state/smith v. Stevens

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
STATE OF ARIZONA, ex rel, DES
DANIELLE SHKAY SMITH, Petitioners/Appellees,
v.
SHANE STEVENS, Respondent/Appellant.
No. 1 CA-CV 22-0590 FC
FILED 7-20-2023
Appeal from the Superior Court in Maricopa County
No. FC2021-052815
The Honorable Michelle Carson, Judge Pro Tempore
AFFIRMED
APPEARANCES
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Department of Economic Security
Shane Stevens-El, Phoenix
Respondent/Appellant
STATE/SMITH v. STEVENS
Decision of the Court
MEMORANDUM DECISION
Chief Judge David B. Gass delivered the decision of the court, in which
Judge Brian Y. Furuya and Judge Andrew M. Jacobs joined.
G A S S, Chief Judge:
¶1 Shane Stevens-El (father) appeals the superior court’s denial
of his motion to vacate a judgment imposing child support obligations. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother alleged father was the parent of her child born in
December 2020. In October 2021, the Arizona Department of Economic
Security (ADES) petitioned to establish father’s paternity through genetic
testing and sought an order for child support on behalf of mother. ADES
did so under the Title IV-D program. In response, father filed affidavits
stating he is a “fit parent” and was “elect[ing], by right, to not participate in
the Title IV-D program.”
¶3 In May 2022, the superior court held a hearing to establish
child support and decided it would take no action on father’s affidavits.
Though father attended the hearing, he did not participate and said he
“d[id] not consent to these proceedings.” Father also did not complete the
paternity test and refused to recognize the authority of the Title IV-D
program. ADES moved to proceed by default and the superior court
granted the motion.
¶4 After the superior court proceeded by default, it ordered
father pay $6,022 in child-support arrears and $410 per month in
prospective child support. Father then filed a motion titled “Motion to
Vacate Void Judgment” demanding the superior court vacate its order. He
argued he has a constitutional right to decline to participate in Title IV-D
services, he had not contracted to pay child support, and the superior
court’s order was void because the court commissioner lacked authority.
The superior court denied his motion. Father then timely appealed the
superior court’s denial.
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Decision of the Court
JURISDICTION
¶5 The state argues this court lacks jurisdiction over father’s
appeal because father moved to vacate a “void judgment,” rather than filing
a motion to set aside default judgment. But the judgment against father was
not a default judgment.
¶6 A court may issue a default judgment when “a party against
whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend.” Ariz. R. Civ. P. 55(a)(1). Here, ADES petitioned and
father timely responded by filing affidavits addressing the petition. The
superior court did not enter a “default judgment.” Instead, it proceeded “by
default” because of father’s nonparticipation and then entered a judgment.
Because father timely challenged the superior court’s final ruling, his
motion was proper.
¶7 This court has jurisdiction over father’s appeal under article
VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and
-2101.A.1.
ANALYSIS
¶8 Father argues the superior court erred in denying his motion
to vacate void judgment because: (1) the Title IV-D child support program
violates his due process rights; (2) he need not pay child support because
he did not contract to do so; and (3) the superior court’s order is void
because the court commissioner lacked authority to preside over this
matter.
¶9 This court reviews the superior court’s conclusions of law
about child support de novo. Nia v. Nia, 242 Ariz. 419, 422 ¶ 7 (App. 2017).
This court reviews factual findings for an abuse of discretion and reverses
only when clearly erroneous. In re Marriage of Gibbs, 227 Ariz. 403, 406 ¶ 6
(App. 2011). A finding is clearly erroneous only if, after considering the
evidence, this court has a “definite and firm conviction” the superior court
erred. State v. Burr, 126 Ariz. 338, 339 (1980). This court does not “reweigh
the evidence but defer[s] to the [superior] court’s determinations of witness
credibility and the weight given to conflicting evidence.” Lehn v. Al-
Thanayyan, 246 Ariz. 277, 284 ¶ 20 (App. 2019).
¶10 Father provided no transcripts from the Title IV-D
evidentiary hearing. If a party does not provide a transcript, this court
presumes the testimony and other evidence discussed in the missing
transcript supports the superior court’s factual findings and conclusions of
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STATE/SMITH v. STEVENS
Decision of the Court
law. State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30 ¶ 16 (App. 2003).
We apply that presumption here. See id.I. The superior court did not violate father’s due process rights by
ordering child support under Title IV-D.
¶11 Father argues the superior court deprived him of due process
because he has the “right as a fit parent to decline Title IV-D services.”
Father also argues the judgment infringed his constitutional right to make
decisions about his child’s “care, custody, and control.”
¶12 This court reviews de novo “constitutional issues, including
an alleged violation of due process.” Wassef v. Ariz. State Bd. of Dental
Exam’rs ex rel. Hugunin, 242 Ariz. 90, 93 ¶ 11 (App. 2017). Due process errors
merit reversal only if they prejudice a party. Volk v. Brame, 235 Ariz. 462,
470 ¶ 26 (App. 2014).
¶13 The superior court did not violate father’s due process rights
under Title IV-D of the federal Social Security Act. Title IV-D grants
conditional funds to states to secure financial support for children from
noncustodial parents. 42 U.S.C. § 651; A.R.S. § 25-509.A. Under Title IV-D,
a state may provide certain services including establishing paternity and
child support obligations. 42 U.S.C. § 654; A.R.S. §§ 25-509, -816.
¶14 Whether a custodial parent receives assistance from ADES’s
Title IV-D program to collect child support does not concern the child’s
care, custody, and control. See, e.g., Doll v. Barnell, 693 N.W.2d 455, 461
(Minn. App. 2005) (ruling state’s Title IV-D child-support program did not
violate parents’ right to control their child’s upbringing because child
support does not involve a fundamental parental right). An action securing
child support, thus, does not involve any fundamental parental rights.
II. Father has a legal duty, not a contractual duty, to support his child.
¶15 Father argues ADES has no cause of action because there
was no valid contract requiring him to provide child support.
¶16 Under Arizona law, “every person has the duty to provide
all reasonable support for that person’s . . . minor, unemancipated
children.” A.R.S. § 25-501.A. This duty “is not founded upon contract,
expressed or implied, but on the . . . legal duty of a [parent] to support
[their] minor children.” Indus. Comm’n v. Oden, 68 Ariz. 234, 238 (1949). In
fact, “[a] parent may not form a valid and enforceable contract which
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Decision of the Court
releases the parent from all obligation to support his or her minor children.”
Smith v. Saxon, 186 Ariz. 70, 73 (App. 1996).
¶17 Father relies on the federal nature of Title IV-D to argue
mother has no right to child support. True, generally a parent has 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 father’s argument misses the point. This case arises under state
law—not federal law. See A.R.S. § 25-505.A (permitting ADES to issue
income withholding orders). And state law compels father to support his
child. See A.R.S. § 25-501.A; Indus. Comm’n, 68 Ariz. at 238. Moreover,
ADES—not mother—seeks to enforce the obligation here. And while
mother has no individual right to compel ADES to pursue father for
payment of child support under Title IV-D, the State of Arizona may elect
to do so in its discretion. See A.R.S. § 25-509.B (authorizing state to initiate
or intervene in an action involving child support).
¶18 Father also argues the superior court erred in ordering him
to pay child support because it relied solely on mother’s testimony to
support its paternity finding. Not so. Under A.R.S. § 25-813(2), the superior
court must enter an order of paternity if a party violates an order for genetic
or blood testing. “An order of genetic testing issued by [ADES] has the same
force and effect as a superior court order.” A.R.S. § 25-816.A. And if the
superior court decides paternity in the affirmative, it must order child
support. A.R.S. § 25-809.A, .D.
¶19 Here, ADES ordered father to submit a genetic test to
establish paternity. But father never completed a genetic or blood test.
Because father violated the order for genetic testing, the superior court
lawfully determined father is the child’s legal parent. See A.R.S. § 25-809.A,
.D; A.R.S. § 25-813(2).
III. The superior court commissioner’s order establishing child
support is valid and controlling.
¶20 Father argues the court commissioner “did not act as a court
commissioner . . . in this proceeding, but as a hired contractor”; “[t]he ‘child
support proceeding’ was not a judicial process and the ‘paternity judgment’
and ‘support order’ . . . [were] not court order[s]”; and the judgment and
order were issued coram non judice—outside the presence of a judge. At
bottom, father argues the superior court commissioner’s order is void
because she lacked authority to preside over this matter.
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STATE/SMITH v. STEVENS
Decision of the Court
¶21 Court commissioners have statutory authority to preside
over child-support cases and enter child-support orders. A.R.S. § 12-298.C.
When court commissioners act 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 court commissioner’s order
establishing child support was within her authority, the order has the same
effect as if entered by a superior court judge.
¶22 The superior court commissioner’s order establishing child
support, thus, is valid and controlling.
CONCLUSION
¶23 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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