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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

          JARED ROBERT GEORGE GROW, Petitioner/Appellee,

                                        v.

             JENNIFER MARIE GROW, Respondent/Appellant.

                           No. 1 CA-CV 16-0032 FC
                             FILED 5-9-2017


           Appeal from the Superior Court in Maricopa County
                           No. FC2009-071164
                           No. FC2009-071402
                             (Consolidated)
                The Honorable Jeanne M. Garcia, Judge

                                  AFFIRMED


                                   COUNSEL

Gavin A. Curtis, Attorney at Law, Surprise
By Gavin A. Curtis
Counsel for Petitioner/Appellee

Jennifer Marie Grow, Surprise
Respondent/Appellant
                            GROW v. GROW
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.


B E E N E, Judge:

¶1           Jennifer Grow (“Mother”) appeals the superior court’s
modification of child support owed by Jared Grow (“Father”). For the
following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY

¶2           Mother and Father have two minor children. In 2010, Mother
and Father finalized their divorce and the resulting dissolution decree
required Father to pay child support.

¶3           In May 2013, Mother moved to modify child support. As the
motion was pending, Father accepted a job as an administrative nurse,
which resulted in an income reduction. In a September 2013 order, the
superior court increased Father’s child support obligations based on his
historic work schedule and pay rate, rather than his new pay rate. Father
did not appeal.

¶4            In October 2013, Father once more reduced his income by
resigning from his second job and taking a full–time position with his first
employer. In February 2014, Father petitioned for a modification of his
child support obligation. After testimony and evidence, in an October 2014
order, the superior court reduced Father’s child support obligation. After
filing a number of motions after October 2014, Mother appealed the
superior court’s order.

¶5            We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12–2101 (2017).1




1     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                            Decision of the Court

                                DISCUSSION

¶6            A child support obligation may be modified only on a
showing of changed circumstances that are substantial and continuing.
A.R.S. § 25–327(A) (2017). “The decision to modify an award of child
support rests within the sound discretion of the trial court and, absent an
abuse of that discretion, will not be disturbed on appeal.” Little v. Little, 193
Ariz. 518, 520 (1999). An abuse of discretion exists when the record is
“devoid of competent evidence” to support the child support modification.
Id.

¶7             Mother argues that the doctrines of res judicata and collateral
estoppel prevented the superior court from modifying the September 2013
order because there were no changed circumstances. Mother’s arguments
present issues of law, which we review de novo. Corbett v. ManorCare of Am.,
Inc., 213 Ariz. 618, 623, ¶ 10 (App. 2006).

¶8              Res judicata protects parties from relitigating the same issues
by precluding a claim “when a former judgment on the merits was
rendered by a court of competent jurisdiction and the matter now in issue
between the same parties or their privities was, or might have been,
determined in the former action.” Hall v. Lalli, 194 Ariz. 54, 58, ¶¶ 6–7
(1999). Likewise, collateral estoppel precludes relitigating a claim when
“the issue or fact to be litigated was actually litigated in a previous suit, a
final judgment was entered, and the party against whom the doctrine is to
be invoked had a full opportunity to litigate the matter and actually did
litigate it, provided such issue or fact was essential to the prior judgment.”
Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573 (1986).

¶9            Generally, res judicata and collateral estoppel will not apply to
child support rulings because they are modifiable by statute. See A.R.S. §
25–327(A). Nonetheless, Mother contends that the changed circumstances
responsible for the modification of Father’s child support obligation
occurred before the superior court’s September 2013 modification.
However, Mother admits and the record shows that Father resigned from
his second job in October 2013, one month after that first modification
ruling. Neither res judicata nor collateral estoppel can apply to preclude
Father’s child support modification claim because the changed
employment was not litigated in the September 2013 modification ruling.
The changed circumstances warranting the child support modification at
issue here did not occur until October 2013, when Father resigned from his
second job and accepted full–time employment at his first job. When faced




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                           Decision of the Court

with new evidence of Father’s changed income, the superior court did not
act contrary to the doctrines of res judicata and collateral estoppel.

¶10          Second, Mother argues that the superior court erred when
modifying Father’s child support obligation because there was no
competent evidence showing Father obtained different employment after
the September 2013 modification ruling and there is no competent evidence
supporting Father’s asserted reasons for voluntarily reducing his income
by accepting a full–time position as an administrative nurse.

¶11            The superior court heard testimony from Father about
changed circumstances that were continuous and substantial. Father
testified that his financial situation changed because his wife recently gave
birth, he recently “went from a non–benefited, full–time position at one
facility to a salaried position” with benefits at another facility, changing
positions afforded him more time with his children and wife, and he
voluntarily resigned from his second job because of a conflict of interest.
Father also testified that if his child support obligations were not adjusted
he would be unable spend more time with his family.

¶12           Mother elicited testimony and presented evidence that
Father’s reduction in income was voluntary, Father had the ability to
acquire full benefits from his employer in 2012 but chose not to, and
questioned Father on his purported reasons for resigning from his second
job, including testimony that Father continued to work overtime.

¶13           When evidence is conflicting, the superior court may make a
finding provided there is substantial evidence to support it. Imperial
Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 77 (App. 1986). The court
determined that, since the September 2013 modification, “Father has
obtained different employment which pays less than his previous job
(where he often worked overtime).” The court accepted Father’s asserted
reasons, except the conflict of interest reason, for resigning from his second
job. Because there was competent evidence supporting Father’s changed
circumstances and his asserted reasons for the changed circumstances, the
court did not abuse its discretion.

¶14           The superior court’s modified child support order follows the
Child Support Guidelines based on the reported income of both parents,
using Father’s current income rather than a historical average. The court
properly did not penalize Father for working additional hours. See A.R.S.
§ 25–320 app. § 5(A) (2017) (“Each parent should have the choice of working
additional hours through overtime or at a second job without increasing the



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                           Decision of the Court

child support award.”). Accordingly, the court did not abuse its discretion
in modifying Father’s child support obligation.

¶15         Father requests an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. § 25–324. After review, that request is denied.

                              CONCLUSION

¶16          For the foregoing reasons, we affirm the superior court’s
order granting Father’s petition to modify child support.




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




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