Maximov v. Maximov

Annotate this Case

Download PDF

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DIVISION ONE FILED: 03/26/09 PHILIP G. URRY,CLERK BY: DN In re the Marriage of: ) No. 1 CA-CV 07-0914 ) RONIT MAXIMOV, ) DEPARTMENT C ) Respondent-Appellant, ) O P I N I O N ) ) v. ) EITAN MAXIMOV, ) ) Petitioner-Appellee. ) ) Appeal from the Superior Court in Maricopa County Cause No. FC 2005-052192 The Honorable Linda H. Miles, Judge AFFIRMED Sternberg & Singer By Melvin Sternberg Phoenix and Cohen Law Firm By Larry J. Cohen Attorneys for Appellant Phoenix T I M M E R, Chief Judge ¶1 1998. Ronit Rosenberg1 married Eitan Maximov on August 7, Maximov petitioned for dissolution of the marriage on October 26, 2005. 1 At the time Maximov filed the Petition, the We refer to appellant by her maiden name, which the family court reinstated following the trial. couple had one second child. child and Rosenberg was pregnant their The family court entered a judgment and decree of dissolution of marriage on July 30, 2007. Following the denial of post-trial motions, this appeal followed. several with challenges to the judgment, address via an answering brief. which Rosenberg raises Maximov failed to In this opinion, we consider the authority of the family court to modify temporary family support effective on a date prior to the date a party files a petition to modify support.2 DISCUSSION ¶2 Rosenberg contends the family court improperly reduced and reallocated temporary family support Maximov paid from April 2006 through September 2006. We review the court s decision to modify the amount of support for an abuse of discretion. Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) (child support); Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9, 166 P.3d 929, 931 (App. 2007) (spousal maintenance). We review its interpretation of statutory authority, however, de novo as a question of law. See Mead v. Holzmann, 198 Ariz. 219, 220, ¶ 4, 8 P.3d 407, 408 (App. 2000). ¶3 pay On March 30, 2006, the family court ordered Maximov to an unallocated $7,500 per 2 month commencing April 1 for By separate unpublished decision filed this date, we address the remainder of Rosenberg s issues on appeal. 2 spousal maintenance expressly stated and its child order support. was without The family prejudice court to either party s position at the time of trial to request that any sums ordered to be paid be increased or decreased, or that there be an adjustment if one party has overpaid or underpaid. Maximov paid this amount from April 2006 through September 2006, for a total of $45,000. On September 11, 2006, Maximov moved for modification of temporary support. the motion until trial, which The court deferred ruling on took place on May 1, 2007. Maximov did not make any payments to Rosenberg from October 2006 through trial. ¶4 The family court entered the judgment/decree on July 30, 2007, along with extensive findings of fact. things, the court reduced Maximov s support Among other obligation from $7,500 per month to $1,826.34 per month ($1,226.34 child support and $600 spousal maintenance). The court found that Maximov could not afford compliance with the $7,500 temporary support order when it was entered. Consequently, it allocated the support actually paid by Maximov, $45,000, over the time period beginning December 1, 2005, the first day of the month following service of the petition, and ending July 31, 2007. As a result, Maximov effectively paid $2,250 per month in temporary support. Finally, in light of Maximov s inability to pay $7,500 per month in temporary family support, the 3 court denied Rosenberg s pending motion to hold him in contempt for failing to fully pay that amount. ¶5 Rosenberg argues the family court violated Arizona Revised Statutes ( A.R.S. ) section 25-327 (2007)3 by reducing the family support obligation between April and September 2006 because (1) the court did not have authority to reduce the temporary support obligation for that time period, and (2) the court did not expressly find good cause to make this reduction. According to Rosenberg, therefore, the court should have left the $7,500 obligation in place through September 30, 2006 and then started the $1,826.34 obligation on October 1, 2006. Consequently, Rosenberg asserts the court erred by failing to find that Maximov owed $18,263.40 for the time period commencing October 1, 2006 and ending July 31, 2007. ¶6 Section 25-327(A), A.R.S., provides, in pertinent part, as follows: Except as otherwise provided in § 25317, subsections F and G, the provisions of any decree respecting maintenance or support may be modified or terminated only on a showing of changed circumstances that are substantial and continuing except as to any amount that may have accrued as an arrearage before the date of notice of the motion or order to show cause to modify or terminate. . . . 3 We cite to the current version of the statutes cited in this decision because no subsequent material revisions have occurred. 4 Modifications and terminations are effective on the first day of the month following notice of the petition for modification or termination 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 or termination. (Emphasis added.) does not support. apply By its plain terms, therefore, § 25-327(A) to pre-decree temporary orders for family Consequently, the court did not violate the provision by effectively reducing the family support amount due from April through September 2006.4 ¶7 Temporary maintenance and support are authorized and governed by A.R.S. § 25-315 (Supp. 2007). Unlike § 25-327, § 25-315 does not prohibit the court from setting the effective date of a modification to temporary family support to a date prior to Therefore, the the date of family filing court a petition retains its temporary support nunc pro tunc. for modification. authority to modify See Ariz. R. Family Law P. 81(A) (authorizing court to direct entry of judgment nunc pro tunc as justice may require). 4 We recognize that Maximov did not argue to the family court the inapplicability of § 25-327. Although we are loath to make arguments for a party, particularly one who did not file an answering brief, when we are considering the interpretation and application of statutes, we do not believe we can be limited to the arguments made by the parties if that would cause us to reach an incorrect result. See Evenstad v. State, 178 Ariz. 578, 582, 875 P.2d 811, 815 (App. 1993). 5 ¶8 Likewise, neither § 25-315 nor any other authority requires the family court to expressly find good cause in a final decree to modify a temporary support order nunc pro tunc. Indeed, § 25-315(F) provides that a temporary order [d]oes not prejudice the rights of the parties . . . which are to be adjudicated at Regardless, we the subsequent conclude hearings the court in found the good proceeding. cause for allocating the temporary support Maximov paid over a longer time period. Specifically, the court found as follows: 95. Based on the testimony and evidence presented at trial, it is clear that [Maximov] could not afford the $7,500 family support order when it was made on March 30, 2006. [Maximov s] only source of funds at that time was borrowed monies. Thereafter, [Maximov s] only other source of funds in 2006 was from the sale of the 1.4-acre lot of the 39th Avenue Property in August 2006. 96. After August 2006, [Maximov] did not receive any money as income or from borrowing or as excess cash from any source. 97. All of the money in [Maximov s] bank accounts, including the money held in the name of one or more of the businesses, in the fall of 2006 was proceeds from the 39th Avenue real property transactions and was used to pay business debts, primarily mortgages and equity lines, and other expenses referenced above through December, 2006. These factors justified the court s ruling. ¶9 For all these reasons, arguments. 6 we reject Rosenberg s CONCLUSION ¶10 The family court possessed authority to set the effective date of a modification to temporary family support to a date prior to the date of filing a petition for modification of support. Therefore, The court did not err by doing so in this case. and for the reasons set forth in the memorandum decision filed this date, we affirm. _________________________________ Ann A. Scott Timmer, Chief Judge CONCURRING: ____________________________ Philip Hall, Presiding Judge ____________________________ Maurice Portley, Judge 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.