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State ex rel. Arizona Department of Economic Security v. Gil

Court of Appeals of Arizona, First Division, Department D

October 1, 2013

STATE OF ARIZONA ex rel. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, Petitioner/Appellee,
v.
ALEXIS DE JESUS GIL, Respondent/Appellee. and MINNIE MYLINA POTTER, Petitioner/Appellant,

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. FC2007-004913 The Honorable Casey J. Newcomb, Judge Pro Tempore

Minne Mylina Potter Phoenix Petitioner/Appellant In Propria Persona.

MEMORANDUM DECISION

MICHAEL J. BROWN, Judge.

¶1 Minnie Mylina Potter ("Mother") appeals the trial court's order modifying Alexis Gil's ("Father") child support obligation. For the following reasons, we affirm.

¶2 Mother and Father are the unmarried parents of a child born in 2003. In June 2007, Mother filed a petition in the trial court to establish paternity, parenting time, and child support. After a hearing, the court awarded sole legal custody to Mother and ordered Father to pay child support in the amount of $811.54 per month. The court determined that for child support calculation purposes, Mother's income was $36, 000 per year and Father's income was $64, 000 per year.

¶3 In November 2011, Father petitioned for modification of his child support obligation to $278.27 based on a substantial reduction in his income. Following an evidentiary hearing in June 2012, the court reduced Father's obligation from $811.54 to $608.00. In doing so, the court found it appropriate to attribute annual income to Mother of $38, 000, notwithstanding she had recently changed to a lower-paying job. The court explained that insufficient time had passed to determine whether Mother's underemployment was sufficiently permanent in nature to warrant a change in her support obligations. The court also noted that if Mother was unable to find employment in the near future that paid a salary "comparable to her previous salary, " she could petition for modification based on a substantial and continuing change of circumstances. Mother appealed and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") § 12-2101.[1]

¶4 A prerequisite to the modification of an award of child support is a showing of changed circumstances that are substantial and continuing. A.R.S. § 25-327. The individual seeking modification of child support has the burden of establishing changed circumstances with competent evidence. See Scott v. Scott, 121 Ariz. 492, 494, 591 P.2d 980, 982 (1979). The question whether there has been a sufficient change in circumstances to modify an award of child support lies within the sound discretion of the trial court and will not be interfered with absent an abuse of discretion. See MacMillan v. Schwartz, 226 Ariz. 584, 588, ¶ 12, 250 P.3d 1213, 1217 (App. 2011). 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. Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8, 156 P.3d 1140, 1142 (App. 2007) (internal quotation omitted).

¶5 Mother asserts that the trial court erred when it declined to reduce the amount of income attributed to her for purposes of calculating child support.[2] She argues that the court should have used a lower amount because she was unable to continue working at her prior job due to health reasons and her income dropped when she took a new job as a food server. Mother has failed, however, to provide us with a transcript of the modification hearing. See ARCAP 11(b) (explaining an appellant is responsible for making certain that the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal). When a party fails to ensure a complete record, we assume the missing portions would support the trial court's findings and conclusions. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). As such, we conclude the trial court did not abuse its discretion in attributing income to Mother in the amount of $38, 000 per year.

¶6 Accordingly, we affirm the court's order modifying Father's child support obligation.[3]

CONCURRING: ANDREW W. GOULD, Presiding Judge DONN KESSLER, Judge.


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