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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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



# A RIZONA 

# C OURT OF 

# A PPEALS

D IVISION O NE

STATE OF ARIZONA, ex rel, DES

DANIELLE SHKAY SMITH

, P etitioners /Appell ees

,

v.

SHANE STEVENS

, Responde nt/Appell ant

.

No. 1 CA

- CV 22

- 0590 FC

Appeal from the Superior Court in Maricopa County

No. FC2021

- 052815

The Honorable Michelle Carson

, Judge Pro Tempore

AFFIRMED

APPE A RANCES

Arizona Attorney General’s Office

, Tucson

By Jennifer R. Blum

Counsel for Department of Economic Security

Shane Stevens

- El

, Phoenix

Responde nt/Appell ant FILED 7-20-2023STATE/SMITH v. STEVENS

Decision of the Court

2 MEMORANDUM DECISION

Chief Judge David B. Gass delivered the decision of the c ourt, in which

Judge Brian Y. Furuya and Judge Andrew M. Jacobs joined.

G A S S

, Chief Judge:

¶1 Shane Stevens

- El (father) appeals the superior court’s denial

of his motion to vacate a judgment imposing child support obligations. We

affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother alleged father was the parent of h er child born in

December 2020. In October 2021, the Arizona Depar tment of Economic

Security (ADES) petitioned to establish father’s paternity through genetic

testing and sought an order for chi ld support on behalf of mother. ADES

did so under the Title IV

- D program. In response, father filed affidavits

stating he is a “fit parent” and was “elect[ing], by right, to not participate in

the Title IV

- D program. ”

¶3 In May 2022 , t he superior court held a hearing to establish

child support and decided it would take no action on father’s affidavits

. Though f ather attended the hearing , he did not participate and said he

“d[id] not consent to these proceedings

. ” Father also did not complete the

paternity test and refused to recognize the authority of the Title IV

- D

program. ADES moved to proceed by default and the sup erior court

granted the motion.

¶4 After the superior court proceeded by default, it ordered

father pay $6,022 in child

- support arrears and $410 per month in

prospective child support

. Father then filed a motion titled “ Motion to

Vacate Void Judgment” demanding the superior court vacate its order

. He

argued he has a constitutional right to decline to participate in Title IV

- D

services

, he had not contracted to pay child support

, and the superior

court’s order was void because the court commissioner lacked author ity

. The superior court denied his motion

. Father then timely appealed the

superior court’ s denial.STATE/SMITH v. STEVENS

Decision of the Court

3 JURISDICTION

¶5 The state argues this court lacks jurisdiction over father’s

appeal because father moved to vacate a “ void judgment, ” rather than filing

a motion to set aside default judgment. But the judgment against father w as

not a default judgment.

¶6 A court may issue a default judgment when “a party against

whom a judgment for affirmative relief is sought has failed to plead or

otherwise defend .” Ariz. R. Civ. P. 55(a)(1). Here, ADES petitioned and

father timely responded by filing affi davits addressi ng the petition. The

superior court did not enter a “default judgment.” Instead, it proceeded “by

default” because of father’s nonparticipati on and then entered a judgment.

Because father timely challenged the superior court’s final ruling, his

motion was proper.

¶7 T his court has jurisdiction over father’s appeal under article

VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12

- 120.21.A.1 and

- 2101.A.1

.

ANALYSIS

¶8 Father argues the superior court erred in denying his motion

to vacate void judgment bec ause: (1) the Title IV

- D child support program

violates his due process rights; (2) he need not pay child support becau se

he did not contract to do so; and (3) the superior court’s order is void

because the court commissioner lacked authority to preside over this

matter

.

¶9 This court reviews the superior court ’ s conclusions of law

about child support de novo

. Nia v. Nia , 242 Ariz. 419, 422 ¶ 7 (App. 2017).

This court reviews factual findings for an abuse of discretion and revers es

only when clearly erroneous. In re Marriage of Gibbs , 227 Ariz. 403, 406 ¶ 6

(App. 2011). A finding is clearly erroneous only if, after considering the

evidence, this court has a “definite and firm conviction” the superior court

erred. State v. Burr , 12 6 Ariz. 338, 339 (1980). This court does not “ reweigh

the evidence but defer[s] to the [superior] court ’ s determinations of witness

credibility and the weight given to conflicting evidence.” Lehn v. Al

Thanayyan , 246 Ariz. 277, 284 ¶ 20 (App. 2019).

¶10 F ather provided no transcripts from the Title IV

- D

evidentiary hearing. If a party does not provide a transcript , this court

presumes the testimony and other evidence discussed in the missing

transcript supports the superior court ’ s factual findings and conclusions ofSTATE/SMITH v. STEVENS

Decision of the Court

4 law. State ex rel. Dep ’ t of Econ. Sec. v. Burton

, 205 Ariz. 27, 30 ¶ 16 (App. 2003).

We apply that presumption here. See id.

I. The superior court did not violate father’s due process rights by

ordering child support unde r Title IV

- D.

¶11 Father argues the superior court deprived him of due process

because he has the “right as a fit parent to de cline Title IV

- D services.”

Father also argues the judgment infringed his constitutional right to make

decisions about his child’ s “care, custody, and control.”

¶12 This court reviews de novo “constitutional issues, including

an alleged violation of due process.” Wassef v. Ariz. State Bd

. o f Dental

Exam’rs ex rel. Hugunin

, 242 Ariz. 90, 93 ¶ 11 (App. 2017). Due process errors

merit reversal only if they prejudice a party

. Volk v. Brame

, 235 Ariz. 462,

470 ¶ 26 (App. 2014).

¶13 The superior court did not violate father’s due process rights

under Title IV

- D of the federal Social Security Act. Title IV

- D grants

conditional funds to states to secure fina ncial support for children from

noncustodial parents. 42 U.S.C. § 651 ; A.R.S. § 25

- 509.A. Under Title IV

- D

, a state may provide certain services including establishing paternity and

child support obligations. 42 U.S.C. § 654 ; A.R.S. § § 25

- 509

, - 816

.

¶14 Whether a custodia l parent receives assistance fro m ADES’s

Title IV

- D program to collect child support does not concern the child’s

care, custody, and control. See, e

. g.

, Doll v. Barnell

, 693 N.W.2d 455, 461

(Minn. App. 2005) ( ruling state ’s Title IV

- D child

- support program did not

violate parents’ right to control the ir child’s upbringing because child

support does not involve a fundamental parental right). An action securing

child support

, thus, does not involve any fundamental parental rights.

II. Father has a legal duty

, not a contractual duty, to support his c hild

.

¶15 Father argues ADES has no cause of action because there

was no valid contract requiring him to provide child support

.

¶16 Under Arizona law, “every person has the duty to provide

all reasonable support for that person’s

. . . minor, unema n cipated

children.” A.R.S. § 25

- 501

. A

. This duty “is not founded upon contract,

expressed or implied, but on the

. . . legal duty of a [parent] to support

[their] minor children .” Indus. Comm’ n v. Oden

, 68 Ariz. 234, 238 (1949)

. In

fact, “ [a] parent may not form a valid and enforceable contract whichSTATE/SMITH v. STEVENS

Decision of the Court

5 releases the parent from all obligation to support his or her minor children.”

Smith v. Saxon

, 186 Ariz. 70, 73 (App. 1996)

.

¶17 F ather relies on the federal nature of Title IV

- D to argue

mother has no right to child support. True

, generally a parent has no

individual federal right to compel ADES to collect child support. Blessings v.

Freestone

, 520 U.S. 329, 343

– 44 (1997); see also Wehunt v. Ledbetter

, 875 F.2d

1558, 1565 (11th Cir. 1989) (“Title IV

- D does not create any enforceable

right.”). But father’s argument misses the point. T his case arises under state

law

— not federal law

. S ee A.R.S. § 25

- 505 .A (permitting ADES to issue

income withholding order s)

. And state law compels father to support his

child. See A.R.S. § 25

- 501

. A ; Indus. Comm’ n

, 68 Ariz. at 238. Moreover

, ADES

— not mother

— seeks to enforce the obligation here

. And while

mother has no individual right to compel ADES to pursue fa ther for

pay ment of child support under Title IV

- D, the State of Arizona may elect

to do so in its discretion

. See A.R.S. § 25

- 509 .B (authorizing state to initiate

or intervene in an action involving child support).

¶18 Father also argues the superior court erred in ordering him

to pay child support because it relied solely on mother’s testimony to

support its paternity finding

. Not so. Under A.R.S. § 25

- 813(2), t he superior

court must enter an order of paternity if a party violates an orde r for genetic

or blood testing. “ An order of genetic testing issued by [ADES] has the same

force and effect as a superior court order. ” A.R.S. § 25

- 816.A. And if t he

superior court decides paternity in the affirmative

, it must order child

suppor t . A.R.S. § 25

- 809

. A,

. D

.

¶19 Here, ADES ordered father to submit a genet ic test to

establish paternity. But f ather never completed a genetic or blood test

. Because father violated the order for genetic testing, the superior court

lawfully determined father is the child’s legal parent

. See A.R.S. § 25

- 809.A,

.D ; A.R.S. § 25

- 813 (2)

.

III. The superior court commissioner’s order establishing child

support is valid and controlling

.

¶20 Father argues the court commissioner “did not act as a court

commissioner . . . in this proceeding, but as a hired contractor” ; “[t]he ‘child

support proceeding’ was not a judicial process and the ‘paternity judgment’

and ‘support order ’

. . . [ were ] not court order [ s ] ” ; and the judgment and

order were issued coram non judice

— outside the presence of a judge. At

bottom, father argues the superior court commissioner’s order is void

because she lacked authority to preside over this matte r

.STATE/SMITH v. STEVENS

Decision of the Court

6 ¶21 C ourt commissioner s have statutory authority to preside

over child

- support cases and enter child

- support orders. A.R.S. § 12

- 298

. C

. When court commissioner s act within the authority granted by statute, the ir

orders have the same force and effect as those entered by superior court

judges. Ariz. R. Sup. Ct. 96(a)(6); see also Green v. Thompson

, 17 Ariz. App.

587, 590 (1972) (“The commissioner’s jurisdiction is narrower than that of a

regular superior court judge, but within the confines of that authority, he

acts as a superior court judge.”). Because the court commissioner’s order

establishing child support was within h er authority, the order has the same

effect as if entered by a superior court judge.

¶22 T he superior court commissioner’s order establishing child

support

, thus, is valid and controlling.

CONCLUSION

¶23 We affirm.