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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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: 

THERESA L. BURNS, Petitioner/Appellee, 

v.

FRANK L. BURNS, Respondent/Appellant. 

No. 1 CA-CV 15-0175 FC 

 

Appeal from the Superior Court in Maricopa County 

No. FC2003-093584 

The Honorable Peter A. Thompson, Judge 

AFFIRMED 

COUNSEL 

Keil & Keil Law Office, Glendale 

By Martin F. Keil, Jr. 

Counsel for Petitioner/Appellee

Leavell & Rivera, PLC, Phoenix 

By Thomas H. Leavell 

Counsel for Respondent/Appellant
BURNS v. BURNS 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined. 

H O W E, Judge: 

¶1 Frank L. Burns (“Father”) appeals the family court’s denial of 

his motion for relief from judgment under Arizona Rule of Family Law 

Procedure 85(C) and his petition to retroactively modify child support 

pursuant to A.R.S. § 25–327(A). For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY 

¶2 Father and Theresa L. Burns (“Mother”) divorced in 2004 and 

agreed that Father would make monthly child support payments to Mother 

for their three then-minor children. Two years later, Mother petitioned to 

modify the child support, which the family court subsequently ordered 

after Mother and Father attended a court-ordered conference. Four days 

after the court issued its order, Father notified the family court of a change 

to his address. 

¶3 Father paid his child support each month in the following 

years, but stopped soon after October 2010 when he began a thirty-six 

month criminal sentence at a federal correctional facility in New Jersey.

Father petitioned to modify his child support in March 2011, arguing that 

although he had continued to make payments through the first months of 

his incarceration, he could no longer afford to do so because he made only 

eleven dollars per month at the prison. He neither served the petition to 

Mother nor took any further action relating to it, however. 

¶4 The following month, the prison transferred Father to solitary 

confinement at a segregated housing unit for non-disciplinary reasons. 

There, Father could not send or receive mail unless specifically designated 

“Legal Mail.” He did not inform the family court of his transfer or the mail 

restriction. In July 2011, the family court issued Father a notice of its intent 

to dismiss his petition for lack of prosecution. The court mailed the notice 

to the address listed on Father’s petition. But because Father remained in 

the segregated housing unit, he did not receive the notice and took no 

action. Consequently, the family court dismissed Father’s petition without 
BURNS v. BURNS 

Decision of the Court 

3

prejudice in September 2011. In October, the prison released Father from 

solitary confinement and transferred him to two other facilities before 

Father completed his sentence in May 2013. 

¶5 Nine months later, Father learned through Mother that the 

family court had dismissed his March 2011 petition and that he had 

accumulated arrearages during his incarceration. As a result, Father 

petitioned in June 2014 for a downward deviation of his child support 

obligation and requested that the deviation apply retroactively to the date 

of his March 2011 petition. He argued that A.R.S. § 25–327(A), which allows 

child support modifications when substantial and continuing changes exist, 

allowed retroactive modification because his incarceration constituted such 

a change. He also argued that Arizona Rule of Family Law Procedure 85(C), 

which permits relief from a final judgment for excusable neglect or other 

justifying reason, entitled him to relief because he had no way of knowing 

that the court had dismissed his March 2011 petition while he was in 

solitary confinement. 

¶6 Mother counter-petitioned, arguing that Father was in 

contempt of court for failing to pay child support and that any modification 

to child support would only be effective beginning July 2014 because 

A.R.S. § 25–327(A) provides that modifications become effective the month 

following the petition. After hearing oral argument, the family court denied 

Father’s request to modify child support retroactively to March 2011. 

Instead, the family court ordered an upward deviation of Father’s child 

support obligation effective July, August, and September 2014, when the 

youngest of the children had become emancipated. The family court found 

that Father had not established grounds under Arizona Rule of Family Law 

Procedure 85(C) to justify relief from the dismissal of his March 2011 

petition because Father’s failure to serve Mother or follow up constituted a 

lack of diligence, not excusable neglect. Father timely appealed. 

DISCUSSION 

¶7 Father argues that the family court erred in denying him relief 

from its dismissal of the March 2011 petition and in denying his subsequent 

petition to reduce his child support retroactively to March 2011. We review 

the family court’s ruling on a petition to modify child support for an abuse 

of discretion. Milinovic v. Womack, 236 Ariz. 612, 615 ¶ 7, 343 P.3d 924, 927 

(App. 2015). Likewise, we review the family court’s denial of a motion to 

relieve from judgment for an abuse of discretion. Duckstein v. Wolf, 

230 Ariz. 227, 231 ¶ 8, 282 P.3d 428, 432 (App. 2012). However, we review 

de novo the family court’s interpretations of procedural rules and statutes 
BURNS v. BURNS 

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4

as questions of law. Alice M. v. Dep’t of Child Safety, 237 Ariz. 70, 72 ¶ 7, 345 

P.3d 125, 127 (App. 2015); Guerra v. Bejarano, 212 Ariz. 442, 443 ¶ 6, 133 P.3d 

752, 753 (App. 2006). We hold that the family court did not err in applying 

Arizona Rule of Family Law Procedure 85(C) or A.R.S. § 25–327(A) and did 

not abuse its discretion in denying relief or Father’s petition to retroactively

modify child support to March 2011. 

1. Application of Arizona Rule of Family Law Procedure 85 

¶8 Father first argues that the family court erred by improperly 

applying Rule 85(C)(1)(a) to deny him relief from the court’s dismissal of 

his March 2011 petition because he did not receive actual notice. The rule 

provides that, “On motion and upon such terms as are just the court may 

relieve a party . . . from a final judgment, order, or proceedings for . . . 

mistake, inadvertence, surprise, or excusable neglect.” Ariz. R. Fam. 

L.P. 85(C)(1)(a). Such a request for relief must be made within six months 

of the judgment. Ariz. R. Fam. L.P. 85(C)(2). 

¶9 The family court did not err in its application of Rule 

85(C)(1)(a). First, Father did not establish the requisite mistake, 

inadvertence, surprise, or excusable neglect. Arizona Rule of Family Law 

Procedure 43(C)(2)(c) provides that service of written notice is complete 

upon its mailing to the person’s last known address. Because the court 

mailed the notice of intent to dismiss to Father’s last known address, no 

mistake occurred. Father’s failure to update his address with the court after 

being transferred is not excusable neglect. See Daou v. Harris, 139 Ariz. 353, 

360, 678 P.2d 934, 941 (1984) (stating that a judgment will not be disturbed 

if acquired because of a party’s mere neglect). Second, Father did not seek 

Rule 85 relief until three years after the family court dismissed his March 

2011 petition. Father counters that the six-month period should have tolled 

until he became actually aware that the family court had dismissed his 

petition, thus making his motion timely. But Father’s interpretation directly 

contradicts the plain language of the rule, which specifies that a party must 

seek relief “not more than six (6) months after the judgment.” Ariz. R. Fam. 

L.P. 85(C)(2) (emphasis added). Nothing in the rule provides that the sixmonth period may be tolled. See generally Ariz. R. Fam. L.P. 85. 

¶10 Father next argues that the family court erred by not 

alternatively granting relief under Rule 85(C)(1)(f) because of his inability 

to receive mail while in solitary confinement. The subsection is a “catch-all 

provision” which permits a party to request relief for any justifying reason. 

Ariz. R. Fam. L.P. 85(C)(1)(f), (C)(2); Panzino v. City of Phoenix, 196 Ariz. 442, 

445 ¶ 6, 999 P.2d 198, 201 (2000) (interpreting Ariz. R. Civ. P. 60); see also 
BURNS v. BURNS 

Decision of the Court 

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Ariz. R. Fam. L.P. 1 cmt. (providing that we can consider case law 

interpreting Ariz. R. Civ. P. 60(C) in interpreting Rule 85 because the rules’

language is substantially similar). To obtain this relief, a party must show 

(1) extraordinary circumstances of hardship or injustice justifying relief and 

(2) that the reason for relief is one other than the reasons enumerated in the 

preceding five clauses of Rule 85(C). Panzino, 196 Ariz. at 445 ¶ 6, 

999 P.2d at 201. A party must file this motion “within a reasonable time.” 

Ariz. R. Fam. L.P. 85(C)(2). In other words, the party must act promptly in 

seeking relief. Hilgeman v. Am. Mortg. Secs., Inc., 196 Ariz. 215, 220 ¶ 15, 994 

P.2d 1030, 1035 (App. 2000). Courts must consider the totality of the facts 

and circumstances in determining whether relief under this rule is 

appropriate. Amanti Elec., Inc. v. Engineered Structures, Inc., 229 Ariz. 430, 

432 ¶ 7, 276 P.3d 499, 501 (App. 2012). 

¶11 The family court did not abuse its discretion in denying relief 

under Rule 85(C)(1)(f) because Father did not show extraordinary hardship 

or injustice and did not request relief within a reasonable time. First, no 

extraordinary hardship existed because the family court sent Father notice 

of its intent to dismiss his petition to Father’s last known address, as 

required. See Ariz. R. Fam. L.P. 43 (stating that service is complete upon 

mailing the written notice “via U.S. mail to the person’s last known 

address”). Nothing in Rule 43 requires the court to do anything beyond 

completing service to ensure that Father receive actual notice. Although 

Father could not receive mail not specifically designated “Legal Mail” while 

in solitary confinement, Father could have notified the family court via 

“Legal Mail” of his address change or the additional mail restriction. The 

record shows that Father had updated his address with the court once 

before, showing that he knew that he needed to update the court and that 

he knew how to do so. 

¶12 Second, no injustice existed here. The record shows that, 

when not in solitary confinement, Father demonstrated the ability to 

research, draft, and file a petition for modification. The record also shows 

that Father participated in a child support modification process once before 

his incarceration, including a court-ordered conference, and therefore 

should have known that, aside from needing to serve Mother, the 

modification process required more interaction with the court than merely 

submitting a petition. See In re Marriage of Williams, 219 Ariz. 546, 

549 ¶ 13, 200 P.3d 1043, 1046 (App. 2008) (stating that pro se litigants are 

held to the same standards as attorneys regarding required procedures). 

The record does not show that Father took any steps to check on the status 

of his petition in the one-month period between the filing of the March 2011 

petition and when the prison placed him in solitary confinement. 
BURNS v. BURNS 

Decision of the Court 

6

Additionally, when the correctional facility released Father from solitary 

confinement in October 2011, and Father again had access to the same 

resources and materials, he did not check the status of his petition or 

whether the family court had attempted to contact him in the preceding 

months. 

¶13 Finally, the record shows that Father did not act promptly in 

seeking relief. Father completed his sentence in May 2013, but did not move 

for relief until June 2014. In fact, nothing in the record suggests that Father 

used reasonable diligence in that one-year period to determine the status of 

his case. Father counters that the family court wrongly ignored the fact that 

he did not receive actual notice of dismissal pursuant to Arizona Rule of 

Family Law Procedure 40. But that rule addresses only service of process 

for summons and is not applicable here. See Ariz. R. Fam. L.P. 40(I). 

Accordingly, because Father did not show extraordinary hardship or 

injustice and failed to seek relief in a reasonable time, the court did not 

abuse its discretion in denying Father relief under Rule 85(C). 

2. Application of A.R.S. § 25–327(A) 

¶14 Father argues finally that the family court failed to properly 

apply A.R.S. § 25–327(A) to decrease his child support obligation and do so 

retroactively to the date of the March 2011 petition. But the trial court 

properly applied the statute here. The statute allows the family court to 

modify a child support order “only on a showing of changed circumstances 

that are substantial and continuing” except for any amount that accrued as 

an arrearage before the date of notice of the modification request. 

A.R.S. § 25–327(A). The statute further states that “[m]odifications . . . are 

effective on the first day of the month following notice of the petition for 

modification . . . unless the court, for good cause shown, orders the change 

to become effective at a different date but not earlier than the date of filing the 

petition for modification . . . .” Id. (emphasis added). 

¶15 Here, the family court considered the relevant financial 

factors and found that no downward deviation was appropriate. Further, 

the statute specifically precluded the family court from modifying child 

support effective at any time before the date that Father filed the June 2014 

petition—the only valid petition at issue. Father counters that he is 

nonetheless entitled to retroactive modification because his incarceration 

and lack of income were, “for all intents and purposes,” grounds for 

automatic modification. But because those are not actual grounds for 

automatic modification as a matter of law like emancipation or marriage, 

see A.R.S. § 25–503, the limits of A.R.S. § 25–327(A) apply. See Guzman v. 
BURNS v. BURNS 

Decision of the Court 

7

Guzman, 175 Ariz. 183, 185, 854 P.2d 1169, 1171 (App. 1993) (“[T]he rule 

against retroactive modification . . . has no application in a situation in 

which a minor child has become emancipated through marriage.”). Thus, 

because the June 2014 petition is the only valid petition, the family court 

did not err in denying Father’s request to retroactively modify child 

support to March 2011. 

3. Attorneys’ Fees

¶16 Father requests attorneys’ fees and costs pursuant to 

A.R.S. § 25–324 and upon compliance with Arizona Rule of Civil Appellate 

Procedure 21(C). After considering the reasonableness of his position, we 

decline to grant the requests in the exercise of our discretion. See Fry v. 

Garcia, 213 Ariz. 70, 74 ¶ 14, 138 P.3d 1197, 1201 (App. 2006). 

CONCLUSION

¶17 For the foregoing reasons, we affirm.