Logo
Call Now(480)305-8300

When Can You Modify Child Support in Arizona

Posted on : March 6, 2018, By:  Christopher Hildebrand
divorce lawyers Phoenix AZ

When Can You Modify Child Support in Arizona

The Short Answer

The short answer to the question when can you modify child support in Arizona is anytime the child support amount is at least 15% greater or lower than the existing child support order even if there are no other changes to the parents’ income or other child support factors. Read the Arizona Court of Appeal decision in the case of Birnstihl vs. Birnstihl to learn more about when you can modify child support in Arizona.

The Long Answer

The Arizona Court of Appeals answered the question in a published opinion when can you modify child support in Arizona in the case of Birnstihl vs. Birnstihl. Ms. Birnstihl (“Mother”) appeals from the superior court’s order dismissing her petition to modify child support. We hold under the Arizona Child Support Guidelines, Arizona Revised Statutes (“A.R.S.”) section 25-320 (“Guidelines”), if a parent requesting a modification of child support under the simplified procedure presents a colorable claim that application of the Guidelines results in a fifteen percent variation from the current child support order, claim preclusion does not prevent a superior court from addressing the request on the merits. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

When Can You Modify Child Support in Arizona.

When Can You Modify Child Support in Arizona?

Mother and Mr. Birnstihl (“Father”) divorced in 2011. They have four children in common. In the divorce decree, the superior court awarded Mother and Father joint legal decision-making and equal parenting time of their two younger children. However, the court awarded Mother sole legal decision-making of their two older children, with no parenting time awarded to Father. Consistent with the Guidelines, the superior court ordered Father to pay Mother $1850 per month in child support. In April 2016, Father petitioned to modify child support (“April 2016 petition”) under the Guidelines § 24(B) (Simplified Procedure), seeking a downward modification of his child support obligation to $939.62 per month due to: (1) the oldest child’s emancipation; (2) Father’s satisfaction of his spousal maintenance obligation; and (3) Mother’s change in income. Mother did not request a hearing or otherwise respond to Father’s petition. See Guidelines § 24(B) (“If the requested modification is disputed, the parent receiving service must request a hearing within 20 days of service.”). In June 2016, the superior court modified Father’s child support obligation to $939.62 per month (the “Order”).

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.
A Google User
A Google User
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.
Google User
Google User
14:58 04 Oct 17
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.
A Google User
A Google User
16:03 22 Nov 17
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!
A Google User
A Google User
22:14 28 Jun 17
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
A Google User
A Google User
18:16 18 Sep 17
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.
A Google User
A Google User
19:22 23 Aug 17
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.
A Google User
A Google User
17:44 23 Jun 16
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.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
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.
Larry Flint
Larry Flint
21:53 27 Feb 18
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.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

Ten days after the court entered the Order, Mother, representing herself, requested a hearing and counter-petitioned requesting that Father pay $1160.15 per month in child support. The court never ruled on Mother’s untimely request for a hearing, nor the counter-petition, meaning they are deemed denied. See State v. Hill, 174 Ariz. 313, 323 (1993) (“A motion that is not ruled on is deemed denied by operation of law.”); Atchison, Topeka & Santa Fe Ry. Co. v. Parr, 96 Ariz. 13, 15 (1964) (motions not ruled upon deemed denied by operation of law). In August 2016, Mother, now represented by counsel, moved to correct the Order pursuant to Arizona Rule of Family Law Procedure 85(C). Mother argued the Order was based on incorrect information regarding Father’s gross income and his parenting time. See Guidelines §§ 5, 11. She claimed Father had no parenting time with the oldest of the remaining minor children; therefore, he did not have equal parenting time as stated in the April 2016 petition. Mother also claimed Father’s gross monthly income was $24,703.17, not $16,175.83 as listed by Father. Father responded to Mother’s Rule 85(C) motion arguing that “Mother had ample time to request a hearing if she did not agree to Father’s calculations.” The superior court denied the motion and Mother did not appeal.

The same day Mother moved to correct the Order under Rule 85(C), she separately petitioned to modify child support using the simplified procedure per Guidelines § 24(B). Mother’s petition to modify mirrored her arguments in the Rule 85(C) motion, namely, that the Order was premised on incorrect information concerning Father’s income and parenting time. Mother requested that Father be ordered to pay $3005.27 per month in child support. Father moved to dismiss Mother’s petition arguing that “Mother’s failure to comply with the rules and request a timely hearing bar her from the relief she now requests.” Father further argued that incorrect information used in a child support calculation cannot support a finding that there has been a “showing of changed circumstances that is substantial and continuing” under A.R.S. § 25-503(E). The court dismissed Mother’s petition, finding “the allegations contained in [Mother’s petition] do not allege a sufficient ‘showing of changed circumstances that is substantial and continuing’ as is required by A.R.S. § 25-503(E).” Mother did not appeal.

In October 2016, Mother again petitioned to modify child support using the simplified procedure (“October 2016 petition”), requesting Father pay $2268.94 per month. In an attached child support worksheet, Mother listed Father’s income as $20,000 per month based on Father’s 2015 income tax return, which she attached as an exhibit to her petition. Mother listed Father’s parenting time as 121 days. Father moved to dismiss Mother’s petition, arguing there was no change of circumstances warranting modification from the Order or from the previously filed motion to modify filed in August. See supra. After oral argument, the superior court dismissed Mother’s petition. Mother timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

Ruling on When You Can Modify Child Support in Arizona

Change in Circumstances to Modify Child Support in Arizona.

Change in Circumstances to Modify Child Support in Arizona.

We review child support awards for abuse of discretion. Sherman v. Sherman, 241 Ariz. 110, 112 (App. 2016); Engel v. Landman, 221 Ariz. 504, 510 (App. 2009). An abuse of discretion occurs when the court commits an error of law that underlies its exercise of discretion. Kohler v. Kohler, 211 Ariz. 106, 107 (App. 2005). We accept the court’s factual findings unless clearly erroneous, but review de novo the court’s conclusions of law and interpretation of the Guidelines. Nia v. Nia, 242 Ariz. 419, 422 (App. 2017). We look “to the [Guidelines’] plain language as the most reliable indicator of the supreme court’s intent.” Milinovich v. Womack, 236 Ariz. 612, 615 (App. 2015). We “strive to interpret the relevant section in conjunction with other provisions of the Guidelines and consistent with their overall purpose.” Id. Guidelines § 24 permits either parent to petition the superior court to modify child support upon a showing of a substantial and continuing change of circumstances. See A.R.S. § 25-503(E). The party seeking the modification may use a standard procedure or a simplified procedure. Guidelines § 24(A), (B). When using the simplified procedure: A party seeking to modify child support . . . shall file with the clerk of the court a request for simplified modification, accompanied by a sworn Parent’s Worksheet for Child Support Amount, and pay the required filing fee. The parties shall then follow the procedures specified in the [Guidelines]. Ariz. R. Fam. Law P. 91(B)(2)(b).

A parent may request the court to modify child support using the simplified procedure if applying the Guidelines “results in an order that varies 15% or more from the existing [child support order].” Guidelines § 24(B). Under the simplified procedure: A fifteen percent variation in the amount of the order will be considered evidence of substantial and continuing change of circumstances. A request for modification of the child support amount must be accompanied by a completed and sworn “Parent’s Worksheet for Child Support Amount,” and documentation supporting the incomes if different from the court’s most recent findings regarding income of the parents. * * * A copy of the request for modification of child support and the “Parent’s Worksheet for Child Support Amount,” including supporting documentation, showing that the proposed child support amount would vary 15% or more from the existing child support order shall be served on the other parent . . . . If the requested modification is disputed, the parent receiving service must request a hearing within 20 days of service. * * * Upon proof of service and if no hearing is requested within the time allowed, the court will review the request and enter an appropriate order or set the matter for hearing. If any party requests a hearing within the time allowed, the court shall conduct such hearing. No order shall be modified without a hearing if one is requested. Guidelines § 24(B) (emphasis added).
Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

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

Mother argues the superior court erred in dismissing her October 2016 petition. She contends the superior court should have held a hearing because her petition “contained allegations sufficient to show the difference between the [Order] and the amount as calculated and alleged in [her] petition differed by more than 15%.” To support her claim, Mother points to Father’s 2015 tax returns that were attached to her petition that show a discrepancy between Father’s gross income and that used to calculate the Order. Also, Mother claims the superior court incorrectly calculated Father’s parenting time because the amount credited to Father in the Order differed from the amount of parenting time awarded to Father in the parties’ divorce decree. The parenting time order in the decree has not been modified.
Father argues the superior court made findings in the Order on all relevant child support factors, including his income and parenting time, and that Mother cannot now argue there has been a substantial and continuing change in circumstances based on the numbers “she prefers.” Father maintains that, even if the factors listed in the Order are incorrect, no circumstances have changed since the court entered the Order and when Mother petitioned to modify child support, and thus the superior court correctly dismissed the petition. We construe Father’s argument to be that Mother’s petition to modify child support is barred by claim preclusion. See Hall v. Lalli, 194 Ariz. 54, 57 (1999) (claim preclusion “preclude[s] a claim when a former judgment on the merits was rendered by a court of competent jurisdiction and the matter now in issue between the same parties or their privities was, or might have been, determined in the former action”).

Claim Preclusion is No Bar to Modifying Child Support in Arizona

This court has previously held claim preclusion did not prevent the superior court from considering whether changed circumstances warranted reinstating child support. In re Marriage of Gibbs, 227 Ariz. 403, 408 (App. 2011) (although the doctrine of claim preclusion “enforces important principles of judicial economy and finality, its application, under the specific circumstances here, would undermine the public policy expressed in our applicable child support modification statutes by preventing consideration of changed circumstances”). Based on the text of the Guidelines, we likewise hold claim preclusion does not prevent a court from considering a parent’s contention that a modification of child support is warranted based on incorrect information used in a previous calculation. See Gibbs, 227 Ariz. at 408 (“To the extent, there is a conflict between policies behind claim preclusion and those expressed through the statutes addressing child support modification, the legislature’s word controls.”).
Our child support modification statutes provide that, so long as a party makes a showing of substantial and continuing change of circumstances, child support may be modified even after a final order is entered. A.R.S. §§ 25-327(A), -503(E); Guidelines § 24. The Guidelines further permit a parent to use the simplified procedure if applying the Guidelines results in a fifteen percent variation from the current child support order. Guidelines § 24(B). The statutory provisions allowing a parent to petition to modify child support at any time also supports our conclusion that claim preclusion is not to be rigidly applied in child support modification cases. See A.R.S. § 25-327(A); Guidelines § 24. Thus, claim preclusion does not preclude the superior court from considering Mother’s October 2016 petition and determining if incorrect information was used, and if so, whether the correct information would change the child support order by fifteen percent.
Modify Child Support in Arizona.

Modify Child Support in Arizona.

Under the facts of this case, the superior court should have held an evidentiary hearing before ruling on Father’s motion to dismiss to assess Father’s income and parenting time. See Gibbs, 227 Ariz. at 407 (“Even when the technical requirements for preclusion based on a former adjudication are met, the court should not apply preclusion principles []where there is some overriding consideration of fairness to a litigant,’[] as determined by the particular case’s circumstances.”). Both income and parenting time are relevant factors when determining child support, see Guidelines §§ 8, 11, and the facts surrounding both were in dispute.1 Under the simplified procedure, the parent seeking to modify child support must include a completed and sworn child support worksheet and documentation supporting the parents’ incomes “if different from the court’s most recent findings regarding income of the parents.” Guidelines § 24(B). Mother included supporting documentation for Father’s income, and the decree was inconsistent with Father’s stated parenting time. Mother’s child support worksheet accompanying her October 2016 petition resulted in at least a fifteen percent variation in Father’s child support obligation per the Guidelines as compared to the Order. “A fifteen percent variation in the amount of the order will be considered evidence of substantial and continuing change of circumstances.” Id.

Incorrect Income Figures in Child Support Calculation is a Basis to Modify Child Support in Arizona

Mother produced evidence that incorrect information was used in the Order. If Mother’s evidence is correct, it would result in a substantial and continuing change of circumstances resulting in a fifteen percent variance in the child support order. See Guidelines § 24(B). Because Father disputed Mother’s requested modification, the Guidelines required him to request a hearing. See id. Because Father did not request a hearing, 1 Under the Guidelines in effect at the time Mother petitioned to modify child support, and under the Guidelines, effective April 1, 2018, Father’s child support obligation should reflect that he and Mother have multiple children with different parenting plans. See Guidelines § 11; Adoption of Revisions to the Arizona Child Support Guidelines, Administrative Order No. 2018-08, Guidelines § 16 (adopted Jan. 24, 2018). Per the Guidelines, Father’s parenting time credit is based on the number of parenting days Father actually exercises.

Per the Guidelines, the superior court should have “review[ed] the request and enter[ed] an appropriate order or set the matter for hearing.” See id. (emphasis added). The superior court did hear argument on Father’s Motion to Dismiss. The court asked Mother’s counsel multiple times what circumstances had changed since the court entered the Order, but the parties did not submit additional evidence or testify. In its order granting Father’s Motion to Dismiss, the superior court stated: Mother initially argued that there has been the requisite change in circumstances since the last order . . . but after further questioning by the Court conceded that they did not occur during the relevant time period. The superior court incorrectly interpreted the Guidelines. A parent must show “changed circumstances that are substantial and continuing” before child support may be modified. A.R.S. §§ 25-327(A), -503(E); Guidelines § 24.

Incorrect Income in Prior Child Support Calculation Allows Modification of Child Support

Modification of Child Support in Arizona..

Modification of Child Support in Arizona.

Changed circumstances in the context of child-support modification, however, may be that incorrect information was used to determine a previous order. Thus, the superior court’s inquiry should have focused on whether Mother’s October 2016 petition alleged a colorable claim that incorrect information was used in the Order, and if the information is corrected would there be a fifteen percent variation in the child support order. The superior court’s determination of Father’s child support obligation in the Order was based solely on Father’s April 2016 petition and accompanying child support worksheet, which did not include supporting documentation. Mother and Father’s respective child support worksheets alleged different incomes and parenting time, and a hearing is a preferred method for resolving disputed facts. See Pridgeon v. Superior Court, 134 Ariz. 177, 181 (1982) (“[I]f . . . affidavits are directly in opposition upon any substantial and crucial fact relevant to the grounds for [child custody] modification, the court may not conduct a ‘trial by affidavit’, attempting to weigh the credibility of the opposing statements. In such a case, the court must hold a hearing.”); Volk v. Brame, 235 Ariz. 462, 467, 469 (App. 2014) (a hearing where the parties were only permitted to submit documents to the court and neither party was permitted to testify provided “no adversarial check on the quality of the information that Mother provided to the court and upon which it relied to modify Father’s child support obligation”).

Father argues allowing Mother to petition to modify child support because she calculated a fifteen percent variation from the Order “would lead to chaos and mass filings” in the superior courts because “any aggrieved parent unhappy with a [c]ourt’s findings” could endlessly petition to modify child support, “alleging a 15% change, when in fact there is NO change in the circumstances underlying the existing Order.” However, as discussed above, a request for modification using the simplified procedure must be accompanied by a child support worksheet and supporting documentation if the income alleged is “different from the court’s most recent findings.” Guidelines § 24(B). Accordingly, the parent seeking modification must present a colorable claim that there has been a change in relevant factors, or that an error occurred in determining the relevant factors, such that applying the Guidelines results in a fifteen percent variation from the current child support order.

We acknowledge Mother failed to object or respond to Father’s April 2016 petition, and we do not question the superior court’s decision to enter the Order without holding a hearing or receiving evidence from Mother. We also note any modification to Father’s child support obligation would be prospective only, as “[m]odifications . . . are effective on the first day of the month following notice of the petition for modification.” A.R.S. § 25-327(A) (unless the court “for good cause shown” orders the modification to be effective at a different date not earlier than the date the petition was filed). Consequently, by not responding to Father’s April 2016 petition or appealing the superior court’s dismissal of Mother’s earlier petitions to modify, Mother may receive less child support than she was entitled to for the months between when the superior court entered the Order and when Mother filed the October 2016 petition. Mother’s subsequent petition sufficiently raised a colorable claim that application of the Guidelines results in a fifteen percent variation in Father’s child support obligation. Therefore, the superior court erred by not holding a hearing to determine Father’s correct income, parenting time, and whether his child support obligation should be modified.

Both parties request an award of attorney’s fees and costs pursuant to Arizona Rule of Civil Appellate Procedure (“ARCAP”) 21(a) and (c) and A.R.S. § 25-324. Section 25-324 affords a court discretion to award a party reasonable attorney’s fees based on the “financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings.” In exercising our discretion, we award Mother her reasonable attorney’s fees on appeal. As the prevailing party on appeal, Mother is also entitled to costs upon her compliance with ARCAP 21. For the foregoing reasons, we reverse the superior court’s dismissal of Mother’s October 2016 petition and remand for further proceedings consistent with this opinion.

Call us at (480)305-8300 to schedule your personalized consultation with one of our experienced Phoenix and Scottsdale Arizona child support attorneys today.