                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

                    ROBYN HANGER, Petitioner/Appellee,

                                         v.

                    JOEL HANGER, Respondent/Appellant.

                            No. 1 CA-CV 19-0282 FC
                                 FILED 3-3-2020


            Appeal from the Superior Court in Maricopa County
                           No. FC 2012-070854
            The Honorable J. Justin McGuire, Judge Pro Tempore

    AFFIRMED IN PART, VACATED AND REMANDED IN PART


                                APPEARANCES

Joel Hanger, Tonopah
Respondent/Appellant

Strong Law PLLC, Scottsdale
By Marc R. Grant Jr.
Counsel for Petitioner/Appellee
                          HANGER v. HANGER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.


C A M P B E L L, Judge:

¶1            Joel Hanger (“Father”) appeals from the superior court’s
order modifying his child support obligation to Robyn Hanger (“Mother”).
For the following reasons, we affirm in part and vacate and remand in part
consistent with this decision.

                             BACKGROUND

¶2            Shortly after stipulating to a child support order obligating
him to pay Mother $508.87 per month, Father moved to set aside the
stipulated order and petitioned for a modification of child support by
simplified procedure. Requesting relief under Arizona Rule of Family Law
Procedure 85, Father alleged, among other things, that he was coerced into
signing the stipulated order. He also argued that his loss of employment
warranted a child support modification. The superior court denied Father’s
motion to set aside the stipulated order and petition for modified child
support, as well as his attendant request for an evidentiary hearing.

¶3            On appeal, this court concluded that the superior court did
not abuse its discretion by denying Father’s motion to set aside the
stipulated order. Hanger v. Hanger, 1 CA-CV 17-0721 ¶ 11 (mem. decision
Nov. 1, 2018). The court also determined, however, that the superior court
“should have held an evidentiary hearing to determine whether changed
circumstances warranted modification” before denying Father’s petition to
modify child support. Id. at ¶ 14.

¶4           Consistent with this court’s decision, on remand, the superior
court held an evidentiary hearing on Father’s petition to modify child
support. At the hearing, Father testified that he was unemployed between
July 2017 and January 2018, and that he worked only part-time from
January 2018 until July 2018. At that point, Father resumed full-time
employment (earning $35.47 per hour), though making substantially less
than his former full-time salary ($100,000 annually). Father also testified
that Mother was falsely inflating her childcare expenses by failing to “tak[e]



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                           Decision of the Court

advantage” of a “childcare reimbursement program” available through her
employer (a public school). Although Father admitted he does not know
“the extent” of any possible reimbursement, he believes—based on his own
experience working with other schools—that Mother’s employer offers “full
reimbursement of childcare costs.” But Mother testified that she incurs
childcare expenses of $60 per week during the 38 weeks she teaches each
year. She also asked the court to attribute a $100,000 annual income to
Father, opining that he could command his former salary, or higher if he
was willing to commute rather than work exclusively from home.

¶5            After hearing from both parties, the superior court attributed
income to Father at an hourly rate of $35.47, his actual earned income.
Because Father had no evidence that Mother’s employer provided childcare
reimbursement and, when pressed, admitted that he did not know whether
such a benefit was offered, the court found no genuine dispute regarding
childcare expenses, only Father’s “speculation.” While Father requested
modification with a retroactive start date of July 2017, the court found the
effective date “for a modification is the first day of the first month . . .
following the service of the petition.” Because Father did not serve Mother
with the petition to modify until February 2019, the court ordered
modification effective as of March 1, 2019. The court also explained that
even absent the delayed service, modification retroactive to July 2017 was
improper because the parties entered a stipulated child support order in
September 2017 and Father’s period of unemployment was relatively brief,
whereas his new employment reflects a “substantial and continuing and
permanent change.”

¶6           Given Father’s decreased income, the superior court reduced
his monthly child support obligation to $404. Father timely appealed.

                              DISCUSSION

¶7            Father raises several challenges to the modified child support
order. The Arizona Supreme Court has adopted the Child Support
Guidelines (“Guidelines”), codified at A.R.S. § 25-320. Little v. Little, 193
Ariz. 520, 521, ¶ 6 (1999). Under the Guidelines, a court should modify a
child support order only if a parent shows a substantial and continuing
change of circumstances. A.R.S. §§ 25-327(A), -503(H).

¶8            Although we review a superior court’s interpretation of the
Guidelines and the governing statutes de novo as questions of law, we
review its decision to modify a child support award for an abuse of
discretion. Guerra v. Bejarano, 212 Ariz. 442, 443, ¶ 6 (App. 2006). An abuse



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of discretion includes an error of law or an absence of substantial evidence
to support the court’s findings. Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8
(App. 2012).

¶9            First, Father asserts the superior court failed to address the
modification in a manner consistent with this court’s decision. As support
for this contention, Father cites the superior court’s statement at the
evidentiary hearing that Father “stipulated to the previous order” and
“lost” when he challenged that order on appeal. Although this court
reversed and remanded the denial of Father’s petition to modify, we upheld
the denial of Father’s motion to set aside the stipulated order. Therefore,
the superior court’s statement accurately recounted this court’s decision.

¶10           Second, Father contends the superior court improperly held
an evidentiary hearing on remand in contravention of the “legal
procedures” governing a simplified modification of child support.
Contrary to Father’s assertion, the superior court properly followed the
remand instructions issued by this court. This court directed the lower court
to hold an evidentiary hearing before ruling on Father’s petition to modify
child support. To the extent Father argues that such a hearing was improper
because Mother failed to timely request a hearing, Appendix to A.R.S. § 25-
320, Guidelines 24(B) (“If the requested modification is disputed, the parent
receiving service must request a hearing within 20 days of service.”), the
record reflects that Father requested an evidentiary hearing on his motion
for simplified modification of child support, Guidelines 24(B) (“If any party
requests a hearing within the time allowed, the court shall conduct such a
hearing.”), and the hearing was therefore conducted in compliance with the
Guidelines.

¶11           Third, Father argues the superior court improperly
determined the issue of reimbursement of childcare expenses. Although
Father alleged that Mother falsified childcare costs, his assertion was
wholly unsupported. By his admission, Father based this claim on his
personal belief that Mother’s employer offered full reimbursement for
childcare costs but admitted he had no evidence that Mother’s employer
offered childcare expense reimbursement. Moreover, Mother testified that
she necessarily incurs the childcare expenses, and Father failed to impeach
this testimony. Therefore, the superior court did not err concerning its
evaluation of the evidence regarding childcare expenses. See Boomer v.
Frank, 196 Ariz. 55, 58, ¶ 8 (App. 1999) (explaining mere speculation does
not create a genuine dispute of fact).




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¶12            Fourth, Father contends the superior court improperly found
that the effective date of the modified child support order could not predate
service of the petition to modify on Mother. Having filed a responsive
pleading, Father argues that Mother waived this restriction.

¶13            As outlined in A.R.S. § 25-327(A), a modified child support
order, predicated upon “a showing of changed circumstances that are
substantial and continuing,” becomes “effective on the first day of the
month following notice of the petition for modification . . . unless the court,
for good cause shown, orders the change to become effective at a different
date but not earlier than the date of filing the petition for modification.”
Under the statute’s plain language, the effective date of a modified child
support order is dependent upon notice to the non-filing parent. Id.
Independent of notice, the retroactive application of a modified child
support order may not predate the filing of the petition for modification.
Id.; Guerra, 212 Ariz. at 444, ¶ 7.

¶14           In this case, Father filed his motion to set aside the stipulated
child support order and petition for simplified modification of child
support in September 2017. Although Father failed to serve Mother with
the petition to modify until February 2019, the record reflects that Mother
had actual notice of the petition the month it was filed, as evidenced by her
response. Because the effective date of a modification is tethered to notice
rather than service, and Mother had actual notice of Father’s petition for
modification in September 2017, the superior court erred by finding A.R.S.
§ 25-327(A) precluded retroactive application of the modified child support
order.

¶15           Nonetheless, upon a finding of good cause shown, the
superior court has the discretion to deviate from the default effective date
for a modified child support order. See A.R.S. § 25-327(A). Father argues the
superior court applied an incorrect legal standard when it determined that
his change in employment did not warrant the retroactive application of the
modified child support amount. Specifically, Father cites the court’s finding
that retroactive application of the modified child support order was
improper, independent of Father’s delayed service on Mother, because
Father’s period of unemployment and part-time employment did not
constitute a “substantial and continuing and permanent change.”

¶16           Whether a substantial and continuing change warranting a
modification of child support occurred is a question of fact. Nia v. Nia, 242
Ariz. 419, 423, ¶ 9 (App. 2017). “In exercising its discretion, the superior




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court shall consider the nature of the changes and the reasons for the
changes.” Id. (internal quotation omitted).

¶17            As made clear by the governing statutes, the correct legal
standard for assessing a request to modify child support is a substantial and
continuing change of circumstances, not the permanence of the changed
circumstance. A.R.S. § 25-327(A), -503(H). Although the superior court
found that Father’s period of unemployment and part-time employment
was relatively brief (having resumed full-time employment within ten
months of filing his petition to modify child support), on this record, and
consistent with the superior court’s findings, there is no question that
Father sustained a substantial and continuing decrease in income as of July
2017. Moreover, although Father resumed employment, he did so at a
significantly lower wage, and his loss of income is ongoing. Accordingly,
the substantial and continuing decrease in income that warranted a
modification of Father’s child support obligation as of March 2019, also
warranted a modification of Father’s child support obligation in October
2017, the first day of the month following Mother’s notice of the petition to
modify. See A.R.S. § 25-327(A). Therefore, the superior court abused its
discretion by finding that Father’s change in circumstances did not warrant
the retroactive application of the modified child support order to the month
following Mother’s actual notice of the petition to modify.

                              CONCLUSION

¶18           For the foregoing reasons, we affirm in part and vacate and
remand in part consistent with this decision. Citing A.R.S. § 25-324, Mother
requests an award of her reasonable attorneys fees incurred on appeal. In
our discretion, we deny her request.




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




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