                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     DANA BERES, Petitioner/Appellant,

                                        v.

                     GARY BERES, Respondent/Appellee.

                             No. 1 CA-CV 13-0675
                              FILED 09-23-2014


           Appeal from the Superior Court in Maricopa County
                          No. FC2003-070681
                The Honorable Michael W. Kemp, Judge

                       VACATED AND REMANDED


                                   COUNSEL

Davis Limited, Scottsdale
By Greg R. Davis
Counsel for Petitioner/Appellant

Gary Beres, Florence
Respondent/Appellee



                       MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.
                              BERES v. BERES
                            Decision of the Court

O R O Z C O, Judge:

¶1           Dana Beres (Mother) appeals the dismissal of her petition to
modify child support. For the following reasons, we vacate the dismissal
of her petition and remand the case to the family court for further
proceedings consistent with this decision.

              FACTS AND PROCEDURAL BACKGROUND

¶2            Mother and Gary Beres (Father) were divorced in 2004, and
Father agreed to pay child support for their one child. Father was
incarcerated in 2009,1 and his child support obligation was terminated as
part of a 2010 custody, parenting time, and support modification. Mother
filed another child support modification petition in 2013, alleging that
Father had received a $250,000 “inheritance” in a trust (the Trust) from a
deceased family member and asking the family court to modify Father’s
child support obligation. Father moved to dismiss Mother’s petition under
Arizona Rule of Family Law Procedure (Rule) 32.B.6., arguing that any
claim brought by Mother against his interest in the Trust was void because
the Trust contained a spendthrift provision. The family court granted
Father’s motion without further comment. Mother timely appealed, and
we have jurisdiction under Article 9, Section 6 of the Arizona Constitution,
and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (West 2014)
and -2101.A.1 (West 2014).

                               DISCUSSION

¶3             Mother contends the family court erred in dismissing her
petition because the petition pled a claim in accordance with Arizona law
governing support modification. Because Rule 32.B.6 is the family law
equivalent of Arizona Rule of Civil Procedure 12(b)(6), we review de novo
the petition’s dismissal on Rule 32 grounds. See Coleman v. City of Mesa, 230
Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012) (reviewing a Rule 12(b)(6)
motion de novo); Kline v. Kline, 221 Ariz. 564, 568-69, ¶ 13, 212 P.3d 902, 906-
07 (App. 2009) (noting that law interpreting other statewide rules is
applicable when “the language of the family law rules is substantially the
same”). We assume as true the facts pled in the modification petition, and
we will affirm dismissal only if Mother is not entitled to relief under any



1       Father’s answering brief on appeal states that he was incarcerated in
2007.



                                       2
                              BERES v. BERES
                            Decision of the Court

interpretation of the facts “susceptible of proof.” See Fidelity Sec. Life Ins.
Co. v. State Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998).

¶4             The Arizona Supreme Court has enacted guidelines for
making child support determinations. See A.R.S. § 25-320 app. § 1.D (2011)
(Guidelines). We interpret the Guidelines as we do statutes. Patterson v.
Patterson, 226 Ariz. 356, 358, ¶ 4, 248 P.3d 204, 206 (App. 2011). As relevant
here, Guidelines § 24.B outlines a “Simplified Procedure” for reviewing
support modification petitions:

       Either parent . . . may request the court to modify a child
       support order if application of the guidelines results in an
       order that varies 15% or more from the existing amount. A
       fifteen percent variation in the amount of the order will be
       considered evidence of substantial and continuing change of
       circumstances. A request for modification of the child
       support amount must be accompanied by a completed and
       sworn "Parent's Worksheet for Child Support Amount," and
       documentation supporting the incomes if different from the
       court's most recent findings regarding income of the parents.
       If the party requesting the modification is unable to provide
       documentation supporting the other party's income, the
       requesting party shall indicate that the income amount is
       attributed/estimated and state the basis for the amount
       listed[.]

       ...

       A copy of the request for modification of child support and
       the "Parent's Worksheet for Child Support Amount,"
       including supporting documentation, showing that the
       proposed child support amount would vary 15% or more
       from the existing child support order shall be served on the
       other parent[.]

       If the requested modification is disputed, the parent receiving
       service must request a hearing within 20 days of service[.]

       ...

       Upon proof of service and if no hearing is requested within
       the time allowed, the court will review the request and enter
       an appropriate order or set the matter for hearing.



                                      3
                              BERES v. BERES
                            Decision of the Court

¶5            Mother’s petition alleged that Father’s interest in the Trust
“should produce income of approximately $1,000 per month” and
requested a modification of up to that amount.2 Mother’s request exceeds
the Guidelines’ threshold of a fifteen percent support increase. Mother
complied with the other requirements of § 24.B by indicating in her petition
how she estimated Father’s income amount, submitting an affidavit
containing her then-current financial information, and serving Father with
her petition and supporting documentation. Although Father disputed the
requested modification by filing a motion to dismiss based on the
spendthrift clause, he did not request a hearing. Mother filed a response to
the motion to dismiss and disputed the facts in Father’s motion.

¶6             Because Father did not request a hearing, the family court was
required, under the procedure established by Guidelines § 24.B, to either
adjudicate the merits of the petition or set the matter for hearing. However,
by not ruling on the merits and dismissing the petition for failure to state a
claim under Rule 32.B.6, the family court did not follow the Guidelines.
Mother’s petition states a claim that, if true, is a substantial and continuing
change of circumstances that may justify a support modification. Because
we assume the petition’s alleged facts as true, we conclude Mother’s
petition did not warrant dismissal for failure to state a claim upon which
relief could be granted. On remand, the family court must determine
whether it has sufficient evidence to rule on the petition’s merits or whether
a hearing is required to address the matter further.




2      Father argues that the Trust’s spendthrift provision voids any
attempt to modify support based on his interest in the Trust. We reject that
argument, however, because income received from a trust is included in
determining one’s “Gross Income” for modification purposes. Guidelines
§ 5.A. If Father is, in fact, receiving income from a trust, a spendthrift
provision does not exempt the income from being considered for child
support. See A.R.S. § 14-10503(A).


                                      4
                            BERES v. BERES
                          Decision of the Court

                             CONCLUSION

¶7           Because Mother’s petition stated a claim following the
procedure established by Guidelines § 24.B, we vacate the dismissal and
remand to the family court for adjudication or a hearing in accordance with
Guidelines § 24.B.




                                :gsh




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