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In re Coburn

Court of Appeals of Arizona, First Division

August 3, 2017

In re the Matter of: LAURIN COBURN, Petitioner/Appellee,
v.
MICHAEL RHODIG, Respondent/Appellant.

         Appeal from the Superior Court in Maricopa County No. FN2009-052965 The Honorable Richard F. Albrecht, Judge Pro Tempore

          Schmillen Law Firm, PLLC, Scottsdale By James R. Schmillen Counsel for Petitioner/Appellee

          Dickinson Wright PLLC, Phoenix By Marlene A. Pontrelli, Michael R. Scheurich Counsel for Respondent/Appellant

          Judge Maria Elena Cruz delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.

          OPINION

          CRUZ, Judge

         ¶1 Michael Rhodig ("Husband") appeals from the superior court's order granting Laurin Coburn's ("Wife") petition to enforce spousal maintenance arrearages. Husband did not request modification of the decree, but rather asserted the parties' subsequent written agreement-in which Wife adjusted the amount owed - established the equitable defenses of waiver, estoppel, and laches. Because application of these equitable defenses did not require the court to modify the decree, the court erred in concluding it lacked jurisdiction to consider the agreement pursuant to Arizona Revised Statutes ("A.R.S.") section 25-317(G)[1] and In re Marriage of Waldren, 217 Ariz. 173, 171 P.3d 1214 (2007). We reverse the superior court order and remand for consideration of the written agreement and Husband's equitable defenses.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2 The parties divorced in 2010 pursuant to a consent decree that ordered Husband to pay spousal maintenance of $3000 a month for sixty months, ending December 15, 2014. The decree also stated spousal maintenance was non-modifiable as to duration or amount. Husband fell behind in his spousal maintenance obligation. After exchanging several emails, the parties signed an agreement in December 2010 to settle the arrearage. The agreement provided Husband would pay Wife a $5000 lump sum plus $1000 per month for twelve months, with the final payment due December 15, 2011. Wife expressly agreed to "waive any other unpaid support owed her by [Husband]."

         ¶3 Husband made all the payments due under the December 2010 agreement. In December 2014, Wife filed a petition to enforce spousal maintenance arrearages, claiming she had been unable to locate Husband after the December 2010 agreement to request payment of the arrearages pertaining to the 2010 consent decree and had signed the subsequent agreement under duress. Husband argued the agreement was enforceable pursuant to Arizona Rule of Family Law Procedure ("Family Law Rule") 69(A) and supported the equitable defenses of waiver, estoppel, or laches to Wife's arrearages claim. Wife argued the consent decree made the spousal maintenance non-modifiable, and despite the written agreement, the superior court lacked jurisdiction to modify the decree pursuant to A.R.S. § 25-317(G).

         ¶4 The parties agreed the superior court would decide as a matter of law whether the written agreement was enforceable. The court did not hear any testimony at the hearing but considered the parties' arguments and written briefs. The court concluded it lacked jurisdiction to consider Husband's request to modify or terminate the non-modifiable spousal maintenance provision and granted Wife's petition to enforce the consent decree. After denying Husband's motion for new trial or to amend the judgment, the court entered an arrearage judgment of $136, 000 plus $37, 259.39 in interest.

         ¶5 Husband filed a timely notice of appeal from the order granting Wife's petition to enforce the consent decree, the order denying his motion for new trial, and the judgment for arrearages. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

         DISCUSSION

         ¶6 Pursuant to A.R.S. § 25-317(G), "entry of a decree that sets forth or incorporates by reference a separation agreement that provides that its maintenance terms shall not be modified prevents the court from exercising jurisdiction to modify the decree and the separation agreement regarding maintenance . . . ." Whether this statute precludes the superior court from considering Husband's equitable defenses is a question of law that we review de novo. Waldren, 217 Ariz. at 175, ¶ 6, 171 P.3d at 1216.

         ¶7 The superior court concluded it lacked jurisdiction to modify the spousal maintenance provision in the decree, citing Waldren. In Waldren, the decree incorporated the parties' agreement that the husband would pay spousal maintenance for sixty months and that payments would be non-modifiable. Id. at 174, ¶ 2, 171 P.3d at 1215. Less than two years later, the husband became disabled and his income was limited. Id. at ΒΆ 3. He moved to modify or terminate the spousal maintenance provision of the decree under Arizona Rule Civil Procedure ("Rule") 60(c)(5), which "provides relief from a 'final judgment, order or proceeding [if] it is no longer equitable that ...


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