IN THE



# A RIZONA 

# C OURT OF 

# A PPEALS

D IVISION O NE

In re the Matter of:

HEIDI L. NICKEL
, Petitioner/Appellee
,

v.

CHRISTOPHER K. POTTER
, Respondent/Appellant

.

No. 1 CA

- CV 22

- 0451 FC

Appeal from the Superior Court in Maricopa County

No. FC2010

- 052126 The Honorable Andrew J. Russell
, Judge The Hon orable Richard Albrecht, Judge Pro Tempore The Honorable Michelle Carson, Judge

AFFIRMED

APPEARANCES

Heidi L. Nickel, Cave Creek Petitioner/Appellee

Christopher K. Potter , Cave Creek Respondent/Appellant FILED 10-10-2023NICKEL v. POTTER Opinion of the Court

2 OPIN ION
Judge Michael J. Brown delivered the opinion o f the Court, in which Presiding Judge Paul J. McMurdie and Judge Michael S. Catlett joined.

B R O W N , Judge:

¶1 Christopher K. Potter (“Father”) appeals the superior court’s ruling vacating a child support order that was entered without consideration of the most recent order issued by a different judge in the

same case

. Because a petition to modify child support must seek to modify the most recent child support order issued in the di vorce proceeding
, we affirm

.
BACKGROUND

¶2 Heidi L. Nickel (“Mother”) petitioned for di vorce in 2010

. After a default hearing, the superior court awarded Mother sole custody of the parties’ two minor children and order ed Father to pay child suppor t

. In 2011
, Father and Mother stipulated to joint custody , with neither party
pay ing child support.

¶3 In 2020
, Mother petitioned to modify legal decision

- making, parenting time , and child support. After a n evidentiary hearing
, the court awarded Mother sole legal decision

- making, with Father having supervised parenting time along with the obligation to pay Mother $998 per month in child support (“October 2020 O rder”)

. ¶4 On December 1, 2020, Mother petitioned to enforce child support. Th e superior court set a hearing for mid

- January 2021 to address Mother’s petition, ordering the parties to appear

. On December 29, 2020, Father file d a petition to modify the October 2020 Order through the “simplified process” authorized by the Arizona Child Support Guidelines. See A.R.S. § 25

- 320 app. (“Guidelines”) § XIV.C. He attached a child support worksheet and a proposed order listing his child support obligation as $76 per month, effective January 1, 2021

. ¶5 A s a result of the January 2021 hearing
, Judge Carson issued a minute entry acknowledging that the parties had “reached a full agreement.” Judge Carson the n approved the p arties’ stipulated judgment and order (“January 2021 Order”)
, which confirm ed the child supportNICKEL v. POTTER Opinion of the Court

3 arrears owed by Father, and stated that he “shall continue to pay $998.00 per month as and for current child support in accordance with [the Oct ober 2020 O rder].” The parties also agreed that an income withholding order would be issued against Father’s wages in that amount.

¶6 Several weeks later, and presumably unaware of the January 2021 Order, Judge Albrecht issued a n order s tating that “ Father is obligated to pay child support to Mother” in the amount of $76 per mon th (“February 2021 O rder”). Neither the January 2021 Order nor the February 2021 Order included any reference to Arizona Rule of Family Law Procedure (“Rule”) 78( b) or (c) suggesting the orders were a ppealable

. Mother then petitioned to modify in March 2021 , explaining t hat after Father filed his December petition, Father ’s obligation to pay $998 per month was confirmed at the January 2021 hearing. Mother contended that although she was served with Father’s petition in December 2020, as a self

- represented litigant at the time , she believed it would be address ed at the January 2021 hearing , which

was “ well within the 20

- day response time

. ”

¶7 For vario us reasons not relevant here
, the hearing on Mother’s petition was not held until April 2022. Judge Russell heard from both parties on the ir competing positions about the enforceability of the January 2021 O rder versus the February 2021 O rder

. Mother exp lained that the parties entered their agreement as a result of the January 2021 hearing, and she did not object to Father’s petition because she believed it was resolved at th at time. She suggested that Judge Albrecht did not know about the January stipulation. Father co untered that he did not believe the February 2021 O rder was a mistake ; it was correctly entered because he was making less than minimum wage at that time. The parties also testified about their
respec tive finances.

¶8 In May 2022, Judge Russell issued his ruling , finding that the parties resolved the issue of Father’s child support obligation at the January 2021 hearing, whe n Father agreed to keep paying $998 per month. Judge Russell explained that “[n] othing in the [January 2021 O rder] suggest[ed] that Father retained the right to contest the amount of child support” originally set forth in the October 2020 O rder. Noting that Father’s petition was “unfortunately routed ” to Judge Albrecht in February 2021 , Mother’s failure to requ est a hearing under the Guidelines was “understand a bl e given that the parties had already resolved the issue” at the January 2021 hearing

. Judge Russell thus vacated the February 2021 O rder but declined to make any c hanges to Father’s child support obligation. Father timely appealed, and we have jurisdiction under A.R.S. § 12

- 2101(A)( 2 ).NICKEL v. POTTER Opinion of the Court

4 DISCUSSION

¶9 We review child support awards for an abuse of discretion
, Birnsti hl v. Birnstihl , 243 Ariz. 588, 590, ¶ 8 (App. 2018 ) , and we will affirm the court’s rulings for any reason supported by the record
, Nia v. Nia , 242 Ariz. 419, 422, ¶ 7 (App. 2017)

. We review the superior court’s interpretation of the Guidelines de novo
, Amadore v. Lifgren , 245 Ariz. 509, 518, ¶ 28 (App. 2018) , and we interpret rules according to statutory construction principles
, Gutierrez v. Fox , 242 Ariz. 259, 267, ¶ 28 (App. 2017)

. “If the language of a statute or rule is unambiguous, ‘ we apply it as written. ’ ” Id

. (citation omitted). We striv e to harmonize related provisions in the context of the overall scheme. Id

. ¶10 Father argues Judge Russell erred by vacating the February 2021 O rder because Judge Albrecht was “required” to enter the order unde r the simplified procedure authorized by the Guidelines. Under the Guidelines, however, after Mother failed to request a hearing
, in addressing Father’s request the court had the option of either “ enter [ ing ] an appropriate order or set [ ting ] the matter for hearing.” See Guidelines § XIV. C

. 8

. ¶11 F ather also contends that if Mother wanted to challenge Judge Albrecht’s ruling
, she needed to file a notice of appeal or appropriate post

- judgment motion instead of a modification petition

. W ithout citing authority, Father also asserts that Judge Russell had no right to unilaterally question the validity of the February 2021 Order

. ¶12 The superior court may modify a child support order only under circumstances authorized by law , which include (1) a petition to modify filed under Rule 91.1 afte r the latest order in the case, (2) a motion to alter or amend , or the court’s own authority, under Rule 83, (3) correction of a mistake or omission, or motion to set aside under Rule 85 , ( 4 ) an appellate court decision directing it to do so , and ( 5 ) when legally justified, the court’s inherent authority

. Father’s December 2020 petition was filed before the January 2021 Order
, so it became moot when he stipulated to entry of that order . Because he has not established how Judge Albrecht had legal authority to enter an order that would have substantially changed his child support obligation under the January 2021 Order, Father cannot show Judge Russell abused his discretion in vacating Judge A lbrecht’s order

. ¶13 T he standard procedure for child support modificatio n provides that the superior court may modify the provisions of a child support decree if a party shows “changed circumstances that are substantialNICKEL v. POTTER Opinion of the Court

5 and continuing.” A.R.S. § 25

- 327(A); see also Guidelines § XIV. B (“ The petitioning party bears the burden of showing of a substantial and continuing change of circumstances from the date when the existing Child Support Order was filed.”)

. ¶14 Under the simplified procedure, a party may also petition the court to modify a chil d support order if applying the Guidelines “results in an order that varies 15% or more from the existing amount.” Guidelines § XIV. C . “A 15% variation in the amount of the order is considered evidence of substantial and continuing change of circumstanc es

. . . . ” Id. The party’s petition “ must be accompanied by a completed and sworn Child Support Worksheet, and documentation supporting the incomes if different from the court’s most recent findings regarding income of the parents.” Id. (emphasis added). Whether a party seeks modification under the standard or the simplified procedure, we hold that a petition for modification must be directed to t he most recent child support order

. We reach this conclusion based on t he language used in the Guidelines, which contemplate s that the most recent child support order is t he benchmark for a judicial officer to decid e whether the existing child support obligation should be modified

. ¶15 Our holding also eliminates potential confusion on the scope

o f the issues the parties should be prepared to litigate in addressing the petition to modify . It further allows for both flexibility and certainty, depending on the stage of the proceeding. J udgment s , including orders establishing or modifying child support, are not appealable unless they include a recitation under Rule 78(b) or (c) ; otherwise, they are modifiable until th at language is added

. See Motley v. Simmons
, 1 CA

- CV 22

- 0541
, ___Ariz. _

__ , ¶ ¶ 12, 1 5 (App. Oc tober 10 , 2023 ) ; Ariz. R. Fam. Law P. (“ARFLP”) 78(b) (stating that when more than one claim for relief is presented in a judgment, the decision “ is subject to revision at any time ” if, in part, the court has not recited that the judgment is entered under Rule 78(b)) ; ARFLP 78( c ) (“ A judgment as to all claims, issues, and parties is not appealable unless the judgment recites that no further matters remain pending and that the judgmen t is entered under Rule 78(c). ”). Contrary to Father’s assertion, the February 2021 Order was not appealable because it did not include any recitation that it was appealable under Rule 78. See Motley
, __

_ Ariz. at ___, ¶ 12 ( explaining that the 2022 amen dments to Rule 78 apply t o all pending cases , including appeals)

. ¶16 Given these circumstances, a proper analysis of Mother’s petition to modify required Judge Russell to determine which order applied to the dispute before him, and he correctly exercised his authority to do so.NICKEL v. POTTER Opinion of the Court

6 See ARFLP 83(a) (stating that “[t]he court may on its own or on motion alter or amend all or some of its rulings” on enumerated grounds ); se e Major v. Coleman , 251 Ariz. 345, 348, ¶ 13 ( App. 2021) ( recognizing the s uperior court may exercise its inherent authority by tak ing appropriate actions “to effectuate the administration of justice in cases pending before it”); see also Motley
, ___ Ariz. at ___ , ¶ 15

. ¶17 Father also argues the January 2021 O rder simply confirmed the October 2020 O rder. He contends that construing the January 2021 O rder as resolv ing his pending petition violates his due process rights because the order to appear only mentioned Mother’s petition to enforce. But a party who consents to a judgment generally waives any right to challenge it on appeal. See Duwyenie v. Moran , 220 Ariz. 501, 506, ¶¶ 16

– 18 (App. 2009). Even so, Father does not ident ify wh en he raised a due process concern in the superior court. See Chang v. Siu , 234 Ariz. 442, 446, ¶ 12 (App. 2014) (“An appellate court normally will not address arguments not raised in the superior court prior to the appeal.”)

. And to the extent Fat her suggests his December 2020 petition was not addressed at the January 2021 hearing, we will not draw that inference because he has not provided a transcript

. See Baker v. Baker , 183 Ariz. 70, 73 (App. 1995) ( “ A party is responsible for making certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal. ” ).

¶18 Irrespective of wh ether Father had specific notice of what the January 2021 hearing would encompass
, or what was discus sed at that hearing , as a matter of law h is petition to modify was rendered moot when he entered into the stipulated judgment. He expressly agreed to pay $998 per month in child support. When the parties agreed to this stipulated judgment, it became the most recent order because it now contained the court’s most “recent findings” under the Guidelines. The January 2021 Order thus re

- established Father’s child support obligation

. I f he wanted the court to change that order
, he had to file a new petition. And w ithout it, Judge Albrecht lacked the authority to enter the February 2021 O rder. See ARFLP 23(a) (“A ‘petition’ is the initial pleading that begins . . . a post

- decree matter.”).NICKEL v. POTTER Opinion of the Court

7 CONCLUSION

¶19 We affirm the superior court’s May 202 2 order. We deny Mother’s request for attorneys’ fees b ecause she is a self

- represented litigant. See Munger Chadwick, P.L.C. v. Farwest Dev. & Const r . of the Sw.
, LLC , 235 Ariz. 125, 126, ¶ 5 (App. 2014). As the successful party on appea l, Mother is awarded taxable costs subject to her compliance with ARCAP 21.