Nia v. Nia, 1 CA-CV 16-0380 FC

• Decision Date: 15 June 2017
• Docket Number: No. 1 CA-CV 16-0380 FC,1 CA-CV 16-0380 FC
• Citation: 396 P.3d 1099
• Parties: Marjan H. NIA, Petitioner/Appellant, v. Ali H. NIA, Respondent/Appellee. State of Arizona, ex rel. the Department of Economic Security, Intervenor/Appellee.
• Court: Arizona Court of Appeals

396 P.3d 1099

Marjan H. NIA, Petitioner/Appellant,
v.
Ali H. NIA, Respondent/Appellee.

State of Arizona, ex rel. the Department of Economic Security, Intervenor/Appellee.

No. 1 CA-CV 16-0380 FC

Court of Appeals of Arizona, Division 1.

FILED June 15, 2017

Dickinson Wright PLLC, Phoenix, By Marlene A. Pontrelli, Counsel for Plaintiff/Appellant

Tiffany & Bosco P.A., Phoenix, By David L. Rose, Justin P. Nelson, Counsel for Respondent/Appellee

Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.

OPINION

McMURDIE, Judge:

¶ 1 Marjan H. Nia ("Mother") appeals from a superior court order modifying Ali H. Nia's ("Father") child support obligation. By affirming the child support order, we hold that (1) once the superior court determines there is a substantial and continuing change in circumstances, the court must apply the Arizona Child Support Guidelines, Arizona Revised Statutes ("A.R.S.") section 25–320 app. §§ 20, 24 (2015) ("Guidelines"), and then decide whether to deviate from the amount calculated pursuant to the Guidelines; (2) there is not a presumption for deviation based on a previously deviated order; (3) if the court finds that the application of the Guidelines would be inappropriate or unjust, it must make findings as to all relevant factors, including those set forth in A.R.S. § 25–320(D) ; and (4) to deviate from the amount calculated pursuant to the Guidelines, the court must determine both that the deviation is appropriate and that it is in the best interests of the child.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Mother and Father have 17–year–old triplets in common. The parties divorced in 2009. In a consent decree, Mother and Father

396 P.3d 1102

agreed to joint legal decision-making and equal parenting time. They further stipulated to have Father pay child support in the amount of $3830 per month, an upwardly deviated child support amount. In 2012, Father filed a petition to modify child support and, pursuant to the parties' stipulation, the court modified Father's child support to $3500, instead of the $1100 per the Guidelines ("2012 Order"). The Child Support Worksheet attached to the 2012 Order showed Father's gross monthly income at $54,852 and Mother's at $13,694.

¶ 3 On June 10, 2015, Father filed a Petition to Modify Child Support requesting his obligation be reduced to $406.94 per month as calculated per the Guidelines.¹ Based on the evidence presented at a hearing, the superior court found Father's income was $32,783 per month and Mother's was $22,489 per month. Both parents testified regarding their expenses, the Children's lifestyle during the parents' marriage, the Children's extracurricular activities, health insurance payments, and other needs.

¶ 4 Mother requested that her expert witness on finances be present in the courtroom during Father's testimony. Father objected, and the superior court denied her request.

¶ 5 After the hearing, the superior court concluded Father had shown a substantial and continuing change in circumstances warranting a review of the child support order. The court found, per the Guidelines, that Father was obligated to pay $623.84 per month in child support. The court determined a deviation from the Guidelines was not appropriate, and ordered Father to pay the guideline amount starting October 1, 2015. Father subsequently filed a Motion to Correct Mistake arguing the order should be effective from the first of the month following the date of service of his petition to modify. The court issued an amended final order with the child support modification effective on July 1, 2015. Mother timely appealed and we have jurisdiction pursuant to A.R.S. § 12–2101(A)(1) and (2).²

DISCUSSION

¶ 6 Mother argues the superior court erred by (1) finding substantial and continuing circumstances existed justifying a modification of the 2012 Order; (2) applying the child support Guidelines without considering the parties' previous deviation; (3) determining Mother had the burden to prove an upward deviation was in the Children's best interests; (4) applying the child support modification retroactively without ordering that Mother be reimbursed for expenses paid pursuant to the 2012 Order; and (5) excluding Mother's expert witness from the courtroom during Father's testimony.

¶ 7 "The decision to modify an award of child support rests within the sound discretion of the trial court and, absent an abuse of that discretion, will not be disturbed on appeal." Little v. Little , 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108 (1999). "We will accept the court's findings of fact unless they are clearly erroneous, but we draw our own legal conclusions from facts found or implied in the judgment." Nash v. Nash , 232 Ariz. 473, 476, ¶ 5, 307 P.3d 40 (App. 2013). "[W]e will uphold the award unless it is ‘devoid of competent evidence,’ " Id. at 478, ¶ 16, 307 P.3d 40 (quoting Jenkins v. Jenkins , 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140 (App. 2007) ), and for any reason supported by the record. Watson v. Apache County , 218 Ariz. 512, 517, ¶ 23, 189 P.3d 1085 (App. 2008). We interpret the Guidelines de novo . Hetherington v. Hetherington , 220 Ariz. 16, 21, ¶ 21, 202 P.3d 481 (App. 2008).

A. The Child Support Modification was Based on a Substantial and Continuing Change in Circumstances.

¶ 8 Mother contends the superior court erroneously found a substantial and continuing change in circumstances existed to justify modification of the child support paid by

396 P.3d 1103

Father, and failed "to consider the best interests of the minor children in determining a change in circumstances."

¶ 9 A child support order can be modified "only on a showing of changed circumstances that are substantial and continuing." A.R.S. § 25–327(A) ; Guidelines § 24(A) ("[E]ither parent ... may ask the court to modify a child support order upon a showing of a substantial and continuing change of circumstances."). Whether such a change occurred is a question of fact. Schroeder v. Schroeder , 161 Ariz. 316, 323, 778 P.2d 1212 (1989). The superior court retains "the sound discretion" to determine "whether changed circumstances exist to warrant modification of an award," Pearson v. Pearson , 190 Ariz. 231, 233, 946 P.2d 1291 (App. 1997), and the "Guidelines do not replace the exercise of trial court discretion; they focus it." Id. at 234, 946 P.2d 1291. In exercising its discretion, the superior court shall "consider the nature of the changes and the reasons for the changes." Little , 193 Ariz. at 523, ¶ 14, 975 P.2d 108 (quoting In re Marriage of Clyatt , 267 Mont. 119, 882 P.2d 503, 505 (1994) ).

¶ 10 In this case, the superior court considered several circumstances appropriate to modify the 2012 Order, including that Father's income had decreased while Mother's had increased.³ The evidence supports the superior court's determination that there was a substantial and continuing change in circumstances.

1. Father's decreased income.

¶ 11 Mother contends the change in Father's income is not substantial and continuing because Father's income remained substantially above the $20,000 a month cap in the Guidelines; Father decreased his working hours voluntarily; and Father's actual income would be higher than reported if the court were to properly account for Father's personal expenditures covered by his business.

¶ 12 "[A] court reasonably may consider evidence of income prior to the modification petition to assist in determining the individual's current income and whether it has ‘substantially’ changed since the existing child support award was set." Pearson , 190 Ariz. at 236, 946 P.2d 1291. Evidence regarding current or reasonably projected income, and of recent years' income may assist the court in determining whether an increase or decrease in income is "continuing." Id.

¶ 13 Father testified, and his tax returns demonstrated, his annual income decreased from $441,636 in 2013 to $382,383 in 2014. Father explained that the decrease was due to fewer patients visiting his dental practice. The record supported the court's finding that Father's change in income was substantial and continuing, even without Father's recent voluntary reduction in working hours due to health concerns.

¶ 14 Mother asserts the court erred by concluding that Father's personal expenses paid by his business were de minimus and not counting the expenses as income. The court considered the evidence presented and resolved the factual disputes presented by the parties. Father testified the business reimbursed him for such expenses as uniforms, gas for a company vehicle, food for networking and other business purposes, and general office supplies. Father further testified he employed an accountant and bookkeeper to help him make appropriate determinations regarding business expenses. The court considered the issue of whether the benefits Father had received were "significant and reduce[d] personal living expenses," Guidelines § 5(D), and determined Father had not "sheltered" his income. We defer to the superior court's "determination of witnesses'

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