Refusal to Provide Financial Documentation Basis to Dismiss Arizona Modification of Child Support Case
Posted on : December 6, 2016, By: Christopher Hildebrand
Refusal to Provide Financial Documentation Basis to Dismiss Arizona Modification of Child Support Case
When a party to a divorce whats to make changes to the child support amount (once the original decree has been entered), they must file a petition to modify child support.
In order for the court to modify a child support order, specific statutory requirements must first be met.
Also, when a petition to modify child support is dismissed, and a party feels that the court erred or abused its discretion, he or she may file an appeal to the Arizona Court of Appeals.
A Brief History of the Case: Carmack v. Carmack
Mr. Carmack (Father) and Ms. Carmack (Mother) obtained a divorce in 2004. During the proceedings, a key issue was the amount of income that had been attributed to Father in relation to the calculations for child support.
Refusal to Provide Financial Documentation Basis to Dismiss Arizona Modification of Child Support Case.
Father was the original founder of a business, and owner of seventy percent of the company’s stock until 2002. Prior to the divorce proceedings, Father divested himself of all ownership interest in the company.
During the proceedings, Father resisted offering any information regarding the benefits he was offered in addition to his wages earned. The parties eventually agreed to deviate from the Arizona Child Support Guidelines in order to require Father to pay $750 per month in child support. Father was also awarded six days of parenting time every two weeks.
Father filed a petition to modify parenting time in 2010 to reflect a 50/50 parenting time plan that the parties had previously observed informally for three years. He also asked that the child support is modified so that Mother would pay Father $166.61 per month in child support payments. Mother agreed to equal parenting time but did not agree to modify the child support obligations.
Following an evidentiary hearing, the court found it could not grant a modification of child support without a clear accounting of additional economic benefits Father received in addition to wages from his business.
Father was ordered to comply with Mother’s discovery requests and cooperate with Mother’s forensic accountant five times, but information was not offered by Father as ordered.
Father was warned in the fifth order that failure to comply could result in the dismissal of the petition to modify child support.
In August 2012, another evidentiary hearing was held to determine compliance prior to another evidentiary hearing that would determine Father’s income. Mother’s forensic accountant testified that he was not able to complete the forensic accounting and determine the actual income of the Father, as the necessary documents were not produced. Mother’s forensic accountant was not allowed to examine his business records as the court ordered.
The court held that the Father failed to follow the court’s order and denied Father’s petition to modify child support for failure to provide evidence to support modification. Father appealed.
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.
On appeal, Father argues the court erred because Arizona law requires a child support modification when a parenting time modification is granted. The court granted a seven percent change in parenting time which could be assumed to be a substantial and continuing change of circumstances (as required by law for a child support modification), but Father was not entitled to a decrease in child support until sufficient evidence of his current income was provided to the court.
In order for the court to apply the Arizona Child Support Guidelines to determine if a modification is warranted, the court would need all financial information related to the Father’s income (including all employee benefits). Father intentionally failed to provide the necessary information, therefore, his request to modify child support is denied.
Additionally, Father’s seven percent increase in parenting time was accompanied with a request to modify child support from $750 per month paid by Father to Mother to $166.61 from Mother to Father. This would indicate that the request to modify child support was related to a decrease in income rather than the seven percent increase in parenting time. Yet by refusing to provide access to the necessary information, Father prevented the court from making a valid determination regarding his financial status in comparison to Mother’s as required by law when determining child support.
Due to the facts on record, the Arizona Appellate Court finds that the court did not abuse its discretion.
Carmack v. Carmack: Arguing Error in Not Considering Financial Info Established in the Previous Case
Father next presented the argument that the court should have used the attributed income established in the previous case in performing the current calculations for child support.
Relevant facts include: the court in the previous case did not believe Father’s reported income reflected his actual income, the previous case attributed $10,000 per month income to Father, the financial information pulled from the previous case was eight years old and could have drastically changed, and there was evidence to indicate that Father was beginning to provide services as part of a federal laboratory inspection team which would alter income.
Refusal to Provide Financial Documentation to Dismiss Arizona Modification of Child Support Case.
Additionally, the court made it very clear what was required of the Father in order for the court to consider a modification of child support (five times) and Father refused to comply with the order.
The family court did not abuse its discretion in this matter.
Carmack v. Carmack: Arguing Abuse of Discretion in Dismissal When Lesser Sanctions Were Available
Finally, Father argues on appeal that the family court abused its discretion by dismissing his request when lesser sanctions were available. Coincidentally, the record clearly demonstrates that the family court explicitly warned Father that a fifth refusal to comply with their court order to provide access to relevant financial and income records could result in a dismissal. Therefore, even if the dismissal was a sanction, the family court did not abuse its discretion and provided sufficient advance notice to Father of the risk in relation to non-compliance with the court order.
The court dismissed Father’s petition for refusing to provide the evidence necessary to determine his eligibility for a child support modification – not as a sanction.
Arizona Court of Appeals Conclusion:
The Court of Appeals of Arizona affirmed the family court’s dismissal of Father’s petition to modify child support. Mother was awarded her costs on appeal (A.R.S. Section 12-341 (2003)) contingent upon compliance with Arizona Rule of Civil Appellate Procedure 21(a).
As Seen on CBS News, ABC News, NBC News, and Fox News
Arizona Estate Planning Attorneys, PC As Seen in the News.