Mendoza v. Mendoza

• Decision Date: 08 March 1994
• Docket Number: CA-CV,No. 2,2
• Citation: 177 Ariz. 603,870 P.2d 421
• Parties: Nancy Louise MENDOZA, Petitioner/Appellant, v. Joseph Robert MENDOZA, Respondent/Appellee. 93-0147.
• Court: Arizona Court of Appeals

Page 421

870 P.2d 421

177 Ariz. 603

Nancy Louise MENDOZA, Petitioner/Appellant, v. Joseph Robert MENDOZA, Respondent/Appellee.

No. 2 CA-CV 93-0147.

Court of Appeals of Arizona Division 2, Department B.

March 8, 1994.

[177 Ariz. 604] John F. Corcoran, Tucson, for petitioner/appellant.

Robert A. Hirschfeld, Phoenix, for respondent/appellee.

OPINION

ESPINOSA, Presiding Judge.

Appellant Nancy Louise Mendoza appeals from the trial court's order dismissing her petition against appellee Joseph Robert Mendoza seeking financial support for their mentally retarded adult twin children. Because we find that Nancy's petition stated a claim which the trial court had jurisdiction to entertain, we reverse.

The 1985 divorce decree, entered after both parties appeared pro se, apparently ordered Joseph to pay child support for the then-minor twins until their eighteenth birthday, but was silent as to their disability or any post-minority support. ¹ Joseph continued to make irregular payments after the twins turned eighteen in 1991, but stopped making payments when Nancy asked for an increased amount of support in July 1992. Nancy filed a petition seeking support in December 1992 and the trial court appointed her guardian ad litem for the proceedings. Joseph filed a motion to dismiss and to quash the order of temporary guardianship, arguing that the domestic relations court lacked subject matter jurisdiction. The trial court granted Joseph's motion, finding that Nancy "has no legal claim which can be enforced either as a Domestic Relations matter or as a contract matter."

As a general rule, there is no duty to support a child who has reached the age of majority, see A.R.S. § 12-2451(A), and the superior court lacks jurisdiction to adjudicate the question of liability for support of a child who has reached majority. Solomon v. Findley, 167 Ariz. 409, 808 P.2d 294 (1991). In 1973, however, the Arizona legislature enacted A.R.S. § 25-320(B) which gave the trial courts jurisdiction to order, in the court's discretion, support of a disabled child "to continue past the age of majority...." In Provinzano v. Provinzano, 116 Ariz. 571, 570 P.2d 513 (App.1977), Division One of this court held that, based on the words "may order support to continue," the authority of the court to order support under § 25-320(B) was limited to situations in which the domestic relations court had acquired jurisdiction before the child reached the age of majority.

Perhaps in response to Provinzano, the legislature amended § 25-320(B) in 1980 to allow the court to order support for a disabled child to continue past the age of majority, even if the court acquired jurisdiction after the child was no longer a minor. Ferrer v. Ferrer, 138 Ariz. 138, 673 P.2d 336 (App.1983). The statute now reads as follows:

In the case of a mentally or physically disabled child, if the court, after considering the factors set forth in subsection A, deems it appropriate, the court may order support to continue past the age of majority and to be paid to the custodial parent, guardian or child, even if at the time of the filing of a petition or at the time of the final decree, the child has reached the age of majority. (Emphasis added.)

We believe the statute as amended reflects the legislature's intent to broaden the scope of the court's jurisdiction to order support of an adult, disabled child where the court deems it appropriate. In accord with that intent, we can see no reason why the court would not also have jurisdiction to entertain a petition, such as Nancy's, asking for support for disabled post-minority children who were the subjects of a prior support order. We conclude that a "petition," as used in the 1980 amendment to § 25-320(B), is not limited solely to the petition for dissolution resulting in the initial support order, but can include a new petition for support of a disabled child. Indeed, subsection A of § 25-320, in identifying the proceedings to which it applies, refers to proceedings for ...