The Arizona Court of Appeals has recently issued some decisions regarding a few miscellaneous child support issues. These cases include a parent attempting to recover an overpayment of child support, a court that modified child support after it modified parenting time even though neither party asked the court to modify child support, and a parent who worked part time at an hourly rate who had full-time income attributed to her at the same hourly rate as her part-time income.
In the first case, the children’s father overpaid child support because the mother started receiving SSI on behalf of one child. Meanwhile, the oldest child emancipated. The father waited one year to terminate child support. The father argued that his child support obligation should end because one child had emancipated and the other child received SSI. He also argued that the mother should pay back the overpayment caused by her receipt of SSI. The court denied the request for reimbursement because the father had waited so long to terminate child support, it was within the court’s discretion to not order reimbursement, and Arizona law precludes a retroactive reimbursement (meaning that an order for reimbursement under these circumstances would amount to a retroactive child support modification, which Arizona law does not allow).
In the second case, the mother asked the court to modify joint legal decision making regarding school choice. The father filed a counter-petition seeking equal parenting time. Neither parent asked the court to modify child support. The trial court granted the father’s request for equal parenting time and modified child support accordingly. The mother appealed. The Court of Appeals ruled that Arizona law requires the Family Court to enter a child support order pursuant to the Arizona Child Support Guidelines every time it enters a parenting time order. Therefore, every time a court modifies parenting time, the court must also address child support, even when neither party has asked the court to do so. This reminds me of a case I handled several years ago. In that case, the opposing party had asked to modify parenting time to decrease my client’s time with the child. Her petition backfired because the court ended up increasing my client’s parenting time. The judge then proceeded to modify child support. When the opposing party objected that she had not asked for a child support modification, the judge said that modification of parenting time and modification of child support go together, like peanut butter and jelly, ham and cheese, and chips and dip.
In the third case, the mother, whom the court had ordered to pay child support, lost her job due to "performance issues" in 2007 and remained unemployed until 2013. In 2013, she began to work part-time for $11.60 per hour. In calculating child support, the trial court used $11.60 per hour and 40 hours per week for the mother’s income. The Court of Appeals ruled that the trial court had implicitly found that the mother had not provided any reasonable basis for not having full-time employment. The only evidence that she had offered was her statements, which the trial court could accept or reject.
As you can see, not every issue in a child support matter is so easy to resolve.
One issue with which parents often struggle is how to give notice to the other parent of unreimbursed medical expenses for the parties’ children. The Arizona Court of Appeals recently addressed this issue in an unpublished decision.
The Arizona Child Support Guidelines require the parent seeking reimbursement from the other parent to give notice to the other parent within 180 days of incurring the expense. The notice need not be in writing and need not include a receipt, unless the other parent asks for it.
The parties in the appellate case operated under these rules until the court entered a modification order requiring the parent seeking reimbursement from the other parent to give notice in writing within 30 days of treatment and to provide a receipt or invoice.
The appellate court applied the standard in the guidelines to the medical claims that the mother incurred prior to the modification order and applied the modified standard to all claims incurred after the modification order. Also, the court allowed most of the mother’s claims, even the claims for which she could supply no written demand and for which the father claimed that the mother had made no verbal demand, because the court found the mother to be more credible.
The bottom line is that the Guidelines enact one standard for demanding reimbursement for out-of-pocket medical costs, but the court may make its own procedure in any given case. Therefore, parents should read their court orders and make their demands accordingly. Furthermore, demands should always be in writing and include a receipt, even if the court’s order does not require it. As I often tell my clients, the other party can lie about what you said or did not say, but they cannot lie about what you wrote. Parents should also include the receipt in order to take away from the other parent the argument that the demand did not include a receipt.
The court also made a few other holdings important for parents regarding uninsured medical expenses. First, the court ruled that the mother’s inability to pay a medical bill did not change the father’s obligation to pay his portion. The court ordered the father to pay his portion of the expense directly to the health care provider. Also, the father’s attendance at some of his children’s doctor’s appointments was not sufficient notice of the medical expense. The mother still had to give notice of her costs to the father.
Parents often give defective notice or present insufficient evidence to the court. An experienced family law attorney’s advice and/or help will often make the difference between failure to recover unreimbursed medical expenses and success. If you have to recover expenses from the other parent, Thomas A. Morton can help you.
Every Parent Has an Obligation to Support His or Her Children.
Arizona law provides that every parent has a duty to provide financial support to his or her children until the children reach the age of majority. In most circumstances, the age of majority for child support purposes is 18 years or when the child graduates from high school, whichever is later, up to the age of 19 years. In the case of a disabled child who cannot provide for his or her needs and remains dependant on his or her parents for support, Arizona courts may order a parent to continue to financially support the child past the age of majority.
Arizona Has No Statute of Limitation on Arrears.
Arizona law provides no statute of limitation on child support arrears. Once a court orders a parent to pay child support, and that parent does not pay child support, there is no statute of limitation on collection of the resulting arrears. Similarly, judgments for child support arrears do not expire in Arizona.
However, if a court does not enter an order for child support and the custodial parent seeks child support several years after the child’s birth, Arizona law provides that the court may enter judgment for past child support, but only for the last three years. For example, if a woman gives birth to a baby girl the father never provides financial support to the child, and the mother sues the father for child support when the child is six years old, the court may only grant a judgment for past child support for the time when the child was three to six years old.
Missed Child Support Payments Collect Interest.
Interest on missed child support payments (arrears) in Arizona is ten percent per year. There is no statute of limitation on interest on child support arrears or judgments for interest on child support arrears. However, a judgment for past child support only begins to accrue interest when the court grants the judgment. In other words, a parent can get a judgment for past child support, but not for past interest on past child support.
Do Not Wait to Collect Child Support Arrears.
Although there is no statute of limitation on child support arrears in Arizona, parents should not wait to collect the arrears and enforce the child support order. When large amounts of arrears and interest accumulate, the chances of successfully collecting or successfully collecting in a timely manner on the arrears decrease.
If you have a child support collection problem, Thomas A. Morton can help you.
Child support is an important obligation. Arizona courts make child support orders in order to give children a stable standard of living and to meet all of the child’s needs. Therefore, Arizona courts take child support seriously.
An experienced family law lawyer has several ways to cause the courts to enforce a child support order. The Division of Child Support Enforcement Child Support Evader program will only help when a parent owes more than $5,000.00 in child support, has failed to pay child support for six months, and has a child support arrest warrant. However, parents have a variety of other ways to enforce a child support order.
Income Withholding. The court may issue an income withholding order directing a parent’s employer to withhold a portion of his or her income and pay it to the Support Payment Clearinghouse. Courts may issue income withholding orders for current child support amounts or past due amounts or both. People commonly call this a garnishment. The income withholding order used to be called an order of assignment.
Credit Reports. The Division of Child Support Enforcement reports to credit reporting bureaus about child support payments and when payments are more than 180 days overdue, this will appear on the credit report as a collection account.
State Tax Refund. The state may withhold a state income tax return when a parent owes more than $50.00 in past due child support.
Seizure of Assets. When the court has issued a judgment for past due child support a parent may collect on the judgment by seizing the other parent’s assets through various procedures such as a writ of garnishment (for example, on a bank account), or a writ of execution (for example, on a non-exempt vehicle such as a boat).
Judgement Lien on Real Estate. When a parent records a judgment for past due child support with the county recorder, the judgment becomes a lien on all real estate the other parents owns in the county.
License Suspension. The family court may be able to order the Motor Vehicle Division to suspend a parent’s driver’s license. A court may also enter an order to suspend other licenses, such as professional licenses.
Lottery Winnings. The state may seize a parent’s lottery winnings over the amount of $600.00.
Incarceration. The court can find a parent who has failed to pay child support in contempt of court and order that parent to go to jail until the parent "purges" the contempt (usually by paying a large amount of the child support arrears and/or making timely payments for a set number of months) or report to jail by a certain date if he or she does not purge the contempt. In my experience, this is the most effective way of getting payment when the other parent has steadfastly failed to pay child support. Parents who swear that they have no money tend to miraculously find the money to purge the contempt. One common question is whether incarceration prevents the other parent from paying child support (the parent can’t work if he is in jail). The answer is no. The other parent can be in a program known as work release and be out of jail for up to 12 hours on work days so he or she can work to pay child support.
Parents can also seek the help of the Attorney General’s office in enforcing child support, but this will cause your case to enter a system that is horribly inefficient and very slow to act. The state’s involvement will trigger a federal requirement that all child support matters in your case appear before a judicial officer that is different than the judicial officer who will continue to hear all other matters in your case. This causes multiple delays, often disparate rulings, and twice as many trips to court. Also, my experience is that the Attorney General’s office is very slow to act.
Thomas A. Morton Has many years’ experience in child support enforcement and is willing and able to help you with your enforcement case. He serves clients in the Phoenix, Mesa, Glendale, and Peoria communities.
The Superior Court's website in Maricopa County has many useful forms for people representing themselves in court. The family law category of forms is the most impressive, with forms for divorce, annulment, legal separation, child support, spousal maintenance, alimony, temporary orders, custody/legal decision making, parenting time, and many other topics. I do not particularly like the forms because they are too long, sometimes don't make much sense, and lack flexibility, but they are far better than the alternative of not submitting anything at all, or someone with no legal background or training attempting to write court filings. If you decide to use the court's forms, my advice is to do so with the advice of an experienced lawyer. However, if you are using the forms, it is probably because you cannot afford a lawyer. In that case, be very careful about what you sign and submit to the court. Do not be afraid to cross out requests in the form that you do not want to make.
Aside from forms for family law, the court's website has many useful forms for probate, juvenile law, civl law, and powers of attorney. The court has sufficient probate forms to complete an entire informal probate from beginning to end, juvenile court forms sufficient to complete a voluntary guardianship, and four powers of attorney sets of forms (general power of attorney, special power of attorney, parental power of attorney, and revocation of power of attorney). The court also provides detailed instructions for its forms.
Again, my usual advice is to hire an attorney because attorneys have experience, are familiar with the judges, have an emotional detachment to your case, and know the potential pitfalls. However, sometimes doing something on your own is better than doing nothing and the reality is that not everyone can hire an attorney.
This is the link to the Maricopa County Superioe Court's forms (Self Service Center): http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/
In Arizona, parents have a legal obligation to provide basic support to their children. Typically, the parent in whose home the children reside most of the time receives child support from the other parent. Arizona courts typically base child support on a formula that includes each parent’s income, the time the children spend in each home, the number and age of children, the cost of medical/dental/vision insurance, and the cost of child care. The court will not scrutinize how parents spend the child support money.
So when does the obligation to pay child support to the other parent end? Keep in mind that child support is a separate issue and the obligation to pay it does not end because the other parent has violated another court order, such as a parenting time order. Typically, the obligation to pay child support ends when the child reaches the age of 18 years and has graduated from high school. For example, if a child turns 18 years old in December of his senior year of high school and graduates in May of the following year, the obligation to pay child support will end after May (the month the child graduates). For a further example, if a child graduates from high school in May and turns 18 years old the following September, the obligation to pay child support will end after September (the month the child turns 18). Does this mean that if a child never graduates from high school, the obligation to pay child support never ends? No. If a child does not graduate from high school the obligation to pay child support ends after the child turns 19 years old. Please also note that the final month of child support is for the entire month - the parent paying child support does not get a pro-rated discount when a child graduates or has a birthday in the middle of the month. For example, an 18-year-old child graduates from high school on May 21. The parent paying child support still has to pay the entire child support amount for the month of May. Finally, in rare cases Arizona courts will order a parent to pay child support beyond graduation from high school, the 18th birthday, and the 19th birthday. Arizona courts will do this in cases involving a child with a disability severe enough that the child will be unable to live independently and be self-supporting and if the child’s disability began before the age of majority.
What are some examples of when the child support obligation does not end? One example is when the other parent violates the parenting time order and withholds the children. Another example is when the Arizona juvenile court severs parental rights. Many people think they can avoid their child support obligation by getting the court to sever their parental rights. However, the obligation to pay child support does not end with severance of parental rights. It does, however, end with a subsequent adoption of the child. Also, child support does not automatically change when one child emancipates but other children are still under the age of 18 years. For example, a father pays $500 per month as child support for his two children. One child turns 18 years old and has graduated from high school. The child support amount does not automatically change to $250 per month. The father must still pay $500 per month until the court changes the child support order. This is because the number of children is only one factor among many that Arizona family courts use to calculate child support. In the example, the father must petition the court to reduce child support, but he should also consider other possible changes in circumstances, such as an increase in income or an increase in medical insurance premiums.
If you have a question about child support, or any other Arizona family law matter, please contact Thomas A. Morton, PLLC for a consultation.
Parties to a family law dispute and their lawyers often struggle with the quesiton of what is child support. For example, I once had to argue with a lawyer who tried to convince the court that meals out for the entire family (which included his client, his client's new spouse, his client's step-children, and the parties' other children) were support for the parties' disabled child and my client should therefore pay for them. Naturally, my client prevailed. The Arizona Court of Appeals recently issued a decision on a similar issue. In that case, the parties had previously divorced and had one child. Mother wanted to travel to Japan with the child to visit her family. Father objected that Mother was likely to not return from Japan with the child, Japanese courts would not enforce an order form an Arizona court, and Japan would not return the child because Japan is not a signatory to the parental kidnapping provisions of The Hague Convention. The trial court found Father's concerns credible and ordered that Mother not take the child to Japan. In attempting to fashion a creative remedy, the trial court ordered Father to purchase six round-trip airline tickets every three years so that Mother's family could visit the child in Arizona. Father appealed, arguing that the trial court did not have authority to make that order. Mother argued that the trial court had that authority under Arizona child support laws. The appellate court, in reversing the trial court's order regarding the travel expenses, held the following extended discussion on what expenses are support expenses.
The family court has only the authority provided by statute. Weaver v. Weaver, 131 Ariz. 586, 587, 643 P.2d 499, 500 (1982). Under A.R.S. § 25-320, the court may order a parent "to pay an amount reasonable and necessary for support of the child, without regard to marital misconduct." A.R.S. § 25-320(A) (Supp 2013).1 "Support" means "the provision of maintenance or subsistence." A.R.S. §§ 25-320(R)(5) (Supp. 2013), -500(9) (Supp. 2013). "Maintenance" has been defined as:
Sustenance; support; assistance; aid. The furnishing by one person to another, for his or her support, of the means of living, or food, clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, . . .
Black’s Law Dictionary 953 (6th ed. 1990). It has elsewhere been defined as "means of support or subsistence; livelihood." Random House Webster’s College Dictionary 799 (2nd ed. 1999). "Subsistence" has been defined as "Support. Means of support, provisions, or that which procures provisions or livelihood," Black’s Law Dictionary 1428 (6th ed. 1990), and "the means of supporting life" or "the source from which food and other items necessary to exist are obtained," Random House Webster’s College Dictionary 1302 (2nd ed. 1999). In addition, we have previously interpreted the statutory definition of "support" as requiring a parent "to provide sufficient support to maintain a child at a reasonable subsistence level with food, shelter, clothing, medical care and the like." State v. Buhman, 181 Ariz. 52, 55, 887 P.2d 582, 85 (App. 1994) (interpreting former A.R.S. § 12-2451 (1998), the pertinent parts of which are now found at A.R.S. § 25-500 (Supp. 2013) and § 25-501 (Supp. 2013)).
Requiring Father to pay airfare for unspecified relatives of Mother to visit the Child every three years does not fall within the statutory definition of "support." The court made no determination that visits from Mother’s relatives were necessary for the Child’s welfare or in any way related to maintenance or subsistence.2 The court treated Mother’s request for the tickets as a remedy for restricting the Child’s travel. The travel restrictions imposed by the court, however, were based on what the court apparently found to be legitimate concerns that Mother would abscond with the Child to Japan, in which event Japan was unlikely to enforce the court’s orders. The court offered no reasoning as to its legal basis for the order to pay for the tickets or as to why Father should be obligated to bear the expense.
Mother also relies on the Guidelines, which provide that the court "may allocate travel expenses of the child associated with parenting time in cases where one-way travel exceeds 100 miles." Guidelines § 18. This provision does not support Mother’s position, however, because the travel expenses of Mother’s extended family are not "associated with parenting time." The plain language of the statute does not authorize the court to allocated expenses for travel for other purposes.
We conclude that neither A.R.S. § 25-320 nor the Guidelines authorize the family court, under these circumstances, to order Father to pay for Mother’s family’s round-trip tickets to visit the Child. Mother has cited no other authority in support of the ruling. We therefore vacate that portion of the family court’s order requiring Father to purchase the tickets.
Hopefully, this gives some insight into what travel expenses a trial court may order a parent to pay under Arizona's child support laws. However, this decision is not a published decision, which means that it is not legal authority and only controls that one case. If you have a question about child support, travel expenses, or other child-related expenses and child support, Thomas A. Morton can help you answer it.
I accept occasional pro bono cases from The Children's Law Center. Recently, The Children's Law Center began offering free classes on child abuse and substance abuse in the context of acting as a family court advisor. I took advantage of them because I would get credit with the state bar for my continuing legal education requirements. Naturally, they asked me to accept an appointment as a family court advisor and I agreed.
A family court advisor is a mental health professional or a family law attorney who investigates a family court case and makes an assessment and a recommendation to the judge regarding legal decision making (custody) and parenting time (visitation). The judge makes the actual determination.
The family court advisor will usually interview both parents, interview children that are old enough for an interview, interview anyone else with relevant information (particularly anyone who lives with either parent), visit each parent's home, and review relevant documents, such as court records, school records, day care records, and medical records. After the family court advisor has gathered all necessary information, he or she writes a report analyzing the information in light of the relevant statutes. At the end of the report, the family court advisor should make an assessment and a recommendation to the judge on legal decision making/custody and parenting time/visitation. Sometimes, the advisor avoids making any specific recommendations, which can be very frustrating to the parties, attorneys, and, I expect, the judge.
In my case, I spent about 40 hours gathering information and writing my report. I interviewed both parents and the child. I also visited both parents' homes and reviewed about 900 pages of documents. I made about 15 pages of hand-written notes and wrote a report 18 pages long, single-spaced. In my particular case, neither party had an attorney and, as I watched the trial, it became apparent that neither parent was going to present any detailed information on the most important factual issues because neither parent really knew how to go about presenting evidence. This is when I realized that I had for sure not wasted my time in writing such a detailed report. The only reason why a lot of relevant information got to the judge was because he had the foresight to appoint a family court advisor.
I enjoyed going to court today and answering the judge's questions, especially because the judge seemed to appreciate my efforts. I am also glad that the judge had me testify last. I had began to wonder if I had wasted my time, but after listening to the other evidence I decided that I had spent my time well. I look forward to reading the judge's decision and learning whether he adopted all or most of my recommendations, or whether he adopted my report as the court's findings.
One factor in Arizona's child support calculation formula is how much time the children spend with each parent. Therefore, when the courts modify the amount of time the children spend with each parent, it is often appropriate to modify child support as well. The Arizona Court of Appeals recently issued a decision on a case where the trial court modified custody and parenting time, and then modified child support even though neither party had asked the court to do so. The case was Heidbreder v. Heidbreder, 230 Ariz.377, 284 P3d 888 (Ariz.App. 2012).
The Heiderbreders divorced in 2010, and agreed to joint custody and child support in the amount of $1,000 per month, paid by the father to the mother. Later, the mother filed a petition to modify the order to sole custody with supervised parenting time to father. The court granted the mother's petition at trial, and then took evidence regarding child support, even though neither party had asked the court to modify child support. After taking evidence, the court modified child support to $300, paid from the father to the mother. The mother appealed.
On appeal, the Arizona Court of Appeals held that the trial court had the authority to modify child support on its own motion because the statute providing for modification of custody and parenting time allows for a modification of child support whenever a court modifies custody and parenting time. However, the court of appeals also held that parties must have reasonable notice of a child support hearing and must have the opportunity to gather and present evidence. Because the trial court had given the parties no notice of a child support hearing, the court of appeals remanded the matter back to the trial court to hold a proper child support hearing.
The thing to remember in light of Heiderbreder is to always be prepared to modify child support when you asked the court to modify the amount of time the children spend with each parent because, as I heard one Maricopa County Superior Court judge put it, they go hand in hand, like peanut butter and jelly or ham and cheese or chips and salsa.
Thomas A. Morton practices family law, bankruptcy, and civil law in Phoenix, Arizona, and offers a discounted initial consultation.
Arizona courts award spousal maintenance and child support based upon circumstances at the time the court makes the order. Often, the parents' or former spouses' circumstances change. Incomes change, day care costs change, insurance costs change. Many people think that they can go to court in a few months and modify child support or spousal maintenance effective as of the date the circumstances changed.
However, Arizona courts have repeatedly held that they cannot modify child support or spousal maintenance retroactively to a date before the date that the person seeking a modification filed the petition to modify. For example, Father pays $500 per month pursuant to a child support order. In January, he loses his job, but quickly finds another job and earns about half of what he used to earn. In May he files his petition to modify child support and serves Mother. In August the court has a child support hearing. The court may modify child support retroactively to the first of the month after Father served Mother with the petition, i.e. June 1. However, the court may not modify child support retroactive to January, or any other time prior to June.
Also, the father in the above example must pay the full amount of child support until the court enters an order modifying child support. Several times I have met with a father who owes tens of thousands of dollars (and sometimes over $100,000) in unpaid child support and interest (yes, there is interest on unpaid child support!). Usually, the father tells me that he should not have to pay so much because he was unemployed for a long period or became disabled or the children moved in with him at some point. Unfortunately, he never filed to modify child support and there is usually very little I can do for someone in that situation. Child support orders do not automatically change - you must ask the court to change them!
Therefore, don't wait to modify child support or spousal maintenance when your circumstances change. Also, don't just stop paying child support or spousal maintenance. If you find yourself in a situation where you may need to modify child support or spousal maintenance, or your former spouse is seeking a modification, I would love to talk to you. I offer a one-hour consultation for a flat fee that is less than half of my hourly rate. I serve clients in the Phoenix, Arizona metropolitan area.
Thomas A. Morton, P. L. L. C.
2916 N. 7th Avenue, Suite 100
Phoenix, Arizona 85013
If you have a legal issue but aren't sure how to handle it, call Thomas A. Morton, Attorney.
If you've got a problem, let's work together and determine how to help you!
All information on this website is not, and is not intended to be, legal advice. You should consult an attorney for advice regarding your individual situation, as each case is different and contains different facts. I invite you to contact me and welcome your calls, letters and e-mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information until you establish an attorney-client relationship with me.
Attorney Thomas A. Morton is located in Phoenix, Arizona, and serves clients throughout Maricopa County, including Tempe, Mesa, Scottsdale, Glendale, Peoria, Gilbert, Chandler, Goodyear, Surprise, Avondale, Cave Creek, Carefree, New River, Anthem, Black Canyon City, Sun City, Laveen, Buckeye, Goodyear, Litchfield Park, Tolleson, Youngtown, Queen Creek, Guadalupe, Fountain Hills, Paradise Valley, Wickenberg, Apache Junction, and El Mirage.