Escobedo v. Miller

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

GIOVANNY ESCOBEDO, Petitioner/Appellant,

v.

MARKIE MILLER, Respondent/Appellee.

No. 1 CA-CV 25-0530 FC
FILED 04-06-2026

Appeal from the Superior Court in Maricopa County
No. FC2015-092922
The Honorable David E. McDowell, Judge

VACATED AND REMANDED

COUNSEL

Giovanny Escobedo, Mesa
Petitioner/Appellant

Al Arpad Esquire, Phoenix
By Alexander R. Arpad
Counsel for Respondent/Appellee
ESCOBEDO v. MILLER
Decision of the Court

MEMORANDUM DECISION

Judge Veronika Fabian delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Vice Chief Judge David D.
Weinzweig joined.

F A B I A N, Judge:

¶1 Giovanny Escobedo (“Father”) appeals from the superior
court’s denial of his motions to set aside child support arrearages owed to
Markie Miller (“Mother”) contained in the court’s amended child support
order. Father argues the court denied him due process by entering the
arrears judgment without an evidentiary hearing. This Court vacates and
remands.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2015, Father petitioned to establish legal decision-making
and parenting time for the parties’ minor child. The parties agreed, in a
temporary agreement adopted by the superior court, that Father “continue
to directly pay to Mother the monthly sum of $300.00 as and for child
support.” The parties later agreed that after February 1, 2016, the child
support obligation would decrease to $100 per month because they had
shifted to an equal parenting time schedule. The court adopted this
agreement as well. After mediation in 2019, the parties agreed to modify
parenting time, but Father’s child support obligation remained at $100 per
month.

¶3 In December 2023, Mother filed a motion for temporary
orders and a petition to modify legal decision-making, parenting time, and
child support, alleging Father committed an act of domestic violence
against Father’s then partner. Mother sought sole legal decision-making,
limited supervised parenting time for Father, and child support under the
Arizona Child Support Guidelines. Mother did not seek child support
arrearages in the petition or any time thereafter.

¶4 That same month, the superior court issued temporary orders
awarding Mother temporary legal decision-making, limiting Father’s
parenting time to four hours per week, and ordering Father pay Mother

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$731 per month in child support pursuant to the Arizona Child Support
Guidelines.

¶5 At an evidentiary hearing in May 2024, Mother testified that
she was no longer splitting childcare costs with Father. Father testified that
he was underpaying the support amount ordered in the court’s temporary
orders by approximately $30 per month.

¶6 The superior court ruled on Mother’s petition on May 20,
2024. The court awarded Mother sole legal decision-making, implemented
a parenting time schedule that gradually increased Father’s parenting time
over a period of several months, and ordered Father pay Mother $559 per
month in child support. The court also stated:

[T]he Court believes there may be a child support arrearage
owed by [Father] to [Mother]. Therefore, the Court will order
a child support arrearage calculation. . . .

No arrearage judgment is entered as part of this Ruling
because the Court does not have information at this time
about any arrearage owed between the date of this Petition
and the final hearing.

¶7 In December 2024, the superior court filed a pending case
status report where the Division of Child Support Services (“DCSS”)
calculated Father’s total arrears to be $12,789.12 including interest. In
February 2025, the court, without an evidentiary hearing, entered an
amended child support order, which included an arrearage judgment
awarding Mother $12,789.12 and adding $158 to Father’s monthly child
support payment to be put towards the arrearage judgment.

¶8 Father then filed a motion to set aside the arrearage judgment
based on waiver, detrimental reliance, and unreasonable delay in
enforcement. Treating the motion as one under Rule 85, see Ariz. R. Fam.
Law P. 85, the court denied it, relying in large part on its conclusion that
Father’s affirmative defenses should have been raised in response to
Mother’s petition or other pretrial filings.

¶9 Father then filed another Rule 85 motion to set aside or reduce
the arrearage judgment and requested an evidentiary hearing, arguing he
was unaware at the initial evidentiary hearing that arrears were being
pursued and was thus denied the opportunity to present his defenses. The
court denied the second Rule 85 motion in May 2025, stating the court had
already addressed the merits of his arguments in ruling on the previous

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motion and the second motion “does not address any of the defects with
his legal theories.”

¶10 Father filed a notice of appeal for the denials of both Rule 85
motions but not the amended child support order. This Court has
jurisdiction over Father’s timely appeal under Article VI, Section 9 of the
Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and 2101(A)(2).

DISCUSSION

I. Father Was Denied Due Process.

¶11 Father argues he was denied due process when the superior
court entered the arrears judgment based on the DCSS calculation without
an evidentiary hearing.

¶12 This Court reviews the denial of a Rule 85 motion for an abuse
of discretion. Duckstein v. Wolf, 230 Ariz. 227, 231 ¶ 8 (App. 2012). “A court
abuses its discretion if it commits an error of law in reaching a discretionary
conclusion . . . or ‘the record fails to provide substantial evidence to support
the trial court’s finding.’” Flying Diamond Airpark, LLC v. Meienberg, 215
Ariz. 44, 50 ¶ 27 (App. 2007) (quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz.
434, 456 (1982)).

¶13 “No person shall be deprived of life, liberty, or property
without due process of law.” Ariz. Const. art. II, § 4; see also U.S. Const.
amend. XIV, § 1. “The elements of procedural due process are notice and an
opportunity to be heard.” Iphaar v. Indus. Comm’n, 171 Ariz. 423, 426 (App.
1992). “The type of notice that due process requires is that which is
reasonably calculated under all of the circumstances to apprise interested
parties of the pendency of the action and afford them the opportunity to
present their objections.” Id.

¶14 Rule of Family Law Procedure 91(b) describes the required
notice. It provides that “[a]n applicant who seeks to modify or enforce all
or a portion of a judgment after the entry of the judgment must file a
petition with the court.” “A petition to enforce an order to pay spousal
maintenance, child support, or other sums that are due under a support
order must . . . include a current summary calculation of arrears derived
from support payment clearinghouse records, if available, or if not
available, a statement of all sums due.” Ariz. R. Fam. Law P. 91.2(a).

¶15 Here, Mother did not file a petition to enforce an order to pay
child support. Mother’s petition sought only to modify legal decision-

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making, parenting time, and child support. It did not include a current
summary calculation of arrears or a statement of all sums due. Similarly,
Mother’s pretrial notice of issues and pretrial statement do not mention
child support arrearages or any intention to enforce payment of past due
child support. Therefore, Father was only on notice that Mother was
seeking increased child support calculated by the Arizona Child Support
Guidelines, not previously unpaid child support. By ordering Father to pay
arrearages predating Mother’s 2023 petition, the superior court expanded
the scope of relief outside of the issues presented in Mother’s petition, and
in doing so violated Father’s due process rights. See Savord v. Morton, 235
Ariz. 256, 259–60 ¶¶ 16-18 (App. 2014).

¶16 Mother argues that Father cannot challenge the issue of
arrears because that issue was finally decided in the superior court’s 2024
order and Father did not appeal from that order. But when the court issued
its May 2024 order, it ordered a child support arrearage calculation—not an
arrearage judgment—because it “does not have information at this time
about any arrearage owed between the date of this Petition and the final
hearing.” Thus, the court’s order contemplated only post-petition
arrearages as a result of the court’s temporary child support order,
arrearages which Mother could properly seek to be included in the final
order. See Valencia v. Valencia, 1 CA-CV 19-0224 FC, at *2 ¶ 11 (Ariz. App.
Mar. 31, 2020) (mem. decision) (“To prevent a debtor-parent from simply
not paying and ‘running out the clock’ on the temporary support order . . .
the court need only include any temporary support arrearages in the final
decree. The creditor-parent can also object to or otherwise seek relief from
a decree that fails to include the arrearages.”).

¶17 Father does not dispute that he is obligated to pay post-
petition arrearages on the temporary child support orders. He testified in
his own presentation that he was underpaying Mother for the temporary
child support obligation. Father neither appealed the superior court’s May
2024 order, which ordered that he pay post-petition arrearages upon
calculation of the amount by DCSS, nor raised the issue in his Rule 85
motions following the 2025 amended order. Thus, on remand, the superior
court should determine arrearages for the post-petition amount.

II. Attorney Fees on Appeal.

¶18 Mother requests her attorney fees on appeal pursuant to
A.R.S. § 25-324. In its discretion, this Court denies her request.

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CONCLUSION

¶19 The superior court’s orders are vacated. The case is remanded
to the superior court for an evidentiary hearing to determine the amount of
arrearages accrued after Mother’s petition was filed and to enter an
arrearage judgment on that amount.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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