                                 IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


                            In re the Matter of:

          CAMILLE MORGAN AMADORE, Petitioner/Appellant,

                                     v.

              STEVEN PAUL LIFGREN, Respondent/Appellee.


                         No. 1 CA-CV 17-0024 FC
                              FILED 10-16-2018


           Appeal from the Superior Court in Maricopa County
                          No. FC2013-050118
               The Honorable Roy C. Whitehead, Judge

       AFFIRMED IN PART; VACATED IN PART; REMANDED


                                COUNSEL

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Erica Gadberry
Counsel for Petitioner/Appellant

Udall Shumway, PLC, Mesa
By Steven H. Everts
Co-Counsel for Respondent/Appellee

The Sampair Group PLLC, Glendale
By Brandy M. Ramsay
Co-Counsel for Respondent/Appellee
                         AMADORE v. LIFGREN
                          Opinion of the Court



                                OPINION

Presiding Judge Michael J. Brown delivered the opinion of the Court, in
which Judge Maria Elena Cruz and Judge John C. Gemmill joined.1


B R O W N, Judge:

¶1            Camille Morgan Amadore (“Mother”) appeals the superior
court’s order modifying several provisions of the marriage dissolution
decree ending her marriage to Steven Paul Lifgren (“Father”). For the
following reasons, we affirm the court’s modification of child support and
termination of spousal maintenance. We also affirm the court’s denial of
Mother’s request that uncovered medical payments be apportioned based
on the parties’ incomes. We vacate, however, (1) the effective dates the
court applied for the child support modification and spousal maintenance
termination, (2) the court’s reduction of Father’s monthly child support
obligation as reimbursement for his overpayments created by the
retroactive effective dates, and (3) the court’s award of attorneys’ fees and
costs to Father. We remand for further proceedings consistent with this
opinion.

                             BACKGROUND

¶2            Mother and Father married in 2000 and have three children.
Mother, who was not employed at the time, petitioned for divorce in
February 2013, ultimately resulting in a default decree that ordered Father
to pay (1) spousal maintenance of $2,000 per month indefinitely, and (2)
consistent with the parties’ written agreement, child support of $3,000 per
month, which was an upward deviation from the Child Support
Guidelines, Arizona Revised Statutes (“A.R.S.”) section 25-320 app.
(“Guidelines”).

¶3            Mother obtained a real estate license in May 2014. In
September, Father petitioned the superior court to modify the decree,
seeking joint legal decision-making, equal parenting time, and modified


1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution and A.R.S. § 12-145.


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                           Opinion of the Court

child support. Mother counter-petitioned to change the children’s schools
and modify parenting time based on her plans to move to a different
community in the greater Phoenix area. On October 20, 2015, before the
court ruled on the pending petitions, Father filed a petition to modify
spousal maintenance, alleging Mother had “achieved an ability to be
financially independent by obtaining her [r]eal [e]state license.” Father
requested that spousal maintenance be terminated or, in the alternative,
significantly reduced. On November 9, 2015, Mother accepted a job
(unrelated to her real estate license) as a sales coordinator earning an annual
salary of $42,500.

¶4            After a June 2016 evidentiary hearing on the petitions, the
superior court modified the decree by (1) reducing child support to an
amount resulting from application of the Guidelines, and (2) terminating
spousal maintenance. Consistent with statutory presumptions, the court
made the changes effective as of the first day of the month after the filing of
Father’s respective petitions. To account for the overpayments created by
the changes, the court decided that Father’s monthly child support
obligation would be reduced to “$500 per month until Father’s
overpayment [was] equalized/offset.” The court ordered each party
responsible for half of the uncovered medical expenses for the children and
declined to award attorneys’ fees to either party. Mother filed a motion to
amend/motion for new trial, which the court denied, and awarded Father
attorneys’ fees and costs incurred in defending the motion. Mother timely
appealed.

                               DISCUSSION

I.     Spousal Maintenance and Child Support

¶5           An award of spousal maintenance or child support “may be
modified or terminated only on a showing of changed circumstances that
are substantial and continuing.” A.R.S. § 25-327(A). We review the
superior court’s decision to modify a child support award for an abuse of
discretion, which occurs if the record is devoid of competent evidence to
support the decision. Jenkins v. Jenkins, 215 Ariz. 35, 37, ¶ 8 (App. 2007).
The burden of showing changed circumstances is on the party seeking
modification. Id. at 39, ¶ 16. We review de novo the court’s interpretation
and application of statutes. Thomas v. Thomas, 203 Ariz. 34, 36, ¶ 7 (App.
2002).

¶6          Following the evidentiary hearing, the superior court (1)
adopted Father’s child support worksheets, which attributed $3,541 in

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                           Opinion of the Court

gross monthly income to Mother, and (2) found that deviating from the
Guidelines was not appropriate. The court ordered the following monthly
child support obligations for Father: (1) $1,288 from October 1, 2014, to June
30, 2015; (2) $1,338 from July 1, 2015, to October 31, 2015; and (3) $1,430 from
November 1, 2015, to the present. The court also terminated the spousal
maintenance award, effective November 1, 2015.

¶7            Application of these effective dates resulted in overpayments
by Father of $31,464 in child support and $14,000 in spousal maintenance.
The court then ordered that going forward, Father is obligated to pay a
reduced amount of $500 per month in child support until he has recouped
the overpayments, without specifying whether it intended to include the
spousal maintenance overpayment in that directive.

       A.     Changed Circumstances

¶8           The superior court implicitly concluded that Father met his
burden of proving a substantial and continuing change in circumstances.
The court found that Mother acquired her real estate license in 2014, gained
employment as a real estate agent, relocated to a different community to
pursue better real estate opportunities, and was currently employed with
an annual salary of $42,500.

¶9             Because Mother had not yet started her $42,500 salaried
position when Father filed his petition to terminate spousal maintenance,
she contends the changed circumstances could not have existed when
Father filed his petition and thus the court erred in considering it. But she
failed to raise this issue in the superior court, even though Father alerted
Mother in his prehearing statement he was relying on her new employment
as one of the changed circumstances. See Heidbreder v. Heidbreder, 230 Ariz.
377, 380, ¶ 7 n.1 (App. 2012) (“[T]he pretrial statement controls the
subsequent course of litigation . . . .”). Mother has therefore waived her
argument that the court should have summarily denied Father’s petition.
See Bobrow v. Bobrow, 241 Ariz. 592, 597, ¶ 23 (App. 2017) (applying waiver
on appeal based on party’s failure to raise argument in the superior court).

¶10           Mother’s challenge to the sufficiency of the evidence
supporting a finding of changed circumstances relating to her employment
as a sales coordinator also fails. At the time of the June 2016 hearing,
Mother had been employed as a sales coordinator for about seven months,
with an annual salary of $42,500. She has not shown the superior court
abused its discretion in finding that her employment as a sales coordinator
constituted changed circumstances that were substantial and continuing.

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                          Opinion of the Court

¶11           The superior court erred, however, to the extent it found that
Mother’s obtaining a real estate license, relocating to pursue better real
estate opportunities, or working as a real estate agent constituted a
substantial and continuing change of circumstances. The acts of obtaining
a license and pursuing employment, by themselves, do not necessarily
mean a modification or termination of spousal maintenance is justified.
Rather, those acts must be viewed in the context of the increased income
the party has achieved from obtaining the license/employment, and how
that income compares to the circumstances at the time of the decree. See
Richards v. Richards, 137 Ariz. 225, 226 (App. 1983) (“The changed
circumstances alleged must be proved by a comparison with the
circumstances existing at dissolution.”).

¶12          According to Mother’s January 2016 affidavit of financial
information, her “gross” monthly pay was $387 as a real estate agent from
May 2014 until November 2015. And her income tax return lists the amount
of her “business income” for 2014 as $362. Father presented no conflicting
evidence, and he has not argued, either in the superior court or on appeal,
that Mother’s actual income from her real estate business constitutes a
substantial and continuing change of circumstances. Moreover, when
Mother moved to Gilbert in 2015, the parenting plan changed, but as the
child support worksheets show and as Father testified, his parenting time
increased only from 88 days to 92 days, which did not impact the child
support calculation.

¶13            Nor do we find persuasive Father’s argument that the court
could properly attribute income to Mother of $3,541 for each month from
September 2014 to November 2015 to justify a finding of changed
circumstances. Father argues that “Mother presented no evidence to
indicate that she could not have been earning” $42,500 during the time she
was earning less income as a real estate agent, and that she also failed to
present any evidence that the sales coordinator position was not available
in September 2014. Father’s attempt to shift the burden to Mother conflicts
with established law—it was his burden to prove a substantial and
continuing change of circumstances. See Jenkins, 215 Ariz. at 39, ¶ 16.

¶14         Father’s reliance on Section 5(E) of the Guidelines is also
misplaced. That provision states in pertinent part as follows:

      If a parent is unemployed or working below full earning
      capacity, the court may consider the reasons. If earnings are
      reduced as a matter of choice and not for reasonable cause,


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                          Opinion of the Court

      the court may attribute income to a parent up to his or her
      earning capacity.

Father asserted in his prehearing statement that, for his proposed child
support worksheets, Mother’s $3,541 monthly income “is attributed based
upon what she has shown she is capable of earning during this time
period.” At the hearing Father testified that $3,541 is “[t]he gross income
from her current employment.” But the mere fact that Mother started
earning $42,500 in November 2015 does not mean she could have been
earning the same amount in September 2014. Cf. Marquez v. Marquez, 132
Ariz. 593, 595 (App. 1982) (finding that because the parties agreed that wife
would not be expected to work, husband had to show “something other
than the fact that [wife] is able to work”).

¶15            Additionally, Father neither alleged nor proved, under
Section 5(E) of the Guidelines, that Mother’s “earnings were reduced as a
matter of choice and not for reasonable cause.” Mother testified that it was
difficult to get her real estate career “up and running” and that she mainly
handled “rentals.” She took various steps to achieve better name
recognition, including holding open houses for other agents, sending mass
emails, conducting social media promotions, and distributing fliers in
neighborhoods but ultimately was not successful. Father offered only
conclusory assertions at the hearing that Mother could or should have been
able to earn at least $3,541 per month starting in September 2014. Because
the record is devoid of competent evidence showing that from September
2014 to November 2015 Mother voluntarily reduced her income or was
capable of earning the same amount as a real estate agent as she now earns
as a sales coordinator, Father failed to meet his burden of showing changed
circumstances based on attribution of income.

      B.     Upward Deviation of Child Support

¶16           Mother also challenges the superior court’s order modifying
the child support agreement the parties entered at the time of dissolution,
which was based on an upward deviation from the Guidelines. She argues
that Father had the burden of proving that the purpose for the upward
deviation had changed. However, when Father established that a
substantial and continuing change in circumstances had occurred due to
Mother’s employment as a sales coordinator, Mother then bore the burden
of proving that an upward deviation was in the children’s best interests.
See Nia v. Nia, 242 Ariz. 419, 421, 425, ¶¶ 1, 24 (App. 2017) (rejecting
mother’s argument “that there is a presumption for a deviation if it has been
previously imposed”).

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                           Opinion of the Court

¶17           Alternatively, Mother argues she presented sufficient
evidence to show that an upward deviation was in the children’s best
interests. She testified that the costs of taking care of the children have
increased and the change in support would devastate the children. Father
countered that Mother is now making $42,500 per year, and she can
supplement that amount as a real estate agent. On this record, Mother has
not shown the superior court abused its discretion in finding Mother did
not meet her burden of showing an upward deviation was in the children’s
best interests. See id. at 424, ¶ 19 (“If the amount calculated under the
Guidelines appears adequate under the circumstances, the superior court
does not need to consider a deviation allowed by the Guidelines.”);
Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998) (deferring to the
superior court’s determinations regarding conflicting evidence and witness
credibility).

       C.     Effective Dates

¶18            A finding of changed circumstances also requires the court to
determine the date on which a support modification or termination
becomes effective. Here, the superior court retroactively applied the
support modification and termination orders to the first day of the month
following the filing of Father’s petitions, thereby following the statutory
presumption. See A.R.S. § 25-327(A) (“Modifications and terminations are
effective on the first day of the month following notice of the petition for
modification or termination 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 or termination.”) (emphasis added).
However, given that Father did not meet his burden of showing that
changed circumstances had occurred until, at the earliest, some point after
Mother obtained her job as a sales consultant on November 9, 2015, we must
decide whether the court should have found good cause to apply a later
effective date based on the date of the changed circumstances justifying
modification occurred. Cf. Nia, 242 Ariz. at 426, ¶¶ 32–33 (App. 2017)
(explaining that the superior court had discretion to equitably adjust the
effective date of the child support order but there was no factual support
for doing so and no prejudice was shown).

¶19            The presumption of § 25-327, addressing when a modification
or termination of support should generally become effective, must be read
in harmony with the rest of that section, which provides that a support
order “may be modified or terminated only on a showing of changed
circumstances that are substantial and continuing.” See David C. v. Alexis
S., 240 Ariz. 53, 55, ¶ 9 (2016) (related statutes “should be read together and

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                           Opinion of the Court

harmonized when possible”). Nothing in this statutory scheme suggests
that a court may properly set an effective date that is not supported by
changed circumstances. Thus, a court errs if it applies an effective date that
predates when the circumstances in a particular case became substantial
and continuing. See Little v. Little, 193 Ariz. 518, 521, ¶ 6 (1999) (“[A] court
should modify a child support order only if a parent shows a substantial,
continuing change of circumstances.”); McClendon v. McClendon, 243 Ariz.
399, 403, ¶ 15 (App. 2017) (explaining that the superior court lacks authority
to modify a spousal maintenance order unless a substantial and continuing
change in circumstances is shown). To hold otherwise would ignore the
changed circumstances requirement of § 25-327(A), and thereby unfairly
punish the party against whom a support modification petition is directed.

¶20            Father filed his petition to modify child support on September
24, 2014, and the superior court’s order modifying child support became
effective on October 1, 2014, which was the first day of the month following
notice of Father’s petition. The court’s spousal maintenance order became
effective on November 1, 2015, which was the first day of the month
following notice of Father’s petition filed October 20, 2015. The court erred
in implicitly finding there was no good cause to set a later effective date
because evidence showing the substantial and continuing change in
circumstances did not occur until after Mother’s new employment as a sales
coordinator. We therefore vacate the effective dates of the orders
terminating spousal maintenance and child support and the overpayment
calculations related thereto.

       D.     Reimbursement for Overpayments

¶21           Relying on A.R.S. § 25-527, Mother argues the superior court
erred in ordering Father’s ongoing child support obligation reduced to $500
per month until he is reimbursed for the amounts he overpaid Mother. See
A.R.S. § 25-527(B) (“The court may enter a judgment for reimbursement
against the obligee if the court finds that the obligor’s obligation to pay
support has terminated and that all arrearages and interest on arrearages
have been satisfied.”). She suggests that this court’s opinion in In re
Marriage of Allen, 241 Ariz. 314 (App. 2016), circumvented the plain
meaning of the statute, and contends that even if Allen was correctly
decided, the superior court failed to make findings showing a deviation
was inappropriate or unjust and in the children’s best interests. As noted
above, the overpayments have been vacated. However, the court must
select new effective dates based on when Father proved that a substantial
and continuing change of circumstances occurred, which could result in a
new calculation of overpayments of child support and/or spousal

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                          Opinion of the Court

maintenance. Thus, whether the court may properly reduce Father’s
monthly child support obligation as an offset for any such overpayments is
an issue that may arise on remand.

¶22           Although the court found that deviating from the Guidelines
was inappropriate, the court nonetheless determined that Father could
reduce his actual monthly payment from $1,430 to $500 until he recouped
his overpayments. The court’s reasoning for doing so is unclear, and the
record does not confirm whether the reduction includes overpayments for
spousal maintenance.

¶23             At the time of the superior court’s ruling, the only authority
permitting reimbursement was § 25-527, but it does not apply because
Father’s obligation to pay child support has not terminated. After Mother
filed her notice of appeal, this court decided Allen. See 241 Ariz. at 314. In
that case, father paid his monthly child support obligation from his
personal funds and mother received duplicate payments for child social
security disability benefits. Id. at 315, ¶ 4. On appeal, we concluded that
the trial court “should have credited [father] for six months of duplicate
payments” and remanded for the court to determine an appropriate
remedy. Id. at 318, ¶¶ 18, 19. Noting that father could request
reimbursement under § 25-527, but that such a request could not be made
until his child support obligation is terminated, we explained that “it might
also be permissible for the court to order [mother] to reimburse [father] at
this time by deviating from the Guidelines, including through the entry of
judgment.” Id. at ¶ 19.

¶24           Assuming, without deciding, that Allen would govern this
case, we hold that any order the superior court might issue in reimbursing
Father for overpayments must, at a minimum, comply with the deviation
requirements found in the Guidelines. See Guidelines § 20(A)(1)–(3) (listing
the findings required to justify deviation from the Guidelines); Allen, 241
Ariz. at 318–19, ¶ 20 (explaining that deviation from the Guidelines requires
written findings, including that deviation is consistent with child’s best
interests). Stated differently, although the legislature has not specifically
foreclosed the possibility of recouping a child support overpayment
through a reduction in the monthly child support obligation, the reduction
cannot conflict with the child’s best interests.

¶25         We further note that the superior court did not specify
whether the reduction in child support payments was also meant to
reimburse Father for his spousal maintenance overpayments, and neither
party has addressed the propriety of reducing future child support

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                          Opinion of the Court

payments to recoup spousal maintenance payments. See Little, 193 Ariz. at
521, ¶ 6 (“[B]oth the governing statute and the Guidelines recognize that a
parent’s child support obligation is paramount to all other financial
obligations . . . .”). Father asked that he be compensated for both the
overpayments he made in spousal maintenance and in child support, but
the court’s ruling does not list a specific overage amount. Thus, on this
record we are unable to discern whether the court allowed an offset for
overpayment of spousal maintenance, and if so, how the court apportioned
the child support reduction.

¶26          Given these concerns, we vacate the superior court’s
reimbursement order reducing Father’s child support payments to $500 per
month and remand for reconsideration of whether reimbursement of
overpayments, if any, is authorized by law, and if so, whether it is
appropriate to allow reimbursement in this case.

II.   Uncovered Medical Expenses

¶27           Father was originally assigned 100% responsibility for paying
all “reasonable uncovered and/or uninsured medical, dental, vision care,
prescription and other health care charges for the minor child(ren),
including co-payments.” But the superior court modified this
responsibility, ordering Mother and Father to each be responsible for 50%
of “[a]ll medical, dental and orthodontia expenses incurred for the health
and protection of the child[ren] not covered by insurance.”

¶28           Mother argues the superior court erred in failing to divide the
uncovered medical expenses in proportion to the respective incomes of the
parties. She relies on various provisions in the Guidelines, such as the
background, purposes, and child support obligation sections, and A.R.S.
§ 25-320(J). We review the interpretation of the Guidelines and applicable
statutes de novo, Milinovich v. Womack, 236 Ariz. 612, 615, ¶ 7 (App. 2015),
and “apply the same rules of construction in interpreting the Guidelines
that we use in construing statutes,” McNutt v. McNutt, 203 Ariz. 28, 31, ¶ 10
(App. 2002) (citation omitted).

¶29           A child support order must “assign responsibility for the
payment of any medical costs of the child that are not covered by insurance
according to the [Guidelines].” A.R.S. § 25-320(J). The background section
of the Guidelines states that it follows the income shares model and that
“[e]ach parent contributes his or her proportionate share of the total child
support amount.” One of the purposes of the Guidelines is “[t]o establish
a standard of support for children consistent with the reasonable needs of

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                          Opinion of the Court

children and the ability of parents to pay.” Guidelines § 1(A). To determine
each parent’s child support obligation, the superior court computes the
total child support obligation figure and then divides that figure in
proportion to each parent’s adjusted gross income. Guidelines §§ 8–10.
However, the Guidelines do not direct that uncovered medical expenses be
added to the total child support obligation, but direct the court to “specify
the percentage that each parent shall pay for” these expenses. Guidelines
§ 9(A).

¶30            Mother’s argument that uncovered medical expenses should
be divided in proportion to respective incomes seems compelling when
considered in the context of the income shares model and the purposes of
the Guidelines. See Milinovich, 236 Ariz. at 615, ¶ 10 (explaining that we
strive to interpret the Guidelines “consistent with their overall purpose”).
However, the plain language of the Guidelines, explaining how the court is
to apportion uncovered medical expenses, does not support that
conclusion. Id. (stating the “plain language” of the Guidelines is “the most
reliable indicator of the supreme court’s intent”). Instead, unlike the basic
and total child support obligations, the superior court is only directed to
“specify the percentage that each parent shall pay for any medical, dental
or vision costs of the children which are not covered by insurance.”
Guidelines § 9(A). If our supreme court meant for these costs to be divided
in proportion to income, then it could have included language to that effect,
as it has done with other child support obligations. See Guidelines §§ 9–10
(requiring or allowing court to add certain costs to the total child support
obligation, such as the costs of medical insurance coverage and childcare
costs, and mandating that the total child support obligation be divided in
proportion to each parent’s adjusted gross income). In the absence of such
language, nothing requires apportionment of uncovered medical expenses.
We therefore affirm the superior court’s ruling.

III.   Attorneys’ Fees

¶31           Mother’s post-hearing motion challenged most of the same
rulings she challenges on appeal. After the superior court denied Mother’s
motion, Father filed an application for attorneys’ fees and costs pursuant to
A.R.S. § 25-324, asserting Mother had taken unreasonable positions and her
motion was “completely without merit.” The court awarded Father $2,645
for the attorneys’ fees and costs he incurred in responding to Mother’s
motion.

¶32         Mother challenges the fee award, asserting she acted
reasonably and there is a significant disparity of resources between the

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                          Opinion of the Court

parties. We review an award of attorneys’ fees for an abuse of discretion.
Magee v. Magee, 206 Ariz. 589, 590, ¶ 6 (App. 2004).

¶33           The superior court may award attorneys’ fees in a dissolution
proceeding “after considering the financial resources of both parties and
the reasonableness of the positions each party has taken throughout the
proceedings.” A.R.S. § 25-324(A). In this case, Father earns more than three
times what Mother earns, and, as evidenced by the outcome of this appeal,
Mother did not take objectively unreasonable positions in her post-hearing
motion. Therefore, because there is no reasonable basis in the record for the
court’s decision to award attorneys’ fees and costs, we vacate the award.

¶34          Both parties request attorneys’ fees on appeal pursuant to
A.R.S. § 25-324. After considering the reasonableness of each party’s
position on appeal and the disparity in incomes, we award Mother
reasonable attorneys’ fees and taxable costs incurred on appeal upon her
compliance with Arizona Rule of Civil Procedure 21.

                              CONCLUSION

¶35           We affirm the superior court’s orders terminating spousal
maintenance and modifying child support, but we vacate the effective dates
of both orders and remand for redetermination based on when the changed
circumstances were proven to be substantial and continuing. We vacate the
order reducing Father’s child support obligation to $500 per month and
remand for reconsideration and recalculation of Father’s overpayments, if
any. We also vacate the order awarding Father attorneys’ fees and costs he
incurred in responding to Mother’s post-hearing motion. Finally, we affirm
the court’s order assigning responsibility for uncovered medical expenses.




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




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