Mangis v. Ulmer ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JEFFREY KIRK MANGIS,
Petitioner/Appellant,
v.
THERESA KAY ULMER,
Respondent/Appellee.
No. 1 CA-CV 15-0363 FC
FILED 4-21-2016
Appeal from the Superior Court in Maricopa County
FC2012-008932
The Honorable George H. Foster, Jr., Judge
AFFIRMED
COUNSEL
Jeffrey Kirk Mangis, Flagstaff
Petitioner/Appellant
Theresa Kay Ulmer, Phoenix
Respondent/Appellee
MANGIS v. ULMER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Lawrence F. Winthrop and Judge Donn Kessler joined.
S W A N N, Judge:
¶1 Jeffrey Kirk Mangis (“Father”) appeals from an order
requiring him to pay child support arrearages in the amount of $14,644.19.
He asserts that the court failed to rule on an earlier request to modify child
support, resulting in substantial arrearages. He also contends that the court
erred by failing to make its later modification to child support retroactive,
because the circumstance requiring the modification occurred two years
earlier. Finally, Father contends that the court erred in calculating Theresa
Kay Ulmer’s (“Mother’s”) income. For the reasons set forth below, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Mother divorced in 2006. They had two minor
children, and Father was ordered to pay monthly child support and spousal
maintenance. By 2012, Mother had moved with the children to Phoenix and
moved for a change of venue from Yuma County, where the dissolution
action had been filed, to Maricopa County.
¶3 In 2012, Mother filed a request to modify child support in
Yuma County Superior Court that would have reduced the amount Father
paid in support each month. In October 2012, the Yuma County court held
a hearing on the motion for change of venue, noted that several motions
remained pending, but ultimately granted the change of venue to Maricopa
County Superior Court without addressing the pending motions. In
December, Mother filed a motion in Maricopa County Superior Court to
withdraw the request to modify child support. The court did not rule on
that motion. After the case was transferred, Father filed several responses
to Mother’s motion to withdraw in Yuma County Superior Court. He
ultimately filed a response in the Maricopa County court more than a year
after the Yuma County court transferred venue.
¶4 In September 2013, Mother sought judgment for child support
and medical expenses arrearages and again sought to modify child support.
In November 2013, the court in Maricopa County acknowledged the
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Decision of the Court
outstanding issues from the Yuma County court, granted Mother’s
outstanding motion to withdraw her petition to modify child support, and
ordered Father to file a petition to modify child support within ten days if
he wished to have support modified. Father failed to file such a petition
within ten days; he ultimately sought to modify child support in March
2014. The court set an evidentiary hearing on the pending matters,
including whether Father’s objection to Mother’s petition to withdraw her
own 2012 petition to modify should have modified child support
retroactively to 2012, eliminating most of his arrearages.
¶5 The court held the hearing on the remaining issues in May
2014 and issued a ruling in August. It ruled that Father’s attempts to
modify child support before his March 2014 filing did not comply with
court rules and statutes, and found that he owed arrearages of $13,357.94
plus $1,286 in interest. This court dismissed Father’s first appeal because
an issue relating to medical expenses had not been resolved and the August
2014 ruling was therefore not a final appealable order. In April 2015, the
court entered a final signed order from which Father timely appeals.
DISCUSSION
¶6 We review a modification of a child support order for abuse
of discretion. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999). A child support
order may only be modified or terminated “on a showing of changed
circumstances that are substantial and continuing except as to any amount
that may have accrued as an arrearage before the date of notice of the
motion or order to show cause to modify or terminate.” A.R.S. § 25-327(A).
“An abuse of discretion exists when the record, viewed in the light most
favorable to upholding the trial court’s decision, is ‘devoid of competent
evidence to support’ the decision.” Little, 193 Ariz. at 520, ¶ 6 (citation
omitted).
I. THE COURT COULD NOT ELIMINATE ARREARAGES BY
APPLYING MODIFICATION RETROACTIVELY.
¶7 Modifications and terminations generally become effective on
the first day of the month following notice of the petition for modification.
A.R.S. § 25-327(A). The court can order the change to become effective on
another date, “but not earlier than the date of filing the petition for
modification or termination.” Id. Citing A.R.S. § 25-327(A), the Arizona
Supreme Court has held, “While child support orders can be modified . . .
the modification cannot be made retroactive.” Lamb v. Superior Court
(Prussinski), 127 Ariz. 400, 402 (1980). “[L]iability to pay and the right to
receive child support become fixed on the date the decree provides for
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Decision of the Court
payment, and [ ] courts may not retroactively alter amounts past due and
owing.” Solove v. Solove, 12 Ariz. App. 203, 205 (1970).
¶8 Father wanted the court to modify the order to make the
modification retroactive to September 2012. This was not legally possible,
because he filed his petition to modify in March 2014 (despite the court’s
invitation to file it earlier). The superior court correctly determined that
Father’s responses to Mother’s motion to withdraw her own petition to
modify did not qualify as petitions to modify. And because Mother
promptly sought to withdraw her 2012 petition, the court was not required
to rule on it. Mother’s right to receive payments vested on the payment due
dates, and the court cannot modify the amount Father was required to pay
after those payments became fixed. The court properly ordered Father to
pay the accumulated arrearages from 2012 to 2014.
II. THE COURT DID NOT ABUSE ITS DISCRETION IN
CALCULATING MOTHER’S INCOME.
¶9 The Child Support Guidelines define self-employment
income as “gross receipts minus ordinary and necessary expenses required
to produce income.” A.R.S. § 25-320 app. (“Guidelines”) § 5(C). In
calculating gross income, “[s]easonal or fluctuating income shall be
annualized.” Guidelines § 5(A). At the evidentiary hearing, Mother
presented an affidavit of financial information showing that her income had
fluctuated over the previous two years. Father based his competing
calculation of Mother’s income on her profit and loss statement, but he did
not provide the statement to the court. The court concluded that Father’s
evidence on Mother’s income was “insufficient” or “not relevant,” and
averaged the income stated in her affidavit.
¶10 Father argues that the court’s calculation of Mother’s income
was unfair and unsupported by the evidence. But Father did not submit a
hearing transcript, and we are therefore required to assume that the
evidence supports the family court’s findings and conclusions. Baker v.
Baker, 183 Ariz. 70, 73 (App. 1995). Without a transcript of the hearing, we
have no record of the evidence presented beyond the exhibits contained in
the record. Accordingly, on this record, Father has not shown that the
evidence fails to support the court’s finding on Mother’s income.
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CONCLUSION
¶11 For the foregoing reasons, we affirm the child support
arrearages order.
:ama
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