Table of Contents
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.
The Long Answer
Change in Circumstances to Modify Child Support in Arizona
Arizona law allows a court to modify a child support award on a showing of changed circumstances. An appellate court reviews a trial court’s modification of child support order using an abuse of discretion standard of appellate review.
The Court of Appeals reviewed a child support modification order in Beck v. Jaeger, 604 P. 2d 18 (1979). Mrs. Beck and Mr. Jaeger divorced in January 1974. The court ordered Mr. Jaeger to pay child support of $62.50 monthly for each child.
When the children were 10 and 8, some 3 years later, Mrs. Beck asked the court to modify the amount of support. The court held a hearing and, at its conclusion, ordered an increase of $100 per month. Mr. Jaeger appealed.
Modification of a Child Support Order
Before an Arizona court can order a modification of child support, a party must make a showing of changed circumstances. These changed circumstances must have occurred after the prior child support order was made and the substantial and continuing changes for the foreseeable future.
The sufficiency of the showing is left to the sound discretion of the trial court. An appellate court affirms the lower court’s ruling if competent evidence shows a change of circumstances. The lower court found that at this time, Mrs. Beck and Mr. Jaeger’s kids require at least $300 per month to meet their basic needs.
Moreover, the cost of living had substantially increased since the original child support order was entered in 1973. In addition, Mr. Jaeger’s earnings substantially increased from the time of the divorce. In 1973 and 1974, he earned $6,647 and $2,534, respectively.
Mrs. Beck testified that she agreed to the initial support amount because, at that time, Mr. Jaeger had little income. These factors constitute competent evidence of a change of circumstances sufficient to allow a judge to modify child support in Arizona.
Mr. Jaeger claims that his court-ordered “share” of the support obligation is 75%, while Mrs. Beck’s is only 25%. However, Mr. Jaeger makes a lot more than his former wife. He earns $15,000 – $16,000 while Ann only earns $600 a month. Also, $300 was the minimum needed for the children.
Mrs. Beck’s estimated monthly expenses for the children exceed $400. Therefore, Mr. Jaeger’s share is not disproportionate. Both parties have remarried and their respective spouses are employed.
However, the earnings of the parents’ new spouses have no bearing on the child support obligation. The Court of Appeals affirmed the order modifying child support. It found no abuse of the trial court’s discretion in requiring John to pay an additional $100 per month for child support.
The take away from this case is that a child support order can be modified in Arizona whenever there is a substantial and continuing change in circumstances to do so in order to ensure children receive the financial support they need.
The guideline used by the Court is that you also have to show that at least a 15% change in the amount of child support to be ordered will occur if the child support is modified regardless of whether the parents’ circumstances have changed or not. If the resulting child support obligation will not change by at least 15%, either higher or lower, a trial court can deny a parent’s request to modify the existing child support obligation.
Child Support May be Modified at Any Time There is a 15% Change in Child Support
The Arizona Court of Appeals, again, answered the question of when you can modify child support 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.
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”).
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 the 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 is 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
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).
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 a 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.
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.
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 the 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, 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;
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
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.
How Can You Modify A Child Support Order in Arizona
Some people want to know how can you modify a child support order in Arizona. You should know there are two methods a parent may use in Arizona to change an existing child support order.
Specifically, a parent may use either the standard procedure or the simplified procedure for modifying child support in Arizona.
The Arizona Court of Appeals in the Beck v. Jaeger case, however, discussed the requirement of a parent showing that a substantial and continuing change in circumstances has occurred since the entry of the prior child support order.
Using the Standard Procedure
The “Standard Procedure” may be used if either parent or the state child support agency can demonstrate the existence of a “substantial and continuing” change in circumstances since the last child support order was made.
The process begins with the filing of a Petition to modify child support and requires a hearing to be scheduled to recalculate child support.
Using the Simplified Procedure
The “Simplified Procedure” can be used if the amount would increase or decrease by 15% of the current child support amount.
A change of 15% is assumed to be proof that the modification is “substantial and continuing.”
The Simplified Procedure to modify a child support order in Arizona is accomplished by filing a Simplified Petition for Modification of Child Support and results in the issuance of an automatic order modifying child support if the other party fails to file an objection and request a hearing within the time specified in the rules.
Some child support modifications occur as an operation of law.
Specifically, the Arizona Court of Appeals held in the Heidbreder v. Heidbreder case that a trial court is required as a matter of law to evaluate a modification of child support whenever the court modifies child custody or parenting time orders even if neither party requested a change in the child support amount.
If you need information about when you can modify child support in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child support attorneys have over 100 years of combined experience successfully representing clients in child support cases in Arizona.
Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.
Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child support case around today.
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About the Author: Chris Hildebrand has over 26 years of Arizona family law experience and received awards from US News and World Report, Phoenix Magazine, Arizona Foothills Magazine and others. Visit https://www.hildebrandlaw.com.