Hitt v. Hitt ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MICHAEL HITT, Petitioner/Appellee,
v.
AIMEE HITT, Respondent/Appellant.
No. 1 CA-CV 14-0575 FC
FILED 6-25-2015
Appeal from the Superior Court in Maricopa County
No. FC2009-000785
The Honorable Benjamin R. Norris, Judge
AFFIRMED
COUNSEL
Michael Hitt, Gilbert
Petitioner/Appellee
Aimee Hitt
Respondent/Appellant
HITT v. HITT
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.
P O R T L E Y, Judge:
¶1 Aimee Hitt (“Mother”) appeals from the denial of her petition
to modify child support. Because her petition failed to allege any change of
circumstance warranting modification, we affirm.
BACKGROUND
¶2 Michael Hitt (“Father”) filed a petition for modification of
parenting time and child support. After the hearing on the petition, he was
ordered to pay child support of $190 per month in September 2010. Mother
filed a petition to modify child support in 2012 using simplified procedures.
After attributing income of $2500 per month to her, the court found that
there was not a fifteen percent difference and denied her modification
request.
¶3 Mother filed another petition to modify child support in May
2014.1 The petition did not state the reason why she was seeking a
modification, but the child support worksheet that was included listed her
income as $1700 per month. The family court denied the petition because
it failed to state any substantial and continuing change of circumstances.
1 Prior to the 2014 petition, Mother had filed five unsuccessful petitions
seeking to modify the child support order, and each claiming her income
was $1700 per month or less. She failed to provide affidavits, income tax
returns, paystubs, or other supporting financial documentation with any of
the petitions with the exception of the one filed September 6, 2012.
However, because she did not timely appeal from the denial of the
September 2012 petition, we do not now have jurisdiction to decide whether
the court abused its discretion by denying that request. See ¶ 5, infra.
2
HITT v. HITT
Decision of the Court
¶4 Mother filed a timely notice of appeal from this signed order.2
We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”)
section 12-2101(A)(2).3
¶5 Mother also seeks to appeal three orders entered July 2012,
November 2012, and February 2013. Mother’s August 2014 notice of appeal
is untimely as to those three rulings because she did not file an appeal
within thirty days of the court’s ruling in 2012 and 2013. See ARCAP 9(a)
(notice of appeal shall be filed “no later than 30 days after entry of the
judgment from which the appeal is taken”). Therefore, we lack jurisdiction
to consider her challenge to the court’s orders denying her petitions for
modification on July 12, 2012, November 19, 2012, and February 1, 2013. See
In re Marriage of Thorn, 235 Ariz. 216, 219, ¶ 10, 330 P.3d 973, 976 (App.
2014).4
DISCUSSION
¶6 Mother argues the family court erred by denying her petition
to modify the child support order and tax exemption allocation. “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.” Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d
1140, 1142 (App. 2007).
2 Mother filed a “motion to appeal denying respondent’s request to modify
child support.” The family court denied Mother’s “motion to appeal” to
the extent the motion was intended as motion for reconsideration.
However, her “motion to appeal” was properly treated as a notice of
appeal. See ARCAP 8(c) & (e) (setting forth content and form required in
notices of appeal); Hill v. City of Phoenix, 193 Ariz. 570, 572, ¶ 7, 975 P.2d
700, 702 (1999) (holding notice of appeal is sufficient if it conveyed adequate
notice to and did not prejudice the opposing party). Moreover, Father fully
responded to Mother’s appeal and we find no prejudice will result from
addressing the merits of this appeal.
3 We cite the current version of the statute unless otherwise noted.
4 Mother also asks this court to order Father to pay 70% of the parenting
coordinator’s fees and questions the parenting coordinator’s
recommendations. These issues, as well as any arrearages, were not
addressed in the order on appeal, and, therefore, are not properly before us
in this appeal.
3
HITT v. HITT
Decision of the Court
¶7 The family court can modify child support upon “a showing
of changed circumstance that is substantial and continuing.” A.R.S. § 25–
503(E); see also A.R.S. § 25–327(A). The parent seeking the modification “has
the burden of establishing changed circumstances with competent
evidence.” Jenkins, 215 Ariz. at 39, ¶ 16, 156 P.3d at 1144.
¶8 Mother asserted there had been a substantial and continuing
change in circumstances, yet offered no explanation or evidence of what
had changed. (She did not, for example, explain to the court why her
income was less than what had been attributed years earlier.) Her petition,
however, included a child support worksheet where she asserted that she
earned $1700 a month. She, however, did not attach any competent
evidence to support her monthly earnings. She did not attach an affidavit,
past tax returns, pay stubs, or even an order in another family court case in
which the court found her income was $1700 a month. See Maricopa
County Superior Court Cause No. FC 2001-012783 (May 14, 2012 order p.2).
¶9 Mother attached documents to her notice of appeal, but those
were not attached to her petition for modification; the only attachment to
the petition that the family court considered was her child support
worksheet. The child support worksheet without more does not constitute
competent evidence of a substantial and continuing change in
circumstances. And we cannot consider information that was not first
presented to the family court for consideration. See Nat’l Broker Assoc., Inc.
v. Marlyn Nutraceuticals, Inc., 211 Ariz. 210, 216, ¶ 30, 119 P.3d 477, 483 (App.
2005). Consequently, because Mother’s petition to modify child support
failed to provide any evidence supporting her claim that there was a
continuing change in circumstances, the family court did not abuse its
discretion in denying her petition.
CONCLUSION
¶10 We affirm the order denying Mother’s petition to modify
child support. Father is entitled to his taxable costs on appeal pursuant to
A.R.S. § 12-342(B) upon compliance with ARCAP 21.
:ama
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