Martin v. Martin

• Decision Date: 06 September 1994
• Docket Number: CA-CV,No. 1,1
• Citation: 182 Ariz. 11,893 P.2d 11
• Parties: In re the Marriage of Chris MARTIN, Petitioner-Appellant, v. Charles Richard MARTIN, Respondent-Appellee. 92-0195.
• Court: Arizona Court of Appeals

Page 11

893 P.2d 11

182 Ariz. 11

In re the Marriage of Chris MARTIN, Petitioner-Appellant, v. Charles Richard MARTIN, Respondent-Appellee.

No. 1 CA-CV 92-0195.

Court of Appeals of Arizona Division 1, Department E.

Sept. 6, 1994.

Review Denied April 25, 1995.

[182 Ariz. 12] Grant Woods, Atty. Gen. by Lisa M. Aubuchon, Asst. Atty. Gen., Phoenix, for petitioner-appellant.

Barton L. Baker, Yuma, for respondent-appellee.

OPINION

NOYES, Judge.

The issue is whether a judgment for child support arrearages is void if it fails to include automatic child support increases as provided for in the parties' decree of dissolution. We hold that such a judgment is voidable, but not void. We also hold that the trial court did not abuse its discretion in refusing to set the judgment aside when the motion to do so was not filed until fourteen months after entry of the judgment and the court was given no reason to explain the long delay.

Facts and Procedural History

In June 1981, the twenty-year marriage of Chris ("mother") and Charles Richard Martin ("father") was dissolved. There were nine children of the marriage, ranging in ages from 3 to 17 years. One of the terms of the parties' property settlement agreement was that father was to pay mother $250.00 per week for child support. The agreement also provided that child support would be "increased annually in an amount equal to the percentage increase in the Consumer Price Index [ ("CPI") ] during the preceding year." The property settlement agreement was incorporated into the decree of dissolution.

After the dissolution, father made minimal child support payments, and his arrearage grew larger each year. In 1990, mother went to the Expedited Support Enforcement Unit (the "ESEU") of the Clerk of the Superior Court in Maricopa County and completed the necessary paperwork to get her case involved in one of the child support "round-ups" she had heard about in the media. ¹ As a prerequisite to involving the clerk's office, mother withdrew from the State IV-D assistance program from which she was receiving benefits. ² In August 1990, the trial court issued a form minute entry stating that the court had been notified by the clerk of the court that father was delinquent in payment of child support and ordering that father and mother appear at the ESEU offices for an "Expedited Support Enforcement Conference" on September 5, 1990.

At the conference, mother presented her records of payments received and her calculations of support still owed, and father presented his calculations of payments made. Mother told the ESEU officer that her calculations did not include the CPI increase provided by the original support order. The officer told mother that the ESEU was "not equipped" to do the CPI calculation and that the matter would have to be dealt with at a later date. The officer also told father that if he wanted to modify the original support order, he would have to file a request to modify.

On October 15, 1990, the ESEU issued a "Report, Recommendation and Order re: Child Support" ("the report"). The report, which did not mention the CPI-increase provision, stated:

Pursuant to a Decree of Dissolution of Marriage signed by this Court on the 16th day of June, 1987 [sic], Obligor [father] has been ordered to pay $250.00 per week for a total of $1,086.25 per month for child support beginning the 13th day of April, 1981.

Based on the records of the Clerk of the Court and Obligee's [mother's] Affidavit of Direct Payments, this Support Enforcement Officer has calculated arrearages in this case to be $84,220.32 for the period April 13, 1981 through August 31, 1990....

The report represented that both mother and father agreed with the clerk's office payment record and with "the Arrearage Calculation Worksheet establishing arrearages in the amount of $84,220.32." Among the ESEU recommendations were the following:

Obligor shall continue to make monthly child support payments of $1,086.25 in accordance with Court's Order dated the 16th day of June, 1987 [sic]. Based on the Clerk of the Court's records and Obligee's Affidavit of Direct Payments, Obligor owes as an arrearage the sum of $84,220.32 from April 13, 1981 through August 31, 1990. Obligor shall pay a minimum of $500.00 per month on the arrearage on or before the 15th day of every month beginning the 15th day of October, 1990, until paid in full or until further order of the court.

Obligee shall have Judgment against Obligor in the amount of $84,220.32, plus interest at the legal rate from the date of each installment due, for the arrearage for the period of April 13, 1981 through August 31, 1990.

Obligor's wages are hereby assigned in the amount of $1,586.25 which constitutes $1,086.25 for current [support] as ordered above and $500.00 towards the arrears against Obligor's present employer or payor, and future employers or payors upon proper notice.

The report also stated: "Obligor and Obligee are advised to follow appropriate procedures and consider seeking legal counsel if seeking to modify the Court's existing Order for support."

On October 24, 1990, the trial court signed a formal written order adopting and approving the ESEU report and recommendations as an "interim order." The interim order, together with the ESEU report and recommendations, was sent to the parties and expressly informed them that the report and recommendations would automatically become a final order unless an objection was filed within fifteen days of the date the order was signed by the court. No objection was filed, and the order therefore became final in November 1990. We refer to it hereinafter as the "judgment."

In December 1990, mother called the clerk's office to find out when father would be in a round-up. She was told that, because some support payments had been collected from father, the case was not eligible for the round-up program. Mother then reapplied for State IV-D financial assistance. Sometime later--apparently in about December 1991--an employee with the State did the appropriate calculations and concluded that the failure of the arrearage judgment to account for the CPI-increase-factor meant that it was $45,560.86 less than it should have been according to the terms of the original decree. The State also calculated that, if the CPI increase was factored in to the child support order, an additional $13,172.51 in arrearages and interest had accrued between October 1990 and December 1991.

In January 1992, the State of Arizona, acting pursuant to A.R.S. section 12-2456, ³ filed on mother's behalf a motion to set aside the arrearage judgment. At about the same time, mother and father also stipulated to a modification of father's current child support obligation. Because this modification agreement became effective January 1, 1992, and eliminated the CPI factor, December, 1991 is the last month in which the CPI is an issue in the case. By the State's calculations, the CPI-factor would have increased father's child support obligation each year; and $1,086.25 per month in 1981 would have become $1,722.42 per month in 1991.

The State argued that the arrearage judgment was void and should be set aside pursuant to Rule 60(c)(4), Arizona Rules of Civil Procedure ("Rule") because: (1) the judgment retroactively modified the original support order, and (2) mother was not given adequate notice that the court was considering retroactive or prospective modification of the original support order. The State further contended that the "errors or omissions of the clerk's office and [the trial] court" constituted "extraordinary circumstances of injustice" justifying relief under Rule 60(c)(6).

In response, father argued that the court did not modify the amount of child support owed, "[t]he court merely reduced to judgment the amounts proven to be unpaid" based upon the evidence mother presented or failed to present. Thus, father argues that the order was merely erroneous and not void and, therefore, the State's only recourse was a timely application for relief under Rule 60(c)(1), which was not made. On February 12, 1992, the trial court denied the State's motion. The State timely appealed. We have jurisdiction pursuant to A.R.S. sections 12-120.21(A)(1) (1992) and 12-2101(C) (1994).

Analysis

Relief Under Rule 60(c)(4)

Rule 60(c)(4) permits a court to relieve a party from a final judgment or order when "the judgment is void." The State argues that the judgment must be set aside because it was entered without proper notice and jurisdiction and, therefore, is void. If a judgment or order is void, the trial court has no discretion but to vacate it. Springfield Credit Union v. Johnson, 123 Ariz. 319, 323 n. 5, 599 P.2d 772, 776 n. 5 (1979); In re Maricopa County Juvenile Action No. JS-5860, 169 Ariz. 288, 292, 818 P.2d 723, 727 (App.1991). There is no time limit in which a motion under Rule 60(c)(4) may be brought; the court must vacate a void judgment or order "even if the party seeking relief delayed unreasonably." Brooks v. Consolidated Freightways, 173 Ariz. 66, 71, 839 P.2d 1111, 1116 (App.1992); accord In re Milliman's Estate, 101 Ariz. 54, 58, 415 P.2d 877 881 (1966). A judgment or order is "void" if the court entering it lacked jurisdiction: (1) over the subject matter, (2) over the person involved, or (3) to render the particular judgment or order entered. See Matter of Adoption of Hadtrath, 121 Ariz. 606, 608, 592 P.2d 1262, 1264 (1979).

Relying upon Lamb v. Superior Ct., 127 Ariz. 400, 621 P.2d 906 (1980), Hatch v. Hatch, 113 Ariz. 130, 547 P.2d 1044 (1976), and A.R.S. § 12-2453(C) (1994) ⁴, the State argues that the judgment is void because the trial court lacked jurisdiction to enter an order retroactively modifying the original support order. We do not read the judgment as a retroactive modification of the original support order. This is not a case, like Hatch, where the trial court entered an order nunc pro tunc amending a...