Soetan v. Soetan ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JACQUELINE L. SOETAN, Petitioner/Appellee,
v.
RAPHAEL A. SOETAN, Respondent/Appellant.
No. 1 CA-CV 20-0068 FC
FILED 12-22-2020
Appeal from the Superior Court in Maricopa County
No. FC2009-003343
The Honorable Kevin B. Wein, Judge
AFFIRMED
COUNSEL
Simmons & Gottfried PLLC, Scottsdale
By Alona M. Gottfried
Counsel for Petitioner/Appellee
Wees Law Firm LLC, Phoenix
By James F. Wees
Counsel for Respondent/Appellant
SOETAN v. SOETAN
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.
B A I L E Y, Judge:
¶1 Raphael Soetan (“Father”) appeals the trial court’s orders
denying him credit against his child support obligation and calculating his
child support arrearage. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Jacqueline Soetan (“Mother”) were married for 18
years and had three minor children when Mother filed for divorce. In
October 2009, the court entered a default decree of dissolution that required
Father to pay $1,024 per month in child support, $6,000 per month in
spousal maintenance, and the mortgage, utilities, insurance and taxes on
the marital residence for as long as he lived there. Even though the decree,
child support worksheet, and income withholding order all stated Father
owed monthly child support of $1,024, the child support order set a
payment amount of $0. After the divorce, Father and Mother continued to
live together in the marital home with the children, and Father paid Mother
between $4,700 and $6,600 each month until he moved out in March 2015.
¶3 In August 2015, Mother petitioned the court to hold Father in
contempt, arguing he had failed to pay spousal maintenance and child
support dating back to October 2009. After a two-day trial in January and
February 2017, the trial court issued an order (“2017 Order”) declining to
hold Father in contempt. As to spousal maintenance, the court found
Mother was estopped from claiming arrearages because she had delayed
bringing the claim and had accepted Father’s monthly payments of less
than the ordered amount without objection. As to child support, the court
acknowledged the discrepancy between the language of the decree and the
child support order, but found the decree controlled and that Father knew
the decree required him to pay the ordered amount. The court found,
however, that because Father’s monthly payments to Mother between
October 2009 and March 2015 “more than covered” his obligations to pay
the mortgage and other expenses, the payments could “also be applied
towards his monthly child support order of $1,024.” Therefore, Father
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SOETAN v. SOETAN
Decision of the Court
owed no child support arrearage “for the period in question.” 1 The court
did not issue a corrected child support order, and Father failed to pay any
child support after March 2015.
¶4 In February 2019, Mother again petitioned to hold Father in
contempt for failing to pay child support. Six months later, Father
petitioned to modify legal decision-making and parenting time and sought
a calculation of overpayment of child support. Father claimed that the 2017
Order eliminated his obligation to pay child support during the time he
lived with the children and thereby entitled him to a credit toward future
child support for the amounts he paid to Mother between October 2009 and
March 2015. The trial court dismissed Father’s overpayment claim, finding
that the 2017 Order did not entitle him to a “credit” against future child
support.
¶5 After a hearing, the court then found Father failed to pay child
support from March 1, 2017, through December 18, 2019, and entered an
arrearage judgment. Mother moved to amend the judgment, arguing that
the ruling in the 2017 Order that Father owed no past-due child support
applied only to the period before Father moved out of the marital home in
March 2015. She asserted the 2017 Order did not conclude that Father had
satisfied his child support obligations for the period between March 2015
and February 2017 and moreover, that Father admitted he had not paid
child support since March 2015. After full briefing, the trial court granted
Mother’s motion and ruled the 2017 Order applied only to child support
owed from October 2009 through March 2015. The amended judgment
calculated Father’s arrearage from April 1, 2015, determining that he owed
$58,368, plus interest.
¶6 We have jurisdiction over Father’s timely appeal pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶7 Father argues the 2017 Order indicated that he had overpaid
spousal maintenance for six years, and argues the court erred by failing to
1 The court suggested that Father might have been able to change the
obligation to pay child support while he was living with Mother and the
children (presumably because he was paying all of the children’s expenses),
but the court noted that Father had not sought during that period to modify
the specified child support obligation.
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SOETAN v. SOETAN
Decision of the Court
grant him a credit against his child support for those overpayments. 2 The
premise of Father’s argument, however, is unfounded. The trial court did
not rule in the 2017 Order that Father had overpaid spousal maintenance.
The court found that Father made monthly payments of between $4,700 and
$6,600 while the parties lived together and concluded that Mother’s
acceptance of those payments without objection estopped her from
claiming a spousal maintenance arrearage for the period at issue. The court
did not, as Father asserts, set aside the spousal maintenance obligation or
conclude that Father had overpaid his spousal obligations over that period.
¶8 Moreover, Father has waived any contention that he was not
obligated to pay child support during the period that he lived with Mother
and the children because he failed to make that argument when the trial
court considered evidence of the payments he had made during that period.
See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18 (App. 2007)
(“[A]rguments raised for the first time on appeal are untimely and deemed
waived.”). The trial court essentially found in 2017 that Father’s payments
to Mother during the time he lived with her and the children satisfied his
child support obligation, but the court specifically noted that he had not
sought a change in child support during this period.
¶9 Father also challenges the trial court’s 2019 ruling that, under
the 2017 Order, his child support obligations were current only through
March 2015, when he moved out of the family residence. On appeal, he
argues that the ruling violates res judicata. That principle does not apply
here, however. The 2019 order from which Father appeals did not amend
the earlier ruling. Instead, the 2019 order correctly interpreted the 2017
Order to hold that Father had satisfied his child support obligations only
during the time he was living with Mother and the children.
¶10 Mother requests her reasonable attorneys’ fees on appeal
pursuant to A.R.S. §§ 12-349 and 25-324. After considering the financial
resources of both parties and Father’s positions on appeal, Mother’s request
for attorneys’ fees is granted pursuant to § 25-324, contingent upon her
compliance with Arizona Rule of Civil Appellate Procedure 21.
2 To the extent Father is challenging his civil contempt finding, this court
lacks jurisdiction. See Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 7 (App. 2010)
(“A special action petition is the appropriate method to challenge a civil
contempt order because the finding of contempt and civil sanctions are not
appealable.”).
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SOETAN v. SOETAN
Decision of the Court
CONCLUSION
¶11 For the foregoing reasons, we affirm the orders finding Father
owes child support arrears and amending the start date of his arrears to
April 1, 2015.
AMY M. WOOD • Clerk of the Court
FILED: AA
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