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In re Marriage of Dougall

Court of Appeals of Arizona, Second Division

December 18, 2013

In re the Marriage of: Richard S. Dougall, Petitioner/Appellant, and Myrna R. Dougall, Respondent/Appellee.

Appeal from the Superior Court in Pima County No. D20074351 The Honorable Dean Christoffel, Judge Pro Tempore

David Lipartito, Tucson Counsel for Petitioner/Appellant

Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Miller concurred.

OPINION

VÁSQUEZ, Presiding Judge

¶1 In this domestic-relations case, appellant Richard Dougall appeals from the trial court's post-dissolution-decree order for the payment of spousal maintenance arrearages to appellee Myrna Dougall and the denial of his subsequent motion for reconsideration challenging that order. The issue presented here is whether A.R.S. § 25-530 precludes a trial court from considering Veterans Administration (VA) disability benefits as income in determining the payment of arrearages on an award of spousal maintenance. We hold a court may consider such benefits in making that determination. For the reasons stated below, we dismiss in part, affirm in part, and vacate in part.[1]

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to sustaining the trial court's rulings. See In re Marriage of Yuro, 192 Ariz. 568, 3, 968 P.2d 1053, 1055 (App. 1998). The parties' marriage was dissolved in 2008. The dissolution decree ordered Richard to pay Myrna $750 per month in spousal maintenance. The court also awarded each of the parties one-half interest in two parcels of real property and ordered that Richard obtain appraisals of the properties and pay Myrna her share of the equity. On appeal, this court affirmed the spousal maintenance award and the division of community property and debts. In re Marriage of Dougall, No. 2 CA-CV 2009-0058 (memorandum decision filed Feb. 10, 2010).

¶3 In 2011, the trial court entered two judgments against Richard for his failure to fulfill his obligations under the decree of dissolution. The first judgment for $5, 000 represented the value of Myrna's interest in one of the properties. The second judgment was for $4, 745 in spousal maintenance arrearages. Effective August 2011, the court also reduced Richard's spousal maintenance obligation to $500 per month. This court affirmed the spousal maintenance modification. In re Marriage of Dougall, No. 2 CA-CV 2011-0182 (memorandum decision filed May 17, 2012).

¶4 In August 2012, Myrna filed petitions to enforce the two judgments, claiming Richard "ha[d] made no efforts to pay." In response, Richard filed a memorandum seeking credits against the judgments for debts he had paid on behalf of Myrna and for a loan and vehicle he had given to her. After a hearing, the trial court entered its minute entry order on December 11, 2012, finding Richard in contempt but concluding he could purge himself of the contempt by paying, in addition to the $500 per month in current spousal maintenance, $200 per month toward the judgment for arrearages until paid in full.[2] The court entered a separate income-withholding order of $200 per month directed at Richard's VA disability benefits and also denied his requests for offsets.

¶5 On January 4, 2013, Richard filed a combined "motion for new trial/motion to reconsider/motion for stay." After a hearing, the court denied the motion by minute entry order entered February 8, 2013. However, at Richard's request, the court modified its arrearages order by reducing the $200 payment to $100 per month for three months, then increasing it to $220 per month for fifteen months, and reinstating the $200 amount thereafter. This appeal followed.

Discussion

I. Appellate Jurisdiction

¶6 According to his notice of appeal, Richard is challenging the trial court's December 11, 2012 and February 8, 2013 orders. Although Richard contends we have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101, we have an independent duty to review our jurisdiction and, if lacking, to dismiss the appeal. See In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 6, 289 P.3d 946, 948 (App. 2012). "We have no authority to entertain an appeal over which we do not have jurisdiction." In re Marriage of Johnson & Gravino, 231 Ariz. 228, 5, 293 P.3d 504, 506 (App. 2012).

¶7 Generally, a notice of appeal must be filed no later than thirty days after entry of the judgment or order from which the appeal is taken. Ariz. R. Civ. App. P. 9(a); Wilkinson v. Fabry, 177 Ariz. 506, 506, 869 P.2d 182, 182 (App. 1992). "[T]he timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review." In re Marriage of Gray, 144 Ariz. 89, 90, 695 P.2d 1127, 1128 (1985). However, Rule 9(b), Ariz. R. Civ. App. P., provides an extension of time for filing a notice of appeal when certain motions are "timely filed" with the trial court. These time-extending motions include a motion for a new trial pursuant to Rule 83(A), Ariz. R. Fam. Law P., and a motion to alter or amend the judgment pursuant to Rule 84, Ariz. R. Fam. Law P. See Ariz. R. Civ. App. P. 9(b)(3), (4). Such motions must be filed not later than fifteen days after entry of the judgment. Ariz. R. Fam. Law P. 83(D)(1), 84. And when they are not timely filed, a trial court does not have jurisdiction to ...


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