                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                               In re the Matter of:

          FLORENTINA ELMA VILLALOBOS, Petitioner/Appellee,

                                         v.

           JORGE ANCHONDO RIVERA, Respondent/Appellant.

                            No. 1 CA-CV 16-0607 FC
                                 FILED 9-14-2017


            Appeal from the Superior Court in Maricopa County
                           No. FN2013-002074
                 The Honorable Michael J. Herrod, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Ber & Associates, P.L.L.C., Phoenix
By Hershel Ber
Counsel for Petitioner/Appellee

Martinet Law, Phoenix
By Philippe Martinet
Counsel for Respondent/Appellant
                        VILLALOBOS v. RIVERA
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


W I N T H R O P, Presiding Judge:

¶1            Jorge Anchondo Rivera (“Husband”) appeals the family
court’s denial of his petition to modify the monthly spousal maintenance
payments he is required to pay to Florentina Elma Villalobos (“Wife”).
Husband argues the family court abused its discretion in basing its decision
solely on his income and in failing to consider other relevant factors, such
as Husband’s recently acquired debt and changes in Wife’s financial
circumstances. For the following reasons, we vacate the family court’s
order and remand for reconsideration of Husband’s petition in light of the
income the court imputed to Husband at the time of the parties’ divorce.

                FACTS AND PROCEDURAL HISTORY

¶2            Wife filed for divorce from Husband in March 2013 after
seventeen years of marriage. In her petition for dissolution, Wife stated
Husband was a self-employed car salesman, but she did not allege or
otherwise present information concerning his income. In an affidavit of
financial information, Wife estimated that her monthly expenses totaled
$2,267. Wife requested $1,500 per month in spousal maintenance.

¶3           Husband did not respond to the petition for dissolution, and
in May 2013, the family court entered a default judgment in Wife’s favor.
The judgment required Husband to pay Wife $1,500 per month in spousal
maintenance for sixty months, but the court did not enter any findings
pertaining to Husband’s income or ability to pay. The judgment also
awarded Wife everything she requested in her petition, including the
marital home, all of the household furniture and appliances, and a 2008
Chevrolet Avalanche. Husband received a laptop computer, half of the
money in the parties’ joint savings account, an ATV motorcycle, and tools.

¶4            Husband moved to have the default judgment vacated,
alleging he failed to respond to the petition for dissolution because Wife
misled him into believing she would dismiss it. The family court
summarily denied Husband’s motion. Husband appealed, and this court



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                           Decision of the Court

issued a memorandum decision reversing the family court’s denial of
Husband’s motion and remanding for further proceedings. See Villalobos v.
Rivera, 2014 WL 5167652, No. 1 CA-CV 13-0595 (App. Oct. 14, 2014). On
remand, the family court found that Husband failed to establish that Wife
misled him into believing she would dismiss the petition and denied
Husband’s motion to vacate the default judgment.

¶5            Between 2013 and 2016, Husband failed to comply with the
spousal maintenance order, and the family court found him in contempt on
multiple occasions. In March 2016, the family court found Husband in
contempt and ordered judgment against him in the amount of $27,000 plus
interest. At an enforcement review hearing two months later, the court
found that Husband “willfully failed to make support payments,” and
ordered Husband incarcerated unless he paid Wife $1,700 in cash by the
following day and unless he paid his support obligation on time and in full
over the next twelve months.

¶6            Also in March 2016, Husband filed a petition to modify
spousal maintenance. In an affidavit of financial information, Husband
alleged that he works on commission and has monthly earnings of $1,000.
The family court held an evidentiary hearing and heard testimony from
both parties. Husband presented tax returns showing that his earnings
totaled $8,704 in 2013, $11,500 in 2014, and $8,696 in 2015. The family court
found that Husband failed to present evidence sufficient to justify a
modification of the original spousal support award. Specifically, the court
noted that Husband did not offer any tax returns from before the parties’
2013 divorce for comparison, and, because Husband testified that he works
for cash only, the court could not determine the validity of his testimony
concerning his income. Accordingly, the court concluded that Husband
had not shown a substantial change of circumstances and denied
Husband’s petition to modify spousal maintenance.

¶7           Husband timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016) and
12-2101(A)(1) (2016).

                                ANALYSIS

¶8            The family court may order spousal maintenance “in an
amount and for a period of time as the court deems just” after considering
relevant factors, such as the earning ability and comparative financial
resources of the parties. A.R.S. § 25-319(B) (2017). A spousal maintenance
order “may be modified or terminated only on a showing of changed



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                            Decision of the Court

circumstances that are substantial and continuing.” A.R.S. § 25-327(A)
(2017).

¶9             Husband argues the family court abused its discretion in
denying his petition to modify spousal maintenance because the court
focused solely on his income and not on other relevant factors, such as his
recently acquired debt and changes in Wife’s financial circumstances. The
record available to us contains no information demonstrating how the
family court calculated its initial determination of spousal support.1
Although Husband’s failure to respond to Wife’s petition for dissolution
led to a default judgment in Wife’s favor, the court was nevertheless
required to consider both parties’ comparative financial resources and
earning ability to determine what amount of spousal support, if any, was
appropriate under the circumstances. See A.R.S. § 25-319(B). The record
does not reveal the evidence before the court on those issues, whether the
court made any findings pertaining to the parties’ respective incomes or
how the court initially determined that Wife was entitled to $1,500 per
month in spousal support.2 The family court’s order denying Husband’s
petition to modify suggested that Husband should have provided evidence
of his pre-divorce income to establish a change in circumstances sufficient
to justify modification of the original spousal support award. Although
evidence of Husband’s pre-dissolution income might have been relevant,
on a petition to modify based on substantial and continuing changed
circumstances under A.R.S. § 25-327(A), the issue is whether the parties’
financial circumstances now are different from the circumstances the court
found at the time of the divorce. Because we have no information on the

1       In his amended petition to modify spousal support, Husband stated
that, at the time of the parties’ divorce proceedings, Wife alleged “in at least
one of her pleadings” that Husband earned more than $4,000 per month.
The record available to us does not contain those pleadings. However, after
the divorce was final and while the parties were litigating Husband’s
motion to vacate the default judgment, Wife claimed Husband made “at
minimum $4,500” per month. The record does not reveal, however,
whether Wife made the same claims during the divorce proceedings or
whether she testified about Husband’s income before the default judgment.

2     Presumably, the court determined that Husband’s income at the
time of the parties’ divorce was at least $18,000 per year, given that
Husband was ordered to pay Wife $1,500 per month in spousal
maintenance.




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                          Decision of the Court

amount of income the court initially imputed to Husband at the time of the
parties’ divorce, we cannot, on this record, determine whether the court
abused its discretion in denying Husband’s petition for modification.

¶10            Accordingly, we vacate the family court’s order denying
Husband’s petition to modify spousal maintenance and remand for the
court to make specific findings regarding Husband’s 2013 income.3 On
remand, the court should reconsider Husband’s petition for modification in
light of these findings.4

                              CONCLUSION

¶11            The family court’s order is vacated and the issue is remanded
to the court for further proceedings consistent with this decision.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




3      We defer to the family court to determine how to obtain Husband’s
2013 income information, whether by reviewing the court’s notes or file on
the case or by holding an evidentiary hearing.

4      In so doing, we express no opinion as to the merits of Husband’s
petition for modification.


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