Child Support Deviation in Arizona
Facts of the Case: Nia v. Nia
Mrs. Nia (“Mother”) appealed the decision of the Maricopa County Superior Court (“lower court”) order modifying Mr. Nia’s (“Father”) child support obligation for the parties’ three (3) common triplet daughters, now adults. The parties’ were divorced in 2009, by Consent Decree (“Decree”), granting Mother and Father joint legal decision-making and equal parenting time. The parties’ further stipulated to Father paying an upward deviation in child support amount of $3,830 per month, initially based on a historical disparity of income favoring Father.
In 2012, Father filed a petition to modify child support, leading to another stipulated agreement between the parties’ modifying the child support amount downward to the sum of $3,500 per month, instead of the $1,100 per the Arizona Child Support Guidelines (“Guidelines”), despite Father’s 2012 gross monthly income of $54,852 per month and Mother’s income at $13,694 per month.
In June 2015, Father filed a second petition to modify child support from $3,500 per month, downward to $406.94 per month, as per the Arizona Child Support Guidelines. The evidence produced at this hearing reflected that Father’s present gross monthly income (in 2015) was $32,783 per month and Mother’s was now $22,489 per month.
After a hearing, the lower court concluded Father had shown a substantial and continuing change of circumstances warranting a review of the child support order. It was determined by the lower court, that pursuant to the Guidelines, Father was obligated to pay $623.84 per month in child support, starting October 1, 2015. The lower court also determined a deviation from the Guidelines was not appropriate under these circumstances.
Father timely filed a Motion to Correct Mistake arguing the order for child support should be effective from the first of the month following the date of service of his petition to modify. The lower court issued an amended final order with child support modification effective July 1, 2015. The lower court, based on Father’s objection, denied Mother’s request to have her witness on finances be present in the courtroom during Father’s testimony. Mother timely appealed.
Appeal Over a Requested Child Support Deviation
In Arizona, the “decision to modify an award of child support rests within the sound discretion of the trial court and, absent an abuse of that discretion, will not be disturbed on appeal. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999). The Appellate Court will also accept a lower court’s finding regarding facts unless they are “clearly erroneous”, but “will draw its own legal conclusions from facts found or implied in the judgment”. Nash v. Nash, 232 Ariz. 473, 476, ¶ 5 App. 2013).
Mother has raised five (5) legal arguments to support her claim for reversal, which include the following:
1. finding a substantial and continuing change of circumstance existed to justify a modification of the 2012 Order; and
2. applying the child support Guidelines without considering the parties’ previous agreements for a deviation; and
3. determining that Mother had the burden to prove an upward deviation was in the Children’s best interest; and
4. applying the child support modification retroactively without order, Mother be reimbursed for expenses paid pursuant to the 2012 Order; and
5. the exclusion of Mother’s expert witness from the courtroom during Father’s testimony.
Appeal Regarding Substantial and Continuing Change in Circumstances
The mother initially claims the lower court erred in finding a substantial and continuing change of circumstances existed to justify modification of child support paid by Father; and by failing to ‘consider the best interests of the minor children in determining a change in circumstances.’ However, Arizona law requires that a child support order can only be modified ‘on a showing of changed circumstances that are substantial and continuing.’ See Arizona Revised Statute (A.R.S.) § 25-327(A); [also citing Guidelines § 24(A), “[E]ither parent …may ask the court to modify a child support order upon a showing of a substantial and continuing change of circumstances”.
The reviewing court found that the lower court retains the sound discretion to determine whether changed circumstances exist to warrant modification of an award. Whether such a change occurred is a question of fact, allowing the lower court to retain ‘the sound discretion’ to determine whether changed circumstances exist to warrant modification of an award, and the Guidelines do not replace the exercise of the trial court discretion; they focus it.
In this case, the lower court reviewed and considered several circumstances that would be appropriate to modify the 2012 support Order, including Father’s decreased income and Mother’s increase in income, as well as, Mother’s claim that Father’s alleged business expenses were ‘de minimus’ and reimbursements of said expenses was not counted toward income. Mother also claims, Father’s income remains above the $20,000 maximum set forth in the Guidelines for calculating child support and therefore, it has not ‘substantially and continually’ changed.
However, the court reviewed the parties 2013 and 2014 tax returns, finding that Father’s income had decreased from $441,636 in 2013 to $382,383 in 2014, because of a reduction in new dental clients, supporting the lower court’s decision that there was a substantial and continuing change in circumstances. Finally, the court decided that the business expenses were not ‘significant’, nor did the payments and reimbursements for said business expenses reduce Father’s living expenses, and Father had not ‘sheltered’ his income.
Mother’s income also increased from $241,421 in 2013 to $271,457 in 2014, and she reported income of $225,200 for the first eight months of 2015, reducing the monthly income gap from $41,158 in 2012 to $10,294 in 2015, which Mother did not dispute. Therefore, the reviewing Court found no abuse of discretion in the lower court finding of substantial and continuing change of circumstances to warrant modification of Father’s child support obligation.
Request for Upward Deviation in Child Support
Mother argued the lower court erred by ordering a Guideline support amount be paid by Father because she believed the evidence demonstrated an upward deviation was appropriate and just. Mother also claims error because the lower court failed to consider its own findings underlying the 2012 Order, and its upward deviation of the child support amount therein. In Arizona, parents may be ordered to ‘pay an amount reasonable and necessary for support’ of the children’s ‘reasonable needs’. A.R.S. § 25-320(A). Moreover, if the amount calculated under the Guidelines is adequate under the circumstances, the lower court need not consider a deviation allowed by the Guidelines.
However, A.R.S. § 25-320 requires the lower court to follow the Guidelines and consider factors of A.R.S. § 25-320(D) only if it intends to deviate from the Guidelines. The lower court found the income of each parent to be significant and substantially similar. The court determined that the children’s ‘reasonable needs’ were being adequately met without any additional financial assistance (i.e. upward deviation) being granted. This court also found that the children enjoy a very comfortable lifestyle…that will continue unabated’ with Father’s payments based on the Guideline amount, without any upward deviation being needed. There is no evidence of any special needs of the children, no extraordinary education or any extraordinary medical expenses that would require a deviation.
However, the record supports Father’s position by showing he purchased clothes, meals, provided spending money and took the children on vacations. The Court found that both parents incurred similar expenses for the children and that Father paid one-half of the extracurricular activities for the children in the past. The reviewing court relied on A.R.S. § 25-503(E) to show that, “[A]n order of child-support ‘modification… [is] effective on the first day of the month following notice of the petition for modification”. Father served his petition for modification on June 11, 2015. The lower court ordered the child support modification to begin on July 1, 2015. The reviewing court found no error had occurred and the new support order would begin July 1, 2015.
No Presumption for an Upward Deviation in Child Support
The Appellate Court ruled that once the superior court determines there is a substantial and continuing change of circumstances, the lower court must apply the Arizona Child Support Guidelines, and then decide whether to deviate from that amount calculated pursuant to the Guidelines. The court also ruled that there is not a presumption for deviation based on a previously deviated order.
Moreover, if the lower court finds that the application of the Guidelines would be inappropriate or unjust, it must make findings as to all relevant factors set forth in A.R.S. § 25-320(D). Finally, the court ruled that, to deviate from the amount calculated pursuant to the Guidelines, the court must determine both the deviation is appropriate and that it is in the best interest of the children. The Court of Appeals affirmed the holdings of the lower court in this case.
If you have a question about child support in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix child support Arizona attorneys at (480)305-8300.
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