Kittel v. Kittel ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
KRAIG MICHAEL KITTEL, Petitioner/Appellant,
v.
AMBER DAWN KITTEL, Respondent/Appellee.
No. 1 CA-CV 15-0073 FC
FILED 2-9-2016
Appeal from the Superior Court in Maricopa County
No. FC2009-050069
The Honorable Jay M. Polk, Judge
VACATED AND REMANDED WITH INSTRUCTIONS
COUNSEL
Kraig Michael Kittel, Cave Creek
Petitioner/Appellant
Law Offices of Karla L. Calahan, Scottsdale
By Karla Lynn Calahan
Counsel for Respondent/Appellee
KITTEL v. KITTEL
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 This appeal arises out of an order modifying, both
prospectively and retroactively, a child support obligation of
petitioner/appellant, Kraig Michael Kittel (“Father”). Because neither
Father nor respondent/appellee Amber Dawn Kittel (“Mother”) had
petitioned to modify child support and the family court had not entered an
order modifying parenting time, the family court should not have modified
Father’s child support obligation. Accordingly, we vacate the child support
order and instruct the family court, on remand, to enter orders modifying
child support and parenting time.
FACTS AND PROCEDURAL BACKGROUND
¶2 Pursuant to the parties’ 2009 decree of dissolution, Father
paid $400 per month in child support to Mother for their three minor
children. In October 2012, Mother and Father separately petitioned to
modify child custody, parenting time, and child support. At a hearing on
the petitions in October 2013, the family court appointed a best interests
attorney (“BIA”) to investigate an issue regarding the parties’ daughter and
ordered: “If the [BIA] believes that a modification of the legal decision-
making or parenting time orders are in the children’s best interest, then the
[BIA] shall file either a petition to modify legal-decision making and/or
parenting time or file a dependency action with the Juvenile Court.” From
our review of the record, the parties apparently acknowledged at this
hearing that Father’s parenting time arrangement as to the parties’
daughter differed from the court-ordered parenting time. The family court
set a status conference to address the BIA’s investigation and a possible
child support modification hearing. Later that month, the family court
resolved the pending petitions, ordering that “child support remain the
same” as well as joint legal decision making and equal parenting time.
Nevertheless, the family court noted the possibility of a child support
modification hearing at several subsequent status conferences, but neither
party petitioned to modify child support.
2
KITTEL v. KITTEL
Decision of the Court
¶3 Even though neither party petitioned to modify child
support, the family court held a child support modification hearing on
December 2, 2014, concluding that, because Father had stopped exercising
parenting time with the daughter in May 2013, his child support obligation
should be modified beginning June 1, 2013. 1 Accordingly, based on the
parties’ current incomes, the termination of spousal maintenance, and the
current parenting time schedule the parties were actually following, the
family court increased Father’s child support obligation from $400 per
month to $1,278. The family court also applied this increased amount
retroactively to June 1, 2013, which required Father to pay $16,682 in past
child support.
DISCUSSION
¶4 On appeal, Father argues the family court should not have
modified the child support order retroactively because Mother did not file
a petition to modify child support. We agree. Additionally, as we first
discuss, the family court should not have modified child support
prospectively. See Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9, 286 P.3d 1095, 1099
(App. 2012) (“A court abuses its discretion if it commits an error of law in
reaching a discretionary conclusion.”) (internal quotations and citation
omitted).
¶5 Child support may be modified upon the filing of a petition
to modify showing substantial and continuing changed circumstances. See
Ariz. Rev. Stat. (“A.R.S.”) §§ 25-327(A) and 25-503(E) (Supp. 2015). Further,
under Arizona Rule of Family Law Procedure 91(B), a party seeking to
modify child support must file a petition for modification. Even in the
absence of a petition to modify, however, when the family court issues a
parenting time order, it must also determine whether to modify child
support. See A.R.S. § 25-403.09 (Supp. 2015); Heidbreder v. Heidbreder, 230
Ariz. 377, 380, ¶¶ 9-10, 284 P.3d 888, 891 (App. 2012) (“A.R.S. 25-403.09
places a duty on the [family] court to ensure that child support is properly
addressed when the [family] court issues parenting time/custody orders.”).
Thus, the family court may modify child support when it enters a parenting
time order, even without a petition to modify child support. See A.R.S. §
1At the December 2, 2014 hearing, Father admitted he had
stopped exercising parenting time with the daughter as of May 2013
although he was sharing equal parenting time with the parties’ two sons.
Accordingly, Father is precluded from disputing this was the parenting
time schedule as of the date of the hearing.
3
KITTEL v. KITTEL
Decision of the Court
25-403.09(A); Heidbreder, 230 Ariz. at 380, ¶¶ 9-10, 284 P.3d at 891. It cannot,
however, modify child support sua sponte without first providing the
affected parent “adequate notice and a meaningful opportunity to be
heard.” Heidbreder, 230 Ariz. at 381, ¶ 13, 284 P.3d at 892.
¶6 Here, when the family court modified child support, neither
Father nor Mother had petitioned to modify child support or parenting
time, and the court had not entered a modified parenting time order.
Instead, at the modification hearing, the family court accepted the
parenting time arrangement the parties were actually following even
though the last parenting time order had provided Father equal parenting
time with all three children. Without either a petition to modify child
support or a modified parenting time order, the family court was not
entitled to modify child support prospectively.
¶7 Furthermore, the family court could not retroactively apply
the modified child support order to the date the parties informally changed
their parenting time arrangement. The earliest date a modification may be
made retroactive is the date the petition to modify is filed. See A.R.S. §§ 25-
327(A) and 25-503(E). Because neither Father nor Mother had petitioned to
modify child support, the child support order could not be applied
retroactively; it could only operate prospectively. “The court lacked
authority to invoke equitable principles to contradict A.R.S. §§ 25-327(A)
and 503(E).” Guerra v. Bejarano, 212 Ariz. 442, 445, ¶ 14, 133 P.3d 752, 755
(App. 2006) (family court lacked equitable powers to retroactively modify
support order to the date one of the parties’ children was emancipated
when that date preceded the date of the petition to modify). Even if the
family court had ordered modified parenting time, to afford Father his due
process rights, the family court needed to provide him adequate notice and
a meaningful opportunity to be heard on child support modification. From
our review of the record, it does not appear Father received notice that any
child support modification would apply retroactively.
¶8 Father also argues the family court improperly increased his
child support obligation as a sanction for failing to exercise parenting time
with his daughter. The family court did not modify child support as a
sanction, however. Rather, it considered the evidence that reflected a
substantial and continuing change in the circumstances. This evidence
included, in addition to the parties’ actual parenting time arrangement, the
change in the parties’ income, and the termination of Father’s spousal
maintenance payments to Mother (which had been included in the prior
calculation of Mother’s income for purposes of the prior child support
order).
4
KITTEL v. KITTEL
Decision of the Court
¶9 Nevertheless, as discussed, the family court was not entitled
to modify child support absent a petition to modify or the entry of a
parenting time order. See A.R.S. § 25-403.09; Heidbreder, 230 Ariz. at 380, ¶
9, 284 P.3d at 891. Accordingly, we vacate the child support order. On
remand, the family court shall enter a parenting time order consistent with
the parenting time arrangement actually followed by the parties as of the
December 2, 2014 hearing. The court shall enter this parenting time order
nunc pro tunc to the date of the December 2, 2014 hearing. Upon entry of
that parenting time order, the court shall enter a modified child support
order also nunc pro tunc from the date of the parenting time order. 2
CONCLUSION
¶10 We vacate the child support order and remand for further
orders as instructed in this decision. In the exercise of our discretion, we
deny Mother’s request for an award of attorneys’ fees on appeal. See Ariz.
R. Civ. App. P. 21(a)(2). We award Father his costs on appeal contingent
upon his compliance with Arizona Rule of Civil Appellate Procedure 21.
:ama
2Thefamily court docket shows Father petitioned to modify
parenting time on October 6, 2015, and that this petition is still pending. We
express no opinion on that petition, and nothing in this decision should be
construed as addressing the merits of that petition.
5