                          NOTICE: NOT FOR PUBLICATION.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


                              In re the Matter of:

           PAUL ANTHONY SCHLUETER, Petitioner/Appellee,

                                        v.

            THERESA ROSE HASKELL, Respondent/Appellant.

                             No. 1 CA-CV 13-0565
                                FILED 10-21-2014


           Appeal from the Superior Court in Maricopa County
                          No. FC2009-007211
           The Honorable Erin O’Brien Otis, Judge Pro Tempore

                      REVERSED AND REMANDED


                                   COUNSEL

Padish & Wells, PLLC, Scottsdale
By Kellie N. Wells
Counsel for Petitioner/Appellee

Law Offices of John R. Zarzynski, Phoenix
By John R. Zarzynski
Counsel for Respondent/Appellant
                         SCHLUETER v. HASKELL
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Jon W. Thompson and Judge Kent E. Cattani joined.


K E S S L E R, Judge:

¶1           Respondent/Appellant Theresa Rose Haskell (“Mother”)
appeals the family court’s modification of the child support obligation
owed by Petitioner/Appellee Paul Anthony Schlueter (“Father”). For the
following reasons, we reverse the family court’s modified child support
order and remand for further proceedings consistent with this decision.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Mother and Father divorced in 2010. Because they have one
child together, the decree of dissolution was accompanied by a child
support worksheet detailing the parties’ finances. The worksheet showed
that Father’s monthly adjusted gross income was $12,936, and Mother’s
adjusted gross income was $5400. The worksheet further reflected that
Father’s child support obligation under the Arizona Child Support
Guidelines, Arizona Revised Statutes (“A.R.S.”) section 25-320 (Supp.
2013)1 (“Guidelines”) would be satisfied by paying child care costs and
medical expenses, as well as an additional $71 per month.2 However, the
parties decided to deviate upward from the Guidelines and Father agreed
to pay $870, rather than $71 per month until the child was eighteen years
old or graduated from high school. The record does not reflect how or why
this amount was selected and the request to deviate accompanying the
worksheet stated only that “it [is] appropriate to deviate from the
[G]uidelines given the equal time sharing arrangement with the minor

1 We cite to the current versions of statutes when no changes material to
this decision have since occurred.

2 The 2010 worksheet contained in the record on appeal is unsigned. Neither

party disputes the validity of the worksheet or the accuracy of the amounts
contained therein, nor otherwise challenges the document. The family
court took judicial notice of the 2010 worksheet to resolve the instant matter.




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                           Decision of the Court

child.” The decree of dissolution adopted the stipulation.3 The decree also
incorporated the parties’ property settlement agreement and Father was
ordered to pay a non-modifiable spousal maintenance obligation in the
amount of $1500 per month for twenty-four months.

¶3             In February 2013, Father petitioned for a modification of child
support requesting that his $870 monthly child support obligation be
reduced. Father represented that he was no longer willing to pay an
amount beyond what is required under the Guidelines, and that
modification was appropriate because application of the Guidelines to the
parties’ current financial situation would result in a child support amount
of approximately $354. Father’s adjusted monthly gross income increased
by nearly $2000, from $12,936 in 2010 to $14,840 in 2013.4 Meanwhile,
Mother’s 2013 adjusted monthly gross income decreased from $5400 in 2010
to $4100 in 2013, a difference of $1300 per month. In addition, expenses for
child care and health insurance, which were $680 and $120 per month,
respectively, in 2010, and attributable to Father in 2010, decreased by nearly
$600, to $195 and $40, respectively, in 2013. As a result of this, the parties’
combined total child support obligation decreased from $2294 to $1892.

¶4            At the June 2013 evidentiary hearing, Mother asserted that
because Father previously “agree[d] to [$]870” he had “to show why he
should be relieved of that obligation.” Mother also argued that the factors
“support[] an increase above [$]870,” because Father‘s “income has actually
increased,” and he is “in a better position to pay the deviated amount than
he was” originally. Mother maintained that any modification decreasing
Father’s obligation was inappropriate.

¶5           The family court granted a modification of the child support
order. Specifically, as challenged here, the court applied the Guidelines
without deviation and ordered Father to pay $419 per month starting April
2013. The court found that the modification was appropriate based on

3The decree stated that either the family court had taken all the testimony
needed to enter the decree or testimony was not needed to enter the decree.

4 Although in his amended petition Father reported that his monthly gross
income was $13,566 and his adjusted monthly gross income was $13,266,
the family court found that Father’s monthly gross income was $17,037 and
his adjusted monthly gross income was nearly $14,840. The parties have
not disputed the accuracy of these findings in the family court nor on
appeal.



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                            Decision of the Court

substantial and continuing changes in circumstances because: (1) the
application of the Guidelines resulted in an order that varied at least 15%
from the previous order, (2) Father satisfied spousal maintenance
obligations, and (3) Father no longer agreed to the 2010 upwardly deviated
child support obligation.

¶6            Mother timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A) (Supp. 2013).

                                 DISCUSSION

¶7             Family court decisions regarding child support are reviewed
for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420 ¶ 7, 79 P.3d
667, 669 (App. 2003). An abuse of discretion occurs either when the court
misapplies the law in reaching its decision or “when the record, viewed in
the light most favorable to upholding the trial court’s decision, is ‘devoid
of competent evidence to support’ the decision.” Little v. Little, 193 Ariz.
518, 520, ¶ 5, 975 P.2d 108, 110 (1999); Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶
23, 97 P.3d 876, 881 (App. 2004). We can infer the findings necessary to
uphold the court’s order and may affirm if the court is correct for any reason
supported by the record. Forszt v. Rodriguez, 212 Ariz. 263, 265, ¶ 9, 130 P.3d
538, 540 (App. 2006); Baker v. Baker, 183 Ariz. 70, 72, 900 P.2d 764, 766 (App.
1995).

I.     Original Order: Upward Deviation from the Guidelines

¶8            The Arizona Supreme Court is required to adopt and
maintain the Guidelines “for determining the amount of child support.”
A.R.S. § 25-320(D).5 The Guidelines dictate the amount of child support in
every case without limitation: “the amount [of child support] resulting from
application of these [G]uidelines shall be the amount of child support
ordered.” Guidelines § 3; see also A.R.S. § 25-320(D). If however, an
“application of the [G]uidelines would be inappropriate or unjust in a
particular case, the court shall deviate from the [G]uidelines in accordance


5 The Guidelines are designed “to assist the trial courts in applying the
factors set forth in the statute. . . . [and] are not a source of law, but [rather]
a source of guidance to the trial courts in the application of the law
embodied in the statutes and recorded cases.” Gallegos v. Gallegos, 174 Ariz.
18, 21, 846 P.2d 831, 834 (App. 1992) (internal quotation marks and citation
omitted).




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                         SCHLUETER v. HASKELL
                           Decision of the Court

with Section 20 [of the Guidelines]” and may deviate, upon the parties’
agreement, assuming compliance with Section 20(A) and (B). Guidelines
§§ 3, 20(B); see also A.R.S § 25-320(D) (stating deviation requires written
finding that application of Guidelines is unjust or inappropriate).6

¶9            Here, the original decree included a child support order that
significantly deviated Father’s obligation upward from the Guidelines.
The decree is the order to which we look to begin our analysis. See supra
footnote 2.

II.    Substantial and Continuing Changed Circumstances Warranting
       Modification

¶10            An order for child support may be modified only upon a
showing of a substantial and continuing change in circumstances. A.R.S. §§
25-327(A), -503(E) (Supp. 2013); Little, 193 Ariz. at 521, ¶ 6, 975 P.2d at 111.
The occurrence of the change must be from the time of the original decree
or effective modified order. See Linton v. Linton, 17 Ariz. App. 560, 565, 499
P.2d 174, 179 (1972). Whether a change occurred is a question of fact.
Schroeder v. Schroeder, 161 Ariz. 316, 323, 778 P.2d 1212, 1219 (1989). Because
he is seeking modification, Father has “the burden of establishing changed
circumstances with competent evidence,” Jenkins v. Jenkins, 215 Ariz. 35, 39,
¶ 16, 156 P.3d 1140, 1144 (App. 2007).

¶11           Here the parties utilized what the Guidelines refer to as a
“simplified procedure” wherein either parent “may request the court to
modify a child support order if application of the [G]uidelines results in an
order that varies 15% or more from the existing amount.” Guidelines § 24(B)
(emphasis added). “A fifteen percent variation in the amount of the order
will be considered evidence of substantial and continuing change of


6 The relevant statutory factors for deviating from the Guidelines include:
(1) the financial resources and needs of the child; (2) the financial resources
and needs of the custodial parent; (3) the standard of living the child would
have enjoyed had the marriage not been dissolved; (4) the physical and
emotional condition of the child, and the child’s educational needs; (5) the
financial resources and needs of the noncustodial parent; (6) the medical
support plan for the child; (7) excessive or abnormal expenditures,
destruction, concealment or fraudulent disposition of community, joint
tenancy and other property held in common; and (8) the duration of
parenting time and related expenses. A.R.S. § 25-320(D)(1)-(8).




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                         SCHLUETER v. HASKELL
                           Decision of the Court

circumstances.” Id. Here a deviated amount was originally ordered in the
parties’ 2010 divorce decree, and an application of the Guidelines now,
based on the reduced child care and medical insurance premium expenses
reflects more than a 15% change in support. Therefore, as the parties agreed
at oral argument before this Court, the family court correctly found
substantial and continuing changed circumstances based on a 15%
variation in the existing order and the modified order applying the
Guidelines.7

¶12            Mother argues, however, that no possible modification is
triggered if all the changed circumstances establish that Father is better able
to pay the original amount of support. We disagree. A paying parent’s
ability to pay support is only one factor a court considers to determine the
amount of support under the Guidelines.             Our conclusion about
modification does not mean, however, that a 15% change is sufficient by
itself in all cases to trigger a modification. Guidelines § 24(B) merely
provides that the 15% variation is evidence of substantial and continuing
changed circumstances. The family court retains discretion to determine
from all the circumstances whether there are substantial and continuing
changed circumstances to justify a modification and if so, whether the
Guideline-calculated modification is just and appropriate.


7  Because the 15% change is sufficient in and of itself to allow modification,
we need not address the other purportedly-changed circumstances on
which the family court relied. On remand, however, the court should
consider these changed circumstances in the appropriate context. The end
of Father’s spousal maintenance payments after 24 months, for example,
was not only anticipated at the time of the original decree, but was in fact
ordered by the original decree. See, e.g., Schroeder, 161 Ariz. at 322, 778 P.2d
at 1218 (tying sufficiency of change in circumstances to “events subsequent
to the decree” that are “unanticipated at the time of the decree”).

        Additionally, Father’s unilateral decision that he no longer wants to
pay the previously agreed-upon deviated amount must be considered in
the context of the overall dissolution decree. An initial agreement to an
upward deviation in a child support obligation that was just one part of an
overall financial settlement (balanced by, for instance, property division
and spousal maintenance) may carry a different weight than an agreement
to an upward deviation that was purely charitable. Similarly, the propriety
of releasing the parties from the previously agreed-upon child support
amount may also depend on the recipient’s ongoing reliance (if any) on that
earlier agreement.


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                         SCHLUETER v. HASKELL
                           Decision of the Court

III.   Whether the Child Support Amount Based on the Guidelines was
       Just and Appropriate

¶13           Mother asserts that any modification decreasing Father’s
obligation was inappropriate. She argues that the original deviation was in
the child’s best interests and that the family court abused its discretion by
not receiving any evidence related to best interests in support of the current
modification. We agree that given the unique circumstances in this case, the
family court should have inquired further into whether the amount based
on the Guidelines was just and appropriate.

¶14           In the 2010 decree approving the upwardly-deviated
amount, the family court impliedly found that such an increased amount
was necessary because an application of the Guidelines would be unjust or
inappropriate, a requisite for deviation. Thus, the 2010 deviated child
support order is implicitly and presumptively just and appropriate.

¶15           Because the upwardly deviated amount was ordered only
two years prior to Father’s modification request and Mother argued the
modification was inappropriate, the court should have considered the effect
of the proposed modification on the child’s best interests before ordering a
modification. See Little, 193 Ariz. at 523, ¶ 14, 975 P.2d at 113 (stating family
court “retain[s] discretion to consider the nature of the changes and the
reasons for the changes” to “determine whether, under all the
circumstances, a modification is warranted”) (internal quotation marks and
citation omitted). Such a consideration would have included the A.R.S. §
25-320(D)(1)-(8) factors, the 2010 deviated support order and the fact that
two years after the decree, Father no longer desired to pay the amount of
support he had agreed to pay for approximately fourteen years, and
whether Mother had relied on the previously-agreed upon amount in
making decisions regarding the child. Here, however, the record is devoid
of any evidence that a decrease of that amount by approximately half or
$400 a month was just and appropriate considering the factors in A.R.S. §
25-320(D)(1)-(8). Therefore, we determine the court erred by modifying the
original upwardly-deviated order in the absence of evidence to establish
that the lower amount based on the Guidelines is now just and appropriate.

¶16          Thus, we reverse the family court’s modified child support
order, and remand so the court may consider evidence of the child’s best
interests to determine whether modification is warranted by all the
circumstances, and if it is, whether deviation from the Guidelines is
appropriate. See Guidelines §§ 3, 20(A).




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                        SCHLUETER v. HASKELL
                          Decision of the Court

IV.   Attorneys’ Fees and Costs on Appeal

¶17          Based on the relative financial resources of the parties, we
award Mother’s request for attorneys’ fees upon timely compliance with
Arizona Rules of Civil Appellate Procedure 21(c). A.R.S. § 25-324 (Supp.
2013). We also award her taxable costs on appeal. We decline to award
Father’s requested attorneys’ fees and costs on appeal.

                              CONCLUSION

¶18            For the reasons stated, we reverse the family court’s modified
child support order and remand for further proceedings consistent with
this decision.




                                 :gsh




                                        8
