                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 17-0721 FC
                                 FILED 11-1-2018


            Appeal from the Superior Court in Maricopa County
                           No. FC2012-070854
            The Honorable J. Justin McGuire, Judge Pro Tempore

   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


                                    COUNSEL

Rader, Sheldon & Stoutner, PLLC, Phoenix
By Nicole D. Siqueros-Stoutner, Marc R. Grant, Jr.
Counsel for Petitioner/Appellee

Joel Hanger, Tonopah
Respondent/Appellant
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                           Decision of the Court



                      MEMORANDUM DECISION

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


C A T T A N I, Judge:

¶1            Joel Hanger (“Father”) appeals from the denial of his two
motions to set aside a stipulated child support order and his petitions for
simplified modification of child support. For reasons that follow, we affirm
the superior court’s denial of Father’s motions to set aside, but reverse the
denial of Father’s petitions for simplified modification of child support.

             FACTS AND PROCEDURAL BACKGROUND

¶2             In mid-2017, Father petitioned to modify an existing child
support order due to significant changes in circumstances: the loss of his
employment and a change in childcare costs. In late October 2017, each
party filed a financial affidavit in anticipation of the scheduled conference
and hearing on modification. Mother listed her annual income as $34,000
and her monthly income as $2,875; Father listed his year-to-date income as
$51,680 and his monthly income as $1,040. At the conference, Mother and
Father stipulated to a child support order obligating Father to pay Mother
$508.87 per month starting on October 1, 2017 (the “Stipulated Order”). The
simultaneously-filed child support worksheet listed Father’s annual
income as $75,000 and Mother’s annual income as $34,500.

¶3            One week later, Father filed a motion seeking to set aside the
Stipulated Order and requesting modification of child support by
simplified procedure. Father filed an amended motion to the same effect
four days later, to which he attached a child support worksheet that listed
his annual income as $32,181. Father argued that the court should set aside
the Stipulated Order under Arizona Rule of Family Law Procedure
(“ARFLP”) 85 because (1) Mother’s counsel surprised Father by
communicating with him before the hearing, (2) Mother’s counsel and the
conference officer engaged in misconduct, and (3) Father was coerced into
signing the Stipulated Order. See ARFLP 85(C)(1)(a), (c), (f). The court
denied Father’s motions.




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¶4           Father appealed, and we have jurisdiction under Arizona
Revised Statutes (“A.R.S.”) § 12-2101(A)(2).

                              DISCUSSION

      Father’s Motions to Set Aside.

¶5            We review the superior court’s denial of a motion to set aside
a judgment for an abuse of discretion. Duckstein v. Wolf, 230 Ariz. 227, 231,
¶ 8 (App. 2012). An abuse of discretion includes an error of law or an
absence of substantial evidence to support the court’s findings. Id. We will
uphold the court’s denial of a motion for relief from judgment unless
“undisputed facts and circumstances . . . require a contrary ruling as a
matter of law.” Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 121 (1957)
(applying Arizona Rule of Civil Procedure 60); see also ARFLP 85 cmt.
(noting that Rule 85 is an analogue of Rule 60 of the Arizona Rules of Civil
Procedure); ARFLP 1 cmt. (case law interpreting substantially similar
language in analogous civil rule applies to interpretation of ARFLP rule).

¶6            Father asserts that the superior court abused its discretion by
improperly (1) denying his amended motion to set aside the Stipulated
Order, arguing that he was coerced into signing it; (2) attributing income
above minimum wage without explaining the reason for the attribution in
violation of § 22 of the Arizona Child Support Guidelines, A.R.S. § 25-320
app. (“Guidelines”); and (3) entering an upward deviation of his income in
violation of Guidelines § 20.

¶7             Father’s arguments are unavailing. Under ARFLP 69(A)(1),
“[a]n agreement between the parties shall be valid and binding if the
agreement is in writing.” Any such agreement “shall be presumed to be
valid and binding, and it shall be the burden of the party challenging the
validity of the agreement to prove any defect in the agreement.” ARFLP
69(B). A party’s subsequent change of heart does not provide grounds for
relief from an order entered with the party’s consent. Cf. Duwyenie v. Moran,
220 Ariz. 501, 506, ¶ 16 (App. 2009).

¶8            Here, the Stipulated Order was in writing and signed by both
parties, and Father failed to present undisputed facts to rebut the
presumption of validity and meet his burden of proving that the Stipulated
Order was invalid. See ARFLP 69; Coconino Pulp & Paper, 83 Ariz. at 121.
Father argued that he “felt coerced and threatened” into believing he would
be incarcerated for failure to pay child support and would be attributed
income higher than supported under the Guidelines should he fail to sign
the Stipulated Order. But Mother disputed these allegations, noting instead


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that Father was advised Mother would seek to attribute income of $100,000
per year (consistent with Father’s previous earnings) should he refuse to
settle. Similarly, Mother noted that the conference officer simply informed
Father that he “would be attributed income greater than his unemployment
income” (which was below minimum wage income), not that the income
level would be more than what was proper under the Guidelines. Given
these conflicting statements of fact, Father has not established a basis to
reverse the superior court’s denial of his motion(s) to set aside the
Stipulated Order due to coercion.1

¶9             Next, Father mischaracterizes the Stipulated Order as both an
upward deviation and an attribution of income. Despite Father’s argument
to the contrary, the superior court did not attribute income to Father; rather,
Father himself agreed that his income was $75,000. The amount of child
support in the Stipulated Order was calculated based on Father’s $75,000
annual income, and Father signed the Stipulated Order, thus indicating,
under penalty of perjury, that he had “read and agree[d] to this Order and
that all the information contained in it is true and complete to the best of
[Father’s] knowledge and belief.” Because the court did not attribute
income to Father, the court was not required to explain the reason for an
attribution. See Guidelines § 22.

¶10          Similarly, the superior court did not deviate from the
Guidelines. A deviation occurs when the court “order[s] child support in
an amount different from that which is provided pursuant to these
guidelines.” Guidelines § 20(A). Here, the court did not deviate from the
Guideline amount and instead simply ordered what Father stipulated to in
the child support worksheet submitted by the parties.

¶11          Father entered into the Stipulated Order, which was a valid
and binding ARFLP 69 agreement. The superior court did not attribute
income to Father or deviate from the Guideline amount of child support.
Accordingly, the superior court did not abuse its discretion by denying
Father’s motions to set aside.




1       In his reply brief, Father contends that the Stipulated Order became
void when the superior court improperly struck paragraph 14. We decline
to address this contention because Father waived the argument by failing
to raise it in his opening brief. See Dawson v. Withycombe, 216 Ariz. 84, 100,
¶ 40 n.11 (App. 2007).


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       Father’s Petitions to Modify.

¶12           Any child support order may be modified on a showing of a
substantial and continuing change of circumstances. A.R.S. § 25-503(E);
Guidelines § 24(A). The Guidelines provide for a simplified modification
procedure if applying the Guidelines “results in an order that varies 15% or
more from the existing amount.”           Guidelines § 24(B).        In these
circumstances, the Guidelines direct that “[a] fifteen percent variation in the
amount of the order will be considered evidence of substantial and
continuing change of circumstances.” Id. We review the superior court’s
decision on a petition to modify child support for an abuse of discretion,
accepting the court’s factual findings unless clearly erroneous but
considering de novo the court’s conclusions of law and interpretation of the
Guidelines. Nia v. Nia, 242 Ariz. 419, 422, ¶ 7 (App. 2017).

¶13           Father contends that his amended petition to modify (to
which he attached a child support worksheet showing his income as $32,181
and a $0 child support obligation) showed the requisite 15% variation from
the Stipulated Order (which established a $508.87 obligation based on
Father’s income of $75,000), and that the superior court thus erred by
summarily denying his petition. We agree. Income is a relevant factor
when determining child support, see Guidelines § 8, and Father’s amended
petition to modify stated a change from the level of income on which the
Stipulated Order was based. The child support worksheet based on the
new income figure and attached to Father’s amended petition resulted in a
more-than-15% variation in Father’s child support obligation per the
Guidelines as compared to the Stipulated Order.

¶14            The fact that Father previously stipulated to a higher income
does not preclude him from seeking modification if he presents a colorable
claim that there has been a 15% variation. Although the stipulation may be
considered as evidence of Father’s income (and although the court might
be justified in attributing additional income to Father if appropriate, see
Guidelines § 5(E); Engel v. Landman, 221 Ariz. 504, 510–11, ¶ 22 (App. 2009)),
if Father is able to demonstrate through credible evidence that his income
has changed, he may be entitled to a modification. See Birnstihl v. Birnstihl,
243 Ariz. 588, 592–94, ¶¶ 15–22 (App. 2018). Accordingly, before ruling on
Father’s amended petition, the superior court should have held an
evidentiary hearing to determine whether changed circumstances
warranted modification. Id. at 593–94, ¶¶ 17, 20.




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      Attorney’s Fees on Appeal.

¶15            Mother requests an award of her attorney’s fees under A.R.S.
§ 25-324(A). Having considered the relevant factors and because Father is
entitled to a hearing on his petition to modify child support, we decline to
award Mother attorney’s fees.

                              CONCLUSION

¶16          For the foregoing reasons, we affirm the superior court’s
order denying Father’s motions to vacate, but we reverse the court’s order
denying Father’s amended petition to modify child support and remand for
further proceedings consistent with this decision.




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




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