Sarma v. Iyer

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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: ) ) SATYA SARMA, ) ) Petitioner/Appellant-Cross ) Appellee, ) ) v. ) ) KUMAR S. IYER, ) ) Respondent/Appellee-Cross ) Appellant. ) __________________________________) In re the Marriage of: ) ) SATYA SARMA, ) ) Petitioner/Appellee, ) ) v. ) ) KUMAR S. IYER, ) ) Respondent/Appellant. ) __________________________________) No. 1 CA-CV 10-0473 1 CA-CV 10-0839 (Consolidated) DEPARTMENT C MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2007-008864 The Honorable Veronica Brame, Commissioner REVERSED AND REMANDED DIVISION ONE FILED: 12/15/2011 RUTH A. WILLINGHAM, CLERK BY: DLL Joseph C. Richter, P.C. By Joseph C. Richter Attorneys for Petitioner/Appellant/Cross-Appellee Scottsdale The Cavanagh Law Firm By Helen R. Davis and Taylor C. Young Attorneys for Respondent/Appellee/Cross-Appellant Phoenix N O R R I S, Judge ¶1 Satya Sarma ( Mother ) timely appeals from the family court s denial of her motion for a new trial concerning her motion to modify ( Father ). denying the the child support payment of Kumar Iyer Mother argues the court abused its discretion in motion because it failed to consider changes in Father s travel expenses as a substantial and continuing change of circumstances warranting modification of child support. We agree and, therefore, reverse the court s denial of her motion for a new trial and remand for a new hearing consistent with this decision. cross appeal In so doing, we reject Father s argument in his that the family court should have awarded him attorneys fees. FACTS AND PROCEDURAL BACKGROUND 1 ¶2 Although the issue in this case pertains to Mother s 1 We view the facts in the light most favorable to upholding the family court s ruling. In re Marriage of Yuro, 192 Ariz. 568, 570, ¶ 3, 968 P.2d 1053, 1055 (App. 1998). 2 petition for the modification of Father s child support, to understand the positions taken by the parties regarding this issue it is necessary to understand the somewhat muddled procedural background of the underlying dissolution of marriage proceedings and the family court s original child support order. ¶3 In November 2007, Mother petitioned to dissolve her marriage with Father. In March 2008, the family court entered temporary orders, and ordered Father to pay $1,665 per month in child support for their one child, born in May 2007. In April 2008, the court established a temporary parenting time schedule that gave Father parenting time on alternating weekends (the First Parenting Plan ). ¶4 agreement On September 29, 2008, the parties entered into an to resolve all issues attendant to the divorce, pursuant to Arizona Rule of Family Law Procedure 69 (the Rule 69 Agreement ). deviate In the Rule 69 Agreement, the parties agreed to Father s child support payments from the $1,665 temporary order to $300 per month; the parties further agreed this heavily discounted amount was in the child s best interests and was acceptable because Mother can provide financial support for [the child] and because Father has travel expenses. ¶5 In February 2009, the family court entered a dissolution decree based on the Rule 69 Agreement and lodged by 3 Father, and denied Mother s objections to the decree, despite Mother s assertions the decree did not accurately reflect the language of the Rule 69 Agreement. Mother then moved for a new trial, arguing Father had placed gratuitous statements . . . in the Decree including substantially the permanent insertion deviation affecting of of the language child rights that of there support, when Mother, will the be Rule a 69 Agreement made no mention of the deviation being permanent. The family court and ordered the granted parties Mother s to arbitrate contained in the decree. parties final and forwarded decisions on a motion for the a final new trial, language to The arbitrator then met with the revised the decree disputed incorporating issues [t]he presented arbitration to the parties for finalization and execution. arbitrator also positions found concerning Father the be had final taken certain language of the for The unreasonable settlement documents, based on the parties Rule 69 agreements, including his assertion that the deviation in the child support amount, as agreed on by the parties, was permanent. ¶6 On October 21, 2009, the family court adopted a revised parenting plan proposed by the court-appointed Parenting Coordinator that, [b]ased on Father s request, reduced Father s parenting time from the First Parenting Plan s short 4 visits on alternating weekends to short visits on every second weekend of every second month (the Revised Parenting Plan ). 2 The Parenting Coordinator reported the Revised Parenting Plan was submitted in response parties] regarding a distance parenting plan to much reasonable for [the confusion and age child] [between appropriate as Father the long lives in California. ¶7 Then, on October 30, 2009, one week after the arbitrator had finalized the revised decree, but roughly six weeks before containing the the family arbitrated court entered language, modification of child support. the Mother revised decree petitioned for Among other arguments, Mother asserted [t]he major reason for the child support deviation was Father s travel expenses, as Father lives in California. He has not complied or executed the travel pursuant to the parenting plan. Mother also argued the Revised Parenting Plan reduce[d] the contact outlined in the [First Parenting Plan] and therefore reduce[d] the expenses for travel. Despite the pendency of Mother s petition to modify, on December 8, 2009, the family 2 We note, however, the Custody Agreement and Parenting Plan attached to the revised decree is the First Parenting Plan, not the Revised Parenting Plan adopted by the court on October 21, 2009. Because the record does not explain why the First Parenting Plan was attached to the revised decree, we view this discrepancy as an oversight and assume the family court intended the Revised Parenting Plan to remain in force. 5 court entered the revised decree, which specified again that [t]he parties believe [the deviated child support order] is in [the child s] best interests because [Mother] can provide for [the child s] financial needs and because Father has travel expenses. ¶8 On February 26, 2010, the family court held a child support modification hearing. During this often confused and rushed presented hearing, regarding their the parties incomes and the reasons failure to exercise his parenting time. family court denied Mother s conflicting petition child support order of $300 per month. evidence underlying Father s On April 5, 2010, the and affirmed Father s Eventually, the family court entered final orders denying Mother s motion for a new trial and both parties requests for attorneys fees. DISCUSSION I. Mother s Appeal A. Travel Expenses ¶9 for Because Mother appeals from the denial of her motion a new trial, and did not appeal from the underlying judgment, this court may not go beyond the matters assigned as error in the motion. Matcha v. Winn, 131 Ariz. 115, 116, 638 P.2d 1361, 1362 (App. 1981) (citations omitted). We may review the entire record to determine whether the [family] court abused 6 its discretion in denying the motion for new trial. 116-17, 638 P.2d at 1362-63. Id. at In so doing we recognize the family court has substantial latitude in deciding whether to [deny the motion]. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53, ¶ 12, 961 P.2d 449, 451 (1998). Nevertheless, we will reverse a denial of a new trial motion if the denial reflects a manifest abuse of discretion given the record and circumstances of the case. Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 1164, 1166 (App. 1996). A new trial may be warranted if the . . . judgment is not justified by the evidence or is contrary to law. Ariz. R. Fam. L.P. 83(A)(6). ¶10 As she did in the family court, Mother argues Father s failure to visit their child and thus travel to Arizona, coupled with the reduced parenting time in the Revised Parenting Plan adopted at Father s request, constituted a material change of circumstances agreement. ¶11 warranting modification of the [child support] We agree. Settlement agreements, such as the parties Rule 69 Agreement, do not preclude the modification of terms concerning . . . the support, custody or parenting time Ariz. Rev. Stat. ( A.R.S. ) § 25-317(F) (2001). of children. An order for child support may be modified or terminated on a showing of 7 changed circumstance that is substantial and continuing. A.R.S. § 25-503(E) (2009). ¶12 As discussed above, in their Rule 69 Agreement the parties agreed to the $300 per month child support order because Mother can provide financial support because Father has travel expenses. for [the child] and At the time the parties entered into the Rule 69 Agreement, the parenting plan then in place anticipated Father - who was, as he was at the time of the hearing, living in California -- would visit his child in Arizona every other weekend. Mother argued in her new trial motion that Father obtained a major deviation from the Child Support Guidelines to facilitate his travel to Arizona to see [the child]. for a argued, new Father did not file a response to Mother s motion trial in his challenging this supplemental assertion, memorandum and filed although he after the modification hearing, that the [c]hild support deviation was not based on travel expenses, he offered no evidence supporting this position or reconciling the obvious conflict between this argument and the plain language of the Rule 69 Agreement and the revised decree. reduced child See supra ¶ 7. support order Thus, we agree with Mother the was grounded on the assumption Father would be making frequent trips to Arizona to visit his child. 8 ¶13 Both Mother and Father testified during the modification hearing that Father had not seen their child since August or September of 2008. Although Father testified he had traveled from California to Arizona a couple of times to see the child only to have Mother thwart those attempts, Father agreed that he had not seen [his] child at all essentially since birth. It is therefore manifestly clear from the record Father had not incurred the travel expenses - associated with traveling from California to Arizona every other weekend - the parties anticipated Agreement. when they entered into their Rule 69 It is also clear under the Revised Parenting Plan now in effect - which only requires Father to visit his child every other month - Father will not incur the same level of travel expenses, even if his visits are more regular than they have been in the past. ¶14 Despite these facts, on appeal, Father argues that when the family court finally entered the revised decree, the court had already adopted the Revised Parenting Plan and thus the modified parenting time was not a change from the circumstances existing at dissolution, it was the circumstance existing at dissolution. We note, however, the arbitrator found Father had caused the delay in entering the revised decree by taking certain unreasonable positions . . . which required 9 the parties to then proceed to arbitration to resolve wording disputes in the final documents. See supra ¶ 5. In addition, even if we were to give some weight to Father s argument and consider only the time between entry of the revised decree on December 8, 2009 and the modification hearing held on February 26, 2010, Father s testimony suggested he had not visited the child during this period, even though the schedule in the Revised Parenting Plan contemplated visits on December 12 13, 2009 and February 13 14, 2010. ¶15 Thus, there is a stark difference between the number of biweekly visits and associated travel expenses anticipated by the Rule 69 Agreement - an amount the parties agreed justified reducing the $1,665 monthly child support payment to $300 -- and the reality evidenced by the record of, at best, a couple of attempted visits difference is during clearly a a two-and-a-half changed year period. circumstance that This is substantial and continuing and warranted a modification of the existing child support order. See A.R.S. § 25-503(E). The family court therefore abused its discretion by ruling to the contrary and denying Mother s motion for a new trial. See Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) (citation omitted) ( An abuse of discretion exists when the record, viewed in the light most favorable to upholding the 10 [family] court s decision, is devoid of competent evidence to support the decision. ). 3 B. The Parties Incomes ¶16 Mother also argued in her new trial motion and now on appeal that modification changes of child in the support parties and, more incomes warranted specifically, that certain stock options held by Father should be included in the calculation of his income. on this parties point. during The and Mother failed to develop the record evidence after the and testimony modification these matters was unclear and conflicting. 3 presented hearing by the concerning Because Mother is Although the simplified procedure described in the Arizona Child Support Guidelines was not appropriate here, the family court relied on the simplified procedure as an alternate measure to quantify whether Father s support obligation had substantially changed because of his decreased parenting time. The family court s application of the simplified procedure erroneously compared what it estimated Father s child support payment would have been under the Guidelines at the time of its ruling to the $1,665 amount the parties agreed to deviate from in the Rule 69 Agreement. Based on this comparison the court found there was not a 15% change from the previous child support amount that would warrant a modification under the simplified procedure. The Guidelines allow the court to modify a child support order if application of the guidelines results in an order that varies 15% or more from the existing amount. A.R.S. § 25-320 app. § 24(B) ( Guidelines ) (emphasis added). When dealing with deviations from the Guidelines, the Guidelines instruct the court to make written findings that show[] what the order would have been without the deviation and show[] what the order is after deviating. Guidelines § (20)(A)(4)-(5) (emphasis added). The existing amount under the Guidelines is therefore the deviated amount, not the amount it would have been without the deviation. 11 entitled to a new trial on her petition to modify child support, we express no opinion on Mother s arguments regarding the parties incomes and Father s stock options. II. Father s Cross Appeal ¶17 On abused its cross appeal, discretion Father in argues declining the to family award court Father his reasonable attorneys fees. Under the circumstances of this case, record as demonstrated by the and discussed above, we reject this argument and hold the family court did not abuse its discretion in denying Father s request for attorneys fees. III. Attorneys Fees on Appeal ¶18 Mother and Father both argue they should be awarded their attorneys fees on appeal under A.R.S. § 25-324 (2010). The record before us does not justify a fee award to either Father or Nevertheless, entitled to Mother; as costs the on therefore, prevailing appeal, we party subject deny on to their appeal, her requests. Mother compliance is with Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶19 For the foregoing reasons, we reverse the family court s denial of Mother s motion for a new trial, remand for a new hearing on her petition to modify Father s child support, 12 and affirm the family court s denial of Father s request for attorneys fees. /s/_ _______________________________ PATRICIA K. NORRIS, Judge CONCURRING: ___/s/________________________________ MICHAEL J. BROWN, Presiding Judge ___/s/________________________________ PHILIP HALL, Judge 13

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