SB1677 - 542R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Title 25, chapter 2, article 2, Arizona Revised Statutes, is amended by adding section 25-212, to read:

START_STATUTE25-212. Property disputes

A. Mediation is the preferred manner of settling property disputes. The parties shall submit to the court appropriate evidence of mediation to be entered in the court record.

B. If mediation fails, the court shall hold a trial in the manner prescribed by the court for a bench trial without a jury. Justice shall be dispensed in conformance with the equal protection clause of the constitution and everyone must be treated fairly. The standard of evidence to decide property disputes is the preponderance of the evidence.

C. The right to a jury is inviolate. the court may not violate the right to a jury. A party may not waive the right to have a jury make the final decision on matters involving amounts greater than $2,500. The court shall disclose to all parties the right to a jury prescribed in this section. If the court does not make this disclosure, any subsequent proceedings or rulings do not have the force of law. All jury trials shall be preceded by a bench trial. Disputes shall be resolved in the following sequence.

1. Mediation.

2. Bench trial.

3. Jury trial only if all these steps are deemed necessary by the litigants.

D. If a party believes that the party's rights have been substantially violated by a court order and files a jury demand with the court, the court shall set a new hearing before a jury within thirty days after the party files the demand. In reaching a decision, the jury may not have more than two dissenting votes.

E. The court shall include in the jury instructions the statement: "there is a presumption of fairness as required by the Constitution. If one party exhibits unreasonable conflict, the Jury may order appropriate adjustments. The judge may have done so for reasons stated in the court order."

F. The jury has final authority over orders for child support, including back child support, the monthly amount to be paid, to whom the payment must be made and the amount of accumulated interest to be paid.

G. A party may have the jury reexamine discrete portions of the court's orders without the entire case being relitigated or reexamined.

H. The jury may assess financial penalties not to exceed $2,500 against any litigant whom the jury deems to have abused the system. The penalties shall be paid to any individual or person deemed appropriate by the jury.

I. Total fees for this subsequent hearing, heard and decided by the jury, may not exceed $500.

J. False or withheld exculpatory evidence may be considered perjury and enforced in the criminal court. The judge, the jury with not more than two dissenting votes or anyone else may prefer these charges to the county attorney, who shall investigate and report the county attorney's findings to all parties and the grand jury. Prosecutorial discretion resides exclusively in the grand jury.

K. Unless a person waives the person's right to a jury in writing, that right still exists. END_STATUTE

Sec. 2. Section 25-327, Arizona Revised Statutes, is amended to read:

START_STATUTE25-327. Modification and termination of provisions for maintenance, support and property disposition; interest

A. Except as otherwise provided in section 25‑317, subsections F and G, the provisions of any decree respecting maintenance or support may be modified or terminated only on a showing of changed circumstances that are 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. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state, such as the right to a jury may not be violated as provided in article II, section 23, constitution of Arizona. Modifications and terminations 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.

B. Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated on the death of either party or the remarriage of the party receiving maintenance.

C. Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a minor child are not terminated by the death of a parent obligated to support the child. If a parent obligated to pay support dies, the amount of future support may be modified, revoked or commuted to a lump sum payment to the extent just and appropriate in the circumstances and has priority equal to the right for family allowance in section 14‑2404. Past due support has priority equal to claims provided for in section 14‑3805, subsection A, paragraph 6. Mediation and a jury trial is available if the trial court is not able to settle these claims in a just manner that is close enough.

D. Notwithstanding any other law, pursuant to a petition filed pursuant to this section the court may suspend the imposition of future interest that accrues on a judgment for support issued pursuant to this article for the period of time that the petitioner is incarcerated or has physical or mental disabilities to the extent that the person is unable to maintain employment.

D. Interest may not be charged or accrued on late payments or underpayments of maintenance or support. A parent is required to take care of the parent's child, including financial support, and may be incarcerated for not doing so by means of full due process, including a jury trial under title 13. END_STATUTE

Sec. 3. Section 25-403.09, Arizona Revised Statutes, is amended to read:

START_STATUTE25-403.09. Child support; mediation; bench trial; jury trial

A. For any parenting time order entered under this article, the court shall determine an amount of child support in accordance with section 25‑320 and guidelines established pursuant to that section.

B. An award of joint legal decision-making or a substantially equal parenting time plan does not diminish the responsibility of either parent to provide for the support of the child.

C. The final authority for a monetary award and a parenting time order resides with a jury. Perjury is prohibited and shall be enforced as prescribed in title 13, chapter 27. In resolving these matters:

1. The people expect most disputes to be resolved by mediation and discussions between the parties.

2. If necessary, the judge shall hold a bench trial and produce orders.

3. If a litigant still believes that justice has not been served by the bench trial, the litigant may petition the court and a jury trial shall be scheduled to make the final decisions on the matters yet to be resolved. END_STATUTE

Sec. 4. Section 25-407, Arizona Revised Statutes, is amended to read:

START_STATUTE25-407. Legal decision-making and parenting time hearings; priority; costs; record

A. Legal decision-making and parenting time proceedings shall receive priority in being set for hearing. If a party to a legal decision-making or parenting time action files a motion for temporary orders in any pre-decree matter, the court shall hold an evidentiary hearing within sixty days after the party files the motion unless:

1. The filing party waives the requirement for a hearing to be conducted within sixty days after the party files the motion.

2. Temporary orders are established through a separate conference or hearing within sixty days after the party files the motion.

3. Extraordinary circumstances exist and the court is not able to schedule the hearing. If the court is not able to schedule the hearing within sixty days after the motion is filed, it must make a written finding on the record as to the cause of the delay.

B. Subsection A of this section does not preclude any other conference or hearing.

C. The court may charge as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems necessary to determine the best interest of the child.

D. The court, without a jury, shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child's best interest, the court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the court.

E. If the court finds that to protect the child's welfare, the record of any interview, report, investigation or testimony in a legal decision‑making or parenting time proceeding should be kept secret, the court may then make an appropriate order sealing the record.

F. If a party believes that the party's rights have been substantially violated by the orders of the court and files a jury demand with the court, the court shall set a new hearing before a jury within thirty days after the party files the demand. Issues related to the parenting rights of parents must be proved beyond a reasonable doubt and require a unanimous verdict of the jury. Financial verdicts shall be based on a preponderance of the evidence and a jury may not have more than two dissenting votes.

G. The judge shall include the following statement in the jury instructions: "There is a presumption of shared parenting if both parents are good enough to exercise the duties of a parent. If one parent exhibits UNREASONABLE conflict, the judge may order appropriate adjustments in parenting time and legal decision‑making for a period not to exceed eighteen months. The judge shall include in the judge's order the reasoning for the decision based on noted evidence. END_STATUTE

Sec. 5. Section 25-510, Arizona Revised Statutes, is amended to read:

START_STATUTE25-510. Receiving and disbursing support and maintenance monies; arrearages; interest

A. The support payment clearinghouse established pursuant to section 46‑441 shall receive and disburse all monies, including fees and costs, applicable to support and maintenance unless the court has ordered that support or maintenance be paid directly to the party entitled to receive the support or maintenance. Within two business days the clerk of the superior court shall transmit to the support payment clearinghouse any maintenance and support payments received by the clerk. Monies received by the support payment clearinghouse in cases not enforced by the state pursuant to title IV‑D of the social security act shall be distributed in the following priority:

1. Current child support or current court ordered payments for the support of a family when combined with the child support obligation.

2. Current spousal maintenance.

3. The current monthly fee prescribed in subsection D of this section for handling support or spousal maintenance payments.

4. Past due support reduced to judgment and then to associated interest.

5. Past due spousal maintenance reduced to judgment and then to associated interest.

6. Past due support not reduced to judgment and then to associated interest.

7. Past due spousal maintenance not reduced to judgment and then to associated interest.

8. Past due amounts of the fee prescribed in subsection D of this section for handling support or spousal maintenance payments.

B. In any proceeding under this chapter regarding a duty of support, the records of payments maintained by the clerk or the support payment clearinghouse are prima facie evidence of all payments made and disbursed to the person or agency to whom the support payment is to be made and are rebuttable only by a specific evidentiary showing to the contrary.

C. At no cost to the clerk of the superior court, the department shall provide electronic access to all records of payments maintained by the support payment clearinghouse, and the clerk shall use this information to provide payment histories to all litigants, attorneys and interested persons and the court. For all non‑title IV‑D support cases, the clerk shall load new orders, modify order amounts, respond to payment inquiries, research payment related issues, release payments pursuant to orders of the court and update demographic and new employer information. The clerk shall forward orders of assignment to employers for non‑title IV‑D support orders. Within five business days the clerk shall provide to the department any new address, order of assignment or employment information the clerk receives regarding any support order. The information shall be provided as prescribed by the department of economic security in consultation with the administrative office of the courts.

D. The support payment clearinghouse shall receive a monthly fee for handling support and maintenance payments. The director, by rule, may establish this fee. The court shall order payment of the handling fee as part of the order for support or maintenance. The handling fee shall not be deducted from the support or maintenance portion of the payment.

E. In calculating support arrearages not reduced to a final written money judgment, interest accrues at the rate of ten per cent per annum beginning at the end of the month following the month in which the support payment is due, and interest accrues only on the principal and not on interest. A support arrearage reduced to a final written money judgment accrues interest at the rate of ten per cent per annum and accrues interest only on the principal and not on interest no interest accrues.

F. Past support reduced to a final written money judgment before September 26, 2008 and pursuant to section 25‑320, subsection C or section 25‑809, subsection B accrues interest at the rate of ten per cent per annum beginning on entry of the judgment by the court and accrues interest only on the principal and not on interest. Past support reduced to a final written money judgment beginning on September 26, 2008 and pursuant to section 25‑320, subsection C or section 25‑809, subsection B does not accrue interest for any time period.

G. Any direct payments not paid through the clearinghouse or any equitable credits of principal or interest permitted by law and allowed by the court after a hearing shall be applied to support arrearages as directed in the court order. The court shall make specific findings in support of any payments or credits allowed. If the court order does not expressly state the dates the payments or credits are to be applied, the payments or credits shall be applied on the date of the entry of the order that allows the payments or credits. In a title IV-D case, if a court order does not indicate on its face that the state was either represented at or had notice of the hearing or proceeding where the payments or credits were determined, the court order shall not reduce any sum owed to the department or its agent without written approval of the department or its agent.

H. Any credit against support arrearages, other than by court order, shall be made only by written affidavit of direct payment or waiver of support arrearages signed by the person entitled to receive the support or by that person and the person ordered to make the support payment. The affidavit of direct payment or waiver of support arrearages shall be filed directly with the clerk of the court, who shall enter the information into the statewide case registry. Any credits against support arrearages shall be applied as of the dates contained in the affidavit or the date of the affidavit if no other date is specified in the affidavit. In a title IV-D case, the affidavit of direct payment or waiver of support arrearages shall not reduce any sum owed to the department or its agent without written approval of the department or its agent. A jury verdict is superior to a judicial order or any lesser authority.

I. An arrearage calculator may be developed by a government agency using an automated transfer of data from the clearinghouse and the child support registry. The arrearage figure produced by this calculator is presumed to be the correct amount of the arrearage.

J. Interest may not be charged or accrued on late payments or underpayments of maintenance or support. A parent is required to take care of the parent's child, including financial support, and may be incarcerated for not doing so by means of full due process, including a jury trial. END_STATUTE

Sec. 6. Section 25-681, Arizona Revised Statutes, is amended to read:

START_STATUTE25-681. Child support arrest warrant; definition

A. In any action or proceeding pursuant to section 25‑502, on motion of a party or on its own motion the court may issue a child support arrest warrant if the court finds that all of the following apply to the person for whom the warrant is sought:

1. The person was ordered by the court to appear personally at a specific time and location.

2. The person received actual notice of the order, including a warning that the failure to appear might result in the issuance of a child support arrest warrant.

3. The person failed to appear as ordered.

B. The judicial officer shall order the child support arrest warrant and the clerk shall issue the warrant. The warrant shall contain the name of the person to be arrested and other information required to enter the warrant in the Arizona criminal justice information system. The warrant shall command that the named person be arrested and either remanded to the custody of the sheriff or brought before the judicial officer or, if the judicial officer is absent or unable to act, the nearest or most accessible judicial officer of the superior court in the same county. A warrant that is issued pursuant to this section remains in effect until it is executed or extinguished by the court.

C. The court shall determine and the warrant shall state the amount the arrested person shall pay in order to be released from custody. Article II, section 18, constitution of Arizona, prohibits incarceration for debt. a person is required to take care of the person's family by paying what is just and what the person is able to pay. Detention and incarceration beyond forty-eight hours requires full due process, including trial by jury. A person who violates this check on judicial and executive powers violates section 13‑1303. Converting any other debt into child support is prohibited. Fees for a jury trial pursuant to this section may not exceed $500.

D. For the purposes of this article, "child support arrest warrant" means an order that is issued by a judicial officer in a noncriminal child support matter and that directs a peace officer in this state to arrest the person named in the warrant and bring the person before the court. END_STATUTE