Jimenez v. state/ades

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ERIC JIMENEZ, Plaintiff/Appellant,

v.

STATE OF ARIZONA ex rel. DEPARTMENT OF ECONOMIC SECURITY,
Division of Child Support Enforcement, Defendant/Appellee.

No. 1 CA-CV 13-0362
FILED 03/25/2014

Appeal from the Superior Court in Maricopa County
No. DR1999-095658, LC2013-000122-001
The Honorable Benjamin R. Norris, Judge

AFFIRMED

COUNSEL

Erik Jimenez, St. Johns
Plaintiff/Appellant

Arizona Attorney General’s Office, Mesa
By Nicholas Chapman-Hushek
Counsel for Defendant/Appellee
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Decision of the Court

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.

G O U L D, Judge:

¶1 Eric Jimenez appeals the family court’s dismissal of his
complaint for failure to state a claim upon which relief can be granted.
For the reasons outlined below, we affirm.

Facts and Procedural History

¶2 Eric Jimenez and Jane Peterssen1 married in 1996 and had
two children during their marriage. In 1999, Peterssen filed a petition for
divorce. In 2000, the court issued a decree of dissolution of marriage and
a child support order, granting Peterssen sole custody of the children, and
ordering Jimenez to pay $754.42 per month in child support.

¶3 The Arizona Department of Economic Security (“ADES”)
intervened in the case in December 2010 pursuant to Arizona Revised
Statute (“A.R.S.”), section 25-509. That same month, ADES filed a petition
to modify Jimenez’s child support payments on the grounds Jimenez was
in prison and lacked an identifiable source of income. As a result, ADES
requested the court to adjust Jimenez’s current child support and monthly
arrears payments to $0.

¶4 The court granted ADES’ petition. In its modification order,
the court stated that “[a]rrears exist but because [Jimenez] is incarcerated
and no income source has been identified no payment on arrears will be
added at this time.”

¶5 After the court issued its modification order, ADES
discovered that Jimenez had been paid wages while he was in prison, and
that these wages had been deposited into his inmate trust accounts.
ADES attempted to collect Jimenez’s arrears, which totaled $158,701.36, by

1 Jane Peterssen’s name during these proceedings was originally Jane
Jimenez; she changed her last name to Peterssen in 2000.

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issuing a limited income withholding order to the prison. As a result, the
prison withheld $3,358.00 from Jimenez’s inmate accounts.

¶6 Jimenez challenged the withholding order by filing a request
for administrative review with ADES pursuant to A.R.S. § 25-522(A).
ADES denied Jimenez’s appeal and affirmed its withholding order.
Jimenez subsequently filed a complaint for administrative review in
superior court pursuant to A.R.S. §§ 25-522(F) and 12-910. ADES moved
to dismiss Jimenez’s complaint, claiming Jimenez failed to state a claim
upon which relief could be granted. The superior court granted ADES’
motion and dismissed Jimenez’s complaint. Jimenez timely appeals.

Standard of Review

¶7 We review de novo the granting of an order to dismiss for
failure to state a claim upon which relief can be granted. Coleman v. City of
Mesa, 230 Ariz. 352, 355, ¶ 8, 284 P.3d 863, 866 (2012). When reviewing the
grant of a motion to dismiss, we must “assume the truth of the well-pled
factual allegations and indulge all reasonable inferences therefrom” in
favor of the nonmoving party. Cullen v. Auto-Owners Ins. Co., 218 Ariz.
417, 419, ¶ 7, 189 P.3d 344, 346 (2008). We review issues involving
statutory interpretation de novo. Lear v. Fields, 226 Ariz. 226, 232, ¶ 15, 245
P.3d 911, 917 (App. 2011). See Mead v. Holzmann, 198 Ariz. 219, 220, ¶ 4, 8
P.3d 407, 408 (App. 2000) (interpretation of Arizona Child Support
Guidelines is a question of law the appellate court reviews de novo).

Modification Order

¶8 Jimenez asserts the modification order precluded ADES
from attempting to collect any child support arrears while he was in
prison. We disagree. The modification order relates to the payment of
current child support and monthly arrears payments while Jimenez is
incarcerated, and is premised on the determination that, at the time the
order was issued, Jimenez had no identifiable source of income. The
modification order does not preclude ADES from collecting arrears if, at
some point, it identifies a source of income for Jimenez. That is precisely
what happened here. After the modification order was issued, ADES
discovered Jimenez’s inmate accounts, and collected a portion of the
arrearages he owed from these accounts.2

2 ADES was not required to return to the family court to obtain a
limited income withholding order for Jimenez’s inmate accounts.

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Exemptions

¶9 Jimenez also argues that his prison accounts were exempt
from ADES’ withholding order. According to Jimenez, because his
income in prison did not exceed $775.00 per month, his earnings should
have been exempt from ADES’ withholding order under the “Self Support
Reserve Test” set forth in the Arizona Child Support Guidelines. A.R.S. §
25-320, Appendix, Arizona Child Support Guidelines, ¶ 15 (“In each case,
after determining the child support order, the [family court] shall perform
a Self Support Reserve Test to verify that the noncustodial parent is
financially able both to pay the child support order and to maintain at
least a minimum standard of living.”) (2010).3

¶10 Jimenez confuses the “limited income withholding order”
issued by ADES in this case pursuant to A.R.S. § 25-505 with an “income
withholding order” issued pursuant to A.R.S. § 25-505.01. A limited
income withholding order under A.R.S. § 25-505 collects a “lump sum
payment” for child support, while an income withholding order under
A.R.S. § 25-505.01 withholds, on a regular and continuing basis, current
child support and monthly arrearage payments from any form of periodic
income, such as wages or a salary. A.R.S. § 25-505(A) (limited income
withholding orders); A.R.S. §§ 25-505.01(A), (B) (income withholding
orders). The Self Support Reserve Test applies only to current, monthly
child support payments, and does not apply to lump sum payments
under A.R.S. § 25-505. A.R.S. § 25-320, Child Support Guidelines, ¶ 15
(“The [self support reserve] test applies only to the current child support
obligation, but does not prohibit an additional amount to be ordered to
reduce an obligor’s arrears.”) Cf. Hanley v. Industrial Com’n of Arizona, 200
Ariz. 32, 35-37, ¶¶ 18, 28, 21 P.3d 850, 853-55 (App. 2001) (holding that an
incarcerated father’s monthly worker’s compensation benefits were not
subject to 50% exemption under A.R.S. § 33-113(C) because the statute

Pursuant to A.R.S. § 25-505, ADES was authorized to administratively
issue a limited income withholding order. See State ex. Rel. Dep’t of Econ.
Sec. v. Hayden, 210 Ariz. 522, 523, ¶ 2, 115 P.3d 116, 117 (2005) (explaining
that the legislature provided ADES with “a variety of administrative
remedies to collect child support arrearages,” including income
withholding orders).

3 Effective June 1, 2011, the amount of the self support reserve test
increased from $775/month to $903/month. A.R.S. § 25-320, Appendix,
Arizona Child Support Guidelines, ¶ 15 (2011).

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“seems intended to preserve some income for a ‘debtor’ needing such
income for self-maintenance, which is not [an inmate’s] situation.”).4

¶11 Accordingly, we conclude that, as a matter of law, Jimenez’s
prison accounts were not exempt from ADES’ limited income withholding
order under the Self Support Reserve Test.

¶12 Finally, Jimenez asserts that ADES’ withholding order has
caused him to suffer “substantial financial hardship due to his poverty
and lack of earning capacity.” This argument is presented for the first
time on appeal, and we do not, as a general matter, consider issues unless
they were raised in the trial court. Englert v. Carondelet Health Network, 199
Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768-69 (App. 2000). Furthermore, Jimenez
has not alleged any facts or evidence in support of this argument and,
therefore, he has failed to allege a cognizable claim. Cullen, 218 Ariz. at
420, ¶ 14, 189 P.3d at 347 (holding that in reviewing the sufficiency of a
complaint, a court may not accept as true unsupported conclusions or
“speculate about hypothetical facts that might entitle the plaintiff to
relief.”) (internal citations omitted).

4 Jimenez alleged in his complaint that some of the money collected
from his account was exempt under A.R.S. § 33-1131(C). Jimenez does
not, however, raise that claim on appeal and therefore has waived it.
ARCAP 13(a)(6); DeElena v. S. Pac. Co., 121 Ariz. 563, 572, 592 P.2d 759, 768
(1979) (issues not argued on appeal deemed abandoned). Moreover, even
if this claim was properly brought before us, we would still conclude that
it was properly dismissed based on our decision in Hanley. See supra, ¶ 10.

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Conclusion

¶13 For the reasons discussed above, we affirm the family
court’s judgment dismissing Jimenez’s complaint.

:gsh

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