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State ex rel. Arizona Department of Economic Security v. Cumming

Court of Appeals of Arizona, First Division, Department C

October 24, 2013


Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure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

Thomas C. Horne, Attorney General Phoenix By Carol A. Salvati, Assistant Attorney General And Jami R. Heller, Assistant Attorney General Attorneys for Petitioners/Appellees

Ernest Benjamin Cumming Gallatin, TN Respondent/Appellant



¶1 Benjamin D. Fillmore (formerly known as Ernest Benjamin Cumming) (Father) appeals the family court's order holding him in contempt of court for failure to pay child support. 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.


¶2 Fe Melisa Judd (Mother)[1] and Father were married in Nevada in January 2000 and have two children together.

¶3 Mother and Father separated and Father filed for divorce. 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.

¶4 In September 2003, Mother moved with the children temporarily to Michigan to live with her sister. 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. Father did not provide Mother with his Utah address. Mother returned to Arizona and filed a Petition for Dissolution of Marriage in December 2003. Mother also filed an emergency petition seeking temporary 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. Father objected to the amount. 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. In June 2004, the family court reduced Father's monthly 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 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. In July 2004, the family court held a hearing regarding Mother's Contempt Petition. Father appeared telephonically without counsel. As a result of the hearing, the family court (1) adopted 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, Mother filed a pro se Petition to Enforce Child Support. Mother alleged that Father has not made timely child support payments since July 2004 and that he owed $93, 000 in child support arrearages. 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. Upon Mother's service of the petition, the State entered its appearance to be heard on support and reimbursement issues. Father responded to 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 ...

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