Posted on : January 5, 2017, By: Christopher Hildebrand
Notice of Child Support Hearing
A parent is entitled to receive adequate notice before a hearing on modification of child support. Failure to provide sufficient notice violates a parent’s due process rights.
What constitutes adequate notice? How is notice impacted by a court’s suggestion that it will not consider a modification of child support? In Cook v. Losnegard, 265 P.3d 384, 388 (App. 2011), the Court of Appeals considered these issues.
Facts and Procedure
T.C. Cook and Mr. Losnegard, an unmarried couple, had a son. In 2006, the court gave T.C. sole custody and ordered Mr. Losnegard to pay child support of $860.31 per month.
Mr. Losnegard relocated to Washington. He filed a “Petition for Modification of Child Custody” and asked the court to review child support. T.C. opposed these requests.
The family court heard the matter at trial. It did not change the award of sole custody to T.C. But it ordered T.C. and Mr. Losnegard to share equally the cost of their son’s transportation to visitations in Washington. Each parent was also ordered to pay his or her travel expenses. The court reduced Mr. Losnegard’s child support to $270.19 per month.
The court denied the motion for new trial. T.C. appealed.
Notice of Child Support Hearing in Arizona.
T.C. argues that Mr. Losnegard acted unreasonably in relocating to Washington. Therefore, she argues, she should not be required to contribute to her son’s travel expenses there.
The Court of Appeals noted that whether an allocation of expenses is equitable depends on the facts. Here, the family court concluded Mr. Losnegard had voluntarily relocated. But it declined to “penalize” him “for taking a reasonable job” in Washington.
In reviewing for an abuse of discretion, the question is whether the judge exceeded the bounds of reason. Based on the evidence presented, the court could have reasonably concluded that Mr. Losnegard had legitimate reasons for relocating. And Mr. Losnegard must pay the travel expenses he incurs for monthly weekend visits in Arizona. The visits to Washington will occur only if Mr. Losnegard, in fact, exercises the weekend visits in Arizona.
Given this, the Court of Appeals could not say that the court abused its discretion.
Child Support after Mr. Losnegard’s Voluntary Job Change
T.C. next contends the court erred by modifying child support. She first argues Mr. Losnegard voluntarily relocated and reduced his income. Therefore, she claims, the court should have based child support based upon on his earning capacity.
The Arizona Supreme Court has adopted the Child Support Guidelines (“Guidelines”). They discuss what happens when a parent voluntarily and unreasonably works below his full earning potential. In that circumstance, a court calculating the appropriate child support payment may impute income to that parent up to full earning capacity.
Here, a reasonable trier of fact could conclude that Mr. Losnegard’s employment change and income reduction were reasonable. Therefore, the court did not err in using Mr. Losnegard’s actual income.
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.
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!
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
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.
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.
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.
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.
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.
T.C. also contends that the court provided insufficient notice of the child support issue at trial. She claims that the court led her to believe child support modification would not be considered.
At the outset of the trial, the court specifically advised that it would not consider the issue of child support. It stated that it was “not inclined to listen to any evidence that would deal with the modification of the support obligation.”
Consistent with this statement, evidence relevant to particular child support factors (e.g., childcare expenses) was not presented. The record does not reflect how or why the court decided to adjudicate child support in its post-trial ruling.
Notification of Child Support Hearing Required in Arizona.
Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner. It also affords a party the opportunity to offer evidence and confront adverse witnesses.
On this record, T.C. did not receive adequate notice or an opportunity to be heard on child support modification issues. For example, T.C. claims to have evidence of significant daycare expenses that the court neither received nor considered.
The Court of Appeals vacated the modified child support order and remanded for appropriate modification proceedings.
The Court of Appeals affirmed the family court’s allocation of travel expenses. It vacated the modified child support order, remanding for further proceedings consistent with this opinion.
As Seen on CBS News, ABC News, NBC News, and Fox News
Arizona Estate Planning Attorneys, PC As Seen in the News.