No Reversible Error in Arizona Child Support Modification
Arizona child support modification case summary.
The father petitioned to modify child support following his employment-motivated relocation to New York. Petition granted. The court decreased his monthly obligation, finding father’s relocation was a substantial and continuing change in circumstances. Regarding income tax, father was permitted to claim one of his children as a dependent in two out of every three years – that is, so long as he was current and owed no child support arrears. Lastly, the court entered judgment against father for $20,000.00 in child support arrears owed the mother. Father timely appealed.
Note: The appellate court’s attorney fees decision was published contemporaneously with the memorandum decision discussed here. To read the attorney fees case summary, click here.
Father’s Relocation and New Job Sufficient Reason for Modified Support
It was December 2012 when the spouses’ default divorce decree was entered along with parenting plan and child support order. The mother was granted primary custody; the children would reside with her most of the time. The father was granted parenting time and ordered to pay child support. Soon after, he moved to New York for work. In September 2013, he started a new job earning $3,464.00 a month.
In March 2014, father petitioned the Superior Court in Maricopa County to modify the child support order. Any post-decree modification of child support requires evidence of a “changed circumstance that is substantial and continuing.” ARS § 25-503(E). Following a court hearing with evidence and testimony, the judge granted father’s petition, decreasing the monthly payments from $1,013.48 to $619.04.
Father’s Arguments on Appeal
Although the father’s request was granted, he took issue with several of the court’s determinations. In his appeal, he argued the following:
- Arizona Child Support Guidelines: The trial court misapplied the Arizona Child Support Guidelines by failing to include all of mother’s earnings from her two jobs. Held: No error, affirmed.
- Start Date of Modified Amount: The trial court erred by failing to adhere to ARS § 25-503(E)’s presumptive start date for modified support orders. Held: No error, affirmed.
- Tax Credits: The trial court erred in barring father from claiming child tax credits on his federal income taxes unless all child support arrears were fully paid. Held: No error, affirmed.
- Judicial Notice of Fact: The trial court erred by taking judicial notice of the fact that mother could not afford to help pay the children’s travel expenses on trips to New York for parenting time. Held: Harmless error, affirmed.
Full-Time May Be Less Than 40 Hours Under Arizona Child Support Guidelines
In § 5(A) of the Arizona Child Support Guidelines, income from any source is considered when calculating a parent’s gross monthly income. Generally, courts should not attribute additional income to a parent “if that would require an extraordinary work regiment.” Instead, it should determine from the facts a “reasonable work regimen” under the relevant circumstances.
Mother’s income as a dental hygienist came from two dental practices. She averaged 27 hours per week with her primary employer. But she was as-needed, on an inconsistent basis, with the second dentist. Although her Affidavit of Financial Information (AFI) stated $4,718.31 monthly gross income, the trial court attributed $4,876.20 to her. However, because mother’s second job was not “historically earned from a regular schedule” it was not included.
The appellate court held there was no abuse of the trial judge’s discretion. Full time employment is sometimes less than 40 hours a week. Among other things, the trial court properly considered all relevant factors surrounding mother’s “reasonable work regimen.”
Modified Amount May Be Delayed in Child’s Best Interests
Arizona law makes the presumptive date a modification goes into effect “the first day of the month following the petition for modification.” ARS § 25-503(E). In this instance, the presumptive start date was March 2014. The trial court departed from the presumptive start date for cause, setting instead a future date of September 1, 2014, in the best interests of the children.
Father argued (unsuccessfully) that pushing the child support order’s effective date out to September was error. That reduced payments will always be in the children’s best interests and, standing alone, could not be “good cause” under the statute.
Based upon the record before it, the appeals court held the trial court acted within its discretion by delaying the effective date of its modified support order. Significantly, “Father did not request detailed findings, and there is nothing in the record to contradict the court’s determination that delaying the modification serves the children’s best interests.”
Claiming Tax Exemption for Children Contingent Upon No Arrears
Under § 27 of the Guidelines, the court has discretion to deny or make conditional a parent’s right to use the present or future federal income tax exemption for a child. This father was granted the deduction for one child every two of three tax years, but conditionally. To claim the deduction, he must not owe any child support arrears.
Although current on support payments, father had a demonstrated “history of nonpayment.” He owed $20,000.00 in arrears to the mother. Consequently, he would not be able to claim the tax exemption without paying all arrears first.
Judicial Notice of Fact was Harmless Error
Father wanted the cost of airline tickets, which he paid to fly the children to New York for his parenting time, to count toward his child support obligation. During his attorney’s direct examination of the mother on that issue, the trial record showed: “The Court will take judicial notice that she does not have the money to contribute to plane tickets and I don’t think that’s relevant.”
The doctrine of judicial notice lets the judge find a certain fact without further evidence and time. But only if that fact is one “so notoriously true as to not be subject to reasonable dispute.” The trial court erred in taking judicial notice that mother’s income was insufficient to help pay for the children’s travel expenses. The Court of Appeals held, however, that such “harmless error” did not prejudice father’s case. This harmless error in the family court’s order was not a “reversible error.” Affirmed.
Lastly, both parties’ requests for attorney fees on appeal were denied. The mother was entitled to an award of taxable costs, though, as the prevailing party on appeal. Arizona Rules of Civil Appellate Procedure, Rule 21.
Clark v. Clark, Memorandum Decision, 1 CA-CV 15-0068 FC (March 3, 2016)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more about appeals from family court decisions, read our discussion about Appealing the Trial Judge’s Decision.