Bastian v. Endresen ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MICHELLE STEFFANIE BASTIAN, Petitioner/Appellant,
v.
NEIL ROBERT ENDRESEN, Respondent/Appellee.
Nos. 1 CA-CV 14-0038 FC
1 CA-CV 14-0706 FC
(Consolidated)
FILED 12-3-2015
Appeal from the Superior Court in Maricopa County
No. FC2007-071097
The Honorable Jose S. Padilla, Judge
The Honorable Jeanne Garcia, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL
Judith A. Morse PC, Phoenix
By Judith A. Morse
Counsel for Petitioner/Appellant
Christopher S. Short PC, Glendale
By Christopher S. Short
Counsel for Respondent/Appellee
BASTIAN v. ENDRESEN
Decision of the Court
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Andrew W. Gould joined.
B R O W N, Chief Judge:
¶1 Michelle Bastian (“Mother”) appeals from the trial court’s
order retroactively modifying child support. For the following reasons, we
affirm the court’s decision modifying Mother’s child support obligation,
but we vacate the court’s decision to apply the modification retroactively
and remand for further proceedings.
BACKGROUND
¶2 The trial court dissolved Mother’s marriage to Neil Endresen
(“Father”) in 2007, granting Mother sole custody of the parties’ minor child,
granting Father parenting time, and ordering Father to pay child support.
In 2012, the parties stipulated to joint custody1 and Father continued to
abide by the parenting time plan and pay child support.
¶3 In May 2013, Mother filed a petition to modify legal decision-
making authority regarding school selection. In his response, Father
requested equal parenting time. Following an evidentiary hearing, the trial
court granted Father equal parenting time and, effective June 1, 2013,
ordered Mother to pay Father $78.13 per month in child support.
¶4 The court denied Mother’s motion for relief from judgment
and her motion to reconsider that denial. Mother timely appealed.
DISCUSSION
I. Due Process
¶5 Mother argues she did not receive proper notice of the child
support modification issue or a meaningful opportunity to be heard at the
evidentiary hearing. We review de novo Mother’s claims that she was
1 As amended by the legislature in 2012, custody is now termed “legal
decision-making” under the governing statutes. See Ariz. Rev. Stat.
(“A.R.S.”) § 25-401.
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denied due process. Savord v. Morton, 235 Ariz. 256, 260, ¶ 16 (App. 2014).
We will reverse a court’s order based on due process errors only on a
showing of prejudice. Volk v. Brame, 235 Ariz. 462, 470, ¶ 26 (App. 2014).
A. Notice
¶6 Mother asserts she did not have adequate notice that child
support would be modified at the evidentiary hearing because Father
“never filed a petition seeking modification of child support” as required
by Arizona Rule of Family Law Procedure (“Family Rule”) 91(B)(2)(a).
Filing a petition to modify child support, however, is not a prerequisite to
modification. Pursuant to A.R.S. § 25-403.09(A), “the court shall determine
an amount of child support in accordance with § 25-320 and guidelines”
when entering “any parenting time order[.]” Thus, when the trial court
modifies parenting time, as it did here, the court is “required to address
child support,” even in the absence of a formal petition. Heidbreder v.
Heidbreder, 230 Ariz. 377, 379–81, ¶¶ 7- 12 (App. 2012) (noting that Family
Rule 91’s procedural requirement to file a petition seeking to modify child
support is not inconsistent with A.R.S. § 25-403.09(A) because both require
notice and a meaningful opportunity to be heard).
¶7 Mother next argues she did not have adequate and timely
notice that Father intended to challenge child support because he delayed
requesting it until the filing of the joint pretrial statement a few days before
the hearing. Mother also contends the trial court failed to give her notice
that it intended to consider evidence relevant to child support at the
evidentiary hearing and would make a subsequent ruling regarding the
parties’ obligations.
¶8 We may reverse a child support modification order when the
parties had inadequate notice that child support would be addressed at a
hearing. Heidbreder, 230 Ariz. at 381, ¶¶ 13–14; Cook v. Losnegard, 228 Ariz.
202, 205–06, ¶¶ 17–18 (App. 2011). The record here, however, contains
ample evidence Mother had adequate notice. Father requested
modification of his parenting time in May 2013. When Father’s counsel
filed a notice of appearance, he noted that child support was at issue. The
trial court set the evidentiary hearing and ordered the parties to file a joint
pretrial statement with current affidavits of financial information and child
support worksheets attached.
¶9 Additionally, prior to the evidentiary hearing, Father filed an
amended response requesting child support modification. Several days
before the hearing, the parties identified child support as a contested issue
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in their joint pretrial statement and Father again requested modification of
child support. On this record, we conclude that Mother had adequate and
timely notice that the court would consider evidence regarding Father’s
request for child support modification at the evidentiary hearing.
¶10 Mother further argues that Father’s failure to disclose his tax
returns, pay stubs, or proof of health insurance costs in compliance with
Family Rule 49 denied her “adequate notice of the evidence and the
opportunity to be prepared to rebut that evidence at the evidentiary
hearing.” However, Mother admits she received Father’s affidavit of
financial information six days before the evidentiary hearing. Father’s
affidavit included his W2s and pay stubs, which showed the amount
deducted for health care premiums. Mother does not explain how she was
prejudiced by Father’s failure to disclose his tax returns. General
allegations of non-compliance with Rule 49 do not warrant reversal. See
Ariz. Const. art. 6, § 27 (“No cause shall be reversed for technical error in
pleadings or proceedings when upon the whole case it shall appear that
substantial justice has been done.”). We therefore discern no reversible
error.
B. Meaningful Opportunity to be Heard
¶11 Relying primarily on Volk, Mother argues the trial court
denied her a meaningful opportunity to be heard because the court
“insisted” it could handle the issue of child support in “five minutes” and
that time limitation led to confusion about income and incorrect and
inconsistent information about health care and child care costs, and the
court erred in relying “almost exclusively on avowals of counsel.” In Volk,
the trial court allotted fifteen minutes for a child support modification
hearing at which Father’s self-employment income amount was in dispute.
235 Ariz. at 465, ¶ 4. Father raised due process concerns over the time
limitation and the court prohibited the parties from testifying, relying
exclusively on avowals from counsel and disputed documents. Id. at 465–
66, ¶¶ 9–11, 469 n.6, ¶ 22. We held that “a court abuses its discretion when
it adheres to rigid time limits that do not permit adequate opportunity for
efficient direct testimony and cross-examination.” Id. at 464, ¶ 1. We
further held that “when the resolution of an issue before the court requires
an assessment of credibility, the court must afford the parties an
opportunity to present sworn oral testimony and may not rely solely on
avowals of counsel.” Id.
¶12 In contrast to the circumstances in Volk, the record here shows
that the trial court allotted each party one hour to address the underlying
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issues at the evidentiary hearing and advised the parties it would address
child support at the conclusion of the hearing, to which Mother’s attorney
made no objection. Although the court stated it could “take care of” child
support in five minutes, Mother’s attorney made no formal objection to the
amount of time spent addressing child support. Mother’s attorney
specifically advised the court she was “less concerned about litigating the
last minute child support issue, although it . . . has created . . . a time issue.”
Finally, she did not ask for additional time nor did she seek a continuance
of the hearing.
¶13 Furthermore, despite Mother’s claims that it was error for the
trial court to rely “almost exclusively” on avowals of counsel, the record
shows counsel and the court asked Mother and Father about their
respective incomes and additional children. And although the court asked
Mother a question about daycare costs, Mother’s attorney answered, and
Mother made no effort to correct the statement given by her attorney that
was inconsistent with her affidavit of financial information.2 Further,
Mother’s attorney did not object to any of Father’s testimony or the
information supplied by Father’s attorney during questioning about health
care costs, nor did she make any effort to cross-examine Father.3
¶14 Mother further claims the trial court did not provide her the
opportunity to view Father’s financial exhibits and evidence. Although
Mother’s attorney asked the court to “briefly just take a look at the exhibits”
before questioning began concerning child support, to which the court did
not respond, neither party proffered exhibits related to child support.
Mother cannot claim she was prejudiced by the admission of exhibits that
2 To the extent Mother argues the court erred in omitting daycare costs
from its child support worksheet filed later that day, Mother never objected
or moved to modify the new child support amount on that basis. Therefore,
Mother has waived this argument on appeal. See Trantor v. Fredrikson, 179
Ariz. 299, 300 (1994) (errors not raised in trial court cannot generally be
asserted on appeal).
3 The court’s child support worksheet listed Father’s healthcare costs
at $150, an amount that was not provided to the court during the hearing.
As with the omission of daycare costs, Mother never objected to the court’s
child support worksheet or moved to modify the new child support amount
on this basis. To the extent Mother argues this was error, she has waived it
on appeal. See Trantor, 179 Ariz. at 300.
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were not proffered. On this record, Mother was not denied a meaningful
opportunity to be heard.
II. Effective Date of Child Support Modification
¶15 Mother argues that the effective date of the trial court’s order
modifying child support should have been November 1, 2013, based on the
new parenting time schedule that went into effect on that date. We review
a court’s decision to modify child support for abuse of discretion, but we
review de novo the court’s interpretation of the child support modification
statutes. See Guerra v. Bejarano, 212 Ariz. 442, 443, ¶ 6 (App. 2006); State v.
Demetz, 212 Ariz. 287, 289, ¶ 6 (App. 2006).
¶16 An order modifying child support is “effective on the first
day of the month following notice of the petition for modification . . . 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.” A.R.S. §§ 25-327(A), -503(E).
¶17 Father filed his response requesting modification of parenting
time on May 29, 2013, in which he asked the court to order equal parenting
time. Because a modification of parenting time necessarily entails a
modification of child support, A.R.S. § 25-403.09(A), and the parties listed
child support as a contested issue in the joint pretrial statement, which had
“the effect of amending the pleading,” Carlton v. Emhardt, 138 Ariz. 353, 355
(App. 1983), we treat Father’s request to modify parenting time as a petition
to modify child support. Thus, under the plain language of A.R.S. §§ 25–
327(A) and -503(E), the presumptive date for the child support modification
order is June 1, 2013, unless good cause is shown to set a different effective
date.
¶18 Mother argues the trial court erred when it ordered child
support modification to begin retroactively on June 1, 2013 because the
basis for modification was a change in parenting time that did not occur
until November 1, 2013. The court rejected this argument, stating that it
had no “equitable authority” and that modification was effective June 1,
2013 because “that’s what the Statute says. It’s modified the first day of the
month following the Notice.”4
4 The trial court found that Mother had notice parenting time was an
issue as of May 2, 2013, the date the parties reached a mediation agreement
and identified parenting time as a disputed issue. Child support
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Decision of the Court
¶19 We conclude the court’s ruling failed to account for the
provisions of A.R.S. §§ 25–327(A) and -503(E), which give a court discretion
to determine whether good cause exists to modify the child support amount
attributed to a change in parenting time. An abuse of discretion occurs
when the trial court “fails to exercise its discretion in ruling on a matter.”
See State v. Vega, 228 Ariz. 24, 26, ¶ 6 (App. 2011). Accordingly, we remand
to permit the trial court to consider in its discretion whether good cause
exists to modify child support effective from a different date than the first
day of the month following notice of the petition.
CONCLUSION
¶20 For the reasons stated above, we affirm the modification of
child support, but vacate and remand for reconsideration as to its
retroactive application. In the exercise of our discretion, we deny the
parties’ requests for attorneys’ fees on appeal pursuant to A.R.S. § 25-324.
We award Father his taxable costs upon compliance with Arizona Rule of
Civil Appellate Procedure 21.
:ama
modifications are “effective on the first day of the month following notice of
the petition for modification,” not notice of the issue being disputed. A.R.S.
§§ 25-327(A), -503(E) (emphasis added). Under the plain language of the
statute, the date that triggered the effective date of modification here was
not May 2, 2013, but May 29, 2013, the date Father filed his response
requesting modification of parenting time. Regardless, the presumptive
effective date is June 1, 2013, using either notice date.
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