THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c);
IN THE COURT OF APPEALS
STATE OF ARIZONA
STATE OF ARIZONA ex rel. ARIZONA
DEPARTMENT OF ECONOMIC SECURITY
(AMANDA V. ROBINSON),
RUTH A. WILLINGHAM,
1 CA-CV 10-0127
ROBERT L. ROBINSON,
(Not for Publication –
Rule 28, Arizona Rules
of Civil Appellate
Appeal from the Superior Court in Maricopa County
Cause No. DR1998-002081
The Honorable Mina E. Mendez, Commissioner
Thomas C. Horne, Attorney General
Carol A. Salvati, Assistant Attorney General
Attorneys for Petitioners/Appellees
Petitioner/Appellee Pro per
Respondent/Appellant Pro per
I R V I N E, Judge
payments and its contempt order. For the reasons that follow, we
affirm the judgment of the family court.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to
sustaining the family court’s findings. Gutierrez v. Gutierrez,
193 Ariz. 343, 346, ¶ 5, 972 P.2d 676, 679 (App. 1998). Amanda
V. Robinson (“Mother”) and Father’s marriage was dissolved on
February 23, 2000. They are the parents of three children, one
of whom is still a minor. After the divorce, Father was required
to pay both spousal maintenance and child support. 1 Father has
failed to make consistent and full payments, which has resulted
in numerous findings of contempt against him and a large arrears
obligations. Father has successfully petitioned to modify his
child support obligation previously. The family court, however,
unreliability of [Father’s] financial disclosures have been a
hallmark of this litigation almost from its commencement.”
In January 2008, Father petitioned to modify his child
support obligation. In its order granting Father’s petition to
modify, the family court noted that Father had structured his
Mother has since remarried, and Father is no longer obligated
to provide Mother with monthly spousal maintenance.
additional money earned would only go to his creditors.” The
court ruled that Father could afford the lowered child support
“Although there is nothing wrong with spending money on such
things, there is when it comes at the expense of one’s child
The court also found Father in contempt for failing to
$100,000 in child support and spousal maintenance arrears. As a
result, Father was ordered to pay Mother $5000 in arrears or the
court would issue a child support arrest warrant with a $10,000
purge amount. 2 Further, the court ordered Father to pay $205 per
month in child support arrears. The court stated: “If Father
fails to pay this obligation, or unilaterally chooses his own
amount to pay, the court will issue another child support arrest
warrant with another $10,000 purge.” (Emphasis added.)
The current dispute arises from Father’s April 2, 2009
petition to modify child support. On November 25, 2009, the
family court held a hearing on Father’s petition to modify, the
Father timely paid the $5000 to Mother.
State’s petition to enforce and also its petition for contempt.
income had decreased due to a loss in customers, his monthly
living expenses were “[z]ero” because his fiancé paid for them.
When asked specifically by his attorney what income he wanted
the court to use in its calculation for child support, Father
responded “I personally would say about $1,500 a month.” 3 After
a break to confer with his attorney, Father testified that he
“was confused” by his attorney’s question, and that his net
income was only about $1100 or $1200 per month. The court warned
Father that it found his “answers to be misleading and evasive,
and that’s going to weigh heavily in my mind when I have to
decide how credible all of your testimony has been.” The family
court took the matter under advisement after hearing testimony
from both parties and considering exhibits presented.
On December 7, 2009, the family court filed its order
denying Father’s petition to modify child support. The court
found that Father “is in the habit of intentionally running his
living expenses through his significant other . . . to avoid an
The State pointed out that if the family court used Father’s
requested income of $1500 and kept Mother’s income at the same
level attributed to her at the January 2008 hearing, Father’s
monthly payment would be $480; $15 less than what he was paying
at the time of his request for modification.
calculating child support and to avoid making consistent child
presented no credible evidence which would support a finding
that Father should be attributed less income than was attributed
to him” in the prior modification proceedings in January 2008.
The court did not find a substantial or continuing change in the
parties’ income from the January 2008 proceedings. Therefore,
the court attributed $2200 monthly income to Father and $2150
monthly income to Mother – the income attributed to each party
during the January 2008 proceedings.
The court did find a substantial and continuing change
in circumstances in regards to: (1) the increased cost of health
amount of parenting time Father was exercising, and (3) that
living in her household. As a result, Father’s child support
payment increased from $495 to $641 per month. The family court
contempt for failure to pay child support arrearages, the court
held Father in contempt. Father timely appealed.
Child support modification
Father argues his bank statements and his testimony
show a substantial change in income and therefore, his request
for modification of his child support obligation should have
been granted. Orders for child support may be modified only upon
circumstances. Ariz. Rev. Stat. (“A.R.S.”) §§ 25-327 (A) (2007),
McEvoy, 191 Ariz. 350, 352, ¶ 7, 955 P.2d 988, 990 (App. 1998).
The party requesting the spousal maintenance modification has
“the burden of establishing changed circumstances with competent
evidence.” Jenkins v. Jenkins, 215 Ariz. 35, 39, ¶ 16, 156 P.3d
1140, 1144 (App. 2007). Whether a change in circumstances is
sufficient to warrant a modification of maintenance or support
is within the sound discretion of the family court and will not
be disturbed on appeal absent an abuse of discretion. Id. at 37,
¶ 8, 156 P.3d at 1142. The family court abuses its discretion if
As a preliminary matter, we note that Father fails to cite
either the record or any legal authority in his opening brief.
An opening brief must contain arguments supported by citations
to the record and legal authority. See ARCAP 13(a)(6) (opening
brief must contain argument supported by citations to the record
and legal authority). Although we could treat Father’s issues
presented on appeal as waived, we decline to do so on this
record. See State Farm Mut. Auto. Ins. Co. v. Novak, 167 Ariz.
363, 370, 807 P.2d 531, 538 (App. 1990) (failure to properly
develop an argument on appeal results in waiver).
the record, when viewed in the light most favorable to upholding
decision. Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d
108, 110 (1999).
approximately twenty-five or twenty-six customers at the time of
the January 2008 modification proceedings. At the time of the
2009 modification proceedings, he testified he had eleven or
twelve customers. Despite the drop in customers, Father also
noted that he had no living expenses, his health insurance was
paid for, and he had a car to drive; all provided by his fiancé.
Father testified that he had a reduction in clients as
a result of the downturn in the economy, but he did not bring a
list of his clients to document such a decrease. When asked by
returns, Father stated that he did not file tax returns for the
prior year, noting that he did not have the money to file them.
Instead, Father provided bank statements detailing his personal
and business account activity from August 2007 through August
2009. 5 The family court then asked, “So the only evidence that
you have to present today of your income is your testimony and
the bank statements?” Father noted that he also had an affidavit
Father had previously been ordered by the family court to
deposit all his income into one account.
of financial information (“AFI”). Upon review, the court pointed
out that Father had listed $1400 as his gross income on the AFI
despite the fact that Father testified the court should use
$1500 as his gross income and then later corrected his testimony
to $1100 or $1200 per month. Father never filed an amended or
updated AFI; to resolve the discrepancy in his gross income
amounts, Father explained he had lost clients since the time of
filing that particular AFI.
As the party requesting the modification, Father was
required to show a substantial and continuing change in his
circumstances to warrant a modification of his child support
based on a loss of clients is largely unsupported by the record.
Based on the evidence and testimony presented to the family
court, it did not err in denying Father’s petition.
Father also argues that the family court “believe[d]
[M]other when she testified that her husband[’]s income” was
reduced as a result of the economy, but that it did not believe
that Father’s income had decreased as a result of the economy
income. As far as the record reveals, there is no evidence that
the family court considered Mother’s husband’s income in the
calculation of Father’s child support obligation.
Father also argues that his medical conditions should
because “[i]t is reasonable and logical to understand [F]ather
argument. Additionally, Father’s counsel noted that Father was
not requesting the court to take notice of a full disability
that prevented him from working, but rather that he was unable
to work during the time he was recuperating from his surgeries.
unable to work for a period of time because of his surgeries and
did not find Father in contempt of his child-support obligation
for that time. The court also stated, however, that Father’s
recuperation time and/or medical issues were not “a basis to
court considered and accounted for Father’s surgeries in its
ruling. We find no error.
We note that in addition to his briefs, Father also
filed a “Notice to the Court.” In the notice, Father does not
states that since the ruling of the family court, his “LIFE &
CIRCUMSTANCES has [sic] completely & totally changed.” He notes
that as a direct result of the family court’s ruling and his
subsequent jail time, “[h]is fiancé kicked him out” and all of
the benefits associated with that relationship were taken away.
He states that he has “no place to go or sleep,” has “a warrant
out for his arrest,” that he “left the state . . . [a]nd has no
plans of returning until [his] appeal is decided.”
We construe Father’s notice as asserting new facts in
support of a child support modification. Our scope of review is
limited to the facts presented to the family court. Therefore,
Because the family court has continued jurisdiction over the
Father may request modification if supported by the facts. See
LaPrade v. LaPrade, 189 Ariz. 243, 246, 941 P.2d 1268, 1271
(App. 1997) (“Spousal maintenance, child support, custody, and
jurisdiction of the trial court.”).
No judicial bias
Father asserts that the family court judge was biased
against him in favor of Mother. Specifically, Father asserts the
“matter was already determined before entering the courtroom,”
that the judge had “the spirit of ill will” and “was hostile
towards [Father], but was kind and friendly towards [M]other at
trial, and showed its favoritism to [M]other.” Further, Father
characterizes the court as “crafty” in “how it demonstrates its
ill will, biases, and favoritism towards Mother” because its
rulings were “not based on the evidence provided at trial, but
[what it] want[s] it to be for [M]other.”
A judge is presumed to be free of prejudice and bias,
and a party challenging a judge’s impartiality must overcome
this presumption by a preponderance of the evidence. State v.
Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2005).
At no time during the entirety of the proceedings did Father
request the family court judge recuse herself pursuant to A.R.S.
§ 12-409(B)(5) (2003). Nor did Father move for a change of judge
Ariz.R.Fam.L.P. 6 (adopting Ariz.R.Civ.P. 42).
As a basis for his arguments that the family court was
contempt for failing to pay child support payments. We note,
however, a court may enforce a child-support order by way of
contempt. See Ruhsam v. Ruhsam, 110 Ariz. 326, 328, 518 P.2d
576, 578 (1974). Father also argues the court had no authority
to hold him in contempt when Father failed to make payments he
had agreed to make. The family court acted within its authority.
See generally Ariz.R.Fam.L.P. 92.
impartiality in light of its decision holding him in contempt
Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App. 1977) (“the
bias and prejudice necessary to disqualify a judge must arise
from an extra-judicial source and not from what the judge has
done . . . in the case”). Father fails to cite any portion of
the record demonstrating any bias by the family court judge.
review of the record on appeal demonstrates no indication of
judicial bias or prejudice towards Father.
discretion when it held him in contempt and required him to pay
a purge amount. This court lacks jurisdiction over appeals from
civil-contempt orders except those challenged by special action.
Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35, 36 P.3d 749, 759
(App. 2001); Holt v. Hotham, 197 Ariz. 614, 615, ¶ 4, 5 P.3d
948, 949 (App. 2000). Accordingly, we do not address Father’s
Miscellaneous requests for relief
Father requests a variety of relief from this Court,
including: altering his child support obligation based on the
arrears payments, ordering when his child support payments will
end, “issue a realistic support order,” “recognize the current
recession and economic conditions has [sic] had a drastic effect
on fathers [sic] income,” prepare a new child support worksheet
worksheet back to Father’s filing date, not attribute any income
to Mother, determine the best interests of their minor child in
Father is essentially asking this Court for a de novo
review of the family court’s rulings. We concluded above that
therefore, we do not consider them.
For the foregoing reasons, we affirm the judgment of
the family court.
PATRICK IRVINE, Judge
PETER B. SWANN, Presiding Judge
MAURICE PORTLEY, Judge