Opinion
2 CA-CV 2024-0155
11-13-2024
In re the Marriage of Nathaniel B. Rose, Appellant, and Irene Lopez-Rose, Appellee.
Nathaniel B. Rose, Chandler In Propria Persona Ashley Donovan Law PLLC, Tempe By Ashley Donovan Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2012094856 The Honorable Dawn Walton, Judge Pro Tempore The Honorable Lisa Wahlin, Judge
Nathaniel B. Rose, Chandler In Propria Persona
Ashley Donovan Law PLLC, Tempe By Ashley Donovan Counsel for Appellee
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Gard and Chief Judge Staring concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Nathaniel B. Rose ("Father") appeals from the trial court's order modifying his child support obligation to Irene Lopez-Rose ("Mother"). For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the record in the light most favorable to upholding the trial court's decision. See Little v. Little, 193 Ariz. 518, ¶ 5 (1999). Mother and Father have a sixteen-year-old daughter, E.R., in common. The parties divorced in 2013. In consent decrees, Mother and Father agreed to joint legal decision-making and equal parenting time. They further agreed Father would pay child support in the amount of $450 per month.
¶3 In June 2020, Father petitioned to modify legal decision-making, parenting time, and child support. In February 2021, the trial court granted Father sole legal decision-making and limited Mother's parenting time to every other Saturday. Later, in November 2021, the court approved the parties' comprehensive stipulation, under which the parties resumed equal parenting time and Father would provide no child support to Mother.
¶4 In February 2024, Mother filed a petition to modify child support. At an evidentiary hearing, Mother testified her rent had been $1,500 per month when she signed the stipulated order in November 2021, but by February 2024 her rent had increased to $2,100. The trial court found Mother's rent increase to be a substantial and continuing change in circumstances and granted Mother's petition to modify child support. The court ordered Father to pay Mother $603 per month based on the child support worksheet completed in accordance with the Arizona Child Support Guidelines, A.R.S. § 25-320 app. ("Guidelines").
¶5 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1); 12-2101(A)(1).
Discussion
I. Child-Support Modification
¶6 Father argues the trial court erred by improperly interpreting A.R.S. §§ 25-320, 25-327, and 25-503. Specifically, he argues that rent is not a factor under § 25-320 when determining a substantial and continuing changed circumstance under §§ 25-327 and 25-503.
¶7 "We review the superior court's decision to modify a child support award for an abuse of discretion, which occurs if the record is devoid of competent evidence to support the decision." Amadore v. Lifgren, 245 Ariz. 509, ¶ 5 (App. 2018). Though we review de novo the court's interpretation of statutes, whether a change of circumstance is substantial and continuing is a question of fact. Id.; Nia v. Nia, 242 Ariz. 419, ¶ 9 (App. 2017). The party seeking modification bears the burden. Amadore, 245 Ariz. 509, ¶ 5; Guidelines § XIV(B).
¶8 Trial courts retain the discretion to consider the nature of a change in circumstances and the reasons for the change in determining if a modification is warranted. Little, 193 Ariz. 518, ¶ 14. Involuntary situations are generally considered a change in circumstance under § 25-327. See State ex rel. Dep't of Econ. Sec. v. McEvoy, 191 Ariz. 350, ¶¶ 10-11 (App. 1998) (reasoning incarceration is not a "choice"); Fletcher v. Fletcher, 137 Ariz. 497, 497 (App. 1983) (upholding change in circumstance where father was laid off and income from subsequent employment was half of former income); Platt v. Platt, 17 Ariz.App. 458, 459 (1972) (considering reduced income due to industry conditions after strike). If the change in circumstance is voluntary, the court must determine if the change will place the child in financial peril. See Little, 193 Ariz. 518, ¶ 12. If the child is not placed in financial peril, the court looks to the "overall reasonableness" of the voluntary change. Id. ¶ 13. We have determined that a reasonable increase in a party's living expenses, considered alongside other factors-which includes rent -constitutes a change of circumstances warranting the reduction of monthly child support obligation. See Platt, 17 Ariz.App. at 459.
¶9 The record contains ample evidence demonstrating that Mother's increased rent obligation constituted a substantial and continuing change of circumstance that was involuntary. See Amadore, 245 Ariz. 509, ¶ 5. The landlord approached Mother about raising her rent from $1,500 per month to $2,500. In response, Mother explored similar housing in the same neighborhood and found $2,500 to be the going rate. She testified that she ultimately negotiated a more modest increase to $2,100, still a forty percent increase over three years, in return for signing a two-year lease. This evidence reflects that Mother's rent increase was both reasonable and involuntary.
¶10 Even if, as Father argues, our review were de novo, his appeal would still fail. Under § 25-327(A), "any decree respecting . . . support may be modified . . . only on a showing of changed circumstances that are substantial and continuing ...." See also § 25-503(E). Although the word "circumstances" is not defined in the statute, a child support decree is determined by the factors listed in § 25-320(D). Those factors include the following:
1. The financial resources and needs of the child....
3. The standard of living the child would have enjoyed . . . considering . . . each parent's need to maintain a home ....
5. The financial resources and needs of the noncustodial parent.§ 25-320(D)(1), (3), (5).
¶11 Substantially increased rent is relevant to each of these factors. The cost of housing incurred by the parent both directly addresses the housing "needs of the child" and affects the overall resources available to maintain the child's "standard of living" beyond housing. § 25-320(D)(1), (3). Increased rent plainly affects a non-custodial parent's budget to meet her own needs, another relevant consideration under § 25-320(D)(5). Lastly, the payment of monthly rent, when necessary, always constitutes a "continuing" expense as housing is a continuing need. See § 25-327(A).
II. Deviation
¶12 Father contends that further deviations from the Guidelines, beyond those stipulated by the parties in November 2022, were not justified. Father overlooks that Mother's February 2024 petition to modify did not request a deviation and the trial court did not deviate from the Guidelines when calculating the new child support award. Rather, once a trial court determines there is a substantial and continuing change in circumstances, the court must determine the amount of child support anew. Nia, 242 Ariz. 419, ¶¶ 19, 25. It must do so under the Guidelines. Id. ¶ 19. No presumption from a previous order of deviation from child support continues, legally or logically. Id. ¶ 25.
¶13 The trial court considers a deviation if it finds the Guidelines amount "inappropriate or unjust in a particular case." § 25-320(D). Further, the court must find any deviation to be in the best interests of the child. Nia, 242 Ariz. 419, ¶ 20. The court considers the factors in § 25-320(D) "only if" it intends to deviate. Nia, 242 Ariz. 419, ¶ 20 (quoting Pearson v. Pearson, 190 Ariz. 231, 234 (App. 1997)).
¶14 Here, the trial court followed the required procedure. After finding a substantial and continuing change in circumstance, the court determined a new amount of child support. See Nia, 242 Ariz. 419, ¶ 25. The court used the Guidelines, which dictated the new amount. See id. ¶ 19. The court did not presume that the November 2022 order should dictate the new child support order. See id. ¶ 25. Because no deviation occurred, the court did not have to consider the factors justifying a deviation set forth in § 25-320(D). See Nia, 242 Ariz. 419, ¶ 19; Guidelines § IX(B).
III. Attorney Fees and Costs
¶15 Mother requests attorney fees and costs pursuant to Rule 21(a), Ariz. R. Civ. App. P. and A.R.S. § 25-324(A). She asserts that Father's positions are unreasonable and there is a disparity in income between the parties where Father's income is three times Mother's. Although Father's position is legally incorrect, we do not find it unreasonable. However, in our discretion, we award attorney fees due the disparity in income between the parties and because Mother incurred legal fees in responding to Father's appeal. See Amadore, 245 Ariz. 509, ¶¶ 32-34 (justifying attorney fees because father's income was three times that of mother's); Goodell v. Goodell, ___ Ariz. ___, ¶ 41, 551 P.3d 1177, 1186 (App. 2024) (holding § 25-324(A) requires no affirmative determination of unreasonableness to support a fee award).
Disposition
¶16 For the foregoing reasons, we affirm the trial court's grant of Mother's petition to modify child support.