Maximov v. Maximov – 3/26/2009

March 30, 2009

Arizona Court ofAppeals Division One Holds that Family Court Has Authority to Modify Temporary Family Support Retroactively to a Date Before the Petition to Modify Was Filed.

The family court ordered Mr. Maximov to pay Mrs. Maximov $7,500 per month from April through September 2006 for spousal maintenance and child support.  The court stated that this order of temporary support was “without prejudice” and subject to reconsideration for the overpayment.  On September 11, 2006, Mr. Maximov moved to modify the amount of temporary support, claiming among other things that he could not afford to pay the amount ordered.  The court granted the motion and retroactively reduced the amount.  Mrs. Maximov appealed.        

The ArizonaAppeals Court affirmed.  Although Mr. Maximov declined to participate in the appeal, the Court nevertheless rejected Mrs. Maximov’s argument that A.R.S. § 25-327(A), which specifies that modifications “are effective on the first day of the month following the notice of the petition of modification,” precluded retroactive modification.  The Court found that the plain language of A.R.S. § 25-327(A) applies only to a “decree” awarding maintenance or support.  “By its plain terms, therefore, § 25-327(A) does not apply to pre-decree temporary orders for family support.”  Furthermore, temporary support is explicitly authorized by A.R.S. § 25-315.  See also Ariz. R. Family Law P. 81(A) (permitting certain nunc pro tunc orders).  The Court also rejected Mrs. Maximov’s argument that good cause must be shown for a retroactive modification.  A.R.S. § 25-315 does not require a showing of good cause, and in any event, good cause was shown because the family court specifically found after examining Mr. Maximov’s finances that he could not afford $7,500 per month in support.                                   

Judge Timmer authored the opinion; Judges Hall and Portley concurred.