Hendershot v. Whyte

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DIANA JUNE HENDERSHOT, Petitioner/Appellee,

v.

JOSEPH PATRICK WHYTE, Respondent/Appellant.

No. 1 CA-CV 25-0180 FC
FILED 10-06-2025

Appeal from the Superior Court in Maricopa County
No. FC2018-054263
No. FC2018-095360
The Honorable Andrew J. Russell, Judge

AFFIRMED

COUNSEL

Charles A. Kellers PLLC, Scottsdale
By Charles A. Kellers
Counsel for Petitioner/Appellee

Joseph Patrick Whyte
In Propria Persona

HENDERSHOT v. WHYTE
Decision of the Court

MEMORANDUM DECISION

Judge Veronika Fabian delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Anni Hill Foster joined.

F A B I A N, Judge:

¶1 Joseph Whyte (“Father”) appeals the superior court’s order
dismissing his petition to modify child support. On appeal, he argues the
court erred in not granting an evidentiary hearing based on his petition.
Because Father did not attach documentation to his petition showing a
colorable claim of change in circumstances warranting modification, the
order is affirmed. This Court does not address Father’s Americans with
Disabilities Act and due process arguments because his petition was
properly dismissed. See Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986) (“We
will affirm the trial court’s decision if it is correct for any reason.”).

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2018, Diana Hendershot (“Mother”) petitioned for
paternity, legal decision-making, parenting time, and child support for the
parties’ minor child B.W. At that time, the superior court granted Mother
sole legal decision-making authority and required Father to pay $774 in
monthly child support. In 2022, Father petitioned to lower his child
support. Instead, the court increased his child support to $1,103 per month.

¶3 In 2023, Father again petitioned to lower his child support. On
May 15, 2024, the superior court affirmed Father’s $1,103 in child support.
Despite a documented decrease in Father’s income, the court attributed
$75,000 in annual income to him because it found Father was capable of
earning more than his documented income.

¶4 On May 16, 2024, Father moved for relief from the child
support order under Rule 85 of the Rules of Family Law Procedure and the
court denied his motion. Father appealed that decision and, while that case
was on appeal, Father filed another petition to modify child support under
the simplified procedure outlined in the Arizona Child Support Guidelines
(“the Guidelines”). See A.R.S. § 25-320 app. § XIV(C). Mother filed a motion
to dismiss the petition, which the court granted. Father timely appealed and
this Court has jurisdiction pursuant to Article VI, Section 9 of the Arizona

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HENDERSHOT v. WHYTE
Decision of the Court

Constitution and Arizona Revised Statutes §§ 12-120.21(A)(1) and
2101(A)(1).

DISCUSSION

¶5 This Court reviews the denial of a request to modify child
support for an abuse of discretion. See Birnstihl v. Birnstihl, 243 Ariz. 588,
590 ¶¶ 7-8 (App. 2018). “To qualify for a modification, the parent seeking
to modify child support must show a substantial and continuing change in
circumstances.” A.R.S. § 25-320 app. § XIV(A); see also A.R.S. § 25-327(A).

¶6 Whether a substantial and continuing change in
circumstances has occurred is a question of fact. Schroeder v. Schroeder, 161
Ariz. 316, 323 (1989). A superior court has “sound discretion” to decide
whether changed circumstances warrant a modification. Cummings v.
Cummings, 182 Ariz. 383, 387 (App. 1994). There is no change in
circumstances when the circumstances in question existed prior to the entry
of the most recent child support order. See McClendon v. McClendon, 243
Ariz. 399, 402 ¶ 12 (App. 2017).

¶7 A parent filing a petition for child support modification using
the simplified procedure “must present a colorable claim that there has
been a change in relevant factors, or that an error occurred in determining
the relevant factors, such that applying the Guidelines results in a fifteen
percent variation from the current child support order.” Birnstihl, 243 Ariz.
at 594 ¶ 20.

¶8 The Guidelines specifically require:

A request for modification of the child support
amount 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.

A.R.S. § 25-320 app. § XIV(C)(3).

¶9 Father does not allege an error occurred in determining the
relevant factors. Rather, he argues his disability and loss of income is a
“substantial and continuing change” in circumstances. Father’s reason for
his most recent petition is he has “a continuing disability that has rendered
him incapacitated and unable to work.” In support of that petition, Father
primarily submitted documentation of his various medical issues.

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HENDERSHOT v. WHYTE
Decision of the Court

However, all the medical documents attached to his petition pre-date the
superior court’s most recent findings regarding the parents’ income on May
15, 2024. Thus, Father has not presented a colorable claim that these medical
issues are a change in circumstances. See McClendon, 243 Ariz. at 402 ¶ 12.

¶10 Furthermore, Father did not comply with the Guidelines
because he did not submit sufficient documentation showing the parents’
incomes are different from those that existed at the time of “the court's most
recent findings regarding income of the parents.” A.R.S. § 25-320 app.
§ XIV(C)(3). Father submitted only a screenshot of an unemployment
insurance claim and a screenshot of a social security disability application.

¶11 The unemployment insurance claim was for a period of only
17 weeks and thus does not show the alleged changed circumstances are
continuing or substantial. And Father only provided an application for
disability, not a successful claim. A successful claim could potentially result
in a substantial and continuing change in circumstances.

¶12 This Court is mindful that Father is representing himself in
this matter. However, this Court holds “unrepresented litigants in Arizona
to the same standards as attorneys.” Flynn v. Campbell, 243 Ariz. 76, 83 ¶ 24
(2017). Father has not presented a colorable claim that “there has been a
change in relevant factors.” Birnstihl, 243 Ariz. at 594 ¶ 20. Therefore, this
Court cannot conclude the superior court abused its discretion by
dismissing Father’s petition to modify child support. See id. at 590 ¶ 8.

ATTORNEY’S FEES

¶13 Mother requests her attorney’s fees and costs on appeal
pursuant to Rule 21(a) of the Arizona Rules of Civil Appellate Procedure
and A.R.S. § 25-324. As the prevailing party, Mother is entitled to her costs
upon compliance with Rule 21(b)(3). See A.R.S. § 12-341. This Court, in its
discretion, does not award her attorney’s fees. See Motley v. Simmons, 256
Ariz. 317, 323 ¶ 20 (App. 2023).

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HENDERSHOT v. WHYTE
Decision of the Court

CONCLUSION

¶14 For the foregoing reasons, the order is affirmed.

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

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