state/des v. Torres

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, ex rel.,
DEPARTMENT OF ECONOMIC SECURITY,
Petitioner/Appellee,

v.

JOSE TORRES,
Respondent/Appellant.

No. 1 CA-CV 17-0695 FC
FILED 10-30-2018

Appeal from the Superior Court in Maricopa County
No. FC2001-001384 FC
The Honorable Ronee F. Korbin Steiner, Judge
The Honorable Brian S. Rees, Judge Pro Tempore

AFFIRMED

COUNSEL

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

Law Office of Stacy Scheff, Tucson
By Stacy Scheff
Counsel for Respondent/Appellant
 STATE/DES v. TORRES
Opinion of the Court

OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Maria Elena Cruz and Judge Randall M. Howe joined.

J O H N S E N, Judge:

¶1 Jose Torres, an inmate in the state prison system, owed more
than $20,000 in child support arrears. After his mother wired a gift of $120
into his inmate trust account, the Arizona Department of Economic Security
("ADES") issued a withholding order seizing most of it and sent the money
to the child-support clearinghouse. Torres argues non-wage monies in an
inmate's account may not be seized for child support and contends the
withholding order violated his due-process rights. For the following
reasons, we affirm the superior court's judgment denying Torres's appeal
of the administrative action.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2001, the superior court ordered Torres to pay $173 a month
in child support for his son and $2,941 in arrearages that had accumulated
since the child was born the year before. In 2011, the court learned Torres
was incarcerated and terminated his monthly child support obligation
pursuant to Arizona Revised Statutes ("A.R.S.") section 25-503(E) (2018).1
The court's order, however, noted, "Arrears are still owed."

¶3 In November 2016, Torres's mother wired $120 into his inmate
trust account. By that time, and even though Torres's monthly payments
had been terminated, he owed child-support arrearages of $20,645. Days
later, acting under Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-
669, ADES issued a Limited Income Withholding Order that directed the
Arizona Department of Corrections ("ADC") to withhold an unspecified
amount from Torres's account for application against his arrearages. ADC
withheld $90.07 from Torres's account, and he requested administrative
review. Torres argued the order was improper because he was incarcerated

1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.

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Opinion of the Court

and did not have custody of his son. ADES issued a final determination
denying his challenge.

¶4 Torres appealed the ADES determination to the superior
court. ADES moved to dismiss Torres's appeal, arguing its order was
proper under A.R.S. § 25-505(A) (2018). Torres responded that A.R.S. § 31-
254 (2018) controls the withholding of an inmate's funds for child support
and does not allow seizure of funds a prisoner receives as a gift. The
superior court granted the motion to dismiss and Torres timely appealed.
We have jurisdiction under Article 6, Section 9, of the Arizona Constitution,
and A.R.S. §§ 12-120.21(A)(1) (2018), -913 (2018) and -2101(A)(1) (2018). See
Svendsen v. Ariz. Dep't of Transp., Motor Vehicle Div., 234 Ariz. 528, 533, ¶ 13
(App. 2014).

DISCUSSION

A. Section 31-254 Does Not Bar Use of a Withholding Order to Take
an Inmate's Non-Wage Monies for Child Support.

¶5 The interpretation of a statute is a matter of law that we
review de novo. See State ex rel. Dep't of Econ. Sec. v. Hayden, 210 Ariz. 522,
523, ¶ 7 (2005). In construing a statute, we give effect to each word and
construe related statutes together. Id. We give a statute's words their "usual
and commonly understood meaning unless the legislature clearly intended
a different meaning." See Bilke v. State, 206 Ariz. 462, 464-65, ¶ 11 (2003). If
a statute's language is clear, we apply it without using other methods of
statutory interpretation. See id. at 464, ¶ 11.

¶6 The statute on which Torres relies, A.R.S. § 31-254, establishes
a pay schedule for work performed by inmates and mandates specified
deductions from an inmate's pay, including "[t]hirty percent of the
prisoner's wages for court ordered dependent care." A.R.S. § 31-254(D)(4).
As Torres points out, there is no provision in § 31-254 for the withholding
of non-wage monies from an inmate's account for child support. Torres
argues that because § 31-254 mandates that child support be taken from an
inmate's wages but does not specify any other deductions for child support,
no other funds in an inmate's account can be taken for child support.

¶7 Under A.R.S. § 25-504 (2018), a party owed child support is
entitled to an assignment of the obligor's "income" and may obtain an order
withholding a specified amount from the obligor's monthly wages. A.R.S.
§ 25-504(A), (B). The legislature broadly has defined "income" for this
purpose as "any form of payment owed." A.R.S. § 25-500(6) (2018). As
stated, when the obligor is an inmate who earns income – wages – while

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Opinion of the Court

incarcerated, § 31-254 expressly provides that 30 percent of those wages be
deducted for child support.

¶8 The order at issue here, however, was not directed at Torres's
wages pursuant to §§ 31-254(D)(4) and 25-504. Instead, it was a one-time
"limited" withholding order issued pursuant to § 25-505. That statute does
not apply to regularly recurring income, but instead authorizes issuance of
a withholding order to "any employer, payor or other holder of a
nonperiodic or lump sum payment that is owed or held for the benefit of
an obligor." Under § 25-505, a "holder" of such a payment may be required
to "withhold . . . and transmit" the specified funds to the support
clearinghouse. A.R.S. § 25-505(D).

¶9 Although § 31-254(D)(4) mandates what may be taken from
an inmate's wages for child support pursuant to § 25-504, it imposes no
limits on what may be taken pursuant to § 25-505 from a "nonperiodic or lump
sum payment" in an inmate's account. Nor do other provisions in the
statutory regime support Torres's contention that the wage deduction
specified in § 31-254 impliedly precludes any other withdrawal for child
support under § 25-505. To the contrary, A.R.S. § 25-521 (2018) empowers
ADES to levy "on all property and rights to property not exempt under
federal or state law" to collect support arrearages, and Torres cites no legal
exemption shielding an inmate's trust account from that broad power.
Further, the legislature has mandated that child-support obligations "may
be enforced by all civil and criminal remedies provided by law" and that
remedies available under Chapter 5 of Title 25 "are cumulative and do not
affect the availability of [other] remedies." A.R.S. § 25-501(D), (E) (2018).

¶10 Torres contrasts § 31-254 with A.R.S. § 31-230(C) (2018), which
requires ADC to withdraw a specified percentage of funds in an inmate's
"spendable account" to satisfy the inmate's restitution obligation. Torres
argues the legislature's failure to enact a comparable statute specifically
granting ADES the power to take non-wage funds from an inmate's account
for child support means that ADES must lack that power. Given the broad
authority the legislature has granted ADES under §§ 25-501 and -521 to
collect past-due child support, however, no specific provision addressing
inmates' trust accounts is required. For the same reason, we reject Torres's
contention that penological interests and ADC policy reasons should
constrain ADES's power to take funds from an inmate's account. See, e.g.,
Rasmussen v. Munger, 227 Ariz. 496, 499, ¶ 12, n.2 (App. 2011) (when statute
is plain, court will not construe it otherwise because of policy
determinations that are for the legislature to decide).

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Opinion of the Court

B. ADC Was a Holder of a Lump Sum Payment Under A.R.S. § 25-
505.

¶11 Torres also argues the withholding order ADES issued to
ADC was improper because his mother's gift was not a "lump sum
payment" under § 25-505(E). As stated, under § 25-505, ADES may issue a
withholding order "to any employer, payor or other holder of a nonperiodic
or lump sum payment that is owed or held for the benefit of an obligor."
The statute defines neither "nonperiodic" nor "lump sum," but subsection
(E) states:

¶12 For the purposes of this section, "lump sum payment"
includes:

1. Severance pay.

2. Sick pay.

3. Vacation pay.

4. Bonuses.

5. Insurance settlements.

6. Commissions.

7. Stock options.

8. Excess proceeds.

9. Retroactive disability proceeds.

10. Personal injury awards.

¶13 "Nonperiodic payment" and "lump sum payment" both have
ordinary meanings. The former is a payment made once, or intermittently,
but not "periodically" or regularly. The latter is a payment made all at once,
not in installments. Notwithstanding Torres's argument to the contrary,
under the plain meaning of the statute, his mother's gift was a single
payment made all at once, and thus was a "lump sum payment" under that
term's ordinary meaning.2

2 Neither ADES nor Torres addresses whether the gift was a
"nonperiodic payment."

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Opinion of the Court

¶14 In arguing otherwise, Torres contends the term "lump sum
payment" means only the types of payments listed in § 25-505(E). But
subsection (E) states that "lump sum payment includes" the listed forms of
payments, and "[t]he word 'includes' is most often a term of enlargement,
rather than limitation." Tracy v. Superior Court of Maricopa Cty., 168 Ariz. 23,
35 (1991). In other words, when the legislature does not define a term, but
states that the term "includes" specified items, we construe the term to also
include other items that fall within the term's ordinary meaning. See id. at
35, citing 2A N. Singer, Sutherland Statutory Construction § 47.07, at 133 (4th
ed. 1984 Rev.).

¶15 Careful review of other relevant statutes further undercuts
Torres's contention that § 25-505(E) contains an exhaustive list of what
"lump sum payment" means. We construe statutes that are related to the
same subject matter as though they constitute one law. See Hayden, 210
Ariz. at 523, ¶ 7. Elsewhere in the support-collection statutes, the
legislature has used the verb "means" to state a term's only meaning, while
using "includes" to introduce a non-exclusive list. Compare A.R.S. § 25-
522(G)(1) (2018) ("'[b]usiness day' means a day on which state offices are
open for regular business") with A.R.S. § 25-522(G)(2) ("'[d]epartment'
includes the department's agent"). See also Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 226 (2012) ("When a
definitional section says that a word 'includes' certain things, that is usually
taken to mean that it may include other things as well . . . . When, by
contrast, a definitional section says that a word 'means' something, the clear
import is that this is its only meaning.").

¶16 Torres further argues that a "lump sum payment" must be a
payment owed to the recipient – not a gift – because all the items listed in §
25-505(E) are "moneys either earned or owed to a recipient." As noted
above, § 25-504 authorizes withholding of an obligor's "income" for child
support. See A.R.S. §§ 25-504(H) ("employer or other payor who has
received any order of assignment shall withhold the amount specified . . .
from the income of the person obligated to pay support), -500(6) ("'Income'
means any form of payment owed to an individual, regardless of source,
including wages, salaries, commissions, bonuses, workers' compensation,
disability payments, [retirement payments] and interest").

¶17 But § 25-505(A), the source of the withholding order here,
expressly applies not only to a "payment that is owed" to the obligor but
also to a payment "held for the benefit of" the obligor. By the same token,
the statute authorizes issuance of an order not only to an obligor's employer
(compelling withholding from a "payment that is owed" to the obligor) but

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Opinion of the Court

also to a "holder" of a payment that has been made to an obligor, whether
"owed" or not. A.R.S. § 25-505(A). "[W]e assume that when the legislature
uses different language within a statutory scheme, it does so with the intent
of ascribing different meanings and consequences to that language." Parker
v. City of Tucson, 233 Ariz. 422, 428, ¶ 12 (App. 2013). By this reasoning, we
conclude that "lump sum payment" as used in § 25-505 can include any
payment made in a lump sum, "owed" to the obligor or not.

¶18 Torres further argues it was improper to allow seizure of
funds his mother sent him as a Christmas gift. Arizona law, however,
affords ADES the full panoply of remedies to enforce a child-support
arrearage. If Torres's mother had wired her gift to his bank account, ADES
could have garnished the bank account. See A.R.S. § 25-521, -524 (2018); see
also Huggins v. Deinhard, 134 Ariz. 98, 103 (App. 1982); A.R.S. § 12-1570.01
(2018). If he were not incarcerated and she had sent him cash that he used
to buy property, ADES could perfect a lien on the property. A.R.S. § 25-
516(A) (2018). If he kept the cash in a drawer at home, ADES could seize
the money there. A.R.S. § 25-521(A). Thus, the only issue is whether ADES
properly used a withholding order in this instance, not whether ADES
could reach the gift by any means.

¶19 In sum, the gift Torres's mother sent him was a lump sum
payment, and once the money reached his inmate trust account, ADC
became a "holder . . . of a lump sum payment that is . . . held for the benefit
of an obligor." See A.R.S. § 25-505(A). ADES thus had authority to issue the
withholding order to ADC, which thereafter was obligated to withhold and
transmit the money to the clearinghouse. See A.R.S. § 25-505(A), (D).

C. Torres's Due-Process Rights Were Not Violated.

¶20 Torres finally argues the transfer of money out of his inmate
trust account before a hearing violated his due-process rights under the
United States Constitution. Although Torres did not raise this issue when
he sought administrative review by ADES, we have discretion to consider
constitutional issues raised for the first time on appeal. See Dombey v.
Phoenix Newspapers, Inc., 150 Ariz. 476, 482 (1986) ("Instances in which we
exercise this discretion [to hear issues not raised before an appeal] include
issues . . . of constitutional dimension.")

¶21 Torres raises no challenge, nor could he at this point, to the
orders establishing his monthly child support obligation and the amount of
arrearages that accumulated after he failed to pay. He only challenges the
process accorded him with respect to the withholding order by which

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ADES seized the $90.07 from his inmate trust account. Torres received
notice of the withholding order 10 days after ADES issued it and sought
and was granted an administrative appeal from the order. Pending final
resolution of the matter, the support clearinghouse is holding the funds at
issue. See Ariz. Admin. Code R6-7-701(H)(3)(b). Torres, however, argues
he was entitled to a hearing before the money was taken from his account.

¶22 Although "due process requires notice and an opportunity to
be heard at a meaningful time and in a meaningful manner[,] . . . such
hearings need not always be held before the related deprivation." State v.
Stocks, 227 Ariz. 390, 394, ¶ 7 (App. 2011). Due-process protections are
flexible and can vary, based on the interests at stake in a particular case. Id.
at 394, ¶ 8 (quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997) and Washington
v. Harper, 494 U.S. 210, 229 (1990)).

¶23 The Due Process Clause of the Fourteenth Amendment of the
United States Constitution "imposes constraints on governmental decisions
which deprive individuals of 'liberty' or 'property' interests within the
meaning of the [clause]." Mathews v. Eldridge, 424 U.S. 319, 332 (1976). In
resolving a due-process challenge, courts must consider: (1) "the private
interests . . . affected"; (2) "the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards"; and (3) "the Government's
interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would
entail." Eldridge, 424 U.S. at 335. Whether due process has been satisfied is
a question of law that we decide de novo. See Wassef v. Ariz. State Bd. of Dental
Exam'rs, 242 Ariz. 90, 93, ¶ 11 (App. 2017).

¶24 The private interest at stake here is Torres's property interest
in the money taken from his account. Given Torres's obligation to pay the
accumulated child-support arrearages, however, his property interest in the
money that was taken is reduced by the fact that the withholding order was
"merely a restriction on [Torres's] freedom to use [his] money in a particular
way" and "not an absolute deprivation of the benefit of the money." Stocks,
227 Ariz. at 395, ¶ 13 (addressing deduction from inmate's account to satisfy
restitution order). In contrast, the governmental interest is strong, given
that a parent's "obligation to pay child support is primary." A.R.S. § 25-
501(C). Additionally, the State has a duty to enforce such obligations in
order to "relieve or avoid the burden often borne by the general citizenry
through public assistance programs." See A.R.S. § 46-401 (2018). Finally,
Torres does not say how or why a pre-deprivation hearing would have
resulted in a different outcome than the administrative review he received.

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Opinion of the Court

Based on this weighing of the interests, the procedure afforded to Torres
did not violate his rights to due process.

CONCLUSION

¶25 For the reasons stated above, we affirm the superior court's
order dismissing Torres's appeal from ADES's final determination
upholding the withholding order.

AMY M. WOOD • Clerk of the Court
FILED: AA

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