State Ex Rel. Cordova v. Cordova , 21 Ariz. App. 431 ( 1974 )

21 Ariz. App. 431 (1974) 520 P.2d 525

The STATE of Arizona ex rel. Lucille CORDOVA, Appellants,
v.
Meliton CORDOVA, Appellee.

No. 2 CA-CIV 1500.

Court of Appeals of Arizona, Division 2.

March 28, 1974. Rehearing Denied May 1, 1974.

Gary K. Nelson, Atty. Gen., Phoenix by Phyllis P. Sugar, Asst. Atty. Gen., Tucson, and Charles L. Weninger, Certified Third Year Law Student under Rule 28(e), for appellants.

Benjamin W. Lazarow, P.C. by Michael Lacey, Tucson, for appellee.

OPINION

KRUCKER, Judge.

This appeal questions the jurisdiction of Superior Court under the Uniform Reciprocal Enforcement of Support Act to enforce by contempt payment of child support arrearages after the children have been emancipated or have reached majority.

Appellant, Lucille Cordova, and appellee, Meliton Cordova, were married in 1950 at Albuquerque, New Mexico. Of this marriage four children were born. In 1956 appellee left his wife and took up residence in Tucson, Arizona. Shortly thereafter, Mrs. Cordova initiated a complaint for support under the Uniform Reciprocal Enforcement of Support Act. An order to show cause hearing was held in Pima County resulting in an order requiring appellee to make support payments to appellant and her children.

Between 1956 and 1972 appellee continuously refused to make his support payments. On numerous occasions Mrs. Cordova instituted reciprocal proceedings and appellee was ordered to make payments for support and arrearages.

In December, 1972, an order to show cause why he should not be found in contempt (under the Reciprocal Act) was directed to appellee who was then $6,044.60 in arrears. He moved to quash the order to show cause alleging that the Superior Court had no jurisdiction to enforce payment of the arrearages by contempt because all the children had either been emancipated or had reached majority. An order was subsequently entered reducing the $6,044.60 arrearages to judgment. The motion to quash was also granted because the court had no contempt power, all the children having been emancipated.

On appeal, appellant contends that under the Uniform Reciprocal Enforcement of Support Act the court does have contempt power even though the children have reached majority or have been emancipated. The argument may be summarized as follows. Under the Reciprocal Act the duty of support includes the duty to pay arrearages of support past due and unpaid. A.R.S. § 12-1651(2). The duty to pay arrearages is enforceable by a proceeding for civil contempt. A.R.S. § 12-1658. Since the act does not specify that the arrearages must be for minor children, appellant contends that a superior court has the power to hold appellee in contempt for failure to pay arrearages.

Initially we should point out that our review of the record discloses the fact that one of the children in this case was still a minor at the time appellant commenced the show cause proceeding. However, the court expressly found that all children were emancipated. Appellant does not dispute this fact. Absent any evidence to the contrary, we assume that all the children are emancipated.

We are bound to follow the latest pronouncement of our Supreme Court on this subject. In Ruhsam v. Ruhsam, 110 Ariz. 326, 518 P.2d 576 (1974), modified, 110 Ariz. 426, 520 P.2d 298 (filed March 12, 1974), that Court stated:

"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)." 518 P.2d at 578.

In the instant case all the children have either been emancipated or have reached majority. Consequently, the court had no jurisdiction to hold appellee in contempt for the arrearages. Appellant had a judgment for $6,044.60, which she may enforce as a judgment for debt. 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.

Affirmed.

HATHAWAY, C.J., and HOWARD, J., concur.