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State ex rel. Des v. Pandola

Court of Appeals of Arizona, First Division

September 29, 2016

STATE OF ARIZONA ex rel. DES, Petitioner/Appellee,
v.
THOMAS PANDOLA, Respondent/Appellee. TIFFANY G. TAYLOR, Petitioner/Appellant,

         Appeal from the Superior Court in Maricopa County No. FC 2002-010919 The Honorable Veronica W. Brame, Judge Pro Tempore

          Tiffany G. Taylor, Scottsdale Petitioner/Appellant

          Arizona Attorney General's Office, Phoenix By Carol A. Salvati Counsel for Petitioner/Appellee

          Katz & Bloom, PLC, Phoenix By Jay R. Bloom Counsel for Respondent/Appellee

          Judge Patricia A. Orozco delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen joins and Kenton D. Jones concurs in part and dissents in part.

          OPINION

          OROZCO, Judge

         ¶1 Tiffany Taylor (Mother) appeals the superior court's findings that she: was properly served with a notice of registration of Illinois child support orders (Notice) filed by Thomas Pandola (Father); failed to timely object to the Notice; failed to timely object to Father's allegation that he owed no child support arrearages; and must pay Father's attorney fees. For the following reasons, we affirm the findings that Mother was properly served with the Notice and failed to timely object to the Notice. We reverse the superior court's finding that Father owed no child support arrearages as of the date of the registration and vacate the award of attorney fees. Finally, we remand to the superior court for further proceedings consistent with this opinion.

         FACTS[1] AND PROCEDURAL HISTORY

         ¶2 Mother and Father are the natural parents of a child who was born in 1999 when they were living in Illinois. Mother and Father first agreed that Father would pay $3000 per month in child support and an Illinois court so ordered in 2001. Mother and the child then moved to Arizona. Illinois retained jurisdiction over child support. In 2003, the Illinois court entered a stipulated order requiring Father to pay $6000 in arrearages to Mother and $2000 per month in ongoing child support. In May 2004, the Illinois court entered another stipulated order reducing Father's monthly obligation to $1200 (the May 2004 Order).[2]

         ¶3 In 2005, Father filed a request in Maricopa County Superior Court asking to modify the May 2004 Order and reduce his monthly obligation to $106. After some legal skirmishes, Father and Mother submitted a stipulated order in Arizona agreeing the superior court had jurisdiction over the matter and requiring Father to pay support arrearages of $7146 and support of $900 per month commencing April 1, 2006. Pursuant to another stipulation, the Arizona court ordered in 2010 that Father's obligation would be reduced to $655 per month.

         ¶4 Father filed another petition to reduce his support obligation in March 2013 and many filings and several court proceedings ensued. The Arizona Department of Economic Security (ADES) became involved pursuant to Title IV-D. Finally, on its own motion and without ruling on Father's modification request, the superior court asked the parties to brief whether subject matter jurisdiction over their child support issues was proper in Arizona. Prompted by the court's order, ADES, Mother, and Father each averred that the Arizona court lacked jurisdiction until the operative Illinois order was registered in Arizona. See Glover v. Glover, 231 Ariz. 1, 7, ¶ 23 (App. 2012). The court so ordered and dismissed Father's March 2013 petition for lack of jurisdiction.

         ¶5 On August 14, 2014, Father filed the Notice in superior court, citing Arizona Revised Statutes (A.R.S.) section 25-1302 and attaching five separate support orders from Illinois, including the May 2004 Order that ordered Father to pay $1200 per month in child support. On the same day, Father also filed a "Letter of Transmittal Requesting Registration and Enforcement of Foreign Child Support Order Pursuant to A.R.S. § 25-1302(A) and § 25-1309." The letter cited two Illinois orders, the latter of which was the May 2004 Order. At the same time, Father also filed a "Notice of Filing Respondent's Sworn Statement Re: Child Support Arrears Pursuant to A.R.S. § 25-1302(A)(3) and Other Information Required Pursuant to A.R.S. § 25-1302(A)(4-5)." In the attached sworn statement, Father averred that the May 2004 Order was the most recent and stated, "[Father] is not aware of any child support arrears owed to [Mother] in this matter." Father served his three filings on Mother's counsel, who executed an acceptance of service on September 4, 2014.

         ¶6 On August 27, 2014, ADES filed its own arrears calculation, showing Father owed $375, 790.50 in back child support. Father objected, arguing ADES used the wrong Illinois order as the basis for its calculation. On October 30, ADES filed an adjusted arrears calculation. Using a monthly obligation of $1200, ADES recalculated Father's arrearage at $540.[3]

         ¶7 Mother did not timely object to the Notice, but instead, on October 1, filed a response in support of ADES' initial arrearage calculation. On November 5, Mother finally filed an objection to Father's August 14 filing, arguing that it had been improperly filed and served, and requested a hearing as to the validity and enforcement of the Notice and order it sought to register. After an evidentiary hearing, the superior court found Mother was properly served on September 4 when her counsel accepted service on her behalf and that, as a result, Mother had until September 24, 2014, to file an objection but failed to do so. See A.R.S. §§ 25-1305.B.2, -1306.B. The court held that because Mother failed to timely object, she waived any objection both to confirmation of the May 2004 Order and also to Father's avowal that he owed nothing in support arrearages as of the date of the Notice.

         ¶8 The superior court then affirmed registration of the $1200 support award reflected in the May 2004 Order. As to arrearages, the court affirmed ADES' revised calculation and found that Father's child support arrears was "zero through August 14, 2014."

         ¶9 Father then filed an application for attorney fees and costs and requested sanctions, arguing Mother's challenge to the registration of the May 2004 Order was unreasonable. Mother did not timely respond and the superior court awarded Father $7000 in attorney fees.

         ¶10 Mother timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 and -2101.A.1 (West 2016).[4]

         DISCUSSION

         ¶11 On appeal, Mother argues that registration of the May 2004 Order should be set aside because Father's filing was legally insufficient and was not properly served; she also argues the court erred by precluding her from contesting the amount of arrears Father owed under the order. We defer to the superior court's "factual findings and will overturn them only if they are clearly erroneous." Danielson v. Evans,201 Ariz. 401, 406, ΒΆ 13 (App. ...


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