Tande v. Bongiovanni, 17571-PR

• Decision Date: 11 October 1984
• Docket Number: No. 17571-PR,17571-PR
• Citation: 688 P.2d 1012,142 Ariz. 120
• Parties: Patricia Ann TANDE, Petitioner/Appellant, v. Gary D. BONGIOVANNI, Respondent/Appellee.
• Court: Arizona Supreme Court

Page 1012

688 P.2d 1012

142 Ariz. 120

Patricia Ann TANDE, Petitioner/Appellant, v. Gary D. BONGIOVANNI, Respondent/Appellee.

No. 17571-PR.

Supreme Court of Arizona,

In Banc.

Oct. 11, 1984.

Stephen D. Neely, Pima County Atty. by Edward C. Wong, Deputy County Atty., Tucson, for petitioner/appellant.

Collins, Pray & Riddle by John P. Collins, Tucson, for respondent/appellee.

CAMERON, Justice.

The husband, Gary D. Bongiovanni, brought this petition for review of an adverse decision of the Court of Appeals Tande v. Bongiovanni, 139 Ariz. 346, 678 P.2d 531 (1984). We have jurisdiction pursuant to Ariz. Const. Art. 6, § 5(3) and A.R.S. § 12-120.24.

We consider only one question on review and that is, may a judgment for arrearages in child support payments under the Revised Uniform Reciprocal Enforcement of Support Act, A.R.S. §§ 12-1651, et seq., be enforced by contempt of court after the child reaches the age of majority?

The facts follow. On 13 February 1962, the husband and Patricia Ann Tande, the wife, were married in Reno, Nevada. Two children were born, one in 1962 and one in 1964. In 1965, in Contra Costa County, California, they were divorced. The wife was granted custody of the children and the husband was ordered to pay child support of $75 per month per child. The record indicates he made only a few of the required payments.

In 1980, the wife, who had moved to Virginia in the interim, commenced support proceedings against the husband under URESA. Arizona was the responding state under the statutes because the husband lived here. After a hearing held on 17 December 1980, the court found the husband had not made payments for ten years and ordered him to pay $75 per month to support the one remaining minor child. The court specifically held the issue of arrearages in abeyance pending clarification of the amount due. The husband paid the $75 per month payments until the child reached the age of eighteen. The issue of the arrearages, however, remained unresolved. In September, 1982, the Pima County Attorney's Office filed a petition for wage assignment on behalf of the wife under A.R.S. § 12-1661, alleging six months of arrearages under the court order of 1981. In February, 1983, the trial court dismissed the action because it found all post-1981 payments had been made and the request for pre-1981 arrearages constituted a claim that the court did not have jurisdiction to entertain because the children were no longer minors. The court stated the dismissal was without prejudice toward any attempt by the wife to file a claim under the other statutes of this state for recovery of a debt. She appealed.

The Court of Appeals reversed. It held a judgment for arrearages is within the jurisdiction of the trial court under URESA even though the children are no longer minors. The court further held, however, that contempt was not a proper way to enforce the court decree, citing State ex rel. Cordova v. Cordova, 21 Ariz.App. 431, 520 P.2d 525 (1974). We granted the husband's petition for review to consider only the question of the use of the power of contempt of court to enforce payment of the amount in arrears.

We agree with the Court of Appeals in its determination that the amount of the arrearages is payable by the husband even though the children are no longer minors, and we approve the decision and opinion of the Court of Appeals as to that issue. We disagree, however, with the Court of Appeals that contempt is unavailable as a remedy to enforce the trial court's order under URESA if the children have reached majority.

In Cordova, supra, relied upon by the Court of Appeals, the court held that contempt was not available to enforce a judgment for arrearages in child support after the child has reached majority. The court stated:

The mere fact that this case arises under the Uniform Reciprocal Enforcement of Support Act does not, as appellant would have us hold, enlarge the jurisdiction of Superior Court.

Id. at 432, 520 P.2d at 526. Rehearing was denied but there was no petition for review to this court. The court in Cordova relied on Ruhsam v. Ruhsam, 110 Ariz. 326, 518 P.2d 576, modified on other grounds, 110 Ariz. 426, 520 P.2d 298 (1974), as holding contempt is unavailable. In Ruhsam, under the terms of a post-nuptial agreement incorporated into the court's decree, the husband was ordered to pay child support of $100 per child per month until the child reached the age of majority, which at the time of divorce was twenty-one. After the legislature changed the age of majority to eighteen, the husband contended he did not have to pay after the children reached that age. The trial court held the intent of the parties was to create a support obligation until the children were twenty-one, not until they reached their respective majorities. We stated:

We therefore hold that under the contract of the parties, by the use of the word "majority," Hugh P.V. Ruhsam became indebted to Joan M. Ruhsam for the sum of $100.00 a month for each of his three children until each reached the age of twenty-one years.

However, we do not think the post-nuptial agreement can be enforced by contempt nor, apparently, did the trial court, for its order was more in the nature of a pronouncement of the rights of the parties than a finding that appellant was in contempt of court.

A.R.S. § 1-215, subsec. 4, as amended by Laws of 1972, provides that a "child" means a person under the age of eighteen years. A.R.S. § 25-320, as amended by Laws of 1973, provides that a court may order either parent owing a duty of support to a child to pay an amount reasonable and necessary therefor. We consequently conclude that the Superior Court does not have the jurisdiction to enforce by contempt an order directing appellant to continue child support payments beyond the age of minority as fixed by the Legislature.

Until a child reaches his majority at the age of eighteen, a court may enforce its order for support by contempt. Where there is a contract for support, such as here, the contract may be enforced after the child reaches his majority only as other judgments for debt. Stone v. Stidham, 96 Ariz. 235, 393 P.2d 923 (1964).

Rusham 110 Ariz. at 328, 518 P.2d at 578. The wife was attempting to collect support after the child reached legal majority, pursuant to the post-nuptial agreement. The duty of support was based on the contract, not on a court order to provide child support for a minor child. The case relied on by this court in Rusham, Stone v. Stidham, supra, was also a contract case, specifically a community property settlement contract. The instant case is...