Court of Appeals of Arizona, First Division, Department E
In re the Marriage of KIMO KALALAHUA STANT Petitioner/Appellee,
MARGARET TWINE, Respondent/Appellant. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Intervenor/Appellee.
Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County Cause No. FC2005-000279 The Honorable Mina E. Mendez, Commissioner.
Knapp & Roberts, P.C. Scottsdale By David L. Abney Attorneys for Petitioner/Appellee.
The Cavanagh Law Firm, P.A. Phoenix By Christina S. Hamilton Attorneys for Respondent/Appellant.
PATRICIA K. NORRIS, Presiding Judge.
¶1 Margaret Twine ("Mother") appeals the family court's order modifying the child support payments of Kimo Kalalahua Stant ("Father"). On appeal, Mother argues the family court abused its discretion in, first, finding a substantial and continuing change in circumstances justifying a modification of Father's child support obligation; second, failing to give her a credit for daycare expenses in calculating child support; third, deviating from the Arizona Child Support Guidelines; and fourth, failing to determine Father's child support arrearages. We disagree with Mother's first three arguments, but agree the family court should have determined Father's child support arrearages. Thus, we affirm the family court's order, but remand for the family court to determine the amount Father owes in child support arrearages.
FACTS AND PROCEDURAL BACKGROUND
¶2 In June 2005, Father and Mother, the parents of two minor children, divorced. In its dissolution order, the family court attributed Father a monthly income of $2, 420 and ordered him to pay $620 per month in child support.
¶3 In August 2010, Father petitioned to modify child custody and support. After an April 2011 evidentiary hearing ("2011 hearing"), the family court attributed $3, 600 in income per month to Father and $2, 200 per month to Mother. The court also gave Mother a $700 credit for daycare expenses. Accordingly, the court ordered Father to pay $478.90 in child support and $100 in arrearages per month.
¶4 In December 2011, Father petitioned to modify child support, asserting his spouse had suffered an injury that adversely affected their jointly-owned window cleaning business and his earning capacity. After the family court denied Mother's motion to dismiss the petition, it held a two-day evidentiary hearing ("modification hearing"). Based on the evidence presented at the modification hearing, the family court found Father had met his burden of showing a substantial and continuing change in circumstances to modify child support. See Ariz. Rev. Stat. ("A.R.S.") § 25-327(A) (2007) (substantial and continuing change in circumstances is prerequisite for modification). The court attributed a monthly income of $2, 800 to Father, but did not adjust Mother's monthly income it had previously attributed to her in the 2011 hearing. It declined, however, to credit Mother with the $700 in daycare expenses it had previously credited to her. Although, based on these adjustments, Father's child support obligation would have been $42.14 per month under the Arizona Child Support Guidelines, A.R.S. § 25–320 App. (Supp. 2012) ("Guidelines"), the court deviated from this amount and reduced his child support payment to zero, as we discuss in more detail below.
I. Motion to Dismiss
¶5 Mother first argues the family court should have granted her motion to dismiss because Father's petition to modify child support failed to state a substantial and continuing change in circumstances to warrant a modification under A.R.S. § 25-327(A). We disagree.
¶6 In his modification petition, Father alleged that as a result of his spouse's "debilitating injury, " their "community business" had "fallen behind in terms of billing, invoicing, [and] payments, " which adversely affected his ability to pay child support. Because Father's petition set forth facts that, if proven, would entitle him to modification of child support, the family court properly denied Mother's motion to dismiss. See Ariz. R. Fam. L.P. 32(B)(6) (motion to dismiss for failure to state a claim); Ariz. R. Fam. L.P. 1, cmt. 1 ("Wherever the language in [the Arizona Rules of Family Law Procedure] is substantially the same as the language in other statewide rules, the case law interpreting that language will apply to these rules."); Rowland v. Kellogg Brown & Root, Inc., 210 Ariz. 530, 534, ¶ 15, 115 P.3d 124, 128 (App. 2005) (dismissal for ...