Opinion
No. 1 CA-CV 10-0852
01-26-2012
In Re the Marriage of: LAUREL ANN ZAKULA, Petitioner/Appellee, v. THOMAS KEVIN ZAKULA, Respondent/Appellant.
John Friedeman, PC By John Friedeman Attorneys for Respondent/Appellant Laurel Ann Zakula Petitioner/Appellee In Propria Persona
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
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2010-051067
The Honorable Michael D. Gordon, Judge
REVERSED; REMANDED
John Friedeman, PC
By John Friedeman
Attorneys for Respondent/Appellant
Phoenix
Laurel Ann Zakula
Petitioner/Appellee
In Propria Persona
Anthem JOHNSEN, Judge
¶1 Thomas Kevin Zakula ("Father") challenges the superior court's award of pre-petition child support and the amount of awarded post-petition child support. For the reasons that follow, we reverse the awards and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶2 Laurel Ann Zakula ("Mother") filed a petition for dissolution on March 18, 2010. Her petition requested sole custody and reasonable child support to begin on the first day of the first month following entry of the decree. Prior to trial, which was set for October 27, 2010, the parties resolved all issues except child support and spousal maintenance. Mother's pretrial statement requested prospective child support of $916 a month and a judgment for arrearages of $7,693, representing support of $1,099 a month for the seven months since she filed her petition.
¶3 Father had moved to continue the trial and failed to appear. The court denied his request for a continuance, and stated it would "proceed forward . . . on a default basis." After Mother rested her case, the family court sua sponte raised the issue of pre-petition child support. Mother then took the stand again and testified about financial issues since the parties separated in November 2007.
¶4 The dissolution decree the court entered following trial included a judgment against Father for child support arrearages from September 1, 2008, through October 31, 2010, at the rate of $1,258.73 per month, pursuant to Arizona Revised Statutes ("A.R.S.") section 25-320(C) (2012). The decree also ordered Father to pay prospective child support at the rate of $1,075.99 per month.
Absent material revisions after the relevant date, we cite a statute's current version.
¶5 We have jurisdiction of Father's appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101(A)(1) (2012).
DISCUSSION
A. Under the Circumstances, the Court Erred by Awarding Mother Pre-Petition Child Support.
¶6 We review de novo issues of law concerning child support awards. Simpson v. Simpson, 224 Ariz. 224, 225, ¶ 4, 229 P.3d 236, 237 (App. 2010). When we interpret a statute or a rule, we look to the plain meaning of the language and strive to give effect to all provisions. See Ariz. Dep't of Revenue v. Superior Court, 189 Ariz. 49, 52, 938 P.2d 98, 101 (App. 1997).
¶7 Under A.R.S. § 25-320(C), the superior court has discretion to award pre-petition child support in "appropriate" circumstances:
If the parties lived apart before the date of the filing for dissolution of marriage, legal separation, maintenance or child support and if child support has not been ordered by a child support order, the court may order child support retroactively to the date of separation, but not more than three years before the date of the filing for dissolution of marriage, legal separation,(Emphasis added).
maintenance or child support. The court must first consider all relevant circumstances, including the conduct or motivation of the parties in that filing and the diligence with which service of process was attempted on the obligor spouse or was frustrated by the obligor spouse. If the court determines that child support is appropriate, the court shall direct, using a retroactive application of the child support guidelines, the amount that the parents must pay for the past support of the child and the manner in which payments must be paid, taking into account any amount of temporary or voluntary support that has been paid.
¶8 As Father points out, however, Arizona Rule of Family Law Procedure 44(B)(3) prohibits awards of pre-petition arrearages by default when the spouse seeking the award has not given notice that he or she will ask for it. Father received no such notice; indeed, Mother did not even raise the issue in her pretrial statement as required by Rule 76(C)(1)(i) of the Arizona Rules of Family Law Procedure.
In relevant part, Rule 44(B)(3) states,
No judgment by default under this rule shall be entered for any amount of child support accruing for periods of time prior to the date of filing of the petition to establish the first order for child support unless, in the petition or in the notice required pursuant to paragraph A [application of default], the party seeking support has notified the party from whom support is sought of the time period for which such past support is sought and that it will be calculated by retroactive application of the Arizona Child Support Guidelines.
¶9 While A.R.S. § 25-320(C) allows the court to award pre-petition child support if it concludes such an award is "appropriate," pursuant to Rule 44(B)(3), it may not award pre-petition support to a party who has not notified the other, in the petition or otherwise, of the time period for which support is sought. Because Father had no notice that Mother sought pre-petition child support, the court erred when it ordered Father to pay pre-petition child support.
We do not consider Appendix B to Mother's Answering Brief, the basis for her equity arguments, because it is not in the appellate record. See City of Tucson v. Ruelas, 19 Ariz. App. 530, 531-32, 508 P.2d 1174, 1175-76 (1973).
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B. The Court Erred by Awarding Post-Petition Arrearages in Excess of What Mother Sought in Her Petition or Pretrial Statement.
¶10 Father also challenges the amount of post-petition arrearages the court ordered. Although a party in default is deemed to have "admitted each and every material allegation of the petition," a default judgment "shall not be different in kind from or exceed the amount requested in the pleadings." Ariz. R. Fam. Law P. 44(B)(2), (G). In her pretrial statement, Mother requested an award of post-petition arrearages of $1,099 per month between April 1, 2010, and October 31, 2010. The court's award of $1,258.73 in monthly child support for that period violated Rule 44(G) because it exceeded the amount Mother had sought.
CONCLUSION
¶11 We reverse the awards of pre-petition and post-petition child support arrearages and remand for further proceedings consistent with this decision. Nothing in this decision precludes the superior court on remand from considering a request by Mother for pre-petition child support and/or post-petition arrearages, as long as Mother gives appropriate notice to Father as required by the authorities cited herein.
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DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
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DONN KESSLER, Judge
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LAWRENCE F. WINTHROP, Judge