ADES/SOTO v. CUMMING

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA ex rel. ARIZONA DEPARTMENT OF ECONOMIC SECURITY (FE MELISA SOTO aka FE MELISA JUDD), ) ) ) ) ) Petitioners/Appellees, ) ) v. ) ) ERNEST BENJAMIN CUMMING a.k.a. ) BENJAMIN DAVIS FILLMORE, ) ) Respondent/Appellant. ) __________________________________) DIVISION ONE FILED: 10/24/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0638 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2003-095278 The Honorable Jaime B. Holguin, Commissioner JURISDICTION ACCEPTED/RELIEF DENIED Thomas C. By And Attorneys Horne, Attorney General Carol A. Salvati, Assistant Attorney General Jami R. Heller, Assistant Attorney General for Petitioners/Appellees Ernest Benjamin Cumming Respondent/Appellant O R O Z C O, Judge Phoenix Gallatin, TN ¶1 Benjamin Benjamin Cumming) holding support. him in D. Fillmore (Father) contempt of (formerly appeals court the for known family as Ernest court s order to child failure pay Father also argues that the family court erred both in its calculation of child support and its failure to quash the outstanding arrest warrant. For the following reasons, we convert this appeal from a contempt order to a petition for special action, accept jurisdiction, deny relief, and affirm the family court s order. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Fe Melisa Judd (Mother)1 and Father were married in Nevada in January 2000 and have two children together. ¶3 Mother divorce. and Father separated and Father filed for The Superior Court of Guam granted the divorce in September 2003.2 Although Mother and Father were divorced in Guam, the decree reserved various economic and family issues (i.e., property, debt, spousal support, child custody, support, and visitation) to be determined by another court with proper jurisdiction. Mother retained primary custody of the children during the separation and Guam divorce proceedings. 1 Mother Cumming. is also known as Fe 2 Melisa Soto or Fe Melisa The record before us does not indicate why Father filed for divorce in Guam when the parties and children were residing in Arizona at the time. 2 ¶4 In September 2003, Mother moved with the temporarily to Michigan to live with her sister. children By the end of 2003, Father had left his job in Arizona and moved to Utah. On November 26, 2003, Father had a previously agreed-upon overnight visit with the children in Michigan. Rather than returning the children to Mother the next day, Father took the children to Utah without Mother s knowledge or consent. provide Mother with his Utah address. Father did not Mother returned to Arizona and filed a Petition for Dissolution of Marriage in December 2003. temporary Mother also filed an emergency petition seeking orders for child custody, child support, and supervised visitation for Father. ¶5 In February 2004, after an evidentiary hearing, the family court awarded Mother temporary sole custody of the children and ordered Father to pay $1,014.25 monthly in child support beginning February 1, 2004. amount. Father objected to the The family court referred the matter to the Family Support Center to recalculate Father s child support obligation attributing $10.00 per hour to Mother instead of zero. June 2004, the family court reduced Father s monthly In child support obligation to $858.08 beginning February 1, 2004, based on the Family Support Center s recalculation. Although Father still objected to the modified order, the family court denied 3 his objection and affirmed the child support order. Father did not appeal the family court s June 2004 order. ¶6 Father failed to pay the court-ordered child support, and Mother filed a Contempt Petition. court held a hearing regarding In July 2004, the family Mother s Contempt Father appeared telephonically without counsel. the hearing, the family court (1) adopted Petition. As a result of the Guam divorce decree insofar as the marriage of the parties was dissolved, (2) awarded Mother sole custody of the children, (3) gave Father no parental access with the children, (4) denied Mother s request for spousal maintenance, (5) entered a judgment against Father in the amount of $5,133.18 for child support arrears from February 1 to August 31, 2004, (6) affirmed its $858.08 monthly child support order, and (7) found Father in willful contempt of a lawful Court Order that Father was aware of when having the ability to pay child support. Father did not appeal the July 2004 order. ¶7 The Arizona Department of Economic Security (State) intervened in this case after Mother applied for Title IV-D child support services. ¶8 In April 2012, Enforce Child Support. Mother filed a pro se Petition to Mother alleged that Father has not made timely child support payments since July 2004 and that he owed $93,000 in child support arrearages. 4 Mother requested that the family court require Father to pay the court-ordered monthly child support, find Father in civil contempt of court, and issue a child support arrest warrant. petition, support the and State entered reimbursement Upon Mother s service of the its appearance issues. Father to be heard responded to on the Petition and claimed that (1) he was not voluntarily unemployed or underemployed to avoid paying child support, (2) despite his continuing financial hardships, he had paid $18,087.86 in child support since 2004, and (3) he owned his own business where he worked eighty or more hours per week just to pay the overhead, which he must pay before he can pay himself a salary. ¶9 The family court held a hearing on Mother s Petition to Enforce Child Support in July 2012 and issued an Order to Appear for that hearing to Father. ordered Father to file various The family court further financial documents at the enforcement hearing, but the record on appeal does not include any of these documents complied with this order. or otherwise indicate that Father Before the hearing, the State filed a child support arrears calculation with the court alleging that Father was in arrears in the amount of $94,576.36. ¶10 At the hearing, the State argued that Father had not made any child support payments since December 2010 and noted that the State s arrears calculations were incorrect. requested the family court to 5 find Father in The State contempt for failing to pay the court-ordered child support and to schedule another hearing to determine the appropriate child support arrears judgment. Finally, the State asked the family court to order pay Father to the monthly child support previously ordered, but did not request a new child support arrest warrant because the 2004 warrant remained in effect. ¶11 In response, Father telephonically testified he had paid [child support] exceptions. whenever [he] was able to, with two Father went on to explain the two exceptions and to testify that he had no income from January through December 2011. After discussing some specifics about Father s current living situation, the family court found Father in contempt and noted that Father was in continuing contempt for his willful failure to comply acknowledged. ability to pay with a valid support order which he In reaching its conclusion regarding Father s child support, following factual findings: the family court made the Father was capable of working; he was not disabled; he was supporting two other children; and he was making rent payments. Father filed a timely notice of appeal. DISCUSSION Jurisdiction ¶12 In Arizona, orders adjudicating whether a person should be held in contempt for refusing to obey a court order 6 are not appealable, because the party held in contempt had an opportunity to appeal the original order. Elia v. Pifer, 194 Ariz. 74, 80, ¶ 30, 977 P.2d 796, 802 (App. 1998). ¶13 In appropriate circumstances, however, a contempt order may be reviewable by special action petition. Id. A special action petition is the appropriate method to challenge a civil contempt order . . . . Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 7, 228 P.3d 144, 146 (App. 2010); see also Ariz. R.P. Spec. Act. 1(a). We exercise our discretion in this case and accept special action jurisdiction. See State ex rel. Dep t of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 18, 66 P.3d 70, 73 (App. 2003) (converting an appeal from a contempt order to a petition for special jurisdiction). action Accordingly, and we accepting accept special jurisdiction action and deny relief. Family Court s Contempt Order ¶14 Father challenges the family court s contempt order based on a lack of evidence produced by Mother and the State. The family court retains continuing jurisdiction to child support orders through contempt proceedings. Dyer, 92 Ariz. 49, 52, 373 P.2d 360, 362 (1962). Uniform Interstate 634(D)(5) orders by authorizes means of Family a Support responding civil or Act tribunal criminal 7 (UISFA) to enforce See Dyer v. Moreover, the section 25- enforce its contempt, or both. Burton, 205 Ariz. at 30, 66 P.3d at 73. guilty of [Father] contempt, willfully payments . . . . the [family] failed to court make To find [Father] must the determine required that [support] Dyer, 92 Ariz. at 52, 373 P.2d at 362. A proponent requesting a contempt order establishes a prima facie case of willfulness by showing that the defendant failed to make payments in accordance with a divorce decree. Id. At that point, the burden shifts to the defendant to show his excusable inability to make the payments ordered. Id. This reviews contempt orders for an abuse of discretion. court Munari v. Hotham, 217 Ariz. 599, 605, ¶ 25, 177 P.3d 860, 866 (App. 2008). ¶15 Here, Father payments in 2004. was ordered to make child support Father admitted that he was aware of the order and that he has not made child support payments since December 2010. The family court found Father in continuing contempt of court for willful failure to comply with a valid support order which [Father] acknowledged. The record provides sufficient evidence to support the family court s finding that Father knew of the court-ordered child support obligation and repeatedly failed to comply with that order. Under these circumstances, the family court did not abuse its discretion in finding Father in contempt for non-payment of child support. 8 Family Court s Assignment of Income ¶16 Father challenges the family court s order attributing income to Father. Father contends the family court erred because it considered Father s new spouse s savings account and other financial resources when holding Father in contempt. Father asserts that income of other persons cannot be treated as income for purposes of a child support calculation. ¶17 We interpret (Guidelines)3 de novo. the Arizona Child Support Guidelines Strait v. Strait, 223 Ariz. 500, 502, ¶ 6, 224 P.3d 997 (App. 2010). A court may consider all aspects of a parent s income to order reasonable and necessary child support that is based on the total financial resources of the parents. Id. at 502, ¶ 8, 224 P.3d at 999 (quoting Cummings v. Cummings, 182 Ariz. 383, 386, 897 P.2d 685, 688 (App. 1994)) (emphasis added). For child support purposes, gross income is not determined by a parent s gross income as stated on an income tax return, but rather gross income includes the actual money or cash-like benefits received available for expenditures. by the household which is Id. at 502, ¶ 8, 224 P.3d at 999; see also Guidelines § 5.A. ¶18 Under Arizona law, both parents, regardless of their employment status, must provide children s reasonable needs. 3 appropriately for their Engel v. Landman, 221 Ariz. 504, Ariz. Rev. Stat. (A.R.S.) § 25-320 (2011). 9 510-11, ¶ 22, 212 Guidelines § 5.E). P.3d 842, 848-49 (App. 2009) (citing Accordingly, if a parent s earnings are reduced voluntarily and not for reasonable cause, a court will attribute income to a parent up to the full earning capacity of the parent who is unemployed or earning below his full earning potential. Guidelines § 5.E; Little v. Little, 193 Ariz. 518, 521, ¶ 6, 975 P.2d 108, 111 (1999). ¶19 Here, the family court found that Father s earnings were reduced as a matter of choice and not for reasonable cause. Therefore, the family court was within its discretion attribute income to Father up to his earning capacity. Guidelines § 5(E). to See Under Arizona Revised Statutes (A.R.S.) § 25-320, the family court was obligated to attribute an income of at least minimum wage to Father in calculating his child support obligation, regardless of what his reported income may be. id. See Accordingly, the family court did not err in attributing income to Father.4 Father s Constitutional Claims ¶20 Father argues for the first time on appeal that his child support obligation is a debt and, as such, he could not 4 To the extent that Father argues the family court considered his Wife s income, we find this without merit. The family court did ask how the rent was being paid, but it did not consider her income in finding Father in contempt. Also the family court did not calculate the child support amount; therefore, it did not use Wife s income in calculating his child support obligation. 10 properly face contempt through a child support arrest warrant for his failure to pay that debt. Generally, this court deems arguments waived when raised by a party for the first time on appeal, including arguments raising constitutional issues. K.B. v. State Farm Fire & Cas. Co., 189 Ariz. 263, 268, 941 P.2d 1288, 1293 (App. 1997). Accordingly, because Father did not challenge the constitutionality of the 2004 child support arrest warrant prior to this appeal, we may deem his arguments waived. However, in our discretion, we will analyze Father s contentions that the arrest warrant violates both Article 2, Section 18, of the Arizona Constitution and the Fourth Amendment of the United States Constitution. See Aldrich & Steinberger v. Martin, 172 Ariz. 837 445, 447-48, P.2d 1180, 1182-83 (App. 1992) (explaining that the court of appeals may exercise discretion to evaluate certain compelling arguments that were raised for the first time on appeal, such as when a constitutional issue is raised). ¶21 Father contends that his child support obligation is a debt as contemplated by Article 2, Section 18, of the Arizona Constitution. We disagree. Article 2, Section 18, of the Arizona Constitution states, [t]here shall be no imprisonment for debt, except in cases of fraud. (2013). Ariz. Const. art 2, § 18 In Arizona, the obligation to make support payments are not regarded as a debt but a duty growing out of the [family] 11 relation and resting upon a sound public policy, and so this obligation may be enforced contempt . . . . by attachment of the person for See Stone v. Stidham, 96 Ariz. 235, 239, 393 P.2d 923, 926 (1964). When a court-ordered support payment is modifiable, it is outside the scope of what Arizona considers a debt as contemplated by the Arizona Constitution. See id. at 239-40, 393 P.2d at 926 (distinguishing between non-modifiable alimony in considered the a form debt, of and a property modifiable settlement, monthly alimony which is payments, which are not considered a debt). ¶22 Here, Father s support court-ordered family obligation. payments were a modifiable Therefore, the family court acted within the bounds of the Arizona Constitution in holding Father in contempt and ordering the 2004 child support arrest warrant. Consequently, the warrant is valid and enforceable, and Father s constitutional rights have not been violated. ¶23 The Fourth Amendment of the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. U.S. Const. amend. IV. When a government entity actually conducts a search or seizure, the Fourth Amendment is implicated. See, e.g., State v. Millan, 185 Ariz. 398, 401, 916 P.2d 1114, 1117 (App. 1995) ( For a seizure to occur there must be some meaningful interference 12 with defendant s possessory property interest. To claim protection under the Fourth Amendment, a defendant must have a legitimate expectation of privacy in the invaded place. expectation is infringed upon. ) citations omitted)). government official A search occurs when (internal quotation marks and Here, Father s claim is premature. has executed that the 2004 warrant; No therefore Father has not been subject to a government search or seizure. Hence, the Fourth Amendment is not implicated here, and Father is not due relief on this claim. CONCLUSION ¶24 For the foregoing reasons, we accept jurisdiction and deny relief. The family court s findings of fact and order of contempt are affirmed. /S/ __________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ __________________________________________ RANDALL M. HOWE, Presiding Judge /S/ __________________________________________ SAMUEL A. THUMMA, Judge 13

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