NOTICE: NOT FOR PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE 

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

DANA BERES, Petitioner/Appellant, 

v.

GARY BERES, Respondent/Appellee. 

No. 1 CA-CV 13-0675 

 

Appeal from the Superior Court in Maricopa County 

No. FC2003-070681 

The Honorable Michael W. Kemp, Judge 

VACATED AND REMANDED 

COUNSEL 

Davis Limited, Scottsdale 

By Greg R. Davis 

Counsel for Petitioner/Appellant 

Gary Beres, Florence 

Respondent/Appellee

MEMORANDUM DECISION 

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in 

which Judge Randall M. Howe and Judge Maurice Portley joined. 
BERES v. BERES 

Decision of the Court 

2 

O R O Z C O, Judge: 

¶1 Dana Beres (Mother) appeals the dismissal of her petition to 

modify child support. For the following reasons, we vacate the dismissal 

of her petition and remand the case to the family court for further 

proceedings consistent with this decision. 

FACTS AND PROCEDURAL BACKGROUND 

¶2 Mother and Gary Beres (Father) were divorced in 2004, and 

Father agreed to pay child support for their one child. Father was 

incarcerated in 2009,1 and his child support obligation was terminated as 

part of a 2010 custody, parenting time, and support modification. Mother 

filed another child support modification petition in 2013, alleging that 

Father had received a $250,000 “inheritance” in a trust (the Trust) from a 

deceased family member and asking the family court to modify Father’s 

child support obligation. Father moved to dismiss Mother’s petition under 

Arizona Rule of Family Law Procedure (Rule) 32.B.6., arguing that any 

claim brought by Mother against his interest in the Trust was void because 

the Trust contained a spendthrift provision. The family court granted 

Father’s motion without further comment. Mother timely appealed, and 

we have jurisdiction under Article 9, Section 6 of the Arizona Constitution, 

and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (West 2014) 

and -2101.A.1 (West 2014). 

DISCUSSION 

¶3 Mother contends the family court erred in dismissing her 

petition because the petition pled a claim in accordance with Arizona law 

governing support modification. Because Rule 32.B.6 is the family law 

equivalent of Arizona Rule of Civil Procedure 12(b)(6), we review de novo 

the petition’s dismissal on Rule 32 grounds. See Coleman v. City of Mesa, 230 

Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012) (reviewing a Rule 12(b)(6) 

motion de novo); Kline v. Kline, 221 Ariz. 564, 568-69, ¶ 13, 212 P.3d 902, 906-

07 (App. 2009) (noting that law interpreting other statewide rules is 

applicable when “the language of the family law rules is substantially the 

same”). We assume as true the facts pled in the modification petition, and 

we will affirm dismissal only if Mother is not entitled to relief under any 

 

1 Father’s answering brief on appeal states that he was incarcerated in 

2007. 
BERES v. BERES 

Decision of the Court 

3 

interpretation of the facts “susceptible of proof.” See Fidelity Sec. Life Ins. 

Co. v. State Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4, 954 P.2d 580, 582 (1998). 

¶4 The Arizona Supreme Court has enacted guidelines for 

making child support determinations. See A.R.S. § 25-320 app. § 1.D (2011) 

(Guidelines). We interpret the Guidelines as we do statutes. Patterson v. 

Patterson, 226 Ariz. 356, 358, ¶ 4, 248 P.3d 204, 206 (App. 2011). As relevant 

here, Guidelines § 24.B outlines a “Simplified Procedure” for reviewing 

support modification petitions:

Either parent . . . may request the court to modify a child 

support order if application of the guidelines results in an 

order that varies 15% or more from the existing amount. A 

fifteen percent variation in the amount of the order will be 

considered evidence of substantial and continuing change of 

circumstances. A request for modification of the child 

support amount must be accompanied by a completed and 

sworn "Parent's Worksheet for Child Support Amount," and 

documentation supporting the incomes if different from the 

court's most recent findings regarding income of the parents. 

If the party requesting the modification is unable to provide 

documentation supporting the other party's income, the 

requesting party shall indicate that the income amount is 

attributed/estimated and state the basis for the amount 

listed[.] 

. . . 

A copy of the request for modification of child support and 

the "Parent's Worksheet for Child Support Amount," 

including supporting documentation, showing that the 

proposed child support amount would vary 15% or more 

from the existing child support order shall be served on the 

other parent[.] 

If the requested modification is disputed, the parent receiving 

service must request a hearing within 20 days of service[.] 

. . . 

Upon proof of service and if no hearing is requested within 

the time allowed, the court will review the request and enter 

an appropriate order or set the matter for hearing. 
BERES v. BERES 

Decision of the Court 

4 

¶5 Mother’s petition alleged that Father’s interest in the Trust 

“should produce income of approximately $1,000 per month” and 

requested a modification of up to that amount.2 Mother’s request exceeds 

the Guidelines’ threshold of a fifteen percent support increase. Mother 

complied with the other requirements of § 24.B by indicating in her petition 

how she estimated Father’s income amount, submitting an affidavit 

containing her then-current financial information, and serving Father with 

her petition and supporting documentation. Although Father disputed the 

requested modification by filing a motion to dismiss based on the 

spendthrift clause, he did not request a hearing. Mother filed a response to 

the motion to dismiss and disputed the facts in Father’s motion. 

¶6 Because Father did not request a hearing, the family court was 

required, under the procedure established by Guidelines § 24.B, to either 

adjudicate the merits of the petition or set the matter for hearing. However, 

by not ruling on the merits and dismissing the petition for failure to state a 

claim under Rule 32.B.6, the family court did not follow the Guidelines. 

Mother’s petition states a claim that, if true, is a substantial and continuing 

change of circumstances that may justify a support modification. Because 

we assume the petition’s alleged facts as true, we conclude Mother’s 

petition did not warrant dismissal for failure to state a claim upon which 

relief could be granted. On remand, the family court must determine 

whether it has sufficient evidence to rule on the petition’s merits or whether 

a hearing is required to address the matter further. 

 

2 Father argues that the Trust’s spendthrift provision voids any 

attempt to modify support based on his interest in the Trust. We reject that 

argument, however, because income received from a trust is included in 

determining one’s “Gross Income” for modification purposes. Guidelines 

§ 5.A. If Father is, in fact, receiving income from a trust, a spendthrift 

provision does not exempt the income from being considered for child 

support. See A.R.S. § 14-10503(A). 
BERES v. BERES 

Decision of the Court 

5 

CONCLUSION 

¶7 Because Mother’s petition stated a claim following the 

procedure established by Guidelines § 24.B, we vacate the dismissal and 

remand to the family court for adjudication or a hearing in accordance with 

Guidelines § 24.B.