Brevick v. Brevick

628 P.2d 599, 129 Ariz. 51, 1981 Ariz. App. LEXIS 403
CourtCourt of Appeals of Arizona
DecidedApril 29, 1981
Docket2 CA-CIV 3849
StatusPublished
Cited by20 cases

This text of 628 P.2d 599 (Brevick v. Brevick) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brevick v. Brevick, 628 P.2d 599, 129 Ariz. 51, 1981 Ariz. App. LEXIS 403 (Ark. Ct. App. 1981).

Opinion

OPINION

BIRDSALL, Judge.

This is an appeal from a modification of a child support award.

*52 The parties were divorced in January, 1975. Pursuant to a property settlement agreement incorporated into the dissolution decree, appellee was awarded custody of their two children and appellant was obligated to pay appellee $175 per month per child for child support until the children became eighteen years old or otherwise emancipated.

In April, 1980, appellee petitioned for modification to increase the amount of the child support award. The modification was granted after a full hearing. Effective September, 1980, appellant’s child support obligation for the two children was to increase from $350 to $400 per month. Effective January, 1981, the support obligation was to increase to $435 per month. Effective January, 1982, and every January thereafter, the child support for the coming year for the two children was to be set at 30% of appellant’s net income from his employment averaged over the preceding twelve months. Upon the emancipation of the first child, the support obligation would become 20% of appellant’s net income. Net income from employment was defined as “gross earnings less annualized FICA, Federal and State withholding based on the actual number of exemptions to be claimed on tax returns for said preceding year, and required deductions for hospital and medical insurance”.

Appellant contends that the increase in child support was an abuse of discretion because (1) there was insufficient evidence upon which to base a finding to justify the modification; (2) the court did not consider all the factors set forth in A.R.S. § 25-320 in ordering the increase; and (3) the court was not authorized by law to base future child support on a percentage of appellant’s income. As to appellant’s last contention, we agree.

A prerequisite to modification of a child support order is a showing of changed circumstances which are substantial and continuing. A.R.S. § 25-327(A). Cf. In re Marriage of Rowe, 117 Ariz. 474, 573 P.2d 874 (1978) (modification of spousal maintenance). The determination of whether sufficiently changed circumstances have occurred is a matter within the sound discretion of the trial court which will not be disturbed on appeal if supported by competent evidence. Beck v. Jaegar, 124 Ariz. 316, 604 P.2d 18 (App.1979). Cf. Scott v. Scott, 121 Ariz. 492, 591 P.2d 980 (1979) (modification of spousal maintenance).

Appellant argues that the court’s determination that sufficiently changed circumstances existed was not supported by the evidence. We do not agree.

The evidence showed that since the 1975 dissolution decree the income of each party had increased. The increase in appellee’s income was due to the fact she had become employed. The evidence also showed the current living expenses of the parties and their children. The increase in the cost of living and its effect as to child support payments was discussed, the propriety of which has been recognized by this court. See Beck v. Jaegar, supra. Cf. In re Marriage of Stamp, 300 N.W.2d 275 (Iowa, 1980) (judicially noticed the reduced purchasing power of the dollar when considering child support payments in modification proceedings); In re Marriage of Mahalingam, 21 Wash.App. 228, 584 P.2d 971 (1978) (recognized that these are times of economic uncertainty in which “rampant inflation” quickly diminishes the effective amount of support).

Although there was no direct evidence comparing the cost of supporting the children now with 1975, such an inference may be drawn from the evidence. Appellee testified that she thought the original child support award was adequate in 1975. She also said that it was not adequate now. She has been receiving financial assistance from her parents to meet expenses for herself and the children. She presented an accounting of her expenses showing the separate expenses of the children and those she shares with them. Appellant testified that, in 1975, $350 per month was the maximum he was able to pay. Since his income is now substantially greater, that is no longer the case.

*53 In 1975, the children were three and five years old. At the time of the hearing, they were eight and ten. The current expenses for the children listed by appellee reflect needs not likely to have existed when they were pre-school age. Such expenses include school tuition, uniforms, and supplies, orthodontist and dentist charges, dance lessons, hobbies, and religious needs.

We therefore hold that the court’s implicit finding of changed circumstances sufficient to justify modifying the child support award is supported by the evidence.

Appellant’s assertion of insufficient evidence is based on the fact that most of appellee’s evidence of her income and expenses came from her testimony. However, the credibility of witnesses is a matter peculiarly within the province of the trier of facts. Nutter v. Bechtel, 6 Ariz.App. 501, 433 P.2d 993 (1967). Since the trial court’s conclusion is reasonably supported by the evidence, we will not interfere.

Appellant also contends that the court’s increase of the child support award was arbitrary and capricious because it failed to consider all the factors listed in A.R.S. § 25-320. The court is authorized to order either or both parents to pay an amount reasonable and necessary for the support of their child after considering all relevant factors, including:

“1. The financial resources and needs of the child.
2. The financial resources and needs of the custodial parent.
3. The standard of living the child would have enjoyed had the marriage not been dissolved.
4. The physical and emotional condition of the child, and his educational needs.
5. The financial resources and needs of the noncustodial parent.” A.R.S. § 25-320 1

Appellant’s argument that the court based its decision solely on his income is not supported by the record. The court received evidence pertaining to these five factors. That the court concluded that an increase was appropriate does not indicate that the decision was based on appellant’s increased income only.

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Bluebook (online)
628 P.2d 599, 129 Ariz. 51, 1981 Ariz. App. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brevick-v-brevick-arizctapp-1981.