NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
In re the Marriage of:
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)
)
)
)
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)
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RHONDA A. HOLLOWAY,
Petitioner/Appellant,
v.
FRANK L. GOODARD, JR.,
Respondent/Appellee.
No.
1 CA-CV 10-0550
DIVISION ONE
FILED: 06/21/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT A
MEMORANDUM DECISION
(Not for Publication –
Rule 28, Arizona Rules
of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2002-090478
The Honorable M. Jean Hoag, Judge
REVERSED AND REMANDED
Law Offices of John Bednarz, P.C.
By John G. Bednarz
Attorneys for Petitioner/Appellant
Gilbert
Ritter Law Group, L.L.C.
By Matthew A. Ritter
Attorneys for Respondent/Appellee
Florence
J O H N S E N, Judge
¶1
Rhonda
A.
Holloway
(“Mother”)
appeals
the
superior
court’s order granting her request to modify child support but
refusing
to
request.
order
For
the
payment
retroactive
reasons
set
forth
to
the
below,
date
we
of
the
reverse
and
remand.
FACTS AND PROCEDURAL HISTORY
¶2
Mother and Frank L. Goodard (“Father”) had three minor
children together.
in 2002.
They entered a consent decree of dissolution
The parties agreed in August 2006 that Father would
pay $41 a month in child support.
¶3
In February 2008, Mother filed a “Petition to Modify
Parenting Time (Primary Residence) and Child Support.”
Mother
asked the court to allow the children to live primarily with her
and to make a corresponding adjustment to Father’s child-support
obligation.
Trial was set for late September 2008.
In the
joint pretrial statement, Mother reasserted her request to have
child support modified effective March 1, 2008, and the pretrial
statement
listed
child-support
materials as exhibits.
worksheets
and
other
financial
Two months after trial, on November 25,
2008, the superior court ruled on Mother’s parenting-time motion
without deciding the request to modify child support.
¶4
Acrimony ensued between the parties over the next 14
months,
and
Father’s
allotted
parenting
time
changed
several
times.
Additionally, during that time, Father’s child-support
obligation for a fourth child by a different marriage ended,
Father and his current wife had a new baby, daycare expenses
2
fluctuated, and the children’s insurance coverage shifted from
Father to Mother.
¶5
In early February 2010, some 14 months after the court
granted Mother’s request to alter parenting time, Mother filed a
motion asking the court to rule on the pending request for more
child support.
Father did not respond to Mother’s motion, and
the court set trial for April 19, 2010.
Father
filed
a
“Unilateral
Pretrial
Shortly before trial,
Statement”
in
which
he
objected to altering child support as of the date Mother filed
her motion.
He argued without elaboration that “controlling
case law regarding laches” required dismissal of Mother’s motion
with
prejudice.
After
taking
evidence,
the
superior
court
adjusted Father’s child-support obligation for March 1 through
December 31, 2008 to $285.29 a month; from January 1 through
June 30, 2009, $442.04 a month; from July 1 through September
30, 2009, $581.16 a month; and from October 1, 2009 forward,
$898.29 a month.
¶6
The
court,
however,
held
laches
barred
Mother
recovering child support for any past period:
The Court does not find good cause for
Mother’s delay and further finds Father has
met his burden of proof re: laches.
The delay, from March 1, 2008 to the filing
request February 22, 2010, is prejudicial to
Father in that it would be financially
devastating to him . . . ; Mother accepted
the $41.00 a month since ordered on or about
3
from
August 16, 2006 and Father consistently paid
this; both parties were aware the Court’s
order dated November 24, 2008 did not set
forth a modified order for child support;
and, Mother’s explanation that she was
waiting for things to calm down, or words to
that [e]ffect, do not justify the delay as
noted.
By this ruling the Court is not finding that
$41.00 was an adequate amount for Father to
pay; nonetheless, the parties agreed to this
and,
therefore,
Mother’s
request
for
retroactive child support shall not now be
ordered.
¶7
Mother moved for a new trial, which was denied.
then timely appealed to this court.
She
We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and pursuant
to Arizona Revised Statutes (“A.R.S.”) § 12-2101(B) (2003).
DISCUSSION
¶8
We
discretion.
review
a
child-support
order
for
an
abuse
of
Cummings v. Cummings, 182 Ariz. 383, 385, 897 P.2d
685, 687 (App. 1994).
of discretion.
An error of law may constitute an abuse
In re Marriage of Williams, 219 Ariz. 546, 548,
¶ 8, 200 P.3d 1043, 1045 (App. 2008).
We accept the superior
court’s factual findings unless they are clearly erroneous or
unsupported by the evidence, and we view the evidence in the
light most favorable to upholding the superior court’s decision.
In re Marriage of Yuro, 192 Ariz. 568, 570, ¶ 3, 968 P.2d 1053,
1055 (App. 1998).
4
¶9
Laches
is
an
affirmative
defense
that
requires
the
opponent of a claim for past child support to demonstrate, by
clear and compelling evidence, that the claimant unreasonably
delayed in bringing the action and that the delay prejudiced the
other.
See State v. Garcia, 187 Ariz. 527, 528-29, 931 P.2d
427, 428-29 (App. 1996); State ex rel. Dep’t of Econ. Sec. v.
Dodd, 181 Ariz. 183, 188, 888 P.2d 1370, 1375 (App. 1994).
“A
noncustodial parent is not relieved of his or her child support
obligations merely because the custodial parent is dilatory in
bringing a claim for support arrearages.”
Schnepp v. State ex
rel. Dep’t of Econ. Sec., 183 Ariz. 24, 30, 899 P.2d 185, 191
(App. 1995).
¶10
We
see
superior
court
nothing
failed
to
in
the
rule
record
on
explaining
Mother’s
request
child support following the September 2008 trial.
why
to
the
modify
The judge
assigned to the matter in 2010 remarked that the prior judge
must have overlooked the issue, and we presume that to be the
case.
But Father cites no authority for the proposition that a
motion for modification of child support is barred by laches
when an oversight by the court delays resolution of the motion.
¶11
Laches
may
be
proven
when
a
spouse
is
tardy
in
bringing an action to establish a right to child support or an
action to recover past-due child support.
See Garcia, 187 Ariz.
at 528-29, 931 P.2d at 428-29; Schnepp, 183 Ariz. at 30, 899
5
P.2d at 191.
But the defense does not apply to a motion to
modify
support,
child
modification
filing.
of
support
See A.R.S.
which
only
necessarily
going
may
forward
§ 25-327(A) (2007).
from
result
the
in
a
date
of
Moreover, Mother did
not fail to “timely bring” an action; the superior court failed
to timely rule on her motion.
We know of no authority holding
that laches applies when a parent waits 14 months to remind the
court that it has failed to rule on a pending motion to modify
child support.
Cf. Yuro, 192 Ariz. at 573, 968 P.2d at 1058 (a
delay of “two, maybe three, maybe four years” in seeking to
collect child-support arrearages was not unreasonable) (internal
quotation marks omitted); Schnepp, 183 Ariz. at 30, 899 P.2d 185
at 191 (six-year delay in seeking to collect arrearages was not
unreasonable;
citing
with
approval
other
jurisdictions’
decisions that 11-year and 14-year delays did not bar recovery
of arrearages based on laches); Dodd, 181 Ariz. at 188, 888 P.2d
at
1375
(nine-year
unreasonable
when
delay
mother
in
pursuing
believed
father
arrearage
did
not
was
not
have
the
resources to pay).
¶12
The superior court also erred by finding Father would
be prejudiced if he were ordered to pay modified child support
from the date of Mother’s motion.
Prejudice for purposes of
laches requires more than financial hardship.
See Anonymous
Wife v. Anonymous Husband, 153 Ariz. 573, 577-78, 739 P.2d 794,
6
798-99 (1987) (financial disruption caused by a ten-year delay
in seeking child support did not establish laches when father
knew another was bearing the financial burden for his child);
Yuro, 192 Ariz. at 574, ¶ 17, 968 P.2d at 1059 (refusing to
accept father’s argument that he was prejudiced because mother’s
delay in claiming back child support resulted in an increased
financial burden due to compound interest on arrearage).
¶13
Rather,
context
requires
prejudice
the
for
purposes
noncustodial
of
parent
laches
to
have
in
this
changed
position or undertaken an obligation that he or she would not
have
pursued
obligation.
with
knowledge
of
the
pending
child-support
See In re Paternity of Gloria, 194 Ariz. 201, 203,
¶ 13, 979 P.2d 529, 531 (App. 1998) (“Laches . . . applies when
the party asserting the defense shows that, because of delay or
lapse of time, he/she is injured or has changed position in
reliance on the other party’s inaction.”); Garcia, 187 Ariz. at
529, 931 P.2d at 429 (16-year delay in seeking child-support
arrearages prejudiced noncustodial parent in part based on his
testimony that he would have had fewer subsequent children had
he known of his son); Schnepp, 183 Ariz. at 30, 899 P.2d at 191
(evidence
show
that
insufficient
he
because
undertook
any
noncustodial
obligation
parent
that
he
“failed
would
to
have
forsaken if he had believed he was still required to pay child
support”).
7
¶14
Father cannot establish laches because he cannot show
he was unaware of the possibility that the court would grant
Mother’s motion to modify child support.
Moreover, the record
contains
the
no
evidence
of
prejudice.
At
hearing,
Father
objected only that arrearages would amount to a “huge debt.”
He
did not testify he undertook an obligation he otherwise would
have forsaken; nor did he explain how he relied to his detriment
on the court’s delay in ruling on Mother’s motion.
Moreover,
Father never claimed, nor does the record reveal, a substantial
change in his financial situation (other than being relieved of
one child-support payment from a different marriage) during the
period that Mother’s motion was pending. 1
¶15
The superior court further found Mother’s acceptance
of $41 per month was evidence supporting laches.
But a parent’s
agreement to accept reduced child-support payments does not bar
a claim for arrearages.
Dodd, 181 Ariz. at 187, 888 P.2d at
1374; accord Yuro, 192 Ariz. at 574, ¶ 17, 968 P.2d at 1059
(rejecting
husband’s
assertion
that
wife’s
acceptance
of
his
payments “effectively conveyed the message that . . . she agreed
[they were correct]”) (citing In re Marriage of Ward, 35 Cal.
Rptr. 2d 32 (App. 1994)).
1
In 2008, Father reported that he earned $18.13 per hour; at
the time of the evidentiary hearing the following year, he was
earning $18.58 per hour.
Father further reported the birth of
another child, but the superior court, in its discretion,
excluded the after-born child from its calculus.
8
CONCLUSION
¶16
For the reasons set forth above, we reverse and remand
for further proceedings consistent with this decision.
requests her attorney’s fees on appeal.
because
she
fails
to
cite
any
Mother
We deny the request
substantive
authority
for
her
request.
See Ezell v. Quon, 224 Ariz. 532, 539, ¶ 31, 233 P.3d
645,
(App.
652
2010).
However,
as
the
prevailing
party
on
appeal, Mother is entitled to an award of her costs incurred in
the
appeal
upon
compliance
with
ARCAP
21.
A.R.S.
§
12-341
(2003); see Chopin v. Chopin, 224 Ariz. 425, 432, ¶ 24, 232 P.3d
99, 106 (App. 2010).
/s/
DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
/s/
MARGARET H. DOWNIE, Judge
/s/
JON W. THOMPSON, Judge
9
