2018 Cases Wrapped Up: Amadore and Davis – and the new Rules

2018 Cases Wrapped Up: Amadore and Davis – and the new Rules

Amadore v. Lifgren.   (2018)  While this case involved the modification of spousal maintenance and child support retroactive to the date of filing for modification, and discussed how to handle the overpayments made as the result of the retroactive reduction in those amounts, I found the most interesting holding in this case to be that the Child Support Guidelines (Section 9) do not require the court to proportionally divide the child’s noncovered medical expenses. The Guidelines tell the court to “specify the percentage that each parent shall pay for” these expenses.”  So, a pro rata division of noncovered medical is not a slam dunk, and the court can direct each parent’s percentage, regardless of each parent’s proportional share of total income.

Regarding the modification of child support and spousal maintenance, this case noted that just because a party is earning a certain amount at the time the modification is ordered, that’s not proof the person was/ could have been earning that amount all the way back to the time the modification action was filed.  In this case, Mother was earning $42,000/ year by the time of the hearing, but the court’s attribution of that income her all the way back to the original filing (about two years’ previous) was error, because Mother had only been earning that salary for about seven months.

This is another case (like Nia v. Nia) where a child support amount with an upward deviation was agreed on at the time of the Decree, and once the payor decides to file for modification, the upward deviation is gone.  So long as some “substantial change” had occurred which warrants a modification (and in this case, Mother’s income was a substantial change), Mother had to start all over from scratch to once again prove that an upward deviation should be applied.

Davis v. Davis (2018)  I mention this case only because it highlights a recent change to the Arizona Rules of Family Law Procedure (ARFLP) concerning both court interviews of children and the use of Court-Appointed Advisors (CAAs).   In Davis, Father challenged the trial court ruling because a CAA had testified in the case, and had spoken with the children, but the CAA had not recorded the interview with the children.   Father contended that the CAA was required to record the interview under Rule 12, ARFLP.   Prior to 1/1/2019, Rule 12 on this issue stated:

12A.  . . . [T]he court may conduct an in camera interview with a minor child who is the subject of a legal decision-making or parenting time dispute to ascertain the child’s wishes as to both. The interview must be recorded by a court reporter or any electronic medium that is retrievable in perceivable form. The record of the interview may be sealed from the public, in whole or in part, based upon good cause and after considering the best interests of the child.

. . .

12C. Definition. As used in this rule, “court” includes any Conciliation Services department, agency or other third-party professional ordered by the assigned judge to conduct a child interview pursuant to ARIZ. REV. STAT. § 25-405 or the Arizona Rules of Family Law Procedure.

Even using this version of Rule 12, the appellate court found that the appointment of a CAA, and the standard appointment order which allows the CAA “access” to the children, was not a  direction from the court to “conduct a child interview”, and thus Rule 12 did not apply to the CAA.    A CAA is directed to conduct an investigation and submit a report and a CAA is subject to cross-examination, as opposed to someone who is interviewing a child at the specific direction of the court.   The appellate court noted that nothing in Rule 10 (the CAA appointment rule) or Rule 12 stated that the recording requirements applied to a CAA.

Even before this opinion was published, the committee revising the Rules of Family Law Procedure had closed the loophole as to whether a CAA needs to record interviews with children.  The answer is no, and Rule 12 (effective January 1, 2019) now provides:

Rule 12B.   Definition of “Court.” As used in this rule, “court” includes any Conciliation Services department, agency, or other third-party professional ordered by the assigned judge to conduct a child interview under A.R.S, § 25-405 or these rules. This definition excludes court-appointed advisors under Rule 10.1 and experts hired by the parties.   (Emphasis added)

The Newest version of the Arizona Rules of Family Law Procedure will shortly be available on the Arizona Supreme Court’s website.   Until the website is updated, here’s a PDF of the revised Rules.  

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