Waiver of Spousal Maintenance in Arizona | Hildebrand Law, PC

Thu 21st Jun, 2018 Arizona Alimony and Spousal Maintenance

The Arizona Court of Appeals in a Memorandum Decision in the case of Morrow vs. Morrow had to address whether spousal maintenance payments in Arizona can be waived by the person ordered to receive those alimony payments.

The following constitutes the Arizona Court of Appeals decision on waiver of spousal maintenance in Arizona.

The Court of Appeals stated Husband appealed from the superior court’s orders granting a modification of spousal maintenance and denying his motion for a new trial. At the time, the parties had two adult children. Prior to the divorce trial, Wife was granted the exclusive use and possession of the marital residence and was ordered to pay Husband $2,000 per month in temporary spousal maintenance. Wife was employed and earned $117,434 in gross wages in 2012.

The Court of Appeals stated that although Husband holds Bachelor’s and Master’s Degrees, at the time of his pretrial statement, he had not been employed or applied for a job since 2001. Husband testified during the trial that he had a serious car accident in 2000 that required multiple surgeries. Husband applied for social security disability in 2005 but was denied benefits in 2006. The court issued its decree in December 2013.

The Court of Appeals stated that based on the evidence presented at trial, the court awarded Husband $4,000 per month in spousal maintenance for an indefinite term based on the court’s finding that Husband was unlikely to achieve financial independence. In the decree, the court also noted Husband’s medical issues and lack of employment since 2001.

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The Court of Appeals stated that on January 14, 2014, Wife filed a notice of appeal, and Husband filed a notice of cross-appeal the next month. On January 29, 2014, Husband left Wife a voicemail stating he had told his attorney to put spousal payments “on hold” and he was going to “hold off” on seeking to collect his spousal maintenance award. The wife did not pursue her appeal. In March 2014, this Court deemed both the appeal and cross-appeal abandoned and dismissed the appeals.

The Court of Appeals stated In June 2016, Husband and Wife exchanged a series of text messages where the Husband asked Wife for financial help. During the text exchange, Husband brought up the “alimony” but never requested back pay or maintenance going forward. Wife ultimately gave Husband a onetime payment of $2,500.In March 2017, Husband filed a contempt petition alleging that Wife failed to pay spousal maintenance and requested a judgment for $156,000 in unpaid spousal support.

The Court of Appeals stated the wife answered the petition, arguing that Husband failed to request a single spousal support payment in the previous 39 months and that she believes Husband had been working since shortly after the dissolution of their marriage. The wife also raised affirmative defenses, including waiver, laches, fraud and unclean hands. Along with her answer, Wife filed a counter-petition for modification of spousal maintenance based on substantial and continuing changes in circumstances. The husband denied waiving spousal support.

The Court of Appeals stated deductions from Wife’s earnings commenced in August 2017. After an evidentiary hearing on Husband’s contempt motion and Wife’s modification petition, the superior court denied Husband’s request to find Wife in contempt related to the spousal maintenance payments and found that Wife established waiver and estoppel on any maintenance arrearages by clear and compelling evidence.

The Court of Appeals stated the court, after analyzing Arizona Revised Statutes (“A.R.S.”) section 25-319(B) factors, determined that Wife was entitled to a modification of spousal maintenance and reduced the award from $4,000 per month to $0 per month. The court also awarded Wife a portion of her reasonable attorneys’ fees based on Husband’s unreasonable conduct. Husband filed a notice of appeal regarding the spousal modification.

The Court of Appeals stated the Superior Court denied Husband’s request to find Wife in contempt for failure to pay spousal maintenance arrears by applying the equitable defenses of waiver and estoppel. Husband argued the court erred in finding waiver and estoppel prevented him from asserting a claim for spousal maintenance arrears. The Court of Appeals indicated it will not disturb the superior court’s factual findings supported by the record, even if based on conflicting evidence, and it will give due regard to the court’s opportunity and ability to judge witness credibility.

Retroactive Waiver of Alimony in Arizona

Waiver of Spousal Maintenance in Arizona

The Court of Appeals stated the Court of Appeals indicated support payments may not be retroactively modified by a court nor by the parties. However, the equitable defenses of waiver, estoppel, and laches may apply to support arrearages. These defenses must be established by clear and compelling evidence.

The Court of Appeals stated that to establish waiver, Wife must show that Husband “voluntarily and intentionally abandoned a known right. Clear and compelling evidence of waiver can take the form of a written waiver or an admission of waiver.

The Court of Appeals stated husband left Wife a voicemail in January 2014 stating he instructed his attorney “to get that garnishment on hold” and he was going to “hold off on the garnishment” for his spousal maintenance payments. After putting spousal maintenance “on hold” in January of 2014, Husband failed to pursue spousal maintenance payments until March 2017 when he filed the contempt petition and requested $156,000 in past-due spousal maintenance.

The Court of Appeals stated that in May 2017, Husband filed a petition for an income withholding order, requesting the $4,000 monthly spousal maintenance payment from Wife. Husband argued Mother’s belief that Husband waived spousal maintenance is not enough to meet the clear and compelling burden.

The Court of Appeals stated In the Ray case, the parties entered into a child support modification agreement almost ten years after their divorce wherein the father agreed to pay the mother $450 per month in child support. The agreement was silent as to child support arrears. A year after the modification agreement, Mother filed a petition for child support arrearages. At trial, Mother and the parties’ daughter testified that Father agreed he would pay back child support during their meeting to discuss the modification agreement.

The Court of Appeals stated the Arizona Supreme Court found that there was no clear and compelling evidence that the mother waived her claim for past-due child support. The Court of Appeals found the facts of this case more analogous with the appeal in the Cordova case. In Cordova, Father stopped making child support payments after the mother sent him a letter stating she did not want support payments.

The Court of Appeals stated that after more than three years, Mother made a claim for child support arrearages. The Arizona Court of Appeals in Cordova held that the mother waived her claim to child support arrearages by expressly stating she did not want child support, and then waited approximately three-and-a-half years without making any further claim.

Ruling on a Waiver of Spousal Maintenance

Ruling on a Waiver of Spousal Maintenance

The Court of Appeals stated the Court of Appeals found that Husband’s voicemail putting spousal maintenance “on hold,” coupled with his inaction in commencing collection efforts for spousal maintenance, despite being able to do so at any point, constitute clear and compelling evidence of his admission of waiver of his spousal maintenance award. The Court of Appeals ruled, however, that Husband’s waiver of spousal maintenance was revoked when he filed his contempt petition, thereby putting Wife on notice of her obligation to pay the ordered spousal maintenance.

The Court of Appeals stated Husband next contends the superior court erred in determining that he was estopped from claiming spousal maintenance arrears. The requirements for estoppel are:

(1) conduct by which one induces another to believe in certain material facts;

(2) the inducement results in acts in justifiable reliance thereon; and

(3) the resulting acts cause injury. Id. (Citations omitted.)

The Court of Appeals stated that similar to a waiver, equitable estoppel bars the recovery of support “only when there is clear and compelling evidence in the record to support such a determination.” The Court of Appeals decision indicated that Husband cited dicta in an unpublished memorandum decision in support of his position that Wife unjustifiably relied on his verbal promise to forego spousal maintenance because Wife and her attorney “knew and understood the necessity of formalizing their agreement.” The Arizona Court of Appeals disagreed.

The Court of Appeals stated that, In this case, Wife testified that Husband’s voicemail putting the garnishment “on hold” induced her into not pursuing her appeal. Wife was injured in relying on Husband’s voicemail because she forever lost the ability to have a higher court review the spousal maintenance award. Given Wife’s justified reliance on Husband’s voicemail and the injury she incurred in not pursuing her appeal, the superior court did not abuse its discretion in applying estoppel.

The Court of Appeals stated Husband is estopped from asserting a claim for spousal maintenance arrearages from the time he waived the maintenance obligation until he filed his contempt petition. At that point, Wife no longer could have reasonably relied on the Husband’s waiver.

The Court of Appeals stated Husband argued the Superior Court had no basis to modify his spousal maintenance award from $4,000 per month to $0. The amount and duration of spousal maintenance are determined pursuant to A.R.S. § 25–319(B). The superior court’s minute entry demonstrates it considered the statutory factors in A.R.S. 25-319(B) when reaching its determination.

The Court of Appeals stated Husband provided evidence at trial that he was unable to work and presented medical testimony to support his allegation. However, within months of the decree throughout the 2017 hearing, Husband worked continually, despite a variety of medical conditions.

The Court of Appeals stated that, additionally, the Court of Appeals indicated Husband’s employment with various companies provided enough income to meet his monthly expenses. The Court of Appeals also pointed out Husband also received additional funds upon the sale of the marital residence and after the division of Wife’s retirement accounts by a Qualified Domestic Relations Order. The Court of Appeals concluded the Superior Court did not abuse its discretion in modifying the spousal maintenance award and that evidence presented at the hearing supported the court’s ruling on spousal maintenance.

The Court of Appeals instructed the Superior Court to determine the amount of spousal maintenance owed to Husband from the date of his contempt petition through the time Wife started making spousal maintenance payments.

If you have questions about waiver of spousal maintenance in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona spousal maintenance and family law attorneys have decades of combined experience successfully representing clients in spousal maintenance and family law cases.

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