Schweitzer v. Schweitzer

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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 Matter of: ) ) TIMOTHY F. SCHWEITZER, ) ) Petitioner/Appellant, ) ) v. ) ) KATHLEEN S. SCHWEITZER, ) ) Respondent/Appellee. ) ) __________________________________) No. 1 CA-CV 11-0016 DIVISION ONE FILED: 12/22/2011 RUTH A. WILLINGHAM, CLERK BY: DLL DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC 2001-003621 The Honorable M. Scott McCoy AFFIRMED Gene R. Stratford Attorney for Petitioner/Appellant Phoenix Law Offices of Don C. Wilkinson By Don C. Wilkinson Attorneys for Respondent/Appellee Phoenix D O W N I E, Judge ¶1 Timothy Schweitzer ( Father ) appeals dismissal of his petition to modify child support. following reasons, we affirm. from the For the FACTS AND PROCEDURAL HISTORY ¶2 Father and Kathleen Schweitzer ( Mother ) divorced in 2002; Father was ordered to pay child support. 2009, Father support. petitioned After an to modify evidentiary parenting hearing, the In December time and court child issued a signed minute entry dated July 30, 2010 (the July 30 order ), ordering, inter alia, that Father pay child support of $1398.90 per month. ¶3 Father filed a motion for new trial and a motion for clarification. Among other things, he argued that the court had erred in calculating child support by allocating sums for child care and tutoring expenses. The family court denied both motions. ¶4 Father did not appeal from the July 30 order or from the denial of his motion for new trial. Instead, on October 5, 2010, he filed a Petition to Modify Child Support. again argued that the court had erred in Father calculating child support, and he sought to correct certain findings in the July 30 order, including those relating to child care and tutoring expenses. Father argued these findings were based upon erroneous information . . . without any evidentiary support. ¶5 dated Mother moved to dismiss Father s petition. November petition. 22, 2010, the family court By ruling dismissed the The court noted that Father had alleged no changed 2 circumstances warranting modification of child support and ruled his petition was an impermissible collateral appeal. ¶6 Father appealed from the November 22 order dismissing his modification petition. We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(2). DISCUSSION ¶7 Father s record or legal brief does authority. arguments waived. not We include could citations consider his to the appellate See ARCAP 13(a)(6) (a brief shall contain arguments with citations to authorities, statutes, and parts of the record relied upon); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62, 211 P.3d 1272, 1289 (App. 2009) (failure to support arguments with legal authority may constitute abandonment and waiver of that claim). In the exercise of our discretion, though, we address the clear propriety of the superior court s dismissal order. ¶8 Father s appeal is from the dismissal of his petition to modify child support, not from the July 30 order or the denial of his motion for new trial. before us is whether the court As such, the only issue erred by dismissing the modification petition. ¶9 showing The family court may modify child support only on a of continuing. changed circumstances that Ariz. Rev. Stat. § 25-327(A). 3 are substantial and The court dismissed Father s modification petition because nothing [had] changed between the July 30 order and the October 5 petition. Indeed, Father made clear that the petition s purpose was to correct findings that he believed were based upon erroneous information . . . without any evidentiary support. Although Father cited A.R.S. § 25-327(A) to support his claims, he did not assert that circumstances had changed since the July 30 order. Because Father alleged no changed circumstances, and his modification petition was an impermissible method of seeking review of the July 30 order, the family court properly dismissed the petition. ¶10 Mother requests an award of attorneys fees and costs incurred on appeal pursuant to A.R.S. § 25-324 and ARCAP 21. After considering the financial resources of the parties and the unreasonableness of Father s appeal, we grant Mother s request upon compliance with ARCAP 21. CONCLUSION ¶11 For the reasons stated, we affirm the judgment of the family court. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ PETER B. SWANN, Judge /s/ DONN KESSLER, Judge 4

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