Effect of Filing an Affidavit of Financial Information With the Court in Arizona
The Short Answer
The short answer to the question of what is the effect of filing an Affidavit of Financial Information with the court is that the document has no evidentiary value and you still must meet the evidentiary requirements to move that Affidavit of Financial Information into evidence during a trial because the court can only take judicial notice that it was filed but cannot take judicial notice of the contents of that Affidavit of Financial Information.
The Long Answer
In re the Marriage of Kells, 182 Ariz. 480, 897 P.2d 1366 (1995), raised two issues on an appeal from a dissolution of marriage. Father contended trial court’s child support award was unsupported by the evidence; Mother contended the court incorrectly valued Father’s business interest. The Court of Appeals agreed with both parties for once.
A Court Cannot Take Judicial Notice of the Contents in a Financial Affidavit
The parties married in 1977 and have five children. Father was (and presumably still is) a medical doctor, specializing in obstetrics/gynecology, with a gross income at the time of trial of approximately $415,000 annually, or $34,600 per month. Although this monthly income exceeded the Arizona Child Support Guidelines of $12,000 per month (that figure is now $20,000.00 per month), Father argued in his post-trial memorandum that the trial court “should apply the Guidelines Basic Child Support obligation calculated from a TWELVE THOUSAND DOLLAR ($12,000) per month income for five (5) children” and limit child support to approximately $2,718 per month.
Mother, on the other hand, argued to the court that “[b]y extrapolating from the Guidelines, … [Father] would owe a basic child support obligation of approximately $7,824.00” per month. Notwithstanding these arguments, the court ruled that it was “obligated to make an award of child support `… based upon the facts of the individual case[,] … consistent with the theory of the Guidelines and the factors set out in ARS § 25-320,'” and concluded that “a child support award of $5,000 per month for the five minor children was appropriate.” In support of its conclusion, the court found in pertinent part that “[d]uring trial [Mother] testified that the children’s needs amount to $9,000 per month.”
The Child Support Appeal
On appeal, Father contended that Mother never gave such testimony, which Mother did not dispute, and the Court of Appeals review of the record confirmed so. Accordingly, unless other evidence supports the court’s award, it must be set aside as an abuse of discretion. Mother contends the court’s award was supported by her spousal affidavit, which showed that she and the children had expenses of over $9,000 per month.
Although not offered or admitted in evidence, Mother argued the affidavit could properly be considered by the court because: (1) Rule 6.4(b) of the Maricopa County Local Rules (MCLR), 17B A.R.S., requires the affidavit to be filed when child support will be an issue in a domestic relations trial; (2) the affidavit was “before the court” under MCLR 6.4(d); (3) the affidavit was filed with the pretrial statement as required by MCLR 6.5(b); and (4) the court could take judicial notice of the affidavit.
The Court of Appeals was not as persuaded as Mother was with her own argument. Mother first argued that the trial court could properly treat her spousal affidavit as testimony because it “should be considered as a trial affidavit” under MCLR 6.4(b). The Court of Appeals didn’t think so. Although MCLR 6.4(b) does bear the heading “Trial Affidavit,” its text simply requires each party to file a spousal affidavit when child support will be an issue at trial.
Nothing in the text expressly provides that the mere filing of the affidavit obviates the usual requirements for proof at trial, nor is that reasonably implied by the heading. It simply denotes one of the four circumstances when an affidavit must be filed under MCLR 6.4. In none of those circumstances, except perhaps for default proceedings or uncontested matters, is there any suggestion that the affidavit has any greater evidentiary value than interrogatory answers or deposition testimony, both of which are given under oath but, absent agreement, may not properly be considered by the court without being offered in evidence.
Mother nevertheless argued that the affidavit was “before the court” because MCLR 6.4(d) provides in pertinent part that at trial, “a party may present to the court by way of testimony or amended affidavit any change in that party’s financial circumstances.” The rule is inapplicable here, however, because Mother’s affidavit was never “present[ed] to the court.”
Reasonably construed, the Court of Appeals believed this language meant that the spouse who wants the court to consider the affidavit when child support is in issue must introduce it into evidence, rather than simply filing it with the clerk of the court, as was done in this case when the pretrial statement was filed. MCLR 6.4(d) permits evidence of changed financial circumstances to be presented by either testimony or affidavit.
If the former, the testimony is offered in evidence and subject to cross-examination. Nothing in MCLR 6.4(d) suggests that any less should be required if such evidence is presented by affidavit, and, as noted above, no lesser evidentiary requirement is established for the affidavit by the Arizona Rules of Evidence.
Mother next argued the court could properly consider the affidavit because MCLR 6.5(d) requires it to be filed with the pretrial statement when child support will be an issue at trial. For the reasons stated above, this argument was unpersuasive. Unless the affidavit is offered and admitted in evidence, it has no evidentiary value at trial absent the parties’ agreement.
No such agreement is asserted in this case and the record suggests a contrary conclusion. In the pretrial statement, the parties simply listed their affidavits as exhibits along with such other exhibits as the appraisal of the parties’ residence and the business valuations by their respective experts, and during the trial, these latter exhibits were all offered and admitted in evidence.
Mother then argued that the trial court properly took judicial notice of the affidavit. That argument missed with the Court of Appeals as well. The court could judicially notice only the procedural fact that the affidavit had been filed, not the truth of its assertions.
Moreover, even if the Court of Appeals were to assume the court took judicial notice of the affidavit, Father was entitled “to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed” under the Arizona Rules of Evidence section 201. This rule further states that “[i]n the absence of prior notification, the request may be made after judicial notice has been taken.”
Here, Father filed a motion for reconsideration after the court’s ruling, requesting to reopen solely for the purpose of offering Mother’s deposition transcript which the Court has. If the Court were to grant the Motion to Reopen solely for the purpose of offering Mother’s deposition transcript as an exhibit and read it, the Court would quickly ascertain that Mother’s expenses were far less than $9,000.00 per month and that child support in the amount of $5,000.00 per month was excessive. . . It would be manifestly unfair to consider the Spousal Affidavit, though not offered as an exhibit, without at least accepting Mother’s deposition transcript as an exhibit and reviewing it. The motion was denied by the court without explanation.
The Court of Appeals concluded that the filing of a spousal affidavit with the clerk of the court in Maricopa County has no evidentiary value in a domestic relation proceeding where child support is contested unless the parties agree otherwise, or the Maricopa County Local Rules expressly so provide, which they currently do not. Either circumstance would provide sufficient notice to the parties that the affidavit unless controverted, could be considered by the court in determining child support, much like an uncontroverted affidavit can be considered by the court in determining a motion for summary judgment.
Mother finally contended that even without her affidavit, other evidence the court considered supports the award, such as Father’s income, his expenses, the family’s high standard of living, the absence of any extraordinary expenses for the children (other than counseling), and Mother’s unemployment and lack of marketable skills. Although this evidence is relevant to some of the child support factors in A.R.S. § 25-320(A), it is not at all relevant to the first factor, “[t]he financial resources and needs of the child,” nor is it relevant to a portion of the second factor, “[t]he financial … needs of the custodial parent.”
The court thus determined Father’s child support obligation without any evidence regarding these two important statutory factors, and A.R.S. § 25-320(A) specifically mandates otherwise: “The … criteria for deviation from [the guidelines] shall be based on all relevant factors….” For the foregoing reasons, the Court of Appeals said no way to the $5,000.00 award of child support without any evidence to support the award.
The Business Valuation
Mother also challenged the court’s valuation of Father’s 5,000 shares of stock in Thomas-Davis Medical Center (TDMC), a large medical specialty group providing regional health care services. The court valued the stock at $21,048 by adopting the opinion of Father’s appraiser. Mother argued that because the opinion of the stock’s value was the value established by TDMC’s redemption agreement, which the appraiser testified set a “completely arbitrary” value for the stock, the court abused its discretion in adopting his opinion.
The Court of Appeals finally agreed with Mother on an issue. In this case, the superior court ruled “that the Buy-Sell Agreement is appropriate, controlling, legitimate and enforceable, good faith and binding agreement and indicator of the parties’ interest in TDMC.” The court erred in so ruling, especially in light of the appraiser’s concession that the agreement’s value for the stock was “completely arbitrary.” The issue of valuation of Father’s stock in TDMC was remanded to the trial court for further proceedings.
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Chris Hildebrand wrote this article about financial affidavits in an Arizona family law case to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through in a divorce or family law case.