ades/hoelscher v. Rux

• Court: Court of Appeals of Arizona
• Decided: June 26, 2014
• Docket: 1 CA-CV 13-0754
• Status: Unpublished

Opinion

NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA ex rel. ARIZONA DEPARTMENT OF ECONOMIC SECURITY (JAMI LYNNE HOELSCHER), Petitioners/Appellees,

v.

MICHAEL DAVID RUX, JR., Respondent/Appellant.

No. 1 CA-CV 13-0754 FILED 06-26-2014

Appeal from the Superior Court in Maricopa County No. FC2003-093081 The Honorable Jamie B. Holguin, Judge Pro Tempore

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General's Office, Phoenix By Carol A. Salvati Counsel for Petitioner/Appellee ADES

Keith R. Lalliss, Attorney at Law, Mesa By Keith R. Lalliss Counsel for Respondent/Appellant ADES/HOELSCHER v. RUX Decision of the Court

MEMORANDUM DECISION

Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Kent E. Cattani joined.

J O H N S E N, Judge:

¶1 Michael David Rux appeals from the superior court's order requiring him to pay child support beginning August 1, 2013. Rux argued the child's mother had waived any child support in exchange for his agreement to have no role in the child's life. The superior court ruled any such waiver was not effective after August 1, 2013. The court's order explained:

THE COURT FURTHER FINDS that it is in the best interest of the child for the Court NOT to recognize the waiver in the future; because Father now seeks to have contact with the minor child.

¶2 On appeal, the State acknowledges insufficient evidence supports the court's finding that Rux now seeks to have contact with the child. We have jurisdiction over this appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes sections 12- 120.21(A)(1) (2014) and -2101(A)(1), (2) (2014). 1

¶3 We agree that insufficient evidence supports the superior court's finding that Rux intends to pursue a relationship with the child. We therefore reverse that finding and remand for further proceedings consistent with the previous memorandum decision in this case. Ariz. Dep't of Econ. Sec. v. Rux, 2009 WL 3836120, *3, ¶ 17 (Nov. 17, 2009) ("Under these circumstances, we conclude that we must remand this case

1 Absent material revision after the relevant date, we cite a statute's current version.

2 ADES/HOELSCHER v. RUX Decision of the Court

to the trial court to determine if there was a waiver, whether any such waiver is still valid, and whether it is in the best interests of the child for the court to recognize such waiver."). See Albins v. Elovitz, 164 Ariz. 99, 102, 791 P.2d 366, 369 (App. 1990) (court may enforce child support waiver only if the interests of the child are not adversely affected).

:gsh