Marriage of MacMillan v. Schwartz

250 P.3d 1213, 226 Ariz. 584, 2011 Ariz. App. LEXIS 39
CourtCourt of Appeals of Arizona
DecidedMarch 29, 2011
Docket1 CA-CV 10-0262
StatusPublished
Cited by125 cases

This text of 250 P.3d 1213 (Marriage of MacMillan v. Schwartz) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of MacMillan v. Schwartz, 250 P.3d 1213, 226 Ariz. 584, 2011 Ariz. App. LEXIS 39 (Ark. Ct. App. 2011).

Opinion

OPINION

IRVINE, Judge.

¶1 Gail E. MacMillan (“Wife”) appeals from the trial court’s order modifying spousal maintenance. Wife argues that the trial court erred in finding her earnings from employment triggered the modification clause of the parties’ spousal maintenance agreement and in determining the amount of the modified award. For the reasons that follow, we affirm.

¶ 2 In March 2005, Wife and William C. Schwartz (“Husband”) were divorced by consent decree, incorporating into the decree a property settlement agreement (“PSA”). The PSA contained a spousal maintenance clause, which states in pertinent part:

Husband shall pay spousal maintenance to Wife in the amount of $6,666.67 per month directly to Wife for a period of eight (8) years commencing April 1, 2005____
Pursuant to Arizona Revised Statutes, § 25-327, for purposes of the modification of spousal maintenance the parties agree that in the event that Wife earns income from employment or other active business endeavors of less than $50,000.00 per year the Court shall not consider Wife’s earning of said income as a change of circumstances which shall give rise to grounds for modification of said spousal maintenance. Notwithstanding the aforementioned condition, any other condition or conditions associated with change of circumstance, including but not limited to Wife’s earnings from employment or from her working in another active business endeavors [sic] of $50,000 per year or greater, may be considered as grounds for modification of said spousal maintenance.

The trial court found that this “fairly and equitably provide[d] for the payment of spousal maintenance.” Accordingly, it awarded Wife $6666.67 per month in spousal maintenance for a period of eight years beginning April 2005.

¶ 3 During the marriage, the parties jointly owned a large share of System Concepts, Inc. (“SCI”), where Wife was a salaried employee and Husband is still CEO. Under the PSA, Wife sold all her interests in SCI to Husband. Wife accepted a severance package and resigned her position at SCI. Shortly thereafter, Wife worked part-time as a floral designer.

¶ 4 In April 2006, Wife began working full-time as a customer service representative at Company Nurse. Wife initially requested a $60,000 salary, but accepted an offer to start at $48,000 on the promise that she be promoted in January 2007 to Client Services manager with a salary of $60,000, full health benefits and matching 401 (k) contributions.

¶ 5 In January 2007, Wife became a “senior account manager” at Company Nurse with a $60,000 salary. Wife was paid this salary until August 15, 2007, but later attributed the salary increase to an accounting error and denied that she was promoted. In a letter to Company Nurse dated August 23, 2007, however, Wife stated:

Effective January 1, 2007, my position and responsibilities here at Company Nurse changed considerably. In an effort to keep the stress to a minimum and protect my health, I have determined that it is in my best interests to return to the original terms of my employment under which I was hired. Per our discussion, please make the necessary changes to adjust for this agreed upon change. Thank you.

From August 31 through the remainder of the year, Wife received only half her $60,000 salary, resulting in a net salary of $48,000 for 2007. Wife continued to receive full health benefits and matching 401(k) contributions.

¶ 6 In January 2008, Company Nurse began depositing $1000 per month into a deferred compensation plan in which Wife has been the sole participant. Company Nurse set up this plan through Wife’s broker. In July 2008, Company Nurse deposited a *588 $12,000 bonus into the plan to compensate Wife for the amount of her “reduced” salary in 2007. Company Nurse knew that Wife’s salary could affect her spousal maintenance, but it denied trying to circumvent the “legal requirements of the spousal maintenance agreement between the parties.” Company Nurse explained that the plan was an incentive to keep Wife from leaving employment. Combining Wife’s salary with the deferred compensation plan, Wife earned an average of $60,000 in 2007, 2008 and 2009.

¶ 7 On May 22, 2009, Husband filed a petition to reduce spousal maintenance to $2500 per month, claiming that Wife’s reasonable expenses had decreased because she had been living with her fiance, that she delayed marrying her fiance to prevent termination of spousal maintenance, and that her chronic fatigue syndrome had improved to the point where she can continue to be gainfully employed. Wife’s fiancé moved out the next month.

¶ 8 In December 2009, Wife filed her own petition to modify spousal maintenance. She argued Husband’s income had increased by thirty percent; he has not contributed to the living, medical, or educational expenses of their twenty-three-year-old son; Wife’s illnesses might worsen to the point she cannot work; and her earning ability is impaired by age, employment history and physical condition. Wife sought to increase the amount of spousal maintenance to $10,000 per month and to extend the duration until she turns sixty-five (ten additional years).

¶ 9 Husband made several offers to settle. Accusing Husband of failing to report as income certain benefits he received from SCI, Wife refused and demanded that he disclose SCI’s financial records. Husband objected that her request was overbroad, but agreed to disclose the documents if Wife first signed a confidentiality agreement for the protection of SCI. Wife again refused. A hearing was held, and the trial court entered a protective order.

¶ 10 After a consolidated hearing on the petitions, the trial court found that Wife’s monthly expenses were $6245. It found that Wife earned $4000 per month in salary, another $1000 from the deferred compensation plan, and about $1667 ($20,000 annually) from interest and dividends on capital investments. The trial court then reduced Husband’s spousal maintenance obligation to $4250 per month, stating: “This will also approximate the standard of living for Wife the parties agreed to establish at the time the parties divorced as evidenced by the agreements contained in the [consent decree].”

¶ 11 Wife timely appeals. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-210RB) (2003).

DISCUSSION

¶ 12 The provisions of a decree regarding spousal maintenance “may be modified or terminated only on a showing of changed circumstances that are substantial and continuing.” A.R.S. § 25-327(A) (2007). “The changed circumstances alleged must be proved by a comparison with the circumstances existing at dissolution.” Richards v. Richards, 137 Ariz. 225, 226, 669 P.2d 1002, 1003 (App.1983). Where, as here, the parties agreed to settle their rights by a property settlement agreement incorporated into the decree of dissolution, contract law governs the terms of their agreement. See LaPrade v. LaPrade, 189 Ariz. 243, 247, 941 P.2d 1268, 1272 (1997).

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Cite This Page — Counsel Stack

Bluebook (online)
250 P.3d 1213, 226 Ariz. 584, 2011 Ariz. App. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-macmillan-v-schwartz-arizctapp-2011.