NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
JESSICA L. THOMAS,
Petitioner/Appellant,
v.
NICHOLAS J. KELLY,
Respondent/Appellee.
No. 1 CA-CV 19-0020 FC
FILED 9-19-2019
Appeal from the Superior Court in Maricopa County
No. FC2009-070020
The Honorable J. Justin McGuire, Judge Pro Tempore
AFFIRMED
APPEARANCES
Jessica L. Thomas, AZ
Petitioner/Appellant
Nicholas J. Kelly, Cave Creek
Respondent/Appellee
THOMAS v. KELLY
Decision of the Court
MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.
J O H N S E N, Judge:
¶1 Jessica L. Thomas ("Mother") appeals the superior court's
order requiring her to reimburse Nicholas J. Kelly ("Father") for his
overpayment of child support. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The parties have a son, born in June 2000. In 2009, Mother
petitioned for sole custody and child support. The superior court ordered
that the child would live primarily with Mother, granted parenting time to
Father, and ordered Father to pay child support of $388.63 per month.
¶3 In August 2013, Father petitioned to be the child's primary
residential parent. Mother objected and asked for an increase in Father's
support obligation. The parties reached an agreement, memorialized by
court order, that the child would live primarily with Father beginning in
August 2014. Neither the agreement nor the resulting order modified
Father's child-support obligation. In a November 2014 order, however, the
court reduced Father's child-support obligation to $54.47 as of the prior
August. Neither party appealed the November 2014 order.
¶4 Father's child-support obligation terminated in 2018 when the
child turned 18. In response to a query by Father, Family Support Services
notified him that he had overpaid his child-support obligation by $1,467.86.
Father petitioned for an order directing Mother to reimburse him that
amount, attaching the letter from Family Support Services and an "Arrears
Calculation Report" from the Child Support Clearinghouse, dated June
2018, showing the overpayment. Mother opposed Father's petition, raising
her prior request for increased support for the period from September 2013
to August 2014. At a brief hearing, Mother argued that the court had never
ruled on that request. The court replied that it could not retroactively
modify child support and ordered Mother to repay Father the full amount
he requested.
2
THOMAS v. KELLY
Decision of the Court
¶5 Mother timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2019) and -2101(A)(1) (2019).1
DISCUSSION
¶6 After child support has terminated, the superior court may
order the obligee-parent to reimburse the obligor-parent for an
overpayment of child support. See A.R.S. § 25-527(A), (B) (2019).
¶7 Mother does not challenge the accuracy of the June 2018
report showing the overpayment. She argues, however, that (1) the
superior court never ruled on the request she made in August 2013 for
increased child support, (2) the court should have increased Father's
obligation from September 2013 through August 2014, and (3) such an
increase would eliminate Father's overpayment.2
¶8 As noted, in 2014 the court adopted the parties' agreement
that Father would become the primary residential parent as of August 2014.
That change necessitated a reduction in Father's child-support obligation,
which the court ordered in November 2014. Contrary to Mother's
contention, the court's November 2014 order resolved (and rejected) her
request for additional support for the prior period when it stated: "[A]ll
other prior orders of this Court not modified remain in full force and effect."
Mother did not appeal the November 2014 order, and her time to do so
expired long ago. See ARCAP 9(a) (party has 30 days from the date of a
final order to timely appeal). For that reason, the superior court's denial of
her request was final. See Stapley v. Stapley, 15 Ariz. App. 64, 69, n.3 (1971)
(modification orders are final when not timely appealed).
1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.
2 Mother does not seek additional child support beyond the amount
necessary to completely offset Father's overpayment.
3
THOMAS v. KELLY
Decision of the Court
¶9 Further, as the superior court observed at the hearing on
Father's request for reimbursement, A.R.S. § 25-503(E) (2019) bars
modification of child support for a period "earlier than the date of filing the
petition for modification." That statute precluded the court from granting
any new request by Mother in 2018 for increased support for the prior
period.
CONCLUSION
¶10 For the reasons stated, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
4