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In re Marriage of McNeil

Court of Appeals of Arizona, First Division

September 30, 2014

In re the Marriage of: NANCY SAILORS McNEIL, Petitioner/Appellant,

Appeal from the Superior Court in Maricopa County. No. FC2005-052833, FC2005-092137. The Honorable Gerald Porter, Judge.

Page 47

Hymson, Goldstein & Pantiliat, PLLC, Scottsdale, By Yvette D. Ansel, Counsel for Petitioner/Appellant.

Gillespie, Shields & Durrant, Mesa, By Mark A. Shields, DeeAn Gillespie Strub, Counsel for Respondent/Appellee.

Chief Judge Diane M. Johnsen delivered the opinion of the Court, in which Acting Presiding Judge Patricia K. Norris and Judge Kenton D. Jones joined.


Page 48

[236 Ariz. 175] Diane M. Johnsen, Judge.

[¶1] By statute, the superior court lacks jurisdiction to modify a dissolution decree approving the parties' agreement that spousal support may not be modified. We hold in this appeal that the statute does not apply to a non-modifiable spousal support order that is the product of a fraud on the court.


[¶2] Nancy S. McNeil (" Wife" ) and Robert Hoskyns (" Husband" ) married in 1985.[1] In 2005, Wife petitioned for dissolution, and the parties signed an agreement, which the court adopted, by which Husband agreed to pay Wife $5,000 a month in temporary child and spousal support, commencing January 2006. Husband is a dentist. Through an oversight, he and someone else at his dental office each arranged for automatic withdrawals of his monthly support payment from his office account. As a result, for the next 17 months, double payments were withdrawn from Husband's account and forwarded to Wife. Wife knew she was receiving double payments, but did not alert Husband, who did not know of the overpayments.

[¶3] At the trial on their dissolution in May 2007, the parties orally affirmed an agreement their lawyers put on the record, consistent with Arizona Rule of Family Law Procedure 69, that Husband would pay Wife $5,000 each month in spousal support for an additional six years, commencing June 2007. The agreement also provided that spousal support would be non-modifiable and non-terminable. The superior court questioned both parties about any spousal support payments still owing under their prior agreement. Husband responded that he still owed $2,500. Wife did not disclose that as of that date, Husband unwittingly had paid $85,000 more than was due. In October 2007, the court approved the agreement and repeated its terms in the dissolution decree. After entry of the decree, Wife continued to receive some double spousal support payments, but still did not notify Husband of the mix-up.

[¶4] In October 2009, Wife filed a Petition to Enforce Spousal Maintenance, claiming Husband owed more than $14,000 in arrears. At the time, she knew that even though Husband had missed some post-decree payments, overall, he had overpaid her by tens of thousands of dollars since the start of the dissolution proceedings. After reviewing a court-ordered accounting that revealed the overpayments, Husband filed a response and counter-petition asking the court for relief from provisions in the decree waiving all pendente lite claims and establishing the non-modifiable spousal support obligation. Husband attached an email from Wife in which she had threatened to notify the dental licensing board of his alleged nonpayment in order to have his dental license revoked.

[¶5] Wife filed a response to Husband's counter-petition and a separate petition to hold him in contempt, claiming he owed $49,102 in arrearages. She eventually withdrew her contempt petition, but not before Husband was arrested and briefly jailed. After a hearing on Wife's petition to enforce, the superior court found in October 2010 that Husband was entitled to interest of $3,147 on overpayments made between June 2007 and July 2009, but that he still owed spousal support payments totaling $59,100 through July 2010. Postponing consideration of Husband's contention that any post-decree arrearages should be reduced by the sum of the pre-decree overpayments, the court awarded Wife $59,100 in past-due spousal support, along with attorney's fees and costs, less the accrued interest due Husband.

[¶6] At an evidentiary hearing in August 2011, the superior court heard Husband's petition to set aside spousal maintenance. Wife testified she had known she was receiving overpayments and that the pre-decree overpayments totaled about $85,000. Husband ...

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