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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   THERESA L. BURNS, Petitioner/Appellee,

                                         v.

                   FRANK L. BURNS, Respondent/Appellant.

                            No. 1 CA-CV 15-0175 FC
                                FILED 2-23-2016


            Appeal from the Superior Court in Maricopa County
                           No. FC2003-093584
                The Honorable Peter A. Thompson, Judge

                                   AFFIRMED


                                    COUNSEL

Keil & Keil Law Office, Glendale
By Martin F. Keil, Jr.
Counsel for Petitioner/Appellee

Leavell & Rivera, PLC, Phoenix
By Thomas H. Leavell
Counsel for Respondent/Appellant
                             BURNS v. BURNS
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.


H O W E, Judge:

¶1           Frank L. Burns (“Father”) appeals the family court’s denial of
his motion for relief from judgment under Arizona Rule of Family Law
Procedure 85(C) and his petition to retroactively modify child support
pursuant to A.R.S. § 25–327(A). For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Father and Theresa L. Burns (“Mother”) divorced in 2004 and
agreed that Father would make monthly child support payments to Mother
for their three then-minor children. Two years later, Mother petitioned to
modify the child support, which the family court subsequently ordered
after Mother and Father attended a court-ordered conference. Four days
after the court issued its order, Father notified the family court of a change
to his address.

¶3            Father paid his child support each month in the following
years, but stopped soon after October 2010 when he began a thirty-six
month criminal sentence at a federal correctional facility in New Jersey.
Father petitioned to modify his child support in March 2011, arguing that
although he had continued to make payments through the first months of
his incarceration, he could no longer afford to do so because he made only
eleven dollars per month at the prison. He neither served the petition to
Mother nor took any further action relating to it, however.

¶4             The following month, the prison transferred Father to solitary
confinement at a segregated housing unit for non-disciplinary reasons.
There, Father could not send or receive mail unless specifically designated
“Legal Mail.” He did not inform the family court of his transfer or the mail
restriction. In July 2011, the family court issued Father a notice of its intent
to dismiss his petition for lack of prosecution. The court mailed the notice
to the address listed on Father’s petition. But because Father remained in
the segregated housing unit, he did not receive the notice and took no
action. Consequently, the family court dismissed Father’s petition without



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                           Decision of the Court

prejudice in September 2011. In October, the prison released Father from
solitary confinement and transferred him to two other facilities before
Father completed his sentence in May 2013.

¶5            Nine months later, Father learned through Mother that the
family court had dismissed his March 2011 petition and that he had
accumulated arrearages during his incarceration. As a result, Father
petitioned in June 2014 for a downward deviation of his child support
obligation and requested that the deviation apply retroactively to the date
of his March 2011 petition. He argued that A.R.S. § 25–327(A), which allows
child support modifications when substantial and continuing changes exist,
allowed retroactive modification because his incarceration constituted such
a change. He also argued that Arizona Rule of Family Law Procedure 85(C),
which permits relief from a final judgment for excusable neglect or other
justifying reason, entitled him to relief because he had no way of knowing
that the court had dismissed his March 2011 petition while he was in
solitary confinement.

¶6             Mother counter-petitioned, arguing that Father was in
contempt of court for failing to pay child support and that any modification
to child support would only be effective beginning July 2014 because
A.R.S. § 25–327(A) provides that modifications become effective the month
following the petition. After hearing oral argument, the family court denied
Father’s request to modify child support retroactively to March 2011.
Instead, the family court ordered an upward deviation of Father’s child
support obligation effective July, August, and September 2014, when the
youngest of the children had become emancipated. The family court found
that Father had not established grounds under Arizona Rule of Family Law
Procedure 85(C) to justify relief from the dismissal of his March 2011
petition because Father’s failure to serve Mother or follow up constituted a
lack of diligence, not excusable neglect. Father timely appealed.

                               DISCUSSION

¶7             Father argues that the family court erred in denying him relief
from its dismissal of the March 2011 petition and in denying his subsequent
petition to reduce his child support retroactively to March 2011. We review
the family court’s ruling on a petition to modify child support for an abuse
of discretion. Milinovic v. Womack, 236 Ariz. 612, 615 ¶ 7, 343 P.3d 924, 927
(App. 2015). Likewise, we review the family court’s denial of a motion to
relieve from judgment for an abuse of discretion. Duckstein v. Wolf,
230 Ariz. 227, 231 ¶ 8, 282 P.3d 428, 432 (App. 2012). However, we review
de novo the family court’s interpretations of procedural rules and statutes


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as questions of law. Alice M. v. Dep’t of Child Safety, 237 Ariz. 70, 72 ¶ 7, 345
P.3d 125, 127 (App. 2015); Guerra v. Bejarano, 212 Ariz. 442, 443 ¶ 6, 133 P.3d
752, 753 (App. 2006). We hold that the family court did not err in applying
Arizona Rule of Family Law Procedure 85(C) or A.R.S. § 25–327(A) and did
not abuse its discretion in denying relief or Father’s petition to retroactively
modify child support to March 2011.

              1. Application of Arizona Rule of Family Law Procedure 85

¶8            Father first argues that the family court erred by improperly
applying Rule 85(C)(1)(a) to deny him relief from the court’s dismissal of
his March 2011 petition because he did not receive actual notice. The rule
provides that, “On motion and upon such terms as are just the court may
relieve a party . . . from a final judgment, order, or proceedings for . . .
mistake, inadvertence, surprise, or excusable neglect.” Ariz. R. Fam.
L.P. 85(C)(1)(a). Such a request for relief must be made within six months
of the judgment. Ariz. R. Fam. L.P. 85(C)(2).

¶9             The family court did not err in its application of Rule
85(C)(1)(a). First, Father did not establish the requisite mistake,
inadvertence, surprise, or excusable neglect. Arizona Rule of Family Law
Procedure 43(C)(2)(c) provides that service of written notice is complete
upon its mailing to the person’s last known address. Because the court
mailed the notice of intent to dismiss to Father’s last known address, no
mistake occurred. Father’s failure to update his address with the court after
being transferred is not excusable neglect. See Daou v. Harris, 139 Ariz. 353,
360, 678 P.2d 934, 941 (1984) (stating that a judgment will not be disturbed
if acquired because of a party’s mere neglect). Second, Father did not seek
Rule 85 relief until three years after the family court dismissed his March
2011 petition. Father counters that the six-month period should have tolled
until he became actually aware that the family court had dismissed his
petition, thus making his motion timely. But Father’s interpretation directly
contradicts the plain language of the rule, which specifies that a party must
seek relief “not more than six (6) months after the judgment.” Ariz. R. Fam.
L.P. 85(C)(2) (emphasis added). Nothing in the rule provides that the six-
month period may be tolled. See generally Ariz. R. Fam. L.P. 85.

¶10           Father next argues that the family court erred by not
alternatively granting relief under Rule 85(C)(1)(f) because of his inability
to receive mail while in solitary confinement. The subsection is a “catch-all
provision” which permits a party to request relief for any justifying reason.
Ariz. R. Fam. L.P. 85(C)(1)(f), (C)(2); Panzino v. City of Phoenix, 196 Ariz. 442,
445 ¶ 6, 999 P.2d 198, 201 (2000) (interpreting Ariz. R. Civ. P. 60); see also


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Ariz. R. Fam. L.P. 1 cmt. (providing that we can consider case law
interpreting Ariz. R. Civ. P. 60(C) in interpreting Rule 85 because the rules’
language is substantially similar). To obtain this relief, a party must show
(1) extraordinary circumstances of hardship or injustice justifying relief and
(2) that the reason for relief is one other than the reasons enumerated in the
preceding five clauses of Rule 85(C). Panzino, 196 Ariz. at 445 ¶ 6,
999 P.2d at 201. A party must file this motion “within a reasonable time.”
Ariz. R. Fam. L.P. 85(C)(2). In other words, the party must act promptly in
seeking relief. Hilgeman v. Am. Mortg. Secs., Inc., 196 Ariz. 215, 220 ¶ 15, 994
P.2d 1030, 1035 (App. 2000). Courts must consider the totality of the facts
and circumstances in determining whether relief under this rule is
appropriate. Amanti Elec., Inc. v. Engineered Structures, Inc., 229 Ariz. 430,
432 ¶ 7, 276 P.3d 499, 501 (App. 2012).

¶11           The family court did not abuse its discretion in denying relief
under Rule 85(C)(1)(f) because Father did not show extraordinary hardship
or injustice and did not request relief within a reasonable time. First, no
extraordinary hardship existed because the family court sent Father notice
of its intent to dismiss his petition to Father’s last known address, as
required. See Ariz. R. Fam. L.P. 43 (stating that service is complete upon
mailing the written notice “via U.S. mail to the person’s last known
address”). Nothing in Rule 43 requires the court to do anything beyond
completing service to ensure that Father receive actual notice. Although
Father could not receive mail not specifically designated “Legal Mail” while
in solitary confinement, Father could have notified the family court via
“Legal Mail” of his address change or the additional mail restriction. The
record shows that Father had updated his address with the court once
before, showing that he knew that he needed to update the court and that
he knew how to do so.

¶12            Second, no injustice existed here. The record shows that,
when not in solitary confinement, Father demonstrated the ability to
research, draft, and file a petition for modification. The record also shows
that Father participated in a child support modification process once before
his incarceration, including a court-ordered conference, and therefore
should have known that, aside from needing to serve Mother, the
modification process required more interaction with the court than merely
submitting a petition. See In re Marriage of Williams, 219 Ariz. 546,
549 ¶ 13, 200 P.3d 1043, 1046 (App. 2008) (stating that pro se litigants are
held to the same standards as attorneys regarding required procedures).
The record does not show that Father took any steps to check on the status
of his petition in the one-month period between the filing of the March 2011
petition and when the prison placed him in solitary confinement.


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Additionally, when the correctional facility released Father from solitary
confinement in October 2011, and Father again had access to the same
resources and materials, he did not check the status of his petition or
whether the family court had attempted to contact him in the preceding
months.

¶13            Finally, the record shows that Father did not act promptly in
seeking relief. Father completed his sentence in May 2013, but did not move
for relief until June 2014. In fact, nothing in the record suggests that Father
used reasonable diligence in that one-year period to determine the status of
his case. Father counters that the family court wrongly ignored the fact that
he did not receive actual notice of dismissal pursuant to Arizona Rule of
Family Law Procedure 40. But that rule addresses only service of process
for summons and is not applicable here. See Ariz. R. Fam. L.P. 40(I).
Accordingly, because Father did not show extraordinary hardship or
injustice and failed to seek relief in a reasonable time, the court did not
abuse its discretion in denying Father relief under Rule 85(C).

               2. Application of A.R.S. § 25–327(A)

¶14            Father argues finally that the family court failed to properly
apply A.R.S. § 25–327(A) to decrease his child support obligation and do so
retroactively to the date of the March 2011 petition. But the trial court
properly applied the statute here. The statute allows the family court to
modify a child support order “only on a showing of changed circumstances
that are substantial and continuing” except for any amount that accrued as
an arrearage before the date of notice of the modification request.
A.R.S. § 25–327(A). The statute further states that “[m]odifications . . . are
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 . . . .” Id. (emphasis added).

¶15           Here, the family court considered the relevant financial
factors and found that no downward deviation was appropriate. Further,
the statute specifically precluded the family court from modifying child
support effective at any time before the date that Father filed the June 2014
petition—the only valid petition at issue. Father counters that he is
nonetheless entitled to retroactive modification because his incarceration
and lack of income were, “for all intents and purposes,” grounds for
automatic modification. But because those are not actual grounds for
automatic modification as a matter of law like emancipation or marriage,
see A.R.S. § 25–503, the limits of A.R.S. § 25–327(A) apply. See Guzman v.


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Guzman, 175 Ariz. 183, 185, 854 P.2d 1169, 1171 (App. 1993) (“[T]he rule
against retroactive modification . . . has no application in a situation in
which a minor child has become emancipated through marriage.”). Thus,
because the June 2014 petition is the only valid petition, the family court
did not err in denying Father’s request to retroactively modify child
support to March 2011.

             3. Attorneys’ Fees

¶16           Father requests attorneys’ fees and costs pursuant to
A.R.S. § 25–324 and upon compliance with Arizona Rule of Civil Appellate
Procedure 21(C). After considering the reasonableness of his position, we
decline to grant the requests in the exercise of our discretion. See Fry v.
Garcia, 213 Ariz. 70, 74 ¶ 14, 138 P.3d 1197, 1201 (App. 2006).

                             CONCLUSION

¶17          For the foregoing reasons, we affirm.




                               :ama




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