Nickel v. Potter

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

HEIDI L. NICKEL, Petitioner/Appellee,

v.

CHRISTOPHER K. POTTER, Respondent/Appellant.

No. 1 CA-CV 22-0451 FC
FILED 10-10-2023

Appeal from the Superior Court in Maricopa County
No. FC2010-052126
The Honorable Andrew J. Russell, Judge
The Honorable Richard Albrecht, Judge Pro Tempore
The Honorable Michelle Carson, Judge

AFFIRMED

APPEARANCES

Heidi L. Nickel, Cave Creek
Petitioner/Appellee

Christopher K. Potter, Cave Creek
Respondent/Appellant
 NICKEL v. POTTER
Opinion of the Court

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Michael S. Catlett joined.

B R O W N, Judge:

¶1 Christopher K. Potter (“Father”) appeals the superior court’s
ruling vacating a child support order that was entered without
consideration of the most recent order issued by a different judge in the
same case. Because a petition to modify child support must seek to modify
the most recent child support order issued in the divorce proceeding, we
affirm.

BACKGROUND

¶2 Heidi L. Nickel (“Mother”) petitioned for divorce in 2010.
After a default hearing, the superior court awarded Mother sole custody of
the parties’ two minor children and ordered Father to pay child support. In
2011, Father and Mother stipulated to joint custody, with neither party
paying child support.

¶3 In 2020, Mother petitioned to modify legal decision-making,
parenting time, and child support. After an evidentiary hearing, the court
awarded Mother sole legal decision-making, with Father having supervised
parenting time along with the obligation to pay Mother $998 per month in
child support (“October 2020 Order”).

¶4 On December 1, 2020, Mother petitioned to enforce child
support. The superior court set a hearing for mid-January 2021 to address
Mother’s petition, ordering the parties to appear. On December 29, 2020,
Father filed a petition to modify the October 2020 Order through the
“simplified process” authorized by the Arizona Child Support Guidelines.
See A.R.S. § 25-320 app. (“Guidelines”) § XIV.C. He attached a child support
worksheet and a proposed order listing his child support obligation as $76
per month, effective January 1, 2021.

¶5 As a result of the January 2021 hearing, Judge Carson issued
a minute entry acknowledging that the parties had “reached a full
agreement.” Judge Carson then approved the parties’ stipulated judgment
and order (“January 2021 Order”), which confirmed the child support

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Opinion of the Court

arrears owed by Father, and stated that he “shall continue to pay $998.00
per month as and for current child support in accordance with [the October
2020 Order].” The parties also agreed that an income withholding order
would be issued against Father’s wages in that amount.

¶6 Several weeks later, and presumably unaware of the January
2021 Order, Judge Albrecht issued an order stating that “Father is obligated
to pay child support to Mother” in the amount of $76 per month (“February
2021 Order”). Neither the January 2021 Order nor the February 2021 Order
included any reference to Arizona Rule of Family Law Procedure (“Rule”)
78(b) or (c) suggesting the orders were appealable. Mother then petitioned
to modify in March 2021, explaining that after Father filed his December
petition, Father’s obligation to pay $998 per month was confirmed at the
January 2021 hearing. Mother contended that although she was served
with Father’s petition in December 2020, as a self-represented litigant at the
time, she believed it would be addressed at the January 2021 hearing, which
was “well within the 20-day response time.”

¶7 For various reasons not relevant here, the hearing on Mother’s
petition was not held until April 2022. Judge Russell heard from both
parties on their competing positions about the enforceability of the January
2021 Order versus the February 2021 Order. Mother explained that the
parties entered their agreement as a result of the January 2021 hearing, and
she did not object to Father’s petition because she believed it was resolved
at that time. She suggested that Judge Albrecht did not know about the
January stipulation. Father countered that he did not believe the February
2021 Order was a mistake; it was correctly entered because he was making
less than minimum wage at that time. The parties also testified about their
respective finances.

¶8 In May 2022, Judge Russell issued his ruling, finding that the
parties resolved the issue of Father’s child support obligation at the January
2021 hearing, when Father agreed to keep paying $998 per month. Judge
Russell explained that “[n]othing in the [January 2021 Order] suggest[ed]
that Father retained the right to contest the amount of child support”
originally set forth in the October 2020 Order. Noting that Father’s petition
was “unfortunately routed” to Judge Albrecht in February 2021, Mother’s
failure to request a hearing under the Guidelines was “understandable
given that the parties had already resolved the issue” at the January 2021
hearing. Judge Russell thus vacated the February 2021 Order but declined
to make any changes to Father’s child support obligation. Father timely
appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(2).

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Opinion of the Court

DISCUSSION

¶9 We review child support awards for an abuse of discretion,
Birnstihl v. Birnstihl, 243 Ariz. 588, 590, ¶ 8 (App. 2018), and we will affirm
the court’s rulings for any reason supported by the record, Nia v. Nia, 242
Ariz. 419, 422, ¶ 7 (App. 2017). We review the superior court’s
interpretation of the Guidelines de novo, Amadore v. Lifgren, 245 Ariz. 509,
518, ¶ 28 (App. 2018), and we interpret rules according to statutory
construction principles, Gutierrez v. Fox, 242 Ariz. 259, 267, ¶ 28 (App. 2017).
“If the language of a statute or rule is unambiguous, ‘we apply it as
written.’” Id. (citation omitted). We strive to harmonize related provisions
in the context of the overall scheme. Id.

¶10 Father argues Judge Russell erred by vacating the February
2021 Order because Judge Albrecht was “required” to enter the order under
the simplified procedure authorized by the Guidelines. Under the
Guidelines, however, after Mother failed to request a hearing, in addressing
Father’s request the court had the option of either “enter[ing] an
appropriate order or set[ting] the matter for hearing.” See Guidelines
§ XIV.C.8.

¶11 Father also contends that if Mother wanted to challenge Judge
Albrecht’s ruling, she needed to file a notice of appeal or appropriate
post-judgment motion instead of a modification petition. Without citing
authority, Father also asserts that Judge Russell had no right to unilaterally
question the validity of the February 2021 Order.

¶12 The superior court may modify a child support order only
under circumstances authorized by law, which include (1) a petition to
modify filed under Rule 91.1 after the latest order in the case, (2) a motion
to alter or amend, or the court’s own authority, under Rule 83, (3) correction
of a mistake or omission, or motion to set aside under Rule 85, (4) an
appellate court decision directing it to do so, and (5) when legally justified,
the court’s inherent authority. Father’s December 2020 petition was filed
before the January 2021 Order, so it became moot when he stipulated to
entry of that order. Because he has not established how Judge Albrecht had
legal authority to enter an order that would have substantially changed his
child support obligation under the January 2021 Order, Father cannot show
Judge Russell abused his discretion in vacating Judge Albrecht’s order.

¶13 The standard procedure for child support modification
provides that the superior court may modify the provisions of a child
support decree if a party shows “changed circumstances that are substantial

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Opinion of the Court

and continuing.” A.R.S. § 25-327(A); see also Guidelines § XIV.B (“The
petitioning party bears the burden of showing of a substantial and
continuing change of circumstances from the date when the existing Child
Support Order was filed.”).

¶14 Under the simplified procedure, a party may also petition the
court to modify a child support order if applying the Guidelines “results in
an order that varies 15% or more from the existing amount.” Guidelines
§ XIV.C. “A 15% variation in the amount of the order is considered
evidence of substantial and continuing change of circumstances . . . .” Id.
The party’s petition “must be accompanied by a completed and sworn
Child Support Worksheet, and documentation supporting the incomes if
different from the court’s most recent findings regarding income of the
parents.” Id. (emphasis added). Whether a party seeks modification under
the standard or the simplified procedure, we hold that a petition for
modification must be directed to the most recent child support order. We
reach this conclusion based on the language used in the Guidelines, which
contemplates that the most recent child support order is the benchmark for
a judicial officer to decide whether the existing child support obligation
should be modified.

¶15 Our holding also eliminates potential confusion on the scope
of the issues the parties should be prepared to litigate in addressing the
petition to modify. It further allows for both flexibility and certainty,
depending on the stage of the proceeding. Judgments, including orders
establishing or modifying child support, are not appealable unless they
include a recitation under Rule 78(b) or (c); otherwise, they are modifiable
until that language is added. See Motley v. Simmons, 1 CA-CV 22-0541,
___Ariz. ___, ¶¶ 12, 15 (App. October 10, 2023); Ariz. R. Fam. Law P.
(“ARFLP”) 78(b) (stating that when more than one claim for relief is
presented in a judgment, the decision “is subject to revision at any time” if,
in part, the court has not recited that the judgment is entered under Rule
78(b)); ARFLP 78(c) (“A judgment as to all claims, issues, and parties is not
appealable unless the judgment recites that no further matters remain
pending and that the judgment is entered under Rule 78(c).”). Contrary to
Father’s assertion, the February 2021 Order was not appealable because it
did not include any recitation that it was appealable under Rule 78. See
Motley, ___ Ariz. at ___, ¶ 12 (explaining that the 2022 amendments to Rule
78 apply to all pending cases, including appeals).

¶16 Given these circumstances, a proper analysis of Mother’s
petition to modify required Judge Russell to determine which order applied
to the dispute before him, and he correctly exercised his authority to do so.

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See ARFLP 83(a) (stating that “[t]he court may on its own or on motion alter
or amend all or some of its rulings” on enumerated grounds); see Major v.
Coleman, 251 Ariz. 345, 348, ¶ 13 (App. 2021) (recognizing the superior court
may exercise its inherent authority by taking appropriate actions “to
effectuate the administration of justice in cases pending before it”); see also
Motley, ___ Ariz. at ___, ¶ 15.

¶17 Father also argues the January 2021 Order simply confirmed
the October 2020 Order. He contends that construing the January 2021
Order as resolving his pending petition violates his due process rights
because the order to appear only mentioned Mother’s petition to enforce.
But a party who consents to a judgment generally waives any right to
challenge it on appeal. See Duwyenie v. Moran, 220 Ariz. 501, 506, ¶¶ 16–18
(App. 2009). Even so, Father does not identify when he raised a due process
concern in the superior court. See Chang v. Siu, 234 Ariz. 442, 446, ¶ 12 (App.
2014) (“An appellate court normally will not address arguments not raised
in the superior court prior to the appeal.”). And to the extent Father
suggests his December 2020 petition was not addressed at the January 2021
hearing, we will not draw that inference because he has not provided a
transcript. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995) (“A party is
responsible for making certain the record on appeal contains all transcripts
or other documents necessary for us to consider the issues raised on
appeal.”).

¶18 Irrespective of whether Father had specific notice of what the
January 2021 hearing would encompass, or what was discussed at that
hearing, as a matter of law his petition to modify was rendered moot when
he entered into the stipulated judgment. He expressly agreed to pay $998
per month in child support. When the parties agreed to this stipulated
judgment, it became the most recent order because it now contained the
court’s most “recent findings” under the Guidelines. The January 2021
Order thus re-established Father’s child support obligation. If he wanted
the court to change that order, he had to file a new petition. And without
it, Judge Albrecht lacked the authority to enter the February 2021 Order.
See ARFLP 23(a) (“A ‘petition’ is the initial pleading that begins
. . . a post-decree matter.”).

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Opinion of the Court

CONCLUSION

¶19 We affirm the superior court’s May 2022 order. We deny
Mother’s request for attorneys’ fees because she is a self-represented
litigant. See Munger Chadwick, P.L.C. v. Farwest Dev. & Constr. of the Sw.,
LLC, 235 Ariz. 125, 126, ¶ 5 (App. 2014). As the successful party on appeal,
Mother is awarded taxable costs subject to her compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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