NOTICE: NOT FOR PUBLICATION.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

ERIC JIMENEZ, Plaintiff/Appellant,

v.

STATE OF ARIZONA ex rel. DEPARTMENT OF ECONOMIC SECURITY, 

Division of Child Support Enforcement, Defendant/Appellee.

No. 1 CA-CV 13-0362

Appeal from the Superior Court in Maricopa County

No. DR1999-095658, LC2013-000122-001

The Honorable Benjamin R. Norris, Judge

AFFIRMED

COUNSEL

Erik Jimenez, St. Johns

Plaintiff/Appellant

Arizona Attorney General’s Office, Mesa

By Nicholas Chapman-Hushek

Counsel for Defendant/Appellee
JIMENEZ v. STATE/ADES

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in 

which Judge Peter B. Swann and Judge Jon W. Thompson joined.

G O U L D, Judge:

¶1 Eric Jimenez appeals the family court’s dismissal of his 

complaint for failure to state a claim upon which relief can be granted. 

For the reasons outlined below, we affirm.

Facts and Procedural History

¶2 Eric Jimenez and Jane Peterssen1 married in 1996 and had 

two children during their marriage. In 1999, Peterssen filed a petition for 

divorce. In 2000, the court issued a decree of dissolution of marriage and 

a child support order, granting Peterssen sole custody of the children, and 

ordering Jimenez to pay $754.42 per month in child support. 

¶3 The Arizona Department of Economic Security (“ADES”)

intervened in the case in December 2010 pursuant to Arizona Revised 

Statute (“A.R.S.”), section 25-509. That same month, ADES filed a petition 

to modify Jimenez’s child support payments on the grounds Jimenez was 

in prison and lacked an identifiable source of income. As a result, ADES 

requested the court to adjust Jimenez’s current child support and monthly 

arrears payments to $0. 

¶4 The court granted ADES’ petition. In its modification order, 

the court stated that “[a]rrears exist but because [Jimenez] is incarcerated 

and no income source has been identified no payment on arrears will be 

added at this time.” 

¶5 After the court issued its modification order, ADES 

discovered that Jimenez had been paid wages while he was in prison, and 

that these wages had been deposited into his inmate trust accounts. 

ADES attempted to collect Jimenez’s arrears, which totaled $158,701.36, by 

 

1 Jane Peterssen’s name during these proceedings was originally Jane 

Jimenez; she changed her last name to Peterssen in 2000. 
JIMENEZ v. STATE/ADES

Decision of the Court

3

issuing a limited income withholding order to the prison. As a result, the

prison withheld $3,358.00 from Jimenez’s inmate accounts. 

¶6 Jimenez challenged the withholding order by filing a request 

for administrative review with ADES pursuant to A.R.S. § 25-522(A). 

ADES denied Jimenez’s appeal and affirmed its withholding order. 

Jimenez subsequently filed a complaint for administrative review in 

superior court pursuant to A.R.S. §§ 25-522(F) and 12-910. ADES moved 

to dismiss Jimenez’s complaint, claiming Jimenez failed to state a claim 

upon which relief could be granted. The superior court granted ADES’ 

motion and dismissed Jimenez’s complaint. Jimenez timely appeals. 

Standard of Review

¶7 We review de novo the granting of an order to dismiss for 

failure to state a claim upon which relief can be granted. Coleman v. City of 

Mesa, 230 Ariz. 352, 355, ¶ 8, 284 P.3d 863, 866 (2012). When reviewing the 

grant of a motion to dismiss, we must “assume the truth of the well-pled 

factual allegations and indulge all reasonable inferences therefrom” in 

favor of the nonmoving party. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 

417, 419, ¶ 7, 189 P.3d 344, 346 (2008). We review issues involving 

statutory interpretation de novo. Lear v. Fields, 226 Ariz. 226, 232, ¶ 15, 245 

P.3d 911, 917 (App. 2011). See Mead v. Holzmann, 198 Ariz. 219, 220, ¶ 4, 8 

P.3d 407, 408 (App. 2000) (interpretation of Arizona Child Support 

Guidelines is a question of law the appellate court reviews de novo). 

Modification Order 

¶8 Jimenez asserts the modification order precluded ADES

from attempting to collect any child support arrears while he was in 

prison. We disagree. The modification order relates to the payment of 

current child support and monthly arrears payments while Jimenez is 

incarcerated, and is premised on the determination that, at the time the 

order was issued, Jimenez had no identifiable source of income. The 

modification order does not preclude ADES from collecting arrears if, at 

some point, it identifies a source of income for Jimenez. That is precisely 

what happened here. After the modification order was issued, ADES 

discovered Jimenez’s inmate accounts, and collected a portion of the 

arrearages he owed from these accounts.2 

 

2 ADES was not required to return to the family court to obtain a 

limited income withholding order for Jimenez’s inmate accounts. 
JIMENEZ v. STATE/ADES

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Exemptions 

¶9 Jimenez also argues that his prison accounts were exempt 

from ADES’ withholding order. According to Jimenez, because his 

income in prison did not exceed $775.00 per month, his earnings should 

have been exempt from ADES’ withholding order under the “Self Support 

Reserve Test” set forth in the Arizona Child Support Guidelines. A.R.S. § 

25-320, Appendix, Arizona Child Support Guidelines, ¶ 15 (“In each case, 

after determining the child support order, the [family court] shall perform 

a Self Support Reserve Test to verify that the noncustodial parent is 

financially able both to pay the child support order and to maintain at 

least a minimum standard of living.”) (2010).3 

¶10 Jimenez confuses the “limited income withholding order”

issued by ADES in this case pursuant to A.R.S. § 25-505 with an “income 

withholding order” issued pursuant to A.R.S. § 25-505.01. A limited 

income withholding order under A.R.S. § 25-505 collects a “lump sum 

payment” for child support, while an income withholding order under 

A.R.S. § 25-505.01 withholds, on a regular and continuing basis, current 

child support and monthly arrearage payments from any form of periodic 

income, such as wages or a salary. A.R.S. § 25-505(A) (limited income 

withholding orders); A.R.S. §§ 25-505.01(A), (B) (income withholding 

orders). The Self Support Reserve Test applies only to current, monthly 

child support payments, and does not apply to lump sum payments 

under A.R.S. § 25-505. A.R.S. § 25-320, Child Support Guidelines, ¶ 15 

(“The [self support reserve] test applies only to the current child support 

obligation, but does not prohibit an additional amount to be ordered to 

reduce an obligor’s arrears.”) Cf. Hanley v. Industrial Com’n of Arizona, 200 

Ariz. 32, 35-37, ¶¶ 18, 28, 21 P.3d 850, 853-55 (App. 2001) (holding that an 

incarcerated father’s monthly worker’s compensation benefits were not 

subject to 50% exemption under A.R.S. § 33-113(C) because the statute 

 

Pursuant to A.R.S. § 25-505, ADES was authorized to administratively 

issue a limited income withholding order. See State ex. Rel. Dep’t of Econ. 

Sec. v. Hayden, 210 Ariz. 522, 523, ¶ 2, 115 P.3d 116, 117 (2005) (explaining 

that the legislature provided ADES with “a variety of administrative 

remedies to collect child support arrearages,” including income 

withholding orders). 

3 Effective June 1, 2011, the amount of the self support reserve test 

increased from $775/month to $903/month. A.R.S. § 25-320, Appendix, 

Arizona Child Support Guidelines, ¶ 15 (2011). 
JIMENEZ v. STATE/ADES

Decision of the Court

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“seems intended to preserve some income for a ‘debtor’ needing such 

income for self-maintenance, which is not [an inmate’s] situation.”).

4 

¶11 Accordingly, we conclude that, as a matter of law, Jimenez’s 

prison accounts were not exempt from ADES’ limited income withholding 

order under the Self Support Reserve Test.

¶12 Finally, Jimenez asserts that ADES’ withholding order has 

caused him to suffer “substantial financial hardship due to his poverty 

and lack of earning capacity.” This argument is presented for the first 

time on appeal, and we do not, as a general matter, consider issues unless 

they were raised in the trial court. Englert v. Carondelet Health Network, 199 

Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768-69 (App. 2000). Furthermore, Jimenez 

has not alleged any facts or evidence in support of this argument and,

therefore, he has failed to allege a cognizable claim. Cullen, 218 Ariz. at

420, ¶ 14, 189 P.3d at 347 (holding that in reviewing the sufficiency of a 

complaint, a court may not accept as true unsupported conclusions or 

“speculate about hypothetical facts that might entitle the plaintiff to 

relief.”) (internal citations omitted). 

 

4 Jimenez alleged in his complaint that some of the money collected 

from his account was exempt under A.R.S. § 33-1131(C). Jimenez does 

not, however, raise that claim on appeal and therefore has waived it. 

ARCAP 13(a)(6); DeElena v. S. Pac. Co., 121 Ariz. 563, 572, 592 P.2d 759, 768

(1979) (issues not argued on appeal deemed abandoned). Moreover, even 

if this claim was properly brought before us, we would still conclude that 

it was properly dismissed based on our decision in Hanley. See supra, ¶ 10.
JIMENEZ v. STATE/ADES

Decision of the Court

6

Conclusion

¶13 For the reasons discussed above, we affirm the family 

court’s judgment dismissing Jimenez’s complaint.