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In re Marriage of Lundy

Court of Appeals of Arizona, First Division

April 6, 2017

In re the Marriage of: WILLIAM N. LUNDY, JR., Petitioner/Appellee,
v.
COLLEEN S. LUNDY, Respondent/Appellant.

         Appeal from the Superior Court in Yavapai County No. V1300DO820030110 The Honorable Richard D. Lambert, Judge Pro Tempore

          Aspey Watkins & Diesel PLLC, Flagstaff By Zachary J. Markham, Staci Lynn Foulks Counsel for Petitioner/Appellee

          Berkshire Law Office PLLC, Phoenix By Keith Berkshire, Maxwell Mahoney Counsel for Respondent/Appellant

          Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Patricia A. Orozco (retired) and Chief Judge Michael J. Brown joined.

          OPINION

          SWANN, Judge.

         ¶1 Colleen S. Lundy ("Mother") appeals the superior court's modification of William N. Lundy, Jr.'s ("Father['s]") child support obligation. We conclude that the court erroneously attributed income to Mother from a second job, and erroneously credited Father for the full amount paid on an insurance policy covering both the minor children and other dependents. We therefore vacate the modification order and remand for further proceedings. We further hold that the court erred by awarding attorney's fees to Father in the absence of a written request for fees.

         FACTS AND PROCEDURAL HISTORY

         ¶2 In 2004, Father and Mother, the parents of three then-minor children, entered a consent decree dissolving their marriage. The decree ordered Father to pay monthly child support and provide medical and dental insurance for the children.

         ¶3 In 2014, Father filed a petition to modify his child support obligation. He argued that modification was warranted because the parties' incomes had changed and their oldest child had turned 18 years old.

         ¶4 After holding an evidentiary hearing in July 2015, the superior court granted Father's petition and modified his child support obligation from $1, 354.41 per month to $500 per month. In calculating the new amount, the court attributed to Mother income from two jobs. The court also credited Father for the full amount he paid to provide health insurance coverage for the three children and his wife, relying on testimony that Father's cost to purchase dependency coverage would remain the same regardless of the number of dependents added to the policy. Finally, the court awarded Father approximately $5, 000 in attorney's fees under A.R.S. § 25-324.

         ¶5 Mother appeals.

         DISCUSSION

         I. THE SUPERIOR COURT ERRONEOUSLY CALCULATED FATHER'S NEW CHILD SUPPORT OBLIGATION.

         ¶6 After the consent decree was entered, the parties' oldest child reached the age of majority and graduated high school. That fact alone provided sufficient grounds for the court to revisit the issue of child support. See A.R.S. ยงยง 25-501(A), -503(E). We conclude, however, that several legal errors contributed to the calculation of the new ...


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