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Birnstihl v. Birnstihl

Court of Appeals of Arizona, First Division

March 6, 2018

DAMIAN BIRNSTIHL, Petitioner/Appellee,
v.
NATALYA BIRNSTIHL, Respondent/Appellant.

         Appeal from the Superior Court in Maricopa County No. FC 2010-094064 The Honorable Kristin Culbertson, Judge

          Law Office of Amber L. Guymon, PLLC, Gilbert By Amber L. Guymon Counsel for Petitioner/Appellee

          Fromm Smith & Gadow, P.C., Phoenix By Stephen R. Smith Counsel for Respondent/Appellant

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell joined.

          OPINION

          MCMURDIE, JUDGE.

         ¶1 Natalya Birnstihl ("Mother") appeals from the superior court's order dismissing her petition to modify child support. We hold under the Arizona Child Support Guidelines, Arizona Revised Statutes ("A.R.S.") section 25-320 app. ("Guidelines"), if a parent requesting a modification of child support under the simplified procedure presents a colorable claim that application of the Guidelines results in a fifteen percent variation from the current child support order, claim preclusion does not prevent a superior court from addressing the request on the merits. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Mother and Damian Birnstihl ("Father") divorced in 2011. They have four children in common. In the divorce decree, the superior court awarded Mother and Father joint legal decision-making and equal parenting time of their two younger children. However, the court awarded Mother sole legal decision-making of their two older children, with no parenting time awarded to Father. Consistent with the Guidelines, the superior court ordered Father to pay Mother $1850 per month in child support.

         ¶3 In April 2016, Father petitioned to modify child support ("April 2016 petition") under the Guidelines § 24(B) (Simplified Procedure), seeking a downward modification of his child support obligation to $939.62 per month due to: (1) the oldest child's emancipation; (2) Father's satisfaction of his spousal maintenance obligation; and (3) Mother's change in income. Mother did not request a hearing or otherwise respond to Father's petition. See Guidelines § 24(B) ("If the requested modification is disputed, the parent receiving service must request a hearing within 20 days of service."). In June 2016, the superior court modified Father's child support obligation to $939.62 per month (the "Order").

         ¶4 Ten days after the court entered the Order, Mother, representing herself, requested a hearing and counter-petitioned requesting that Father pay $1160.15 per month in child support. The court never ruled on Mother's untimely request for a hearing, nor the counter-petition, meaning they are deemed denied. See State v. Hill, 174 Ariz. 313, 323 (1993) ("A motion that is not ruled on is deemed denied by operation of law."); Atchison, Topeka & Santa Fe Ry. Co. v. Parr, 96 Ariz. 13, 15 (1964) (motions not ruled upon deemed denied by operation of law).

         ¶5 In August 2016, Mother, now represented by counsel, moved to correct the Order pursuant to Arizona Rule of Family Law Procedure 85(C). Mother argued the Order was based on incorrect information regarding Father's gross income and his parenting time. See Guidelines §§ 5, 11. She claimed Father had no parenting time with the oldest of the remaining minor children; therefore, he did not have equal parenting time as stated in the April 2016 petition. Mother also claimed Father's gross monthly income was $24, 703.17, not $16, 175.83 as listed by Father. Father responded to Mother's Rule 85(C) motion arguing that "Mother had ample time to request a hearing if she did not agree to Father's calculations." The superior court denied the motion and Mother did not appeal.

         ¶6 The same day Mother moved to correct the Order under Rule 85(C), she separately petitioned to modify child support using the simplified procedure per Guidelines § 24(B). Mother's petition to modify mirrored her arguments in the Rule 85(C) motion, namely, that the Order was premised on incorrect information concerning Father's income and parenting time. Mother requested that Father be ordered to pay $3005.27 per month in child support. Father moved to dismiss Mother's petition arguing that "Mother's failure to comply with the rules and request a timely hearing bar her from the relief she now requests." Father further argued that incorrect information used in a child support calculation cannot support a finding that there has been a "showing of changed circumstances that is substantial and continuing" under A.R.S. § 25-503(E). The court dismissed Mother's petition, finding "the allegations contained in [Mother's petition] do not allege a sufficient 'showing of changed circumstances that is substantial and continuing' as is required by A.R.S. § 25-503(E)." Mother did not appeal.

         ¶7 In October 2016, Mother again petitioned to modify child support using the simplified procedure ("October 2016 petition"), requesting Father pay $2268.94 per month. In an attached child support worksheet, Mother listed Father's income as $20, 000 per month based on Father's 2015 income tax return, which she attached as an exhibit to her petition. Mother listed Father's parenting time as 121 days. Father moved to dismiss Mother's petition, arguing there was no change of circumstances warranting modification from the Order or from the previously filed motion to modify filed in August. See supra, ΒΆ 6. After oral argument, ...


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