State v. McEvoy

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, ex. rel. DES, ROBERTA K. McEVOY,
Petitioners/Appellees,

v.

WARREN T. McEVOY, Respondent/Appellant.

No. 1 CA-CV 18-0694 FC
FILED 12-5-2019

Appeal from the Superior Court in Maricopa County
No. DR0000-227344
The Honorable Brian Kaiser, Judge Pro Tempore

AFFIRMED

COUNSEL

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

Warren T. McEvoy, Phoenix
Respondent/Appellant
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.

M c M U R D I E, Judge:

¶1 Warren T. McEvoy appeals from the superior court’s order
that maintained his monthly payments for child support arrearages and
implicitly denied his petition to vacate past child support and spousal
maintenance awards. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In August 2004, the State, on behalf of the Department of
Economic Security (“DES”), initiated a Title IV-D 1 action seeking judgments
against McEvoy for child support and spousal maintenance arrearages and
interest owed to DES as the assignee from McEvoy’s former spouse and
three emancipated children. At a November 2004 hearing, the State alleged
that McEvoy owed $12,738.52 and $1100 in child support and spousal
maintenance arrearages, respectively, through September 30, 2004. The
State also claimed that McEvoy owed $14,921.39 and $1705.51 in interest on
the respective arrearages for the same period.

¶3 McEvoy agreed with the State’s child-support-arrearages
figure but argued: (1) he and his former spouse had resolved the issue of
unpaid spousal maintenance privately some time ago; and (2) that, at a

1 Title IV-D refers to Title IV-D of the Social Security Act, 42 United
States Code (“U.S.C.”) sections 651 to 669.

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hearing in 1999 to resolve a petition McEvoy filed in 1996 2 to modify his
child support obligations, the court should have suspended the imposition
of future interest from the date the petition was filed until December 2000
because he was incarcerated during that period. See Ariz. Rev. Stat.
(“A.R.S.”) § 25-327(D). After the hearing in 2004, the court entered
judgments in the amounts alleged by the State for the child support
arrearages, spousal maintenance arrearages, and interest on the spousal
maintenance arrearages. When the court offered McEvoy an opportunity to
present evidence that he had raised the suspension-of-interest issue at the
1999 hearing, McEvoy declined the offer. He explained that he would not
have time to brief the question due to events in his life and requested the
court issue a judgment for the interest on child support arrearages. The
court entered a judgment for the interest on the child support arrearages in
the amount alleged by the State and, per an agreement by the parties, set
McEvoy’s monthly payment towards the judgments at $75 plus a $2.25
Clearinghouse fee. McEvoy did not appeal.

¶4 In October 2017, McEvoy petitioned to vacate spousal
maintenance and child support and to modify the previous judgments. In
the petition, McEvoy argued that: (1) DES improperly added the balance of
McEvoy’s outstanding spousal maintenance arrearages and interest to the
balance of his unpaid child support arrearages and interest upon his former
spouse’s death in March 2016; and (2) the court violated A.R.S. § 25-327(D)
and McEvoy’s constitutional rights by failing to suspend the interest
accruing on his child support and spousal maintenance arrearages at either
the 1999 or 2004 hearings. McEvoy requested that the court vacate his
remaining obligations to the State and refund any overpayment to him or,

2 McEvoy filed a petition to modify his child support in 1996 to request
his support obligation be reduced to five dollars per month, and cited his
conviction and imprisonment as a substantial and continuing changed
circumstance justifying modification. State ex rel. DES v. McEvoy, 191 Ariz.
350, 351, ¶¶ 3–4 (App. 1998). The superior court concluded that it was
required to presume his income was at least the federal minimum wage
pursuant to then A.R.S. § 25-320(I) (now A.R.S. § 25-320(N) (2008))
regardless of his actual earning capacity in prison. McEvoy, 191 Ariz. at 351,
¶ 5. This court reversed and held that the statute’s plain language allowed
evidence of incarceration to be admitted rebutting a minimum wage
presumption. Id. at 354, ¶¶ 18–19. The 1999 hearing concerned the court
proceedings which occurred on remand following the issuance of this
court’s mandate.

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in the alternative, that the court reduce his current monthly payments based
on his current financial situation.

¶5 The court scheduled an August 2018 hearing on McEvoy’s
petition. Approximately one month before the hearing, McEvoy filed a
“Motion to Supplement” under Arizona Rule of Family Law Procedure
(“ARFLP”) 28(d), 3 requesting the court permit him to present newly
discovered “facts and issues” he believed were relevant to his case. Nine
days before the hearing, and before the court had ruled on the motion,
McEvoy filed a 57-page “supplement” alleging that his constitutional rights
had been violated by actions taken by his former spouse, the State, and the
superior court during various proceedings in the 1990s, including the 1999
hearing.

¶6 At the beginning of the August 2018 hearing, the State
objected to McEvoy’s motion to supplement on timeliness grounds. After
hearing from the parties and reviewing the supplement’s contents, the
superior court denied the motion. Throughout the rest of the hearing,
McEvoy continuously tried to raise issues concerning the 1999 and 2004
hearings, which the court rejected. The court eventually focused McEvoy
on modifying his monthly payment towards his child support and spousal
maintenance arrearages. The State deferred to whatever monthly payment
McEvoy thought was reasonable. After discussion with the court, McEvoy
expressed that he wanted the monthly payments to remain at $80. Near the
end of the hearing, McEvoy raised the argument that DES had improperly
increased his child support arrearages principle by adding his outstanding
spousal maintenance arrearages to his child support arrearages. To support
his argument, McEvoy attempted to introduce a page from an arrears
calculation—allegedly generated by DES in July 2017—which substantially
differed from the arrears calculation filed by the State before the hearing.
The State objected on timeliness and relevancy grounds. The court
reviewed the proposed evidence and declined to take further action.

¶7 Ultimately, the court issued a judgment, denied McEvoy’s
motion to supplement, and ordered that McEvoy’s payments towards
arrearages remain at $75 per month, plus a $5 Clearinghouse Fee. McEvoy
appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), -2101(a)(2), and ARFLP 78(c). See Cone v. Righetti, 73

3 The Arizona Rules of Family Law Procedure were revised effective
January 1, 2019. Because there are no substantive changes between the old
and new rules, in this decision we will cite the rules currently in force.

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Ariz. 271, 274–75 (1952) (order modifying custody and support appealable
under the prior version of A.R.S. § 12-2101(a)(2)).

DISCUSSION

A. This Court Lacks the Authority to Address McEvoy’s Claims
Regarding the Proceedings Resulting in the 1999 and 2004
Judgments.

¶8 McEvoy directs most of his arguments on appeal towards the
1999 and 2004 judgments. Specifically, McEvoy argues the superior court
deprived him of his constitutional rights during the 1999 hearing by failing
to suspend the interest accruing on his child support and spousal
maintenance arrearages. As for the 2004 hearing, McEvoy contends that the
court should have addressed and remedied the suspension-of-interest issue
before entering the judgments for child support and spousal maintenance
arrearages and interest. Both the superior court and this court lack the
authority to address these arguments, for two reasons.

¶9 First, the superior court did not have the authority to modify
or vacate any child support or spousal maintenance arrearages or interest
that had already accrued by the date McEvoy filed his 2017 petition. “In
Arizona, installments of spousal maintenance and child support become
vested when they become due . . . . [and] [e]ach installment . . . is in the
nature of a final judgment conclusively establishing the rights and duties of
the parties to that installment.” Jarvis v. Jarvis, 27 Ariz. App. 266, 267–68
(1976). Therefore, “[s]upport payments may not be retroactively modified
by a court.” Ray v. Magnum, 163 Ariz. 329, 332 (1989). A.R.S. § 25-503(E),
which governs petitions to modify, vacate, or terminate orders for spousal
maintenance and child support, prohibits modification of child support or
spousal maintenance “as to any amount that may have accrued as an
arrearage” before the date the petition is filed. See also A.R.S. § 25-527(A)
(same but for petitions to modify provisions within decrees of dissolution).
And because the superior court has no authority to address spousal
maintenance and child support arrearages and interest on a petition filed
under A.R.S. §§ 25-503(E) or -527(A), we cannot address such issues on an
appeal from the resulting judgment. See McHazlett v. Otis Eng’g Corp., 133
Ariz. 530, 533 (1982) (“If a lower court has no jurisdiction to issue an order
an appeal from that order gives the appellate court no jurisdiction except to
dismiss the appeal.”).

¶10 Here, the evidence presented by the State at the hearing and
the evidence within the record demonstrates that McEvoy’s obligation to

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provide spousal maintenance and child support had already terminated by
2017 and that the remaining judgments only concerned arrearages and
interest. The superior court recognized that McEvoy’s arguments
concerning the 1999 and 2004 hearings were an attempt to retroactively
modify arrearages and interest that had accrued long before the petition
was filed, and properly cabined itself to what it could consider: whether
McEvoy’s monthly arrearage payments should be lowered. We must do the
same.

¶11 Second, this court lacks authority to address any alleged error
that occurred during the 1999 and 2004 hearings because McEvoy failed to
appeal from the judgments entered after either hearing. “[A] notice of
appeal must be filed no later than thirty days after entry of the judgment or
order from which the appeal is taken.” In re Marriage of Dougall, 234 Ariz. 2,
5, ¶ 7 (App. 2013); see also Ariz. R. Civ. App. P. (“ARCAP”) 9(a). “[T]he
timely filing of a notice of appeal is a jurisdictional prerequisite to appellate
review.” In re Marriage of Gray, 144 Ariz. 89, 90 (1985). McEvoy failed to file
a notice of appeal from either hearing, and this court, therefore, lacks
authority to address any claim of error arising from those proceedings. See,
e.g., Patterson v. Patterson, 102 Ariz. 410, 414–15 (1967) (failure to appeal
support order deprived the appellate court of jurisdiction).

B. The Superior Court Committed No Error at the 2018 Hearing.

¶12 Having concluded we do not have the authority to address
McEvoy’s claims concerning the 1999 and 2004 hearings, we now turn to
his arguments relating to the 2018 hearing. McEvoy does not challenge the
court’s decision to maintain his monthly payments, nor could he; the
transcript from the 2018 hearing reveals that McEvoy specifically requested
the court keep his monthly payments at $80. McEvoy instead argues that
the court abused its discretion and violated several of his constitutional
rights by denying his motion to supplement and by refusing to consider
evidence that he asserted would show that DES had manipulated his
outstanding arrearages and interest. Beyond the conclusory assertion that
these constitutional rights were violated by the court’s actions, however,
McEvoy offers no authority to support the argument that these alleged
errors rise to the level of constitutional violations.

¶13 This court generally declines “to address issues that are not
argued adequately, with appropriate citation to supporting authority.” In
re J.U., 241 Ariz. 156, 161, ¶ 18 (App. 2016); see also ARCAP 13(a)(7)(A)
(argument must contain supporting reasons for each contention with
citations of legal authorities); Adams v. Valley Nat’l Bank, 139 Ariz. 340, 342

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(App. 1984) (a deficient brief may result in the dismissal of an appeal). “We
hold unrepresented litigants in Arizona to the same standards as
attorneys.” Flynn v. Campbell, 243 Ariz. 76, 83, ¶ 24 (2017). We could decline
to address McEvoy’s arguments for this reason. However, in the exercise of
our discretion, we will review the superior court’s actions McEvoy claims
were error.

1. The Superior Court did not Abuse its Discretion by Denying
McEvoy’s Motion to Supplement.

¶14 McEvoy first asserts the court erred by denying his motion to
supplement “based on a procedural page violation,” and argues the motion
was within the page limits set by Local Rule of Practice for the Superior
Court 3.2(f). McEvoy’s motion is best characterized as a motion to amend
filed under ARFLP 28(a)(2), rather than a motion to file a supplemental
pleading under ARFLP 28(d). McEvoy’s “Motion to Supplement” did not
seek to set forth transactions, occurrences, or events that happened after the
date of a prior pleading but instead tried to introduce new facts, allegations,
and arguments related to past superior court proceedings. See ARFLP 28(d).
Thus, we will treat the motion to supplement as a motion to amend and
review the court’s decision to deny the motion accordingly.

¶15 We review the superior court’s denial of a motion to amend a
complaint for an abuse of discretion. Tumacacori Mission Land Dev., Ltd. v.
Union Pac. R.R. Co., 231 Ariz. 517, 519, ¶ 4 (App. 2013). An amendment
should be permitted “unless the court finds undue delay in the request, bad
faith, undue prejudice, or futility in the amendment.” MacCollum v.
Perkinson, 185 Ariz. 179, 185 (App. 1996). Leave to amend should be granted
“[i]f the underlying facts or circumstances . . . may be a proper subject of
relief.” Spitz v. Bache & Co., Inc., 122 Ariz. 530, 531 (1979) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).

¶16 Contrary to McEvoy’s assertions on appeal, the transcript of
the 2018 hearing reveals that the court denied the motion to supplement
because it raised issues the court had no authority to address, not because
it violated the superior court’s page-limit rule. After reviewing the motion,
the court stated that it “could probably reject [the motion] just on the basis
that [McEvoy] exceeded . . . the page limit without making an appropriate
request to do that,” but immediately qualified that statement by explaining
the following:

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But . . . I’m not hearing what it is that that’s got to do with
your petition now to modify the child support, or to terminate
it altogether, okay?

* * *
What’s before me is your request to either terminate your
child support, or modify it. . . . I’m not yet seeing, and you’ve
yet to explain to me how it relates in some way, shape, or form
to a decision that was made in this case 20 years ago.

Under these circumstances and having reviewed the motion, the superior
court was well within its discretion to deny the motion to supplement.
Simply put, it would have been futile to permit McEvoy to supplement or
amend his petition. The superior court had no authority, in a hearing on a
motion to modify or vacate child support and spousal maintenance, to
review or address the claims raised within the motion. See Tumacacori, 231
Ariz. at 520, ¶ 12 (futile to permit a party to amend complaint raising claims
barred by claim preclusion).

2. The Superior Court Did Not Abuse Its Discretion by Refusing
to Consider the Arrears Calculation Evidence Submitted by
McEvoy on the Day of the Hearing.

¶17 Finally, McEvoy argues the court erred by refusing to
consider evidence that, in his view, proves DES improperly raised his child
support arrearage principal by adding his spousal maintenance arrearages
to his child support arrearages.

¶18 Barring the exceptions listed in ARFLP 2(b)(1), the Arizona
Rules of Evidence generally apply to proceedings governed by the Arizona
Rules of Family Law Procedure, including the rules governing the
admissibility of relevant evidence. ARFLP 2(b)(2). “In determining the
relevancy and admissibility of evidence, the trial judge is invested with
considerable discretion.” State v. Hensley, 142 Ariz. 598, 602 (1984). We
review the superior court’s determination as to the admissibility and
relevance of evidence for an abuse of discretion. State v. Fillmore, 187 Ariz.
174, 179 (App. 1996). An abuse of discretion occurs when the court’s
“exercise of discretion . . . is manifestly unreasonable, exercised on
untenable grounds or for untenable reasons.” State v. Woody, 173 Ariz. 561,
563 (App. 1992) (quoting Williams v. Williams, 166 Ariz. 260, 265 (App.
1990)).

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¶19 Near the conclusion of the hearing, McEvoy attempted to
introduce into evidence a single page from a 60-page arrears calculation
dated July 31, 2017, that he allegedly received from DES. McEvoy claimed
the document proved DES had improperly added his outstanding spousal
maintenance arrearages to his outstanding child support arrearages. The
State objected, arguing that McEvoy had not filed the calculation with the
court and that the State had filed an arrears calculation that accurately
documented McEvoy’s outstanding arrearages. After reviewing the single
page offered by McEvoy, the court noted that although McEvoy had
referenced the arrears calculation in his petition as an exhibit, he had only
attached a cover page listing the exhibits he planned to file in his petition,
and not the exhibits themselves. The court then ended the hearing.

¶20 The record shows that McEvoy did not attach the arrears
calculation page to the petition. Moreover, McEvoy only attempted to
introduce a single page from a 60-page document, while the arrears
calculation filed by the State is complete and shows no increases in
McEvoy’s child support arrearage principle in 2017. Given this record, we
cannot say the superior court abused its discretion by implicitly sustaining
the State’s objection and refusing to consider the single page from the July
2017 arrears calculation.

CONCLUSION

¶21 We affirm the superior court’s judgment.

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

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