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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TONYA RENEE HARRIS, 

Petitioner/Appellee,

v.

STEVEN ROBERT BEHNKE, 

Respondent/Appellant.

No. 1 CA-CV 21-0459 FC

Appeal from the Superior Court in Maricopa County

No. FC2018-094094

The Honorable Joshua D. Rogers, Judge

AFFIRMED

COUNSEL

Law Office of Ronald L. Kossack, Tempe

By Ronald L. Kossack, Karla D Urrea-Perry

Counsel for Petitioner/Appellee

Steven Robert Behnke, Mesa

Respondent/Appellant

FILED 8-11-2022
HARRIS v. BEHNKE

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court, 

in which Judge Randall M. Howe and Judge D. Steven Williams joined.

W E I N Z W E I G, Judge:

¶1 Appellant Steven Robert Behnke (“Father”) challenges the 

superior court’s ruling on his post-decree petition to modify spousal 

maintenance and child support. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Tonya Harris (“Mother”) and Father were married from 1995 

to 2020. They share eleven children, including ten minors. At the time of 

dissolution, Father owned a landscaping business and Mother worked parttime as a substitute teacher. The parties agreed on parenting time and child 

support issues, but could not agree on spousal maintenance. After a bench 

trial, the superior court entered a dissolution decree, designating Father as 

the primary residential parent for six of the children, granting equal 

parenting time over four of the children, and awarding Mother $2,000 in 

monthly spousal maintenance for five years. The court awarded no child 

support under the parties’ agreement, even though Father could have 

received $394 per month under the Arizona Child Support Guidelines 

(“Guidelines”).

¶3 Over the next eight months, Mother and Father separately 

petitioned the court for relief. Mother reported that Father had not paid 

spousal maintenance since the court entered the dissolution decree, so she 

asked the court to enforce the decree. Father asked the court to reduce or 

terminate his spousal maintenance obligation, citing a “significant loss of 

income” from “the COVID 19 pandemic.” He also asked that Mother be 

ordered to pay $693.14 in monthly child support. 

¶4 After an evidentiary hearing, the superior court awarded 

Father $604 in monthly child support, finding a substantial and continuing 

change of circumstances in the child support obligation based on “all of the 

credible evidence presented at trial,” including Father’s increased 

parenting time. The court declined, however, to modify Father’s spousal 

maintenance obligation, finding Father had “failed to show a substantial 

and continuing change of the financial circumstances” to meet his burden 
HARRIS v. BEHNKE

Decision of the Court

3

of proof. The court also found that Father’s failure to pay spousal 

maintenance was unreasonable, and thus awarded Mother’s attorney fees 

and costs under A.R.S. § 25-324(A). Father timely appealed. We have 

jurisdiction. See A.R.S. § 12–120.21(A)(1).

DISCUSSION

I. Spousal Maintenance

¶5 Spousal maintenance “may be modified or terminated only 

on a showing of changed circumstances that are substantial and 

continuing.” A.R.S. § 25-327(A). The party who requests a modification

must show changed circumstances. McClendon v. McClendon, 243 Ariz. 399, 

401, ¶ 9 (App. 2017). We review a spousal maintenance award for an abuse

of discretion and will affirm if any reasonable evidence supports it. See

Andrews v. Andrews, 252 Ariz. 415, 417, ¶ 7 (App. 2021).

¶6 Father contends the superior court erroneously declined to 

terminate his spousal maintenance obligation for three reasons. First, he 

argues that spousal maintenance was no longer appropriate because the 

pandemic had caused his residential landscaping business to lose “at least 

65% from the date of the initial decree.” 

¶7 The record shows no abuse of discretion. Father presented 

three years of corporate tax returns and correspondence from two clients 

that terminated his services. On cross-examination, however, Father 

conceded that he told his accountant how much the business had lost, and 

the accountant just accepted and recorded his version of the data. Father 

conceded he had no other evidence, such as bank records, to prove the loss.

Nor did Father explain or present evidence on how two clients caused the 

loss or why he could not find new clients. The superior court also 

determined that Father was not credible, which we do not second-guess on 

appeal. See Carey v. Soucy, 245 Ariz. 547, 552, ¶ 19 (App. 2018) (“[W]e must 

give due regard to the trial court’s opportunity to judge the credibility of 

the witnesses.”) (citation omitted).

¶8 Second, Father contends the court erroneously refused to 

increase Mother’s income based on “substantial and continuing gifts” she 

received from her family. The record shows no abuse of discretion. Mother 

offered her sworn testimony that she only received loans from her family, 

not gifts. Father offered no evidence to rebut that sworn testimony.

¶9 Third, Father argues the court erred by “accepting a 

substantial and continuing change” in modifying child support “but failing 
HARRIS v. BEHNKE

Decision of the Court

4

to apply the same standard to reduce or terminat[e] Spousal Maintenance.” 

Not so. Father confuses two distinct inquiries. Child support and spousal 

maintenance are “considered under different laws” and “involve distinct 

considerations.” Birnstihl v. Birnstihl, 243 Ariz. 588, 593, ¶ 18 n.2 (App. 2018) 

(citations omitted). As relevant here, the Guidelines do not cover spousal 

maintenance. Id.

II. Child Support

¶10 Father also contends “a new child support order should be 

completed,” but the superior court modified the child support order in 

Father’s favor, awarding him $604 per month. Father offers no argument 

on how this was an abuse of discretion, and thus waived the issue. See 

MacMillan v. Schwartz, 226 Ariz. 584, 591, ¶ 33 (App. 2011) (“Merely 

mentioning an argument in an appellate opening brief is insufficient.”).

III. Civil Arrest Warrant

¶11 After briefing was complete on appeal, the superior court 

issued a civil arrest warrant against Father for his continued failure to pay 

spousal maintenance. Father now asks this court to stay enforcement of the 

arrest warrant. See ARCAP 7(c). We decline to consider Father’s motion, 

however, because did not ask the superior court for relief. See Maria v. 

Najera, 222 Ariz. 306, 307, ¶ 5 (App. 2009).

IV. Attorney Fees and Costs on Appeal

¶12 Both parties request their attorney fees and costs incurred on 

appeal under A.R.S. § 25-324(A), which requires us to consider “the 

financial resources of both parties and the reasonableness of the positions 

each party has taken throughout the proceedings.” Having considered 

these factors, we award Mother reasonable attorney fees and taxable costs 

incurred on appeal upon compliance with ARCAP 21.

CONCLUSION

¶13 We affirm.