MARJAN H. NIA, Petitioner/Appellant,
ALI H. NIA, Respondent/Appellee. STATE OF ARIZONA, ex rel. THE DEPARTMENT OF ECONOMIC SECURITY, Intervenor/Appellee.
from the Superior Court in Maricopa County No. FC2009-091623
The Honorable Stephen M. Hopkins, Judge
Dickinson Wright PLLC, Phoenix By Marlene A. Pontrelli
Counsel for Plaintiff/Appellant
Tiffany & Bosco P.A., Phoenix By David L. Rose, Justin P.
Nelson Counsel for Respondent/Appellee
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson
Marjan H. Nia ("Mother") appeals from a superior
court order modifying Ali H. Nia's ("Father")
child support obligation. By affirming the child support
order, we hold that (1) once the superior court determines
there is a substantial and continuing change in
circumstances, the court must apply the Arizona Child Support
Guidelines, Arizona Revised Statutes ("A.R.S.")
section 25-320 app. §§ 20, 24 (2015)
("Guidelines"), and then decide whether to deviate
from the amount calculated pursuant to the Guidelines; (2)
there is not a presumption for deviation based on a
previously deviated order; (3) if the court finds that the
application of the Guidelines would be inappropriate or
unjust, it must make findings as to all relevant factors,
including those set forth in A.R.S. § 25-320(D); and (4)
to deviate from the amount calculated pursuant to the
Guidelines, the court must determine both that the deviation
is appropriate and that it is in the best interests of the
AND PROCEDURAL BACKGROUND
Mother and Father have 17-year-old triplets in common. The
parties divorced in 2009. In a consent decree, Mother and
Father agreed to joint legal decision-making and equal
parenting time. They further stipulated to have Father pay
child support in the amount of $3830 per month, an upwardly
deviated child support amount. In 2012, Father filed a
petition to modify child support and, pursuant to the
parties' stipulation, the court modified Father's
child support to $3500, instead of the $1100 per the
Guidelines ("2012 Order"). The Child Support
Worksheet attached to the 2012 Order showed Father's
gross monthly income at $54, 852 and Mother's at $13,
On June 10, 2015, Father filed a Petition to Modify Child
Support requesting his obligation be reduced to $406.94 per
month as calculated per the Guidelines. Based on the
evidence presented at a hearing, the superior court found
Father's income was $32, 783 per month and Mother's
was $22, 489 per month. Both parents testified regarding
their expenses, the Children's lifestyle during the
parents' marriage, the Children's extracurricular
activities, health insurance payments, and other needs.
Mother requested that her expert witness on finances be
present in the courtroom during Father's testimony.
Father objected, and the superior court denied her request.
After the hearing, the superior court concluded Father had
shown a substantial and continuing change in circumstances
warranting a review of the child support order. The court
found, per the Guidelines, that Father was obligated to pay
$623.84 per month in child support. The court determined a
deviation from the Guidelines was not appropriate, and
ordered Father to pay the guideline amount starting October
1, 2015. Father subsequently filed a Motion to Correct
Mistake arguing the order should be effective from the first
of the month following the date of service of his petition to
modify. The court issued an amended final order with the
child support modification effective on July 1, 2015. Mother
timely appealed and we have jurisdiction pursuant to A.R.S.
§ 12-2101(A)(1) and (2).
Mother argues the superior court erred by (1) finding
substantial and continuing circumstances existed justifying a
modification of the 2012 Order; (2) applying the child
support Guidelines without considering the parties'
previous deviation; (3) determining Mother had the burden to
prove an upward deviation was in the Children's best
interests; (4) applying the child support modification
retroactively without ordering that Mother be reimbursed for
expenses paid pursuant to the 2012 Order; and (5) excluding
Mother's expert witness from the courtroom during
"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." Little v. Little, 193 Ariz. 518, 520,
¶ 5 (1999). "We will accept the court's
findings of fact unless they are clearly erroneous, but we
draw our own legal conclusions from facts found or implied in
the judgment." Nash v. Nash, 232 Ariz. 473,
476, ¶ 5 (App. 2013). "[W]e will uphold the award
unless it is 'devoid of competent evidence, '"
Id. at 478, ¶ 16 (quoting Jenkins v.
Jenkins, 215 Ariz. 35, 37, ¶ 8 (App. 2007)), and
for any reason supported by the record. Watson v. Apache
County, 218 Ariz. 512, 517, ¶ 23 (App. 2008). We
interpret the Guidelines de novo. Hetherington v.
Hetherington, 220 Ariz. 16, 21, ¶ 21 (App. 2008).
The Child Support Modification was Based on a Substantial and
Continuing Change in Circumstances.
Mother contends the superior court erroneously found a
substantial and continuing change in circumstances existed to
justify modification of the child support paid by Father, and
failed "to consider the best interests of the minor
children in determining a change in circumstances."
A child support order can be modified "only on a showing
of changed circumstances that are substantial and
continuing." A.R.S. § 25-327(A); Guidelines §
24(A) ("[E]ither parent . . . may ask
the court to modify a child support order upon a showing of a
substantial and continuing change of circumstances.").
Whether such a change occurred is a question of fact.
Schroeder v. Schroeder, 161 Ariz. 316, 323 (1989).
The superior court retains "the sound discretion"
to determine "whether changed circumstances exist to
warrant modification of an award, " Pearson v.
Pearson, 190 Ariz. 231, 233 (App. 1997), and the
"Guidelines do not replace the exercise of trial court
discretion; they focus it." Id. at 234. In
exercising its discretion, the superior court shall
"consider the nature of the changes and the reasons for
the changes." Little, 193 Ariz. at 523, ¶
14 (quoting In re Marriage of Clyatt, 882 P.2d 503,
505 (Mont. 1994)).
In this case, the superior court considered several
circumstances appropriate to modify the 2012 Order, including
that Father's income had decreased while Mother's had
increased. The evidence supports the superior