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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
TONYA RENEE HARRIS,
Petitioner/Appellee,
v.
STEVEN ROBERT BEHNKE,
Respondent/Appellant.
No. 1 CA-CV 21-0459 FC
FILED 8-11-2022
Appeal from the Superior Court in Maricopa County
No. FC2018-094094
The Honorable Joshua D. Rogers, Judge
AFFIRMED
COUNSEL
Law Office of Ronald L. Kossack, Tempe
By Ronald L. Kossack, Karla D Urrea-Perry
Counsel for Petitioner/Appellee
Steven Robert Behnke, Mesa
Respondent/Appellant
HARRIS v. BEHNKE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Randall M. Howe and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Appellant Steven Robert Behnke (“Father”) challenges the
superior court’s ruling on his post-decree petition to modify spousal
maintenance and child support. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Tonya Harris (“Mother”) and Father were married from 1995
to 2020. They share eleven children, including ten minors. At the time of
dissolution, Father owned a landscaping business and Mother worked part-
time as a substitute teacher. The parties agreed on parenting time and child
support issues, but could not agree on spousal maintenance. After a bench
trial, the superior court entered a dissolution decree, designating Father as
the primary residential parent for six of the children, granting equal
parenting time over four of the children, and awarding Mother $2,000 in
monthly spousal maintenance for five years. The court awarded no child
support under the parties’ agreement, even though Father could have
received $394 per month under the Arizona Child Support Guidelines
(“Guidelines”).
¶3 Over the next eight months, Mother and Father separately
petitioned the court for relief. Mother reported that Father had not paid
spousal maintenance since the court entered the dissolution decree, so she
asked the court to enforce the decree. Father asked the court to reduce or
terminate his spousal maintenance obligation, citing a “significant loss of
income” from “the COVID 19 pandemic.” He also asked that Mother be
ordered to pay $693.14 in monthly child support.
¶4 After an evidentiary hearing, the superior court awarded
Father $604 in monthly child support, finding a substantial and continuing
change of circumstances in the child support obligation based on “all of the
credible evidence presented at trial,” including Father’s increased
parenting time. The court declined, however, to modify Father’s spousal
maintenance obligation, finding Father had “failed to show a substantial
and continuing change of the financial circumstances” to meet his burden
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HARRIS v. BEHNKE
Decision of the Court
of proof. The court also found that Father’s failure to pay spousal
maintenance was unreasonable, and thus awarded Mother’s attorney fees
and costs under A.R.S. § 25-324(A). Father timely appealed. We have
jurisdiction. See A.R.S. § 12–120.21(A)(1).
DISCUSSION
I. Spousal Maintenance
¶5 Spousal maintenance “may be modified or terminated only
on a showing of changed circumstances that are substantial and
continuing.” A.R.S. § 25-327(A). The party who requests a modification
must show changed circumstances. McClendon v. McClendon, 243 Ariz. 399,
401, ¶ 9 (App. 2017). We review a spousal maintenance award for an abuse
of discretion and will affirm if any reasonable evidence supports it. See
Andrews v. Andrews, 252 Ariz. 415, 417, ¶ 7 (App. 2021).
¶6 Father contends the superior court erroneously declined to
terminate his spousal maintenance obligation for three reasons. First, he
argues that spousal maintenance was no longer appropriate because the
pandemic had caused his residential landscaping business to lose “at least
65% from the date of the initial decree.”
¶7 The record shows no abuse of discretion. Father presented
three years of corporate tax returns and correspondence from two clients
that terminated his services. On cross-examination, however, Father
conceded that he told his accountant how much the business had lost, and
the accountant just accepted and recorded his version of the data. Father
conceded he had no other evidence, such as bank records, to prove the loss.
Nor did Father explain or present evidence on how two clients caused the
loss or why he could not find new clients. The superior court also
determined that Father was not credible, which we do not second-guess on
appeal. See Carey v. Soucy, 245 Ariz. 547, 552, ¶ 19 (App. 2018) (“[W]e must
give due regard to the trial court’s opportunity to judge the credibility of
the witnesses.”) (citation omitted).
¶8 Second, Father contends the court erroneously refused to
increase Mother’s income based on “substantial and continuing gifts” she
received from her family. The record shows no abuse of discretion. Mother
offered her sworn testimony that she only received loans from her family,
not gifts. Father offered no evidence to rebut that sworn testimony.
¶9 Third, Father argues the court erred by “accepting a
substantial and continuing change” in modifying child support “but failing
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HARRIS v. BEHNKE
Decision of the Court
to apply the same standard to reduce or terminat[e] Spousal Maintenance.”
Not so. Father confuses two distinct inquiries. Child support and spousal
maintenance are “considered under different laws” and “involve distinct
considerations.” Birnstihl v. Birnstihl, 243 Ariz. 588, 593, ¶ 18 n.2 (App. 2018)
(citations omitted). As relevant here, the Guidelines do not cover spousal
maintenance. Id.
II. Child Support
¶10 Father also contends “a new child support order should be
completed,” but the superior court modified the child support order in
Father’s favor, awarding him $604 per month. Father offers no argument
on how this was an abuse of discretion, and thus waived the issue. See
MacMillan v. Schwartz, 226 Ariz. 584, 591, ¶ 33 (App. 2011) (“Merely
mentioning an argument in an appellate opening brief is insufficient.”).
III. Civil Arrest Warrant
¶11 After briefing was complete on appeal, the superior court
issued a civil arrest warrant against Father for his continued failure to pay
spousal maintenance. Father now asks this court to stay enforcement of the
arrest warrant. See ARCAP 7(c). We decline to consider Father’s motion,
however, because did not ask the superior court for relief. See Maria v.
Najera, 222 Ariz. 306, 307, ¶ 5 (App. 2009).
IV. Attorney Fees and Costs on Appeal
¶12 Both parties request their attorney fees and costs incurred on
appeal under A.R.S. § 25-324(A), which requires us to consider “the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.” Having considered
these factors, we award Mother reasonable attorney fees and taxable costs
incurred on appeal upon compliance with ARCAP 21.
CONCLUSION
¶13 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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