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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 24-0636 FC
FILED 07-24-2025
Appeal from the Superior Court in Maricopa County
Nos. FC2018-054263, FC2018-095360 (Consolidated)
The Honorable Lisa C. Boddington, Judge
AFFIRMED
COUNSEL
Charles A. Kellers PLLC, Scottsdale
By Charles A. Kellers
Counsel for Petitioner/Appellee
Joseph Patrick White, Howell
Respondent/Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Real Party in Interest Arizona Department of Economic Security
HENDERSHOT v. WHYTE
Decision of the Court
MEMORANDUM DECISION
Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Michael S. Catlett joined.
J A C O B S, Judge:
¶1 Joseph Patrick Whyte (“Father”) appeals the superior court’s
denial of his motion under Arizona Rule of Family Law Procedure (“Rule”)
85, which asked the court to vacate its May 2024 child support order. For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
A. The Court Awards Mother Sole Legal Decision-Making,
Joint Parenting Time, and Child Support.
¶2 In 2018, Diana June Hendershot (“Mother”) petitioned for
paternity, legal decision-making, parenting time, and child support.
Mother and Father have one child, B.W., born in 2016. After a 2019 trial, the
court awarded Mother sole legal decision-making authority and $774 in
monthly child support. It also awarded Father some parenting time, to be
supervised until Father completed court-mandated programs and their
recommendations.
B. The Court Finds Father in Contempt, Modifies Child
Support, and Orders Father to Pay Overdue Child Support.
¶3 In 2020, Mother petitioned the court to find Father in
contempt for non-payment of child support. Meanwhile, Father petitioned
to modify legal decision-making, parenting time, and child support.
¶4 In January 2021, the court found Father in contempt for failing
to pay child support and denied his petition to modify parenting time and
legal decision-making, for failure to show a change in circumstances. But
the court found the parties’ financial circumstances had changed, justifying
an increase in Father’s child support obligation to $922.
¶5 In March 2022, Mother petitioned the court for a second time
to find Father in contempt for non-payment of child support. Mother
alleged Father owed $2,766 in past due child support. Father filed motions
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and sought discovery. After a hearing, the court found Father violated the
child support orders, ordered him to pay $1,500 to the clerk of the court,
and ordered him to pay an additional $150 per month to Mother in overdue
child support.
C. The Court Again Finds Father in Contempt for Non-
Payment of Child Support and Modifies Child Support.
¶6 In September 2022, Mother notified the court Father was
again behind on child support. Father then petitioned the court to modify
child support, asking to have Mother pay him monthly child support. In
February 2023, the court found Father in contempt for failing to pay child
support and affirmed the monthly child support owed was $922. The court
stated it was granting Father’s petition to modify but in substance denied it
by increasing Father’s monthly child support obligation to $1,103 plus $150
in child support arrearage.
D. When Father Petitions to Reduce Child Support for a Third
Time, the Court Rejects Mother’s Arguments to Increase
Support, Leaving Support Unchanged.
¶7 In July 2023, Father again petitioned to modify child support,
seeking a reduction in his monthly support obligation to $425. Mother
registered for Title IV-D services under the Social Security Act for child
support enforcement as Father was repeatedly found noncompliant. The
superior court held Title IV-D modification hearings on the petition on
February 21 and May 1, 2024.
¶8 The court again stated it was granting Father’s petition but in
substance denied it, rejecting his claim that child support should be
reduced. The court attributed Father’s income at $75,000.00 annually and
Mother’s income at $121,423.49.
¶9 When evaluating Father’s income, the court noted Father’s
income had decreased by about $30,000 but found Father had been
unemployed periodically in 2023 and that he was capable of “earning much
more than the $18 per hour he is now requesting to be attributed with.”
(Footnote omitted). The court also found Father’s Affidavit of Financial
Information (“AFI”) indicated his gross income was $24,597.61, which was
contrary to his bank statements and his July 23, 2023 petition, which stated
his income was $75,000. The court found Father’s income to be $75,000.
¶10 The court found Mother’s income had increased
approximately $13,000 based on her AFI. The court also noted that Mother
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“receive[d] dividends from [a] trust, that being a year-to-date amount of
$7,913.26.” The court then found Mother’s income to be $121,423.49 and
declined to attribute income to Mother from her rental properties as Father
previously did not dispute that the rental income resulted in a negative cash
flow in the February 2023 modification hearing.
¶11 The court considered several factors before ruling on the child
support modification. It found Father had not had parenting time since
June 2022. It found “Mother provides medical, dental and vision insurance
for the child[,]” amounting to $96.70 per month, which Father did not
dispute. While Mother claimed $1,529 in third party childcare costs per
month, Father objected to that amount as excessive, and the court attributed
$1,352 per month to Mother in childcare costs. The court declined to give
Father credit for his other two children because of undisputed evidence he
was not currently providing support for them. Utilizing the child support
guidelines, the court found Father’s support obligation could increase to
$1,224. But the court exercised its discretion and declined to increase
support, affirming the prior order’s $1,103 monthly obligation after
considering Father’s financial difficulties and the child’s well-being.
E. Father Moves Under Rule 85 for Relief from the Child
Support Order.
¶12 After the court’s ruling, Father retained counsel and moved
under Rule 85 for relief from the child support orders. Father asked the
court to “vacate and modify” portions of the orders because: (1) the court
incorrectly considered the evidence, specifically that Father’s income had
declined as a result of his “mental health issues”; (2) the court did not
provide a child support worksheet with the child support order; and (3)
Mother perpetrated fraud and misconduct by failing to respond to Father’s
discovery requests and misrepresenting her finances. Father asked the
court to order Mother to provide discovery and disclosure and then to re-
calculate child support to accurately reflect the parties’ incomes.
¶13 Mother argued Father’s Rule 85 motion had no merit. She
contended: the court did not err by weighing the evidence; it had correctly
calculated the parties’ income; a child support worksheet was filed with the
child support order; and Father’s income had not declined since he began
struggling with his mental health in 2021.
¶14 The court denied the motion without stating grounds. Father
filed motions and notices seeking additional relief, which the court denied.
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¶15 Father timely appealed the denial of his Rule 85 motion. We
have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), -
2101(A)(1).
DISCUSSION
I. The Superior Court Did Not Err By Denying Father’s Rule 85
Motion.
¶16 Rule 85 allows a party to move for relief from a judgment.
Ariz. R. Fam. Law P. 85(b). The court may grant relief from judgment for
many reasons, including fraud, misrepresentation, misconduct, or any
other reason justifying relief. Ariz. R. Fam. Law P. 85(b)(3), (6). The movant
must establish the grounds for relief. Caswell v. Caswell, 255 Ariz. 356, 359
¶ 15 (App. 2023) (citing Duckstein v. Wolf, 230 Ariz. 227, 230 ¶ 5 (App. 2012)).
We review the denial of a Rule 85 motion for abuse of discretion. See
Duckstein, 230 Ariz. at 231 ¶ 8. The court abuses its discretion if it “commits
an error of law in reaching a discretionary conclusion, . . . reaches a
conclusion without considering the evidence, . . . commits some other
substantial error of law, or the record fails to provide substantial evidence
to support” the court’s findings. Id. (cleaned up).
¶17 Father argues the superior court erred by denying his Rule 85
motion because it (1) ignored fraud and discovery violations and (2) was
biased and engaged in misconduct toward him. We see no error.
A. Father Alleges Mother Committed Fraud and Discovery
Violations.
¶18 Father argues the court erred by denying his motion because
Mother committed fraud and discovery violations, which made the court’s
child support order error. See Ariz. R. Fam. Law P. 85(b)(3), (6). He claims
Mother concealed real estate sales, bank accounts and investment income,
and real estate rental income, thus violating Arizona Rule of Civil
Procedure 26.1 and A.R.S. § 25-324. These claims are unpersuasive.
¶19 First, we reject Father’s argument that Mother worked a fraud
on the court relating to trust income she derived from real estate previously
held by her mother. Because Father did not provide this Court with the
hearing transcripts, we must presume the record supports the court’s
findings as to Mother’s income. See J.F. v. Como, 253 Ariz. 400, 406 ¶ 31
(App. 2022). Mother’s AFI, which she disclosed to Father and which was
admitted into evidence, reports dividends to her from a Merrill Lynch
account. The court’s order expressly accounted for Mother’s receipt of
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$7,913.26 of income in the first four-plus months of 2024 from her mother’s
trust. Father nonetheless argues Mother sold four pieces of real estate since
2019, and that Mother did not disclose the income from these sales to him
or the court. But Father did not provide proof of these sales to the superior
court. These allegations, without evidence, do not provide any basis for us
to conclude that the superior court abused its discretion in accounting for
Mother’s income from her mother’s properties.
¶20 We recognize that Father’s Rule 85 motion claims he was
prevented improperly in discovery from obtaining this information. But as
support, his motion merely attached two e-mails from August 2023
requesting the information. The superior court later found – in December
2023 – that Mother provided sufficient disclosure. Father’s Rule 85 motion
does not explain why that ruling was an abuse of discretion, nor does it
attach materials allowing us to evaluate that assertion. For that reason,
Father has not shown the court abused its discretion in how it resolved this
issue.
¶21 Second, for similar reasons, we reject Father’s argument that
Mother concealed, and the superior court failed to consider, certain bank
accounts and investment income. Again, Father provided no proof Mother
had these accounts with his Rule 85 motion. He suggests without support
that Mother had seven bank accounts she had either partially disclosed or
not disclosed. But Mother’s AFI supports the court’s child support ruling,
as her tax documents expressly list some of the accounts Father contends
she concealed. Again, the superior court expressly considered Mother’s
income in its order and without the trial transcripts we must presume the
record supports the superior court’s calculation of Mother’s income. See
J.F., 253 Ariz. at 406 ¶ 31.
¶22 Third, Father argues Mother concealed from the court real
estate income from her rental properties. But the court declined to impute
income to Mother from the rental properties because at the February 2023
hearing Father did not dispute that her rental properties produced “a
negative cash flow[.]” The superior court declined to revisit this issue in
the modification hearing, given the lack of prior dispute. Father’s
concession on this issue, which he does not address on appeal, suffices to
resolve it. Moreover, Mother disclosed this income in her AFI, which the
court considered. And again, we presume the transcripts would support
this finding. See id.
¶23 Father has not demonstrated fraud or any other ground
justifying relief from the child support order. See Ariz. R. Fam. Law P.
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85(b)(3), (6). Accordingly, the superior court did not abuse its discretion by
denying Father’s motion.
B. Father’s Appeal Does Not Include Charges of Judicial Bias
or Misconduct.
¶24 Father asks us in his appellate brief to review allegations of
bias and misconduct against the superior court judge who signed the final
order denying his Rule 85 motion. But our appellate review is limited by
the scope of Father’s notice of appeal. ARCAP 8(c)(3); Desert Palm Surgical
Grp., P.L.C. v. Petta, 236 Ariz. 568, 576 ¶ 15 (App. 2015) (“As a general rule,
our review is limited to matters designated in the notice of appeal[.]”).
Father’s July 29, 2024 notice of appeal only appealed the denial of the Rule
85 motion, and Father did not raise judicial bias or misconduct in that
motion. Accordingly, Father’s claims of bias are not before us. See Roebuck
v. Mayo Clinic, 256 Ariz. 161, 166 ¶ 16 (App. 2023).
II. We Deny Father’s Motions and Award Mother Sanctions Under
ARCAP 25.
¶25 Father filed three motions for sanctions in this Court, seven
motions or notices to supplement the record on appeal, and a motion to
strike one of Mother’s replies. We resolved one motion for sanctions and
one motion to supplement by order before this decision. 1 We welcome
unrepresented parties, but we also hold them to the same standards as
counsel in ruling on their arguments. See Flynn v. Campbell, 243 Ariz. 76, 83-
84 ¶ 24 (2017). Here, that leads us to order the payment of reasonable
1 Father’s remaining motions are: (1) Appellant’s Motions for Sanctions or,
in the Alternative, Referral for Professional Misconduct; (2) Second Motion
for Sanctions, Bar Referral and Request for Corrective Relief Due to
Misrepresentation of Record Completeness and Evidentiary Destruction;
(3) Notice of Supplemental Record Evidence and Request for
Consideration; (4) Notice of Cross-Case Witness Involvement, Pattern of
Interference, and Request for Judicial Notice and Remedial Action; (5)
Respondent’s Motion to Supplement the Record; (6) Notice of
Supplemental Authority in Support of Motion to Supplement Record and
Vacate Under Rule 85; (7) Notice of Supplemental Authorities Regarding
Custody; (8) Appellant’s Motion to Strike or Disregard Appellee’s
Improper Reply and Renewed Request to Admit Supplemental Authorities
Regarding Custody; and (9) Notice that Briefing is Complete and
Appellee’s July 8 Filing Is Improper.
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attorneys’ fees to Mother under ARCAP 25 for responding to Father’s
motions, for the reasons we next explain.
A. Father’s Motions for Sanctions
¶26 Father moved for sanctions against Mother and her counsel,
arguing they have engaged in fraud and misconduct by concealing financial
information and misrepresenting the completeness of the record. But the
record lacks support for these sweeping claims of fraud. Father did not
provide the superior court with proof that Mother concealed financial
information. To the contrary, Mother’s AFI provided evidentiary support
for some of the specific rulings with which Father disagrees. And because
Father did not order transcripts, see ARCAP 11(b)-(c), he triggered the
presumption that the hearing record supports Mother’s proofs. See J.F., 253
Ariz. at 406 ¶ 31. These motions were thus not supported by evidence or
law.
B. Father’s Proposed Supplementations
¶27 Father also filed motions and notices of further developments
he argues are relevant to this appeal, attaching documents not in the record.
We are mindful of the need to consider the full record in ruling on Father’s
appeal of the child support order at issue. But the supplemental matters
are not properly before us as they do not relate to Father’s appeal of the
court’s denial of his Rule 85 motion. See ARCAP 8(c); Desert Palm, 236 Ariz.
at 576 ¶ 15. These supplements include filings which postdate the court’s
denial of Father’s Rule 85 motion, financial documents not admitted into
the record, and matters related to legal decision-making and parenting
time, such as family photos and documents pertaining to the child’s well-
being, which were not the subject of the Rule 85 motion. And to the extent
Father would supplement the record with exhibits the superior court did
not admit in evidence, we must presume, in the absence of the transcripts,
that they were properly not admitted. See J.F., 253 Ariz. at 406 ¶ 31.
C. Father’s Motion to Strike Mother’s Reply
¶28 Father moved to strike Mother’s Response to his Notice of
Supplemental Authorities Regarding Custody arguing the reply was
improperly filed. But as Father recognizes, Mother’s reply was to Father’s
response to her request for sanctions and motion to strike his notice, which
makes it authorized by ARCAP 6(a)(3). Although Mother’s requests were
contained in her response to Father’s notice, which would be procedurally
improper in the superior court, no such separate filing requirement applies
here. Compare Ariz. R. Civ. P. 11(c)(3)(A) and Ariz. R. Fam. Law P.
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26(c)(3)(A) (requiring motions for sanctions to be filed separately), with
ARCAP 6 (containing no such requirement).
D. Mother’s Requests for Sanctions and Motion to Strike
¶29 Mother responded to Father’s motions for sanctions and his
supplementation motions, excepting two motions we ruled upon before a
response was due. Mother requests sanctions under ARCAP 25 for having
to respond to Father’s frivolous filings and asks us to strike one of Father’s
notices. Father’s notices and motions are frivolous as they are not grounded
in law. See Ariz. Tax Rsch. Ass'n v. Dep't of Revenue, 163 Ariz. 255, 258 (1989)
(defining frivolous filings as those filed for an improper purpose or
indisputably without merit). Thus, we grant Mother’s request and award
her reasonable attorneys’ fees and costs for responding to these motions
under ARCAP 25, subject to her compliance with ARCAP 21. We deny
Mother’s motion to strike as moot.
CONCLUSION
¶30 For the foregoing reasons, we affirm. In our discretion, after
considering the reasonableness of the parties’ positions and resources, we
award Mother her attorneys’ fees for this appeal under A.R.S. § 25-324,
subject to her compliance with ARCAP 21. See A.R.S. § 25-324(A).
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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