Opinion
No. 1 CA-CV 12-0874
01-07-2014
In re the Marriage of: DEBORAH LYNN URIBE, Petitioner/Appellee, v. ERIC M. WEBSTER, Respondent/Appellant
The Law Office of Scott J. McWilliams, LLC, Phoenix By Scott J. McWilliams and Lisa C. Boddington Counsel for Petitioner/Appellee Law Office of Scott E. Boehm, PC, Phoenix By Scott E. Boehm Jensen and Gordon, PLLC, Phoenix By Robert A. Jensen and Tracy Gordon Co-Counsel for Respondent/Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. FC2008-070541
The Honorable Michael W. Kemp, Judge
REVERSED AND REMANDED
COUNSEL
The Law Office of Scott J. McWilliams, LLC, Phoenix
By Scott J. McWilliams and Lisa C. Boddington
Counsel for Petitioner/Appellee
Law Office of Scott E. Boehm, PC, Phoenix
By Scott E. Boehm
Jensen and Gordon, PLLC, Phoenix
By Robert A. Jensen and Tracy Gordon
Co-Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 Eric M. Webster ("Father") appeals the superior court's order dismissing his petition to modify parenting time and child support. For reasons that follow, we reverse and remand for further proceedings consistent with this decision.
FACTUAL AND PROCEDURAL HISTORY
¶2 The superior court entered a Consent Decree dissolving Father's marriage to Deborah Lynn Uribe ("Mother") in January 2009. In the Decree, the court approved the parties' Mediated Marital Settlement Agreement (MMSA) regarding division of the marital property and debt, and the parties' agreement that neither of them would receive spousal maintenance. It also approved the parties' agreement concerning parenting arrangements, which was incorporated in the MMSA, and merged the MMSA's custody and child support provisions in the Decree.
¶3 The agreement concerning parenting arrangements provided that Father and Mother would share joint legal custody of the parties' three minor children, A., S., and B., with neither parent designated as the primary residential parent. The parties also agreed to a plan for parenting time that would allow them to "remain flexible and cooperative" and spend time with the children on "weekdays, weekends, holidays, and vacation periods in accordance with [the children's] wishes and schedules." Their plan provided, however, that if Father and Mother were unable to agree about any given weekday, weekend, holiday, or vacation period, they would follow a prescribed schedule in which the children would be with one parent for five days, the other parent for two days, the first parent for two days, and the second parent for five days ("5-2-2-5 parenting schedule"). The prescribed schedule also addressed holidays, birthdays, vacations, and school breaks. Despite the fact that the parties agreed the children would spend substantially equal time with both parents, the child support worksheet they submitted did not reflect an equal parenting time agreement.
¶4 In October 2010, Father petitioned to modify child support, indicating that his income was approximately $1,900 per month less than the amount included on the original worksheet and that the parties had substantially equal parenting time with the children. Father asserted that he was thus entitled to lower his child support charge from $1,100 per month to $11.20 per month. After conducting an evidentiary hearing, the superior court denied Father's petition on the grounds that he had not shown a substantial and continuing change of circumstances, a necessary predicate to child support modification. See Ariz. Rev. Stat. ("A.R.S.") § 25-327(A).
Absent material revisions after the relevant date, we cite a statute's current version unless otherwise indicated.
¶5 In August 2011, Father again petitioned to modify child support on the grounds that the child support order did not give him any credit for parenting time. In addition, Father alleged that the parties, by verbal agreement, had deviated from their agreement to share parenting time substantially equally, with the result that S. resided fulltime with Father, A. resided fulltime with Mother, and the parties shared equal parenting time of B. Mother moved to dismiss the petition. Mother argued that Father had not set forth a substantial and continuing change of circumstances because he had agreed that the child support worksheet would not make a financial allocation for his parenting time in order to increase his child support obligation in lieu of spousal maintenance. Mother thus alleged that the change in parenting time was not relevant and that the court had already rejected Father's arguments when it considered his prior petition. The superior court granted Mother's motion to dismiss.
¶6 On June 28, 2012, Father filed the petition to modify child support at issue in this appeal. He alleged there had been a substantial and continuing change of circumstances because A. had emancipated and S. lived with Father and visited Mother not more than 50 days per year. The superior court again granted Mother's motion to dismiss on the grounds that Father had not shown a substantial and continuing change of circumstances that would warrant modification. Father timely appealed.
¶7 We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).
DISCUSSION
¶8 Arizona law allows the superior court to modify a child support order upon a showing of "changed circumstances that are substantial and continuing." A.R.S. § 25-327(A). Generally, whether a substantial and continuing change in circumstances has occurred is a question of fact, Schroeder v. Schroeder, 161 Ariz. 316, 323, 778 P.2d 1212, 1219 (1989), and we review the superior court's determination for an abuse of discretion. Fletcher v. Fletcher, 137 Ariz. 497, 497, 671 P.2d 938, 938 (App. 1983). In this case, however, the court did not weigh the parties' evidence, but made a legal ruling based on the sufficiency of Father's petition. We review de novo the superior court's interpretation of A.R.S. § 25-327(A) and the Arizona Child Support Guidelines ("Guidelines"). Guerra v. Bejarano, 212 Ariz. 442, 443, ¶ 6, 133 P.3d 752, 753 (App. 2006).
The Arizona Child Support Guidelines, adopted by the Arizona Supreme Court for actions filed after May 31, 2011, are found in the Appendix to A.R.S. § 25-320 (Supp. 2011). Although a prior version of the Guidelines was in effect at the time Father filed his petition, see A.R.S. § 25-320, app. (Supp. 2005), we cite the current version as the specific Guidelines at issue remain substantively unchanged.
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¶9 Father argues the superior court erred by dismissing his petition to modify parenting time and child support because he presented prima facie evidence of two changes that warranted an evidentiary hearing: A.'s emancipation and S.'s full-time residence with Father. Mother does not dispute that these changes have occurred, but argues that neither of them constituted a "substantial and continuing" change in the parties' circumstances because the parties agreed that Father would pay $1,100 per month for child support until all children were emancipated, regardless of the amount of his parenting time.
¶10 Father argues that there was no agreement that his child support obligation would not change until all of the children were emancipated, and he points out that the MMSA expressly states that child support can be modified by further order of the court and contemplates review of parenting time if there is a material variance between the anticipated parenting time arrangement and the actual arrangement. In addition, Father notes that, even assuming a prior agreement, Arizona law specifically allows the superior court to modify any aspect of a decree relating to support, custody or parenting time, and requires the superior court to recalculate child support when a party seeks modification after a child's emancipation. A.R.S. § 25-317(F), -327(A); Guidelines § 25; Bejarano, 212 Ariz. at 446, ¶ 15, 133 P.3d at 756.
¶11 Father's petition set forth a prima facie basis for modification of parenting time and child support. Mother's argument that Father cannot demonstrate a "substantial and continuing" change in circumstances because he agreed to pay child support until all of the children were emancipated and without receiving a credit for his parenting time, at most, creates a factual dispute that the superior court should resolve after hearing the parties' evidence. Accordingly, we reverse the decision below and remand for an evidentiary hearing. In assessing Father's petition, the superior court should consider the parties' original child custody and support agreement as merged in the Consent Decree, as well as all relevant circumstances that have changed since entry of the Decree in January 2009.
¶12 Father and Mother both request an award of their attorney's fees incurred on appeal pursuant to A.R.S. § 25-324 on the basis that the other party's position was unreasonable. In the exercise of our discretion, we deny both requests.
CONCLUSION
¶13 For the foregoing reasons, we reverse the superior court's dismissal of Father's petition to modify parenting time and child support and remand for further proceedings consistent with this decision.