreed. Although the court set a specific amount for 1981, the provisions effective January 1982 have the effect of eliminating an award of a specific amount and setting a percentage of Father’s net income as his sole support obligation which is beyond the Trial Court’s authorization.

Taking it to the extreme under the terms of this obligation, if Father has no income he is not liable for any child support regardless of his ability to pay. Likewise, if his income greatly increases his liability for his children’s support may exceed their reasonable support needs. Consequently, the percentage of net income award is focused on a single factor, Father’s income, instead of all the factors as required in A.R.S. § 25-320. Further, a support award must be certain and definite based upon present conditions and not made to depend on uncertain contingencies or hypothetical earnings or income. The Trial Court record reflected the concern of both parties over the effect that inflationary trends have on the cost of living and supporting their children.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

 

The Court had previously recognized inflation as a matter of common knowledge and as a proper factor to consider in determining the need for increased child support payments. All that said, the Court of Appeals found that nothing in A.R.S. § 25-320 prevented the Trial Court, in appropriate circumstances, from placing an automatic adjustment on a specific amount to preserve the real value of the award against modification by inflation. Further, most certainly a parent could petition the Court for the purpose of showing that his or her income had not increased sufficiently to enable that person to meet increases in support obligations caused by the adjustments for the changes due to inflation.

However, an award of a percentage of Father’s income will not necessarily reflect the future effects of inflation. The Court of Appeals vacated the provisions dealing with percentage-based child support effective January 1982 and for the percentage-based reduction of child support upon the emancipation of one child. The Court of Appeals affirmed all other provisions for child support and visitation and remanded the matter back to the Trial Court to enter a judgment consistent with its opinion.

If you have any questions regarding child support in Arizona Call the experienced Phoenix and Scottsdale Arizona child support and family law attorneys at Hildebrand Law, PC at (480)305-8300 to schedule your personalized consultation with one of our Arizona child support attorneys.