Stevens-El v. Ades ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SHANE STEVENS-EL,
Plaintiff/Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY,
Defendant/Appellee.
No. 1 CA-CV 21-0307
FILED 3-1-2022
Appeal from the Superior Court in Maricopa County
No. LC2020-000241-001
The Honorable Daniel J. Kiley, Judge
AFFIRMED
COUNSEL
Shane Stevens-El, Phoenix
Plaintiff/Appellant
Arizona Attorney General's Office, Tucson
By Jennifer R. Blum
Counsel for Defendant/Appellee
STEVENS-EL v. ADES
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.
M O R S E, Judge:
¶1 Shane Stevens-El ("Father") appeals the denial of his objection
to the withholding of unemployment benefits pursuant to a child support
order. For the following reasons we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is the biological parent of a child born in 2010. In 2012,
the Arizona Department of Economic Security ("ADES") petitioned to
establish child support.1 The superior court held a hearing and Father
appeared. At the hearing, the court and parties discussed jurisdiction and
Father agreed to cooperate with the State. The child's mother, however,
was not present and the court granted ADES's request to dismiss the
petition without prejudice. Four months later, ADES filed a new petition
in the same cause number. In 2013, the superior court held another hearing,
but father did not appear. The superior court noted Father "received notice
of this hearing by personal service" and issued a child support order. Two
years later, ADES moved to modify the order due to Father's
unemployment. At a July 2015 hearing on the petition to modify, Father
appeared by phone and consented to the reduced child-support obligation.
¶3 In June 2020, ADES notified Father that a portion of his
unemployment benefits would be withheld to satisfy his child-support
obligation. Father disputed that he owed child support and requested that
ADES "cease and desist all collection activity." Father also argued that the
2013 child support order was void. Treating Father's response as a request
for an administrative review under A.R.S. § 25-522, ADES affirmed the
1 We take judicial notice of documents filed in Father's family court
case, FC2012-051832, and relied upon by the superior court. See In re Sabino
R., 198 Ariz. 424, 425, ¶ 4 (App. 2000) (holding appellate court can take
judicial notice of trial court records).
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STEVENS-EL v. ADES
Decision of the Court
withholding order. Father appealed the ADES decision to superior court
pursuant to A.R.S. §§ 12-904 and 25-522(F).
¶4 The superior court affirmed ADES's decision, concluding that
(1) Father failed to show that the 2013 child support order was void for lack
of personal jurisdiction, (2) the court commissioner had authority to issue
the order, and (3) Father's remaining claims were frivolous.
¶5 Father timely appealed and we have jurisdiction under A.R.S.
§§ 12-120.21, -913.
DISCUSSION
I. Collateral Attack on the Child Support Order.
¶6 To challenge the 2020 ADES withholding order, Father
collaterally attacks the 2013 child support judgment. Father argues that the
withholding order is invalid because the 2013 child support order is void
for lack of personal jurisdiction.
¶7 A collateral attack on a judgment "is an effort to obtain
another and independent judgment which will destroy the effect of the
former judgment." Cox v. Mackenzie, 70 Ariz. 308, 312 (1950); see also Schuster
v. Schuster, 51 Ariz. 1, 4 (1937) (noting a collateral attack is one where the
action seeks "an independent relief or result" (citation omitted)). Unless a
judgment is void for lack of jurisdiction, the judgment cannot be collaterally
attacked even if it is "erroneous or wrong, so that it could be reversed on
appeal or set aside on direct attack." Walker v. Davies, 113 Ariz. 233, 235
(1976) (citation omitted). Further, "[t]he general rule . . . is that a judgment
may not be collaterally attacked unless the absence of jurisdiction appears
from the record." Ariz. Pub. Serv. Co. v. S. Union Gas Co., 76 Ariz. 373, 377
(1954); see also Walker, 113 Ariz. at 235 (holding that "if the trial court had
jurisdiction to render the particular judgment given, the judgment is valid
on its face and is not subject to collateral attack" (cleaned up)). Accordingly,
our review is limited to determining if the child support orders are void for
lack of jurisdiction.
¶8 Father's jurisdiction argument is premised on an alleged lack
of service of ADES's second petition to establish child support. Amended
complaints or petitions must be served upon each party in a proceeding.
Kline v. Kline, 221 Ariz. 564, 569, ¶ 17 (App. 2009). But "[t]he rules governing
service differ significantly depending on whether a party to be served has
made an 'appearance.'" Id. at ¶ 18; compare Ariz. R. Fam. Law P. 41 (service
of petition), with Ariz. R. Fam. Law P. 43 (service of other documents).
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STEVENS-EL v. ADES
Decision of the Court
¶9 Father appeared in the case at the 2012 child support hearing.
See Montano v. Scottsdale Baptist Hosp., Inc., 119 Ariz. 448, 452 (1978) ("It is a
rule of ancient and universal application that a general appearance by a
party who has not been properly served has exactly the same effect as a
proper, timely and valid service of process."). Because Father appeared,
and the record does not reflect that Father contested jurisdiction at that
time, the court acquired personal jurisdiction over Father. See State ex rel.
Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 29, ¶ 8 (2003) ("[A]ny action on the
part of a party except to object to personal jurisdiction that recognizes the
case as in court will constitute a general appearance.").
¶10 But we do not need to decide whether the court continued to
have personal jurisdiction over Father by virtue of his appearance in 2012.2
Supra ¶ 9. Father appeared in the case again in 2015 and, although he filed
a document entitled "Declaratory Void Judgment" prior to the hearing,3
during the hearing he consented to a reduction in his support obligation
and, therefore, waived any objection to personal jurisdiction. See Tarr v.
Superior Court, 142 Ariz. 349, 351 (1984) (noting participation in a pending
case, other than to contest personal jurisdiction, subjects parties to the
court's jurisdiction); see also Jones v. Cochise County, 218 Ariz. 372, 379, ¶ 23
(App. 2008) (noting cases finding waiver by conduct where party asserted
lack of personal jurisdiction in answer but did not move to dismiss and
participated in subsequent litigation on the merits). On this record, Father
has waived any claim the superior court lacked jurisdiction to issue the 2013
child support order. See Burton, 205 Ariz. at 29, ¶ 8; see also Jones, 218 Ariz.
at 379, ¶ 23 (noting that even properly raised defenses can be waived by
subsequent conduct); Montano, 119 Ariz. at 452 (rejecting jurisdictional
claim based on insufficient process when raised after an initial appearance
and answer).
2 Father incorrectly argues that the 2012 dismissal was a final
judgment. See Workman v. Verde Wellness Ctr., Inc., 240 Ariz. 597, 600, ¶ 7
(App. 2016) (holding "an order dismissing without prejudice is not a final
judgment"); see also Union Interchange, Inc. v. Van Aalsburg, 102 Ariz. 461, 464
(1967) ("A dismissal without prejudice does not go to the merits of the
plaintiff's cause and does not bar plaintiff from later filing on the same
cause of action.").
3 The document noted that it was an "Affidavit And Notice Of
Dismissal" but was "Not To Be Construed As A 'Motion.'" Accordingly,
Father did not move to dismiss the case or set aside the 2013 order before
appearing at the 2015 hearing.
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STEVENS-EL v. ADES
Decision of the Court
¶11 Father also claims that the 2013 order is void because the court
commissioner lacked authority to enter the order. But a court commissioner
is authorized to preside over child-support cases and enter child-support
orders. A.R.S. § 12-298. When a court commissioner acts within the
authority granted by statute, their orders have the same force and effect as
those entered by superior court judges. Ariz. R. Sup. Ct. 96(a)(6); see also
Green v. Thompson, 17 Ariz. App. 587, 590 (1972) ("The commissioner's
jurisdiction is narrower than that of a regular superior court judge, but
within the confines of that authority, he acts as a superior court judge.").
Because the commissioner's order establishing child support is within his
authority, the order has the same effect as if entered by a superior court
judge.
II. Father's Remaining Arguments.
¶12 Father also argues that he did not contract to provide child
support and thus has no "legal duty" to do so. But in Arizona, "every person
has the duty to provide all reasonable support for that person's natural and
adopted minor, unemancipated children." A.R.S. § 25-501(A). This duty "is
not founded upon contract, expressed or implied, but on the natural and
legal duty of a father to support his minor children." Indus. Comm'n v. Oden,
68 Ariz. 234, 238 (1949); see also Smith v. Saxon, 186 Ariz. 70, 73 (App. 1996)
("A parent may not form a valid and enforceable contract which releases
the parent from all obligation to support his or her minor children.").
Accordingly, we reject Father's argument.
¶13 Finally, Father argues that there is no federal "right" to child
support. As he correctly notes, there generally is no individual federal right
to compel ADES to collect child support. Blessings v. Freestone, 520 U.S. 329,
343-44 (1997); see also Wehunt v. Ledbetter, 875 F.2d 1558, 1565 (11th Cir. 1989)
("Title IV–D does not create any enforceable right."). But this case arises
under state law, see A.R.S. § 25-505 (permitting ADES to issue income
withholding orders), and Father's reliance on federal cases is misplaced.
CONCLUSION
¶14 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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