Simpson v. Simpson – 4/22/2010

May 4, 2010

Arizona Court of Appeals Division One Holds That Arizona Revised Statutes Section 25-320(B) Does Not Require a Party to Separately Request Retroactive Child Support.

Mother filed a petition for dissolution of marriage using the proper Maricopa County form and requested that the family court make an appropriate child support order.  One month later, she filed a motion for temporary orders and again requested child support as determined by the current guidelines.  The family court ordered Father to pay child support, but noted that “neither party requested retroactive child support, and to the extent, it would be otherwise available, the Court deems that issue abandoned.”  Mother appealed.

A.R.S. § 25-320(B) provides, in pertinent part, that “[i]f child support has not been ordered by a child support order and if the court deems child support appropriate, the court shall direct, using a retroactive application of the child support guidelines to the date of filing a dissolution of marriage, legal separation, maintenance or child support proceeding,” retroactive child support.  (Emphasis added). 

The Arizona Appeals Court held that this statute does not require a party to separately request retroactive child support because the original request is made as of the date of the petition for dissolution of marriage, not the date of the hearing.  The Court explained that the statute’s plain language unambiguously states that so long as there is not a previous order for child support and so long as the Court deems child support appropriate, the court “shall” order retroactive child support.  This interpretation is strengthened by the use of the discretionary word “may” in other parts of the statue.  The Court also noted that requiring a separate request for retroactive child support would be contrary to the public policy that the welfare of the children is of primary importance.  Because the family court erroneously failed to order retroactive child support as required by the statute, the Appeals Court remanded the matter for further proceedings consistent with its judgment.

Judge Barker authored the opinion; Judges Norris and Swann concurred.