State of Arizona
Second Regular Session
SENATE BILL 1555
amending sections 25‑503, 25‑516 and 25‑522, Arizona Revised Statutes; relating to family support duties.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 25-503, Arizona Revised Statutes, is amended to read:
25-503. Order for support; methods of payment; modification; termination; statute of limitations; judgment on arrearages; notice; security
A. In any proceeding in which there is at issue the support of a child, the court may order either or both parents to pay any amount necessary for the support of the child. If the court order does not specify the date when current support begins, the support obligation begins to accrue on the first day of the month following the entry of the order. If a personal check for support payments and handling fees any form of payment is rightfully dishonored by the payor bank or other drawee, any subsequent support payments and handling fees shall be paid only by cash, money order, cashier's check, traveler's check or certified check. The department may collect from the drawer of a dishonored check or draft payment an amount allowed pursuant to section 44‑6852. Pursuant to sections 35‑146 and 35‑147, the department shall deposit monies collected pursuant to this subsection in a child support enforcement administration fund. If a party required to pay support other than by personal check by guaranteed means demonstrates full and timely payment for twenty‑four consecutive months, that party may pay support by personal check regularly accepted forms of payment if these payments are for the full amount, are timely tendered and are not rightfully dishonored by the payor bank or other drawee. On a showing of good cause, the court may order that the party or parties required to pay support give reasonable security for these payments. If the court sets an appearance bond and the obligor fails to appear, the bond is forfeited and credited against any support owed by the party required to pay support. This subsection does not apply to payments that are made by means of a wage assignment.
B. On a showing that an income withholding order has been ineffective to secure the timely payment of support and that an amount equal to six months of current support has accrued, the court shall require the obligor to give security, post bond or give some other guarantee to secure overdue support.
C. In title IV‑D cases, and in all other cases subject to an income withholding order issued on or after January 1, 1994, after notice to the party entitled to receive support, the department or its agent may direct the party obligated to pay support or other payor to make payment to the support payment clearinghouse. The department or its agent shall provide notice by first class mail.
D. The obligation for current child support shall be fully met before any payments under an order of assignment may be applied to the payment of arrearages. If a party is obligated to pay support for more than one family and the amount available is not sufficient to meet the total combined current support obligation, any monies shall be allocated to each family as follows:
1. The amount of current support ordered in each case shall be added to obtain the total support obligation.
2. The ordered amount in each case shall be divided by the total support obligation to obtain a percentage of the total amount due.
3. The amount available from the obligor's income shall be multiplied by the percentage under paragraph 2 of this subsection to obtain the amount to be allocated to each family.
E. Any order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing, except as to any amount that may have accrued as an arrearage before the date of notice of the motion or order to show cause to modify or terminate. The addition of health insurance coverage as defined in section 25‑531 or a change in the availability of health insurance coverage may constitute a continuing and substantial change in circumstance. Modification and termination are effective on the first day of the month following notice of the petition for modification or termination unless the court, for good cause shown, orders the change to become effective at a different date but not earlier than the date of filing the petition for modification or termination. The order of modification or termination may include an award of attorney fees and court costs to the prevailing party.
F. On petition of a person who has been ordered to pay child support pursuant to a presumption of paternity established pursuant to section 25‑814, the court may order the petitioner's support to terminate if the court finds based on clear and convincing evidence that paternity was established by fraud, duress or material mistake of fact. Except for good cause shown, the petitioner's support obligations continue in effect until the court has ruled in favor of the petitioner. The court shall order the petitioner, each child who is the subject of the petition and the child's mother to submit to genetic testing and shall order the appropriate testing procedures to determine the child's inherited characteristics, including blood and tissue type. If the court finds that the petitioner is not the child's biological father, the court shall vacate the determination of paternity and terminate the support obligation. Unless otherwise ordered by the court, an order vacating a support obligation is prospective and does not alter the petitioner's obligation to pay child support arrearages or any other amount previously ordered by the court. If the court finds that it is in the child's best interests, the court may order the biological father to pay restitution to the petitioner for any child support paid before the court ruled in favor of the petitioner pursuant to this subsection.
G. Notwithstanding subsection E of this section, in a title IV‑D case a party, or the department or its agent if there is an assignment of rights under section 46‑407, may request every three years that an order for child support be reviewed and, if appropriate, adjusted. The request may be made without a specific showing of a changed circumstance that is substantial and continuing. The department or its agent shall conduct the review in accordance with the child support guidelines of this state. If appropriate, the department shall file a petition in the superior court to adjust the support amount. Every three years the department or its agent shall notify the parties of their right to request a review of the order for support. The department or its agent shall notify the parties by first class mail at their last known address or by including the notice in an order.
H. If a party in a title IV‑D case requests a review and adjustment sooner than three years, the party shall demonstrate a changed circumstance that is substantial and continuing.
I. The right of a party entitled to receive support or the department to receive child support payments as provided in the court order vests as each installment falls due. Each vested child support installment is enforceable as a final judgment by operation of law. The department or its agent or a party entitled to receive support may also file a request for written judgment for support arrearages.
J. Voluntary relinquishment of physical custody of a child to the obligor from the obligee is an affirmative defense in whole or in part to a petition for enforcement of child support arrears. In determining whether the relinquishment was voluntary, the court shall consider whether there is any evidence or history of any of the following:
1. Domestic violence.
2. Parental kidnapping.
3. Custodial interference.
K. The relinquishment pursuant to subsection J of this section must have been for a time period in excess of any court‑ordered period of parenting time and the obligor must have supplied actual support for the child.
L. If the obligee, the department or their agents make efforts to collect a child support debt more than ten years after the emancipation of the youngest child subject to the order, the obligor may assert as a defense, and has the burden to prove, that the obligee or the department unreasonably delayed in attempting to collect the child support debt. On a finding of unreasonable delay a tribunal, as defined in section 25‑1202, may determine that some or all of the child support debt is no longer collectible after the date of the finding.
M. Notwithstanding any other law, any judgment for support and for associated costs and attorney fees is exempt from renewal and is enforceable until paid in full.
N. If a party entitled to receive child support or spousal maintenance or the department or its agent enforcing an order of support has not received court ordered court-ordered payments, the party entitled to receive support or spousal maintenance or the department or its agent may file with the clerk of the superior court a request for judgment of arrearages and an affidavit indicating the name of the party obligated to pay support and the amount of the arrearages. The request must include notice of the requirements of this section and the right to request a hearing within twenty days after service in this state or within thirty days after service outside this state. The request, affidavit and notice must be served pursuant to the Arizona rules of family law procedure on all parties including the department or its agents in title IV‑D cases. In a title IV‑D case, the department or its agent may serve all parties by certified mail, return receipt requested. Within twenty days after service in this state or within thirty days after service outside this state, a party may file a request for a hearing if the arrearage amount or the identity of the person is in dispute. If a hearing is not requested within the time provided, or if the court finds that the objection is unfounded, the court must review the affidavit and grant an appropriate judgment against the party obligated to pay support.
O. If after reasonable efforts to locate the obligee the clerk or support payment clearinghouse is unable to deliver payments for a period of one hundred twenty days after the date the first payment is returned as undeliverable due to the failure of a party to whom the support has been ordered to be paid to notify the clerk or support payment clearinghouse of a change in address, the clerk or support payment clearinghouse shall return that and all other unassigned payments to the obligor unless there is an agreement of the obligor to pay assigned arrears and other debts owed to the state.
P. If the obligee of a child support order marries the obligor of the child support order, that order automatically terminates on the last day of the month in which the marriage takes place and arrearages do not accrue after that date. However, the obligee or the state may collect child support arrearages that accrued before that date. The obligee, the obligor or the department or its agent in a title IV‑D case may file a request or stipulation to terminate or adjust any existing order of assignment pursuant to section 25‑504 or 25‑505.01.
Q. For the purposes of this chapter, a child is emancipated:
1. On the date of the child's marriage.
2. On the child's eighteenth birthday.
3. When the child is adopted.
4. When the child dies.
5. On the termination of the support obligation if support is extended beyond the age of majority pursuant to section 25‑501, subsection A or section 25‑320, subsections E and F.
Sec. 2. Section 25-516, Arizona Revised Statutes, is amended to read:
25-516. Lien; priority; recording; information statement; payoff amount; release
A. Notwithstanding section 25‑514, in a title IV‑D case if a person obligated to pay child support is in arrears for an amount equal to at least two months' child support, the unpaid amounts constitute an order to pay child support creates a lien by operation of law on all property presently owned and later acquired by the obligor to secure payment of the obligation. The department may perfect a lien by filing a notice of lien copy of the child support order with the county recorder in the county in which the obligor has property or with a state agency or a political subdivision of this state that files personal property liens for recording on its official record. The notice of lien recorded under this section shall specify the nature of the debt, the amount, and the name and last known address of the obligor. A liquidated judgment is not required to establish a lien. Recordation is constructive notice of the lien to the creditors of the owner or subsequent purchasers, against the personal or real property presently owned or later acquired. The lien amount includes the amount owed at the time of recording and any amounts subsequently accrued. The lien has priority over other liens against this property except for liens arising from mortgages, deeds of trust, contracts, conveyances or security agreements created by the property owner and previously recorded or filed.
B. The department shall notify an obligor who is at least two months in arrears in making child support payments, periodic payments on a support arrearage or periodic payments pursuant to a court order of support that a notice of lien may be filed against the obligor. The department shall notify the obligor by first class mail at the obligor's current address, or after a reasonable attempt to ascertain the obligor's location, at the obligor's last known address. The notice shall state the following:
1. The obligor is at least two months in arrears in making child support payments.
2. The obligor may request in writing an administrative review to contest the arrears pursuant to section 25‑522.
3. The obligor may request in writing an administrative review within fifteen days from the date of mailing of the notice.
4. If the obligor requests an administrative review, the department shall stay further action until a determination has been made at the administrative review.
5. If the obligor fails to respond to the notice, the department shall file a notice of lien against the obligor.
6. The address and telephone number of the department.
7. The obligor may request a copy of the order.
C. If an obligor fails to respond to the notice within fifteen days from the date of mailing, the department shall send the obligor a second notice by first class mail. The second notice shall include the information under subsection B of this section and shall state the following:
1. If the obligor fails to contact the department within fifteen days from the date of mailing of the second notice, a notice of lien shall be filed against the obligor.
2. This is the final notice the obligor will receive.
D. If the obligor requests an administrative review pursuant to this section, the department shall determine whether to proceed with filing the notice of lien based on whether the obligor is required to pay child support, whether the obligor is in arrears, and any other information relevant to the case. The decision of the department shall be in writing, and the department shall provide a copy to the obligor.
E. If the department determines that the obligor is at least two months in arrears and determines at the administrative review to record a notice of lien against the property of the obligor or if the obligor fails to respond to the second notice, a notice of lien shall be recorded and a copy sent to the obligor by certified mail.
b. When recorded, the order shall be accompanied by the information statement of the judgment creditor pursuant to section 33-967. The statement shall set forth the amount of the current support order at the time of recording. A copy of the information statement of the judgment creditor and the order recorded shall be mailed to the obligor at the obligor's last known address.
C. On request, the department shall provide a payoff amount to the obligor or a party acting with the obligor's consent. If the obligor disagrees with the payoff amount, the obligor may make a written request for administrative review to contest the arrears pursuant to section 25‑522. The issues to be determined are whether the obligor is required to pay support and is in arrears and the amount of arrears owed.
F. D. The department may, at any time, may release the property subject to the lien from the lien. Notice by the department to the effect that the property had has been released from the lien is conclusive evidence that the property had been released. If any lien imposed pursuant to this section is satisfied and a notice of lien has been recorded, the department shall issue a release of the lien to the obligor against whom the lien was claimed. When the department closes a title IV‑D case, the department shall release any lien under this section. The lien release does not satisfy any amount of unpaid support or release the lien associated with a recorded judgment. The department shall record the lien release in any county, agency or political subdivision where the original lien was recorded.
G. This state shall give a lien recorded in another state full faith and credit if the state agency, party or other entity seeking to enforce the lien complies with the notice requirements of this section and records the lien pursuant to the applicable laws of this state.
Sec. 3. Section 25-522, Arizona Revised Statutes, is amended to read:
25-522. Administrative review; notice; determination; judicial review; definitions
A. An obligor may contest an enforcement action by the department or its agent by filing a request for administrative review. An obligee may contest the distribution or disbursement of support payments by the department or its agent by filing a request for administrative review. The obligor, the obligee or the caretaker may contest the disbursement of support to a noncustodial person other than the state by filing a request for administrative review pursuant to section 46‑444. The request shall be in writing, shall be signed by the requesting party, shall include a residential and mailing address and may be transmitted electronically. The request shall state the basis for the dispute and shall include any relevant information to assist the department or its agent, including a copy of any order issued, documentation of support payments made and any notice sent by the department or its agent.
B. Within ten business days after receipt of receiving the request for review, the department or its agent shall send a notice of acknowledgment of receipt of request for administrative review to the person filing the request and shall specify any additional information the department or its agent requires to complete the review. The department or its agent on its own initiative may also request any other additional information it deems necessary to make its determination. The department or its agent shall also notify the obligee of the obligor's request for review of enforcement actions.
C. Except for obligee complaints made under section 46‑408 as to distribution of support, the department or its agent shall issue a written determination within forty‑five business days after sending the notice of acknowledgment of receipt of request for administrative review, or if additional information is required, forty‑five business days after receipt of this information. If additional information is not received from the requesting party or another person within thirty business days after the date of the department's or the agent's request for additional information, the department shall issue a final written determination within ten business days after the due date for receipt of the additional information based on the available information. The final determination shall be in writing, and a copy shall be served on all parties by first class mail or may be delivered electronically if electronic contact information is included in the request for administrative review.
D. Notwithstanding subsections B and C of this section, if the basis for the request for review is issuance of an income withholding order issued by the department pursuant to section 25‑505.01, a lien recorded pursuant to section 25‑516 or a levy made pursuant to section 25‑521, the department shall review the request and issue a final determination within ten business days after it receives the request for review. The department shall send a copy of the final determination by first class mail to all parties.
E. Notwithstanding subsections B, C and D of this section, if the basis for the request for review is a mistake in identity pursuant to section 25‑521, the department shall issue a final determination by first class mail to all parties within two business days after the receipt of the request. The request shall include receiving adequate documentation to affirm determine the mistake in identity.
F. A department determination made pursuant to this section is subject to judicial review under title 12, chapter 7, article 6, except that an appeal by an obligee of a department determination made pursuant to this section regarding the distribution of support payments shall be made pursuant to title 41, chapter 14, article 3.
G. For the purposes of this section:
1. "Business day" means a day on which state offices are open for regular business.
2. "Department" includes the department's agent.
3. "Enforcement action" means an action taken by the department to:
(a) Suspend or deny a license.
(b) Issue a notice of Impose a lien against real or personal property.
(c) Issue a notice of levy against assets held by or on behalf of an obligor.
(d) Issue an income withholding order or order to modify or terminate an income withholding order.
(e) Report an obligor to a consumer reporting agency.
(f) Issue a medical support notice of enrollment prescribed by the United States secretary of health and human services.
(g) Offset federal payments.
(h) Disburse support to a caretaker.