                          NOTICE: NOT FOR PUBLICATION.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:

              ADRIANE IRIS BUDAVARI, Petitioner/Appellee,

                                        v.

            TYLER JEFFERSON GLENN, Respondent/Appellant.

                             No. 1 CA-CV 13-0615
                                FILED 12-30-2014

           Appeal from the Superior Court in Maricopa County
                          No. FC2011-090601
            The Honorable Veronica W. Brame, Commissioner

                      REVERSED AND REMANDED


                                   COUNSEL

Ivy L. Kushner, Attorney at Law, Scottsdale
By Ivy L. Kushner
Counsel for Petitioner/Appellee

Viles Law Offices, LLC, Phoenix
By James E. Viles
Counsel for Respondent/Appellant
                          BUDAVARI v. GLENN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.


G E M M I L L, Judge:

¶1           Respondent/Appellant Tyler Jefferson Glenn (Father)
appeals the family court’s order denying his petition to modify child
support. For the following reasons, we reverse and remand for further
proceedings consistent with this decision.

                             BACKGROUND

¶2             The family court entered a Consent Decree dissolving
Father’s marriage to Adriane Iris Budavari (Mother) in August 2011. In the
Decree, the court approved the parties’ Mediated Marital Settlement
Agreement concerning parenting arrangements and child support. As
relevant, the agreement provided that the parties understood that
application of the Arizona Child Support Guidelines1 (“the Guidelines”)
would result in a child support payment from Father to Mother of $1,173
per month, but they nevertheless agreed Father would pay $2,671 per
month as child support. The court considered the best interests of the
parties’ children, expressly found that the application of the Guidelines was
inappropriate and unjust, and ordered the agreed-upon deviation. Father
was required to pay $2,671 in monthly child support.

¶3             In February 2013, Father petitioned for modification of child
support on the grounds that the application of the Guidelines to the parties’
changed circumstances would result in a child support amount 69 percent
lower than the amount ordered in the Decree. Mother opposed the petition,
arguing no substantial and continuing change of circumstances had
occurred and Father could not avoid his agreement to pay $2,671 per month
by insisting that the court apply the Guidelines. After conducting a hearing,
the family court ruled that no substantial and continuing change had
occurred in the parties’ circumstances. Accordingly, it denied and


1The Arizona Child Support Guidelines, adopted by the Arizona Supreme
Court for actions filed after May 31, 2011, are found in the Appendix to
Arizona Revised Statutes (“A.R.S.”) section 25-320.


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                            Decision of the Court

dismissed Father’s petition. Father timely appeals. We have jurisdiction
under Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                                 ANALYSIS

¶4            Father argues the family court abused its discretion by
denying his petition to modify child support. 2 Arizona law allows a court
to modify a child support order upon a showing of “changed circumstances
that are substantial and continuing.” A.R.S. § 25-327(A).

¶5             Normally, when the family court has conducted an
evidentiary hearing, we review the court’s decision whether a substantial
and continuing change in circumstances has occurred for an abuse of
discretion. See Jenkins v. Jenkins, 215 Ariz. 35, 40, ¶ 21, 156 P.3d 1140, 1145
(App. 2007) (finding no abuse of discretion in family court’s denial of
mother’s request for modification of child support because mother failed to
establish that father’s employment or earnings had undergone a substantial
and continuing change). In this case, although the family court’s order
stated that it had conducted an “evidentiary hearing,” the parties did not
submit any evidence. The court simply applied Arizona law to the facts it
derived from the court file and the arguments and avowals of counsel.
Because this was not an evidentiary hearing, we review de novo the court’s
interpretation of A.R.S. § 25-327(A) and the Guidelines. Guerra v. Bejarano,
212 Ariz. 442, 443, ¶ 6, 133 P.3d 752, 753 (App. 2006).

¶6            The parties agreed prior to the hearing that: (1) Mother’s
income had increased from $16,197 per month at the time of the dissolution
to $26,666 per month; and (2) Father’s income had decreased from $25,186
per month to $20,133 per month. There was also no dispute that the parties’
oldest child was more than 12 years old. In addition, the court ruled Father
was entitled to a credit for 119 days of parenting time per year rather than
the 91 days of parenting time utilized in the calculation performed at the
time of dissolution.3




2We reject Mother’s argument that Father failed to properly cite the record
on appeal and deny her request that we deem Father’s appellate issues
waived.

3 The court arrived at the new parenting time credit by “split[ting] the
difference” between each party’s position.



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                             Decision of the Court

¶7             The court applied these changes to determine that Father’s
current child support obligation under the Guidelines would be $1,057 per
month. Nevertheless, it found Father had not shown a substantial and
continuing change in circumstances because that new support amount did
not vary at least 15 percent from $1,173, the amount calculated under the
Guidelines at the time of dissolution. Father argues the court erred as a
matter of law by comparing the new calculation to the original Guidelines
calculation, rather than the deviated support amount of $2,671.

¶8            The court may modify a child support order upon a showing
of substantial and continuing changed circumstances. A.R.S. § 25-327(A).
When the application of the Guidelines results in an order that varies 15
percent or more from the “existing [support] amount,” such a variation is
considered evidence of a substantial and continuing change of
circumstances. A.R.S. § 25-320 app. § 24(B) (“Guidelines”). The family
court erred as a matter of law by comparing the new child support
calculation to the Guidelines calculation completed (but not implemented)
at the time of the dissolution rather than to the amount of child support
previously ordered. Accordingly, we vacate the finding that no substantial
and continuing change in circumstances had occurred.4

¶9            Mother argues that we may nevertheless affirm the family
court’s order because Father agreed to pay child support in an amount
greater than the calculation arrived at under the Guidelines and offered no
evidence that the deviation the court adopted in the Decree was no longer
appropriate. As noted, the family court here did not conduct an evidentiary
hearing and did not make any findings about whether deviation from the
support guidelines was still appropriate. The court may consider on
remand whether the circumstances warrant continued deviation from the




4 We do not suggest, however, that the family court must find that a
substantial and continuing change in circumstances has occurred if the
application of the Guidelines results in an order that varies 15 percent or
more from the existing support amount. Such a variance is only evidence
of the requisite minimum change in circumstances. Guidelines § 24(B). The
overall determination remains within the family court’s discretion. Beck v.
Jaeger, 124 Ariz. 316, 317, 604 P.2d 18, 19 (App. 1979) (“A determination as
to the sufficiency of changed circumstances is a matter within the sound
discretion of the trial court . . . .”). We hold only that the family court in this
instance committed a legal error.



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                           Decision of the Court

Guidelines in this case and the impact, if any, of Father’s prior agreement
to pay a deviated child support amount on his current petition.

                             CONCLUSION

¶10          For the foregoing reasons, we reverse the family court’s denial
of Father’s petition to modify child support and remand for further
proceedings consistent with this decision.

¶11         Mother requests an award of attorney fees and costs incurred
on appeal pursuant to A.R.S. § 25-324. Father asks the court to deny
Mother’s request, asserting that her opposition to his appeal was
unreasonable. In the exercise of our discretion, we deny Mother’s request.




                                  :ama




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