Child Support

The following Arizona cases are either often-cited or recent decisions in matters relating to child support issues:

1. US v. Kukafka (03/06/07 - No. 05-1955)
   Defendant's conviction and sentence for willful failure to pay his support obligation is affirmed over claims that: 1) the Child Support Recovery Act exceeds Congress's power under the Commerce Clause; 2) a provision in his divorce judgment requiring him to obtain an ecclesiastical divorce violated the Free Exercise Clause of the First Amendment; and 3) there was error in instructing the jury on willfullness.
   
2. Clay v. Clay, 208 Ariz. 200, 92 P.3d 426, 92 P.3d 426 (Ct. App., Div. 1., 2004)
   After the parties divorced, father filed a motion for refund of child support overpayment. The Court of Appeals held that mother was not required to reimburse father for overpayment of child support.  (PDF 132 KB)
   
3. Fuentes v. Fuentes, 209 Ariz. 51, 97 P.3d 876, 97 P.3d 876 (Ct. App., Div. 1. 2004)
   Wife petitioned for dissolution of marriage. The Superior Court entered orders, including orders for child support and spousal maintenance. Husband appealed. The Court of Appeals held that: (1) order requiring husband to pay child support and spousal maintenance in excess of one-half his monthly disposable income was not abuse of discretion; and (2) child support order, calculated based on husband's fault, was abuse of discretion.  (PDF 202 KB)
   
4. ADES v. Hayen, 208 Ariz. 164, 91 P.3d 1007 (Ct. App., Div. 1, 2004).
   Father petitioned to terminate state's administrative collection of child support arrearages on ground that statute of limitations had run. The Superior Court denied petition. Father appealed. The Court of Appeals held that statute of limitations could preclude untimely judicial recovery of arrearages, but statute could not prohibit parallel administrative recoupment of underlying debt.
   
5. In re Palidora, No. 2-03-15494-PHX-RJH, United States Bankruptcy Court, D. Arizona, May 24, 2004.
   Monies derived from income are no longer exempt from the bankruptcy estate once they pass to the employee; monies derived from child support are exempt only if they are paid by a former spouse through a court order, and not between parties that are still married. The Palidoras filed for Chapter 7 bankruptcy. The trustee moved for turnover of the Paladoras joint bank account (less a statutory $300) and the Palidoras objected, arguing that the monies in the joint bank account were derived from income and child support. The court held that regarding the monies derived from income, Arizona law exempting 75% of the debtor's disposable earnings ceases to apply upon the debtor's receipt of those wages, whether paid in cash, by check, or by direct deposit in the debtor's bank account. The court held the wage exemption statute only limits what a creditor could obtain by garnishment of the employer, not what could be attached in the hands of the debtor. Once earnings have been transferred to the debtor/employee , the monies become exempt. Regarding the child support monies, any child support paid pursuant to court order by a former spouse would be exempt, but child support monies paid between spouses that were still married would be nonexempt from the bankruptcy estate. (PDF 191 KB)
   
6. McNutt v. McNutt, 203 Ariz. 28, 49 P.3d 300 (Ct. App., Div. 1., 2002)
   Husband appealed from decision of the Superior Court ordering him to pay wife $484 per month in child support. The Court of Appeals held that phrase "full-time employment" may encompass more than forty hours per week if part of a regular schedule as that phrase is used in child support guidelines. (PDF 176 KB)