Lawless v. Olech

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EILEEN LAWLESS, Petitioner/Appellee,

v.

PRZEMYSLAW JAKUB OLECH, Respondent/Appellant.

No. 1 CA-CV 24-0620 FC
FILED 03-06-2025

Appeal from the Superior Court in Maricopa County
No. FC2016-072382
The Honorable Jillian Francis, Judge

AFFIRMED

COUNSEL

Stanley David Murray Attorney at Law, Scottsdale
By Stanley D. Murray
Counsel for Petitioner/Appellee

Przemyslaw Jakub Olech, Phoenix
Respondent/Appellant

LAWLESS v. OLECH
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Chief Judge David B. Gass and Vice Chief Judge Randall M. Howe
joined.

F U R U Y A, Judge:

¶1 Przemyslaw Olech (“Father”) appeals the order modifying
his child support obligation. For the reasons stated below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties divorced in 2017 and have two children born in
2006 and 2009. In April 2022, the parties agreed to modify parenting time
and child support. Under the modified parenting plan, Father had
parenting time every other weekend, and during the school year, had
alternating Mondays after school to 8 p.m. The parties agreed that Father
would pay $600 a month for child support, which was a downward
deviation from the $1,405 support amount generated under the 2018 Child
Support Guidelines. See A.R.S. § 25-320, appx. (“Guidelines”). In November
2022, the parties agreed to modify parenting time so that Father had
alternate Mondays in the summer only. They did not change the child
support order.

¶3 In February 2024, Mother petitioned to modify the $600
stipulated child support order. She sought to use the simplified method,
stating that application of the 2022 Guidelines resulted in a child support
order of $1,524, which is a difference of more than 15%. Father moved to
dismiss, arguing their financial circumstances had not changed
significantly since the last order. The superior court denied the motion to
dismiss without comment.

¶4 The court held an evidentiary hearing on Mother’s petition to
modify child support using the simplified procedure. The court again
denied Father’s motion to dismiss but ruled that it would apply the
standard procedure. After hearing arguments, the court found a continuing
and substantial change in Mother’s income and the parenting time
schedule. Applying the 2022 Guidelines, the court ordered Father to pay

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LAWLESS v. OLECH
Decision of the Court

$1,533 a month in child support. Father timely appealed. We have
jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶5 The superior court has discretion in deciding whether to
modify a child support order. Nia v. Nia, 242 Ariz. 419, 422 ¶ 7 (App. 2017).
We affirm the ruling absent an abuse of discretion and accept the court’s
findings of fact unless they are clearly erroneous. Id. We interpret the
Guidelines de novo. Id.

I. The Court Properly Considered Mother’s Petition Under the
Standard Modification Procedure.

¶6 Father argues the court should have dismissed Mother’s
petition to modify using the simplified procedure because the existing child
support order was a deviated amount. In Nia, we held that the simplified
procedure does not apply when the prior child support order was a
deviated amount. Id. at 423 ¶ 10 n.3. No doubt, Nia precluded the superior
court from granting Mother’s requested simplified modification procedure
from the deviated support order. But instead of dismissing the petition, the
court exercised its discretion and heard the matter as a standard
modification. Id. Thus, there was no error.

II. The Modification Was Based on a Substantial and Continuing
Change in Circumstances.

¶7 A child support order may be modified only upon a
substantial and continuing change in circumstances. A.R.S. § 25-327(A);
Guidelines § XIV(A); Little v. Little, 193 Ariz. 518, 520–21 ¶ 6 (1999). Whether
such changes occurred is a question of fact. Schroeder v. Schroeder, 161 Ariz.
316, 323 (1989). Absent an abuse of discretion, we affirm the court’s
discretionary decision about the sufficiency of the changed circumstances
supporting a modification. Id.

¶8 Here, the court found that both parties’ incomes increased.
Mother’s income increased more significantly than Father’s. Father’s
income increased from $11,855 to $12,060—or 1.729%—and Mother’s
increased from $3,680.67 to $4,508.42—or 22.15%.

¶9 Father argues that an increase in Mother’s income cannot
constitute grounds for increasing his child support obligation because it
only reduced her need for child support. But, this reasoning only pertains
because the prior order was a substantial downward deviation from the

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LAWLESS v. OLECH
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Guideline amount. It is, nonetheless, a significant and continuing change in
Mother’s financial circumstances. The calculation of child support is based
on both parents’ incomes. See Guidelines § I(A). Thus, a significant change
in one parent’s income may provide grounds for modification. The fact that
the prior child support order was a downward deviation does not prevent
either parent from asking the court to consider whether application of the
Guidelines—rather than a previously agreed upon lower amount—is
warranted when there is a change in circumstances.

¶10 Father argues that other evidence concerning Mother’s
financial circumstances did not support a finding of changed
circumstances. We disagree. Father did not provide transcripts from either
hearing. It is Father’s duty, as the appellant, to ensure the record on appeal
contains the transcripts necessary for consideration of the issues on appeal.
See ARCAP 11(c). When such transcripts are not included, “we assume the
missing portions of the record would support the trial court’s findings and
conclusions.” State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30 ¶ 16
(App. 2003).

¶11 Absent transcripts, we presume the evidence supported the
conclusion that the significant change in Mother’s income warranted a
modification of the previously reduced child support order.

III. The Record on Appeal Supports the Implicit Denial of Father’s
Request for a Deviated Support Order.

¶12 Father argues the court erred by denying his request to
continue the downward deviation in child support. The party seeking a
deviation has the burden of proving it is in the children’s best interests. Nash
v. Nash, 232 Ariz. 473, 478 ¶ 18 (App. 2013).

¶13 That the prior order was a downward deviation does not, ipso
facto, require the court to maintain the deviation. Once the court finds a
substantial and continuing change in circumstances, the “court must review
the parties’ situation anew; no presumption from a previous order exists.”
Nia, 242 Ariz. at 425 ¶¶ 24–25 (rejecting argument that there is a
presumption for a deviation).

¶14 Father claims the evidence showed a downward deviation
was appropriate and Mother’s petition was in retaliation for a dispute on
another issue. Because we lack a transcript, we presume the record supports
the court’s implicit denial of Father’s request to deviate from the Guideline
amount. Burton, 205 Ariz. at 30 ¶ 16. We affirm the court’s application of
the Guidelines.

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LAWLESS v. OLECH
Decision of the Court

ATTORNEYS’ FEES AND COSTS ON APPEAL

¶15 Both parties request an award of attorneys’ fees and costs on
appeal under A.R.S. § 25-324. In our discretion, after considering their
financial resources and the reasonableness of the parties’ positions, we
order each party to pay their own attorneys’ fees. As the successful party
on appeal, Mother is entitled to an award of costs under A.R.S. § 12-342(A)
upon compliance with ARCAP 21.

CONCLUSION

¶16 We affirm the child support order.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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