Huver v. Huver ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
ADDIE MARIE HUVER, Petitioner/Appellee,
v.
RONALD REBEL HUVER, Respondent/Appellant.
No. 1 CA-CV 18-0268 FC
FILED 4-23-2019
Appeal from the Superior Court in Maricopa County
No. FC2011-091022
The Honorable Laura M. Reckart, Judge
AFFIRMED
COUNSEL
Law Office of John R. Zarzynski, Phoenix
By John R. Zarzynski
Counsel for Petitioner/Appellee
McCulloch Law Offices PLLC, Tempe
By Diana McCulloch
Counsel for Respondent/Appellant
HUVER v. HUVER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Jennifer B. Campbell joined.
M c M U R D I E, Judge:
¶1 Ronald Rebel Huver, Sr. (“Father”) appeals from an order
modifying his child support obligation. For the following reasons, we hold
the superior court properly modified the child support order, and the
record supports the amount of the modification.
FACTS AND PROCEDURAL BACKGROUND
¶2 Pursuant to a 2011 divorce decree, Father paid $1000 per
month in child support for the parties’ two minor children who, at that time,
both primarily resided with Addie Marie Huver (“Mother”). In June 2014,
the older child began living with Father. Father continued to pay Mother
$1000 per month in child support according to the decree. In November
2014, Father petitioned to modify legal decision-making, parenting time,
and child support based, in part, on the change in the older child’s living
arrangements. Mother filed a response and counter-petition, also seeking to
modify legal decision-making, parenting time, and child support.
¶3 At a resolution management conference in February 2015, the
parties reached a partial agreement. Consistent with that agreement, the
superior court ordered (“February 2015 order”) that “Father’s child support
shall be terminated as of March 1, 2015, outlined below. Recalculation of
child support shall be pending June 1, 2015.” The court also set an April
settlement conference and appointed an advisor to investigate and make
parenting recommendations. The court vacated the settlement conference
and scheduled an evidentiary hearing for January 2016. By June 1, 2015, the
older child had turned 18 and had graduated from high school.
¶4 Before the evidentiary hearing, the superior court dismissed
without prejudice Father’s petition to modify. The court gave no reason for
dismissing Father’s petition but did not dismiss Mother’s counter-petition.
Nevertheless, Mother took the position that the dismissal included her
counter-petition and, three months later, filed a petition to enforce and
modify the child support order outlined in the decree. Father moved to
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Decision of the Court
dismiss Mother’s petition, arguing there was no current child support order
to enforce or modify because his child support obligation terminated on
March 1, 2015. The court denied the petition to dismiss without comment
and held an evidentiary hearing in January 2018.
¶5 After the hearing, the superior court concluded that the
February 2015 order intended to suspend Father’s child support obligation
until June 1, 2015, when the older child became emancipated, and after that
date, a recalculation would be required. Thus, the court found Father’s
child support obligation for the younger child recommenced on June 1,
2015. Using income figures from the 2011 decree and current childcare costs
of $325 per month, the court determined Father’s child support obligation
to be $675 per month from June 1, 2015, to October 1, 2016. Because the
parties’ incomes had increased since the 2011 decree, the court entered a
separate child support order for $720 per month starting November 1, 2016,
the first month after Mother petitioned to enforce/modify. After an
unsuccessful motion for new trial, Father timely appealed. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1) and (5)(a).
DISCUSSION
A. The Court Properly Modified Child Support Effective June 1, 2015.
¶6 Father argues the superior court denied him due process and
abused its discretion when it modified child support effective June 1, 2015,
because his child support obligation terminated on March 1, 2015, and
Mother did not petition to establish a new child support order after that
date. Mother argues the February 2015 order was a temporary order that
terminated when the court dismissed Father’s petition pursuant to A.R.S.
§ 25-315(F)(4). She contends this left the child support order from the decree
in effect.
¶7 We review the superior court’s ruling on a petition to modify
child support for an abuse of discretion; however, we review de novo the
court’s interpretation of the child support statutes, Birnstihl v. Birnstihl, 243
Ariz. 588, 590-91, ¶ 8 (App. 2018), and due process claims, Emmett
McLoughlin Realty, Inc. v. Pima County, 212 Ariz. 351, 355, ¶ 16 (App. 2006).
¶8 Mother contends Father waived his due process argument
because he did not raise it below. Although Father did not specifically plead
a due process violation, he argued there was no valid child support order
to modify or enforce after March 1, 2015. Generally, arguments not raised
in the superior court cannot be made on appeal; however, we may suspend
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this procedural rule in our discretion. See City of Tempe v. Fleming, 168 Ariz.
454, 456 (App. 1991). We decline to apply to the doctrine of waiver.
¶9 “[D]ue process entitles parties to notice and a meaningful
opportunity to be heard,” State v. Hildalgo, 241 Ariz. 543, 548, ¶ 10 (2017),
and “the opportunity to offer evidence and confront adverse witnesses,”
Cook v. Losnegard, 228 Ariz. 202, 206, ¶ 18 (App. 2011). Father claims he had
no notice Mother sought to modify child support as of June 1, 2015, because
she only asked the court to enforce the 2011 support order.
¶10 Father’s contention is based on the incorrect premise that the
February 2015 order was a final order that permanently terminated his
support obligation. The February 2015 order was a temporary order that,
consistent with the parties’ agreement, suspended the child support order
in the 2011 decree until June 1, 2015. This is reasonable because each parent
had custody of one child, and each would owe support to the other parent
until the older child emancipated in June 2015. The February 2015
temporary order anticipated that the court would “recalculate” child
support for the younger child after June 1, 2015, when the support
obligation for the older child ended. It was a temporary order because the
court scheduled future proceedings regarding custody issues that would
also impact the child support calculation. Thus, Father had notice there
would be a future hearing addressing child support for the younger child,
and that the support order would be effective June 1, 2015.
¶11 Father argues the superior court could not modify the support
order because no child support order was in effect after March 1, 2015.
Mother argues the original child support order from the decree was
reinstated when the court dismissed Father’s petition. Mother relies on
A.R.S. § 25-315(F)(4), which states that a temporary order terminates when
a petition is dismissed. We disagree with Mother that the dismissal of
Father’s petition terminated the February 2015 order. The court never
dismissed Mother’s counter-petition and did not dismiss Father’s petition
until July 2015. Therefore, as of June 1, 2015, the issue of child support for
the younger child was properly before the court because both petitions to
modify were still pending. The temporary order remained in effect until
entry of the final order in 2018.
¶12 Father also argues the superior court erroneously applied
A.R.S. § 25-320 to justify the retroactive modification. The court cited A.R.S.
§ 25-320 in recognizing a parent’s legal duty to support his or her children.
The effective date of a child support modification is governed by A.R.S.
§ 25-327(A), which provides that a change of an existing support order
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becomes effective “on the first day of the month following notice of the
petition for modification or termination unless the court, for good cause
shown, orders the change to become effective at a different date but not
earlier than the date of filing the petition for modification or termination.”
See also Guerra v. Bejarano, 212 Ariz. 442, 444, ¶ 7 (App. 2006) (recognizing
A.R.S. § 25-503(E) includes the same language as § 25-327(A) in the context
of a support order separate from a decree). Mother’s counter-petition, filed
on December 23, 2015, is the operative pleading because the superior court
dismissed Father’s petition to modify. Thus, the modification could have
been effective as of the date Mother filed the counter-petition. However, the
February 2015 order temporarily “terminated” Father’s child support until
June 1, 2015. See Lamb v. Superior Court, 127 Ariz. 400, 403 (1980) (“In the
absence of a valid judgment, decree or order requiring one spouse to pay a
fixed sum to the other spouse for child support, no such duty exists.”). For
these reasons, the court correctly ordered the child support modification
effective June 1, 2015.
B. A Child Support Order for the Older Child Was Not Warranted.
¶13 Father contends that because the superior court ordered him
to pay support for the younger child starting June 2015, the court should
also order Mother to pay support for the older child beginning June 2014,
when that child began living with Father. Father, however, waited until
November 13, 2014, to petition to modify child support. Therefore, that is
the earliest date the court could have modified the support order. See A.R.S.
§ 25-327(A). If Father wanted to change the child support order when the
older child moved in with him, he had the duty to file a petition to modify
at that time.
¶14 Father also argues equity required Mother to pay child
support for the older child starting in June 2014. 1 Father contends he could
not petition to modify before complying with the mediation requirement in
the dissolution decree. However, the mediation requirement only applied
to parenting-time orders, not child support issues. More importantly,
Guerra held that courts may not “invoke equitable principles to contradict
A.R.S. §§ 25-327(A) and -503(E).” 212 Ariz. at 445–46, ¶ 14. Therefore,
1 We disagree with Father’s assertion that Mother failed to support the
older child the entire time that child lived with Father. After the court
entered the temporary order “terminating” Father’s support obligation, the
parties each supported one child.
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consistent with the temporary order and the parties’ agreement, the court
properly modified the child support order effective June 1, 2015. Id.
C. A Remand for New Financial Evidence Is Not Warranted.
¶15 The superior court adopted the income figures in the 2011
decree to determine child support for the period of June 1, 2015, to
November 1, 2016. Father claims the court erred by not relying on the 2015
financial information. Father argues he would have provided evidence that
Mother’s income had increased after 2011 if he had notice that the court
would be considering child support as of June 1, 2015. As noted above,
Father had notice that the superior court would recalculate child support as
of June 1, 2015.
¶16 Father failed to provide a transcript of the evidentiary
hearing. As the appellant, Father had the duty to ensure the record on
appeal contained the transcripts necessary for consideration of the issues
on appeal. See ARCAP 11(b); State ex rel. DES v. Burton, 205 Ariz. 27, 30, ¶ 16
(App. 2003). When such transcripts are not included, “we assume the
missing portions of the record would support the trial court’s findings and
conclusions.” Burton, 205 Ariz. at 30, ¶ 16.
¶17 According to the exhibit worksheet, Father listed several
financial exhibits but did not offer them into evidence at the evidentiary
hearing. The record included Mother’s 2015 and 2016 tax returns. We
presume Father had the opportunity to offer evidence of the parties’ 2015
incomes and to cross-examine Mother regarding this information. In the
absence of a transcript, we presume the record supports the income figures
used by the superior court. Burton, 205 Ariz. at 30, ¶ 16. Accordingly, Father
is not entitled to a remand for the court to consider new evidence.
ATTORNEY’S FEES AND COSTS ON APPEAL
¶18 Both parties requested an award of attorney’s fees on appeal
according to A.R.S. § 25-324. Under A.R.S. § 25-324(A), the court may award
either party reasonable attorney’s fees “after considering the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings.” According to the most recent
financial affidavits in the record, Father earns significantly more than
Mother. Based on the financial disparity between the parties and after
considering the reasonableness of their positions, we award Mother her
reasonable attorney’s fees on appeal. As the successful party, Mother is also
entitled to an award of costs on appeal. See A.R.S. § 12-342.
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Decision of the Court
CONCLUSION
¶19 We affirm the child support orders and the denial of Father’s
motion for a new trial. 2 Mother is awarded her attorney’s fees and costs on
appeal upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: JT
2 Father also appealed from the denial of his motion for new trial. The
motion for new trial raised the same arguments Father made on appeal. For
the reasons stated above, the court properly denied Father’s motion for new
trial.
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