Smith v. Smith

330 P.3d 371, 235 Ariz. 181, 2014 WL 2873885, 2014 Ariz. App. LEXIS 113
CourtCourt of Appeals of Arizona
DecidedJune 24, 2014
DocketNo. 1 CA-CV 13-0330
StatusPublished
Cited by4 cases

This text of 330 P.3d 371 (Smith v. Smith) 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
Smith v. Smith, 330 P.3d 371, 235 Ariz. 181, 2014 WL 2873885, 2014 Ariz. App. LEXIS 113 (Ark. Ct. App. 2014).

Opinion

OPINION

THUMMA, Judge.

¶ 1 This procedurally unusual case involves a dispute over spousal maintenance required by a decree of dissolution entered by default in 2004. Years later, after terminating the spousal maintenance obligations of Greg Smith (Father), the superior court found Father waived his right to seek recovery of prior spousal maintenance payments from Michelle Smith (Mother), citing Arizona Rule of Family Law Procedure 29. Because Rule 29 does not bar Father’s request for recovery, the ruling to the contrary is vacated and this matter is remanded for further proceedings.

PACTS1 AND PROCEDURAL HISTORY

¶ 2 In August 2003, Mother filed a Petition for Dissolution of Marriage. As relevant here, the Petition stated “the parties agree that spousal maintenance is to be awarded” and requested spousal maintenance of $4,000 per month from the entry of the Decree of Dissolution until such time as Mother remarried.

¶ 3 Father signed a notarized Acceptance of Service, timely filed with the superior court, waiving formal service of process and acknowledging receipt of various documents, including the Summons and Petition “to which I decline to plead.” In the Acceptance of Service, Father acknowledged that if he did “not agree with any relief asked for by [Mother], I must respond or Answer within 20 days from the day I signed the original of this Acceptance of Service.” Father also acknowledged that failing to take such action “could result in the Court giving [Mother] any and all things requested in .,. her legal papers, through a Default ... Decree.”

¶ 4 When Father did not respond to the Petition, Mother filed an Application for Default, Affidavit of Default and Entry of Default, declaring she had mailed a copy of her filings to Father. When Father did not appear or respond to the filings, the superior court entered a Decree of Dissolution of Marriage by Default in a form Mother submitted. Along with dissolving the marriage and awarding joint legal custody of their child, this April 2004 Decree ordered Father to pay Mother $3,500 in monthly spousal maintenance. Although later claiming he received no notice of the Application for Default, Father states he “paid the spousal maintenance and substantially complied” with the Decree “for a period of years.” By contrast, Mother alleges Father “paid the required spousal maintenance for approximately one year and then began decreasing the amount of money that he paid.”

¶ 5 In 2010, Mother filed a Petition for Contempt and to Enforce Decree, claiming Father was not paying spousal maintenance and was $80,000 in arrears. Father filed a Petition to Terminate Spousal Maintenance, apparently asserting changed circumstances under Arizona Revised Statute (A.R.S.) section 25-327(A) (2014),2 but without citing that statute. Father also filed a Motion for Relief from Decree pursuant to Rule 85(C), claiming Mother falsely declared years earlier that she had mailed the Application for Default to Father and, because she had not done so, his spousal maintenance obligation “was void” and should “be terminated immediately.”

¶ 6 After an evidentiary hearing, in January 2011, the superior court found Mother had not properly mailed the Application for Default to Father. Relying on the requirement that a copy of an application for entry of default must be mailed to the defaulting party “[w]hen the whereabouts of the party claimed to be in default are known,” Ariz. R. Civ. P. 55(a)(l)(i), the superior court found “the judgment establishing Father’s spousal maintenance is void.” Accordingly, the court granted Father’s Motion for Relief and ter[184]*184minated Father’s spousal maintenance obligation. The court apparently treated Father’s Petition to Terminate as moot and, in any event, did not grant it. The court denied Mother’s Petition for Contempt and to Enforce Decree.

¶7 Because the Decree established Father’s spousal maintenance obligation, the finding that “the judgment establishing Father’s spousal maintenance is void” appears to have caused Mother and Father considerable anxiety. Mother moved for clarification, stating that she no longer “wish[ed] to pursue spousal maintenance” but did want “to know affirmatively” whether the divorce “as ordered in the ... Decree is considered valid and if not then how to make it valid.” Father responded that he only sought “to terminate the judgment for spousal maintenance,” adding that neither he nor Mother asked to vacate the Decree in any other respect. Mother’s reply concluded that she “merely wishes to be assured that the parties are legally divorced with no future possibility that the divorce or any other provision of the Decree can be declared void.” Mother’s motion for clarification, however, was denied summarily.

¶ 8 Both the January 2011 ruling and the denial of Mother’s motion for clarification were entered pursuant to Rule 81, signed by the superior court, filed with the clerk of court and appealable. No appeal was taken, however, and the time for such an appeal has long since passed.

¶ 9 In January 2012, Father filed a Petition for Enforcement of Decree seeking to recover from Mother the spousal maintenance he had previously paid. Mother argued Father had waived any right to seek recovery by failing to raise the issue in his Motion for Relief. After the ease was assigned to a different superior court judge, in a November 2012 ruling denying the Petition for Enforcement, the court noted that Father’s pri- or Motion for Relief

only requested that spousal maintenance be terminated. Father did not ask that any other aspect of the [Djecree be set aside. Nor did Father seek that the entire [D]ecree be declared void. In fact, that is exactly what Father represented to the Court was his position in response to Mother’s Motion to Clarify ... If Father had intended to seek reimbursement of the spousal maintenance that he paid Mother under the [Djecree, he should have pled that in his Motion for Relief. See Rule 29[ ]. Father has waived any right to seek such relief.

The superior court added that the “issue of maintenance has run its course and was finally litigated” in deciding the Motion for Relief.

¶ 10 Father timely appealed from the superior court’s November 2012 ruling that he waived his right to seek reimbursement of spousal maintenance. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1), (5)(A).

DISCUSSION

¶ 11 This court reviews the superi- or court’s award of spousal maintenance for an abuse of discretion, viewing the evidence in a light most favorable to the court’s order, and will affirm if there is any reasonable evidence to support the award. Gutierrez v. Gutierrez, 193 Ariz. 343, 348 ¶ 14, 972 P.2d 676, 681 (App.1998); Martin v. Martin, 156 Ariz. 440, 450, 752 P.2d 1026, 1036 (App. 1986). Legal issues, including whether a decree is void or voidable and the interpretation of court rules, are reviewed de novo. Duckstein v. Wolf, 230 Ariz. 227, 231 ¶ 8, 282 P.3d 428, 432 (App.2012).

I. The Decree Was Voidable, Not Void.

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Cite This Page — Counsel Stack

Bluebook (online)
330 P.3d 371, 235 Ariz. 181, 2014 WL 2873885, 2014 Ariz. App. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-arizctapp-2014.