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Past Child Support in Arizona

Posted on : March 1, 2018, By:  Christopher Hildebrand
Past Child Support in Arizona.

Past Child Support in Arizona

Past Child Support in Arizona.

Past Child Support in Arizona.

The Arizona Court of Appeals in a memorandum decision in the case of Wellman vs. Waits had to address the issue of whether a trial court is required to enter an order for past child support when it first establishes a child support obligation. The following is the decision of the Court of Appeals. In this case, Ms. Wellman (“Mother”) appeals the superior court’s order awarding her less child support than she requested and denying her request for attorneys’ fees. For the following reasons, we affirm the court’s child support order but vacate the attorneys’ fees ruling and remand for reconsideration of the reasonableness of Mother’s positions in this litigation. Mother and Mr. Waits (“Father”) met and began dating in 1993. Around the time Mother became pregnant with D.W., Father and Mother’s relationship ended. Mother gave birth to D.W. in June 1997, yet neither Mother nor D.W. had contact with Father until 2013, when D.W., then age 16, began communicating with Father through social media.

In May 2015, shortly before D.W.’s 18th birthday, Mother filed a pro per petition to establish paternity, legal decision-making, parenting time, and support. She requested that Father pay $432,000 in child support. Because Father allegedly was avoiding service, he was not served until August 8, 2015; his counsel then filed a notice of appearance. Father contested the petition, citing Arizona Revised Statutes (“A.R.S.”) section 25-809 and explaining he “was unaware that [Mother] and himself may have had a child in common until recently,” and if he was determined to be the father, that he pay child support “in an amount consistent with the Arizona Child Support Guidelines until the child graduates from High School or turns nineteen.” Mother then obtained counsel.

After settlement negotiations were unsuccessful, the case proceeded to trial and the parties agreed that the only issue for consideration was child support because D.W. was no longer a minor. The court declared Father’s paternity established and ordered him to pay $23,652 in past child support. This amount was based on A.R.S. § 25-809, which the court interpreted as allowing it to “limit the award of past support to the time The court denied each party’s request for attorneys’ fees and costs, finding A.R.S. § 25-324(B) did not apply, A.R.S. § 25-415 did not warrant the award of fees or costs, and the “two factors in A.R.S. § 25-324 offset one another.” This timely appeal followed.

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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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.
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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.
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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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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.
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Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

Although she did not raise the issue in the superior court, Mother argues A.R.S. § 25-809(A) required the court to award her child support for the three years preceding the filing of her petition and therefore applied the wrong legal standard when it considered factors under A.R.S. § 25-809(B). As a general rule, we do not consider arguments not raised in the superior court; the rule was “established for the purpose of orderly administration and the attainment of justice.” Harris v. Cochise Health Sys., 215 Ariz. 344, 349 (App. 2007) (quoting Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987)). Considering “belatedly urged issues undermines ‘sound appellate practice,’ and violates the interests of the party against whom the claim is newly asserted on appeal.” Id. (citation omitted) (quoting Hawkins, 152 Ariz. at 503). We have the discretion to consider new arguments on appeal, but we “rarely” do so.

Retroactive Child Support in Arizona.

Retroactive Child Support in Arizona.

In Harris, the appellee argued that most of the appellant’s arguments were waived on appeal because the appellant was challenging rulings “on grounds different than those it asserted” in the superior court. Although “conced[ing] to the trial court that the grievance procedure was mandatory,” the appellant argued on appeal that “it had no duty to exhaust administrative remedies because the grievance procedure A.R.S. § 25-809(A) provides that the superior court, when parentage is admitted or affirmatively decided “in an action instituted during the child’s minority . . . shall direct, subject to applicable equitable defenses and using a retroactive application of the current child support guidelines, the amount, if any, the parties shall pay for the past support of the child and the manner in which payment” is made. The court is prohibited from ordering past support beyond “three years before the commencement of the proceeding unless the court makes a written finding of good cause after considering all relevant circumstances, including” those listed in the statute. A.R.S. § 25-809(B)(1)-(3).

We concluded that the argument was waived because the appellant never gave the superior court the opportunity to address its argument concerning a “permissive” grievance process. Id. at 350. Here, like the appellant in Harris, Mother takes a different position on appeal that she did in the superior court. She argues that A.R.S. § 25-809 is the governing law for her request for past child support despite asserting in the joint pretrial statement that “A.R.S. § 25-320(C) is the controlling case law in this matter.” She also asserts the court had no discretion but to award three years of past child support under § 25-809 despite her counsel stating during closing arguments that “[t]he statute in this matter allows the Court in its discretion to go back three years from the [date of] service.” (Emphasis added.) And although Father stated in the joint pretrial statement that § 25-809 was “more applicable” than § 25-320 because this was a “paternity case not a dissolution case,” he did not suggest the superior court was required to award three years of past support, but explained that both § 25-320 and § 25-809 “have virtually identical rules for establishment of child support and the applicability, if any, of past or retroactive child support.”

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

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

Simply stated, Mother did not advocate for the application of A.R.S. § 25-809 in the superior court. She failed to argue that (1) the court lacked the discretion to refrain from awarding three years of past child support and (2) the court could not consider all relevant circumstances when deciding whether to award past support. Instead, as shown in the joint pretrial statement, Mother pursued her case under A.R.S. § 25-320(C), which allows the court to decline awarding three years of past child support, retroactive from the date of filing, after considering the “relevant circumstances.” And as recognized in a different context, Mother’s statements in the joint pretrial statement governed how the case would 2 A.R.S. § 25-320(C) allows the court to “order child support retroactively to the date of separation” when “the parties lived apart before” a petition for child support is filed and when support has not previously been ordered but prohibits the court from awarding support beyond “three years before the date of the filing.” In making its determination, the “court must first consider all relevant circumstances, including” those listed in the statute. A.R.S. § 25-320(C). If child support is appropriate, “the court shall direct, using a retroactive application of the child support guidelines, the amount that the parents must pay for the past support of the child and the manner in which payments must be paid.” Id.

She does not direct us to any place in the record where she relied on different authority. See ARCAP 13(a)(7)(B) (requiring appellant’s opening brief to contain “references to the record on appeal where the particular issue was raised and ruled on”). Thus, neither Father nor the superior court was given the opportunity to address the position she now takes on appeal or to correct the alleged defects in the court’s child support ruling. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (“Because a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects before error may be raised on appeal, absent extraordinary circumstances, errors not raised in the trial court cannot be raised on appeal.”). Accordingly, Mother waived her arguments regarding A.R.S. § 25-809.

Child Support Arrears in Arizona.

Child Support Arrears in Arizona.

We review an award of attorneys’ fees for an abuse of discretion. Mangan v. Mangan, 227 Ariz. 346, 352 (App. 2011). “To award attorneys’ fees under § 25-324, a court must consider the financial positions of the parties, and the reasonableness of the positions each party has taken throughout the proceedings.” Id. at 353 (internal citation and quotations omitted). “[A]n applicant need not show both a financial disparity and an unreasonable opponent in order to qualify for consideration for an award.” Magee v. Magee, 206 Ariz. 589, 591 n.1. (App. 2004). Mother argues the court abused its discretion in refusing to award her attorneys’ fees because her “motivation for not filing the action earlier is completely irrelevant” under A.R.S. § 25-324. Father counters that “[w]hile Mother may or may not have been within her right to file when she did, her motivation, and her refusal to accept her own settlement offer was certainly unreasonable.”

Addressing the financial positions aspect of A.R.S. § 25-324, the superior court found that “Father earns nearly five times what Mother earns” and “has substantially more resources to contribute toward 3 Because we find the child support issues waived, we need not address whether Father established equitable defenses or whether A.R.S. § 25-809(A)-(B) and A.R.S. § 25-320(C) violate the Equal Protection Clause by allegedly treating married and unmarried parents differently. The court then considered the reasonableness factor, finding as follows: Mother likely acted unreasonably in this litigation. Mother never suggested that Father evaded service or impeded her ability to file a paternity action years ago. Instead, it appears that Mother strategically waited until one week before the child turned 18 years old to do so. Father’s conduct merits no praise; he knew or should have known that [D.W.] was his child but he did not contribute to her support. The Court cannot, however, find authority suggesting that it was Father’s obligation to commence a support action. In fact, A.R.S. §§ 25-320(C) and 25-809(B) suggest the obligation is on the parent seeking support to show that the other parent impeded the process. The Court also questions Mother’s reasonableness regarding the settlement. In July 2016, Mother demanded $65,000.00 to settle the matter.

Father did not initially accept that offer but in December 2016 agreed to pay Mother that sum by February 2017 [Ex.19]. Mother declined. Ultimately, finding the “two factors in A.R.S. § 25-324 offset one another,” the court denied both parties’ requests for attorneys’ fees, adding that “Father’s substantial financial resources favor an award for Mother, but Mother’s conduct has been more unreasonable in comparison to Father’s.” Neither party disputes that Father earns five times more income than Mother, Father has more resources to contribute toward Mother’s expenses, and Mother’s settlement position—the withdrawal of her settlement offer after Father’s acceptance—was unreasonable. See Gutierrez v. Gutierrez, 193 Ariz. 343, 351 (App. 1998) (“[W]e hold that the trial court may consider a party’s settlement position in determining reasonableness under A.R.S. section 25-324.”).

Focusing on the superior court’s other reasonableness considerations, the court erred when it considered conduct that occurred before this case was filed or was otherwise unrelated to the positions Mother took throughout the proceedings. In addressing the reasonableness factor, the statute limits the inquiry to the “reasonableness of the positions each party has taken throughout the proceedings.” A.R.S. § 25-324(A). Accordingly, the order regarding attorneys’ fees cannot stand. On remand, the court should evaluate whether Mother’s legal positions in these proceedings are objectively reasonable. See Keefer v. Keefer, 225 Ariz. 437, 441. (App. 2010) (considering a party’s conduct prior to the proceedings but only insofar as it informed the court as to the reasonableness of the party’s legal position); In re Marriage of Williams, 219 Ariz. 546, 548-49. (App. 2008) (explaining that A.R.S. § 25–324(A) “requires that the propriety of a litigant’s legal position be evaluated by an objective standard of reasonableness” and “contains no language suggesting that the reasonableness of a litigant’s position should be assessed with reference to a litigant’s intentions in taking that position”).

We affirm the superior court’s judgment awarding Mother child support, but vacate the court’s order declining to award either party attorneys’ fees under A.R.S. § 25-324(A) and remand for reconsideration. After consideration of the § 25-324 factors, we deny both parties’ requests for attorneys’ fees incurred on appeal, but award Father his taxable costs upon compliance with ARCAP 21.

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