Opinion
No. 1 CA-SA 13-0332
01-16-2014
JULIE CIOPPA, Petitioner, v. THE HONORABLE JAMES T. BLOMO, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Maricopa, Respondent Judge, JEFFERY PATAKY, Real Party in Interest.
Arizona Attorney General's Office, Phoenix By Carol A. Salvati Counsel for Real Party Arizona Department of Economic Security Jose A. Saldivar, PC, Phoenix By Jose A. Saldivar Counsel for Petitioner Lorona Mead, PLC, Phoenix By Jess A. Lorona Counsel for Real Party in Interest
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Special Action from the Superior Court in Maricopa County
No. FC2006-006523
The Honorable James T. Blomo, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Carol A. Salvati
Counsel for Real Party Arizona Department of Economic Security
Jose A. Saldivar, PC, Phoenix
By Jose A. Saldivar
Counsel for Petitioner
Lorona Mead, PLC, Phoenix
By Jess A. Lorona
Counsel for Real Party in Interest
MEMORANDUM DECISION
Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Peter B. Swann and Judge Jon W. Thompson joined. GOULD, Judge:
¶1 Petitioner Julie Cioppa ("Mother") seeks special action relief from the trial court's order suspending her award of child support. For the reasons discussed below, we accept jurisdiction and grant relief.
¶2 Jeffrey Pataky ("Father") and Mother were divorced in January 2008. In the final Decree, Mother was awarded spousal maintenance, child support, and received sole custody of the children. Father was awarded parenting time.
¶3 After the Decree was entered, problems arose as to child support. The State intervened in February 2009 pursuant to Arizona Revised Statute ("A.R.S.") section 25-509 because Mother applied for Title IV-D child support services. The State was quite active in its IV-D enforcement actions; there were seven hearings between April 2009 and September 2013, primarily addressing child support arrearages by Father and requests for modifications by Father.
Title IV-D refers to Title IV-D of the Social Security Act. 42 United States Code §§ 651 to -669.
¶4 In July 2013, Mother filed a petition to modify parenting time. Father filed a response in September seeking to modify custody and parenting time. Neither Mother's petition nor Father's response raised any issue regarding child support. As a result, the State was not copied on either of these filings. Father subsequently filed an "emergency" motion, which sought to change custody and modify parenting time. Again, neither of these filings referenced child support, nor was the State provided a copy of the filings.
¶5 The trial court held several review hearings in the fall of 2013 regarding the parties' requests to modify custody and parenting time. All of these hearings dealt with custody/ parenting time issues, such as mediation and the appointment and investigation of a court advisor. The State was not present at any of these hearings, and avows that it received no notice of the hearings.
¶6 At the custody/parenting time Review Hearing held on December 2, 2013, the trial court, on its own motion, suspended Father's child support payments effective December 1, 2013. While Mother has failed to provide us with a copy of the hearing transcript, it appears from the court's order that child support was suspended by the court to induce Mother to enroll the children, at her own expense, in "reunification therapy."
To the extent Mother challenges the factual findings of the trial court in support of its order, because Mother has failed to provide a transcript of the hearing, we must assume the evidence presented supported the court's findings. Quila v. Schafer's Estate, 7 Ariz. App. 301, 302, 438 P.2d 770, 771 (1968) (stating that where the complete transcripts are not available we conclude the court's judgment was sustained by the evidence).
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¶7 Mother now seeks special action relief from the trial court's child support modification order. Mother contends that she did not receive adequate notice that the court would address child support at the December review hearing. In response, Father does not dispute Mother's claim there was no notice; rather, Father asserts the court acted within its discretion in suspending child support. Further, Mother contends that she has no adequate remedy on appeal because she will suffer immediate, substantial financial hardship if she does not receive child support from Father, and, given these severe financial circumstances, she cannot wait for this matter to be resolved on appeal.
¶8 In its response to Mother's Petition, the State joins in Mother's argument that the trial court terminated child support without providing adequate notice to the parties. The State asserts that it received no notice of the December 2 hearing, and that as a party to all child support matters in this case it had a due process right to notice and an opportunity to be heard on child support issues.
Jurisdiction
¶9 We accept jurisdiction on the grounds the due process issue raised by the State and Mother is a pure issue of law, and that both the State and Mother lack a plain, speedy and adequate remedy by appeal. See Alejandro v. Harrison, 223 Ariz. 21, 23, ¶6, 219 P.3d 231, 233 (App. 2009) (An appellate court will accept special action jurisdiction of pure issues of law when a petitioner does not have an equally plain, speedy and adequate remedy by appeal).
Due Process
¶10 The family court has broad discretion in considering modification of child support; absent an abuse of discretion, we will not overturn its decision. Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999). We review issues of law de novo. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 8, 284 P.3d 863, 867 (2012).
¶11 We need not reach the issue of whether Mother was provided adequate notice of the subject child support hearing, because we conclude, as a matter of law, that the trial court reversibly erred when it failed to provide the State with any notice or opportunity to be heard on the subject of child support modification. At the time of the hearing, the State had an active, open IV-D case, and had been involved in child support enforcement proceedings with the parties as recently as September 2013. The State, as an intervenor/party under A.R.S. § 25-509, had the right to notice and a hearing on any child support modification. See A.R.S. § 25-509(B) ("Intervention by the state in an existing action is by unconditional right and is accomplished by the state filing an entry of appearance.") Our opinions in Cook v. Losnegard, 228 Ariz. 202, 205-06, 265 P.3d 384, 387-88 (App. 2011) and Heidbreder v. Heidbreder, 230 Ariz. 377, 381, 284 P.3d 888, 892 (App. 2012) make it clear that a court cannot modify child support without adequate notice to the parties. Heidbreder, 230 Ariz. at 381, ¶ 13. Without adequate notice, a party is deprived of its due process rights. Id.
¶12 Here, the State received no notice, and was never provided an opportunity to be heard on the court's decision to modify child support. Accordingly, the State was denied its due process with respect to the court's order modifying child support.
Conclusion
¶13 For the reasons discussed above, we accept jurisdiction and grant relief, vacating the court's December 2, 2013 order suspending Mother's child support.