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Nia v. Nia

Court of Appeals of Arizona, First Division

June 15, 2017

MARJAN H. NIA, Petitioner/Appellant,
ALI H. NIA, Respondent/Appellee. STATE OF ARIZONA, ex rel. THE DEPARTMENT OF ECONOMIC SECURITY, Intervenor/Appellee.

         Appeal 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

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.


          McMURDIE, Judge

         ¶1 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 child.


         ¶2 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, 694.

         ¶3 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.[1] 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.

         ¶4 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.

         ¶5 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).[2]


         ¶6 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 Father's testimony.

         ¶7 "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).

         A. The Child Support Modification was Based on a Substantial and Continuing Change in Circumstances.

         ¶8 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."

         ¶9 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)).

         ¶10 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.[3] The evidence supports the superior court's ...

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