In re the Matter of: CHARLES P. MCCLENDON, Petitioner/Appellee, v. SHERRI L. MCCLENDON, Respondent/Appellant.
No. 1 CA-CV 17-0049 FC
ARIZONA COURT OF APPEALS DIVISION ONE
FILED 12-7-2017
Appeal from the Superior Court in Maricopa County No. FN2006-002783 The Honorable Katherine M. Cooper, Judge REVERSED AND REMANDED
COUNSEL
DeSoto Law Firm, Phoenix
By Rita E. DeSoto
Co-Counsel for Petitioner/Appellee
Jones, Skelton & Hochuli, P.L., Phoenix
By Eileen Dennis GilBride (argued)
Co-Counsel for Petitioner/Appellee
Joe M. Romley, P.C., Phoenix
By Joe M. Romley
Counsel for Respondent/Appellant
OPINION
Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Peter B. Swann and Judge Patricia A. Orozco joined.1
¶1 Sherri L. McClendon (“Wife”) appeals from a superior court order modifying Charles P. McClendon’s (“Husband”) spousal maintenance obligation. We reverse and remand for further proceedings, holding the superior court is to look at the latest court order in effect as the “decree respecting maintenance” under
FACTS AND PROCEDURAL BACKGROUND
¶2 In 2007, the parties entered a consent decree dissolving their 30-year marriage. Under the consent decree, Husband was to pay Wife spousal maintenance of $5500 per month until “further agreement of the parties or Court order.” The parties also agreed that upon Husband’s retirement from the Arizona State Retirement System (“ASRS”), Wife would receive her share of the retirement that accrued during the marriage.
¶3 In February 2014, Husband retired from his position as a city manager and relocated to California to manage another city beginning in March 2014. In February 2014, Husband petitioned to modify the spousal maintenance award because Wife had started to receive her share of the ASRS benefits, and she was now engaged in full-time employment. In August 2014, the parties entered into a binding Rule 69 agreement. Pursuant to the parties’ 2014 agreement, reduced to an order that same year, Husband’s spousal maintenance obligation to Wife was reduced from $5500 to $4000 per month (the “2014 Order”). Both the consent decree and 2014 order provided indefinite awards of spousal maintenance.
¶4 In 2016, Husband petitioned again to modify his spousal maintenance obligation. At the evidentiary hearing, Husband testified that Wife worked full time “a number of years prior to [2014],” as well as during the period between 2014 and 2016. Wife only worked part-time prior to the parties’ divorce in 2007. After the 2014 Order, Wife’s hourly wage increased by $0.89 per hour, resulting in a total monthly wage income of $2900. Husband further testified that Wife started receiving her share of ASRS benefits in the amount of approximately $3400 per month before the 2014 Order. Wife’s ASRS distribution and full-time employment was at least part of the basis for the parties’ agreement
¶5 In its 2016 order, the court concluded the relevant time during which Husband’s request for modification should be assessed was from the consent decree to present, and not from the 2014 Order to present. The court made
DISCUSSION
¶6 Wife argues the superior court erred by (1) finding a substantial and continuing change in circumstances sufficient to modify the 2014 Order; (2) limiting the indeterminate spousal maintenance award to 12 months; and (3) denying her an attorney’s fees award.
A. The Superior Court Erred by Assessing the Change in Circumstances from the Consent Decree instead of from the 2014 Modification Order.
¶7 Wife argues no substantial and continuing changes existed to support the modification of the 2014 Order because (1) the proper period for comparison of the circumstances was from the 2014 Order, and not from the consent decree; (2) the same circumstances cannot support a successive modification; and (3) the doctrine of res judicata prevents the same circumstances from supporting a successive modification.
¶8 We review the superior court’s ruling modifying spousal maintenance for abuse of discretion. In re Marriage of Priessman, 228 Ariz. 336, 338, ¶ 7 (App. 2011) (citing Van Dyke v. Steinle, 183 Ariz. 268, 273 (App. 1995)). We defer to the court’s factual findings unless they are clearly erroneous or unsupported by substantial evidence. Bobrow v. Bobrow, 241 Ariz. 592, 595, ¶¶ 11, 20 (App. 2017). We review questions of law, such as interpretation of statutory authority, de novo. Maximov v. Maximov, 220 Ariz. 299, 300, ¶ 2 (App. 2009).
¶9 Spousal maintenance “may be modified or terminated only on a showing of changed circumstances that are substantial and continuing.”
¶10 Section 25-327(A)3 governs “the provisions of any decree respecting maintenance,”
¶11 This interpretation is consistent with Scott. In Scott, the court held modification was not authorized because the husband knew of and contemplated the claimed changes at the time of the parties’ agreement, which was incorporated by reference into the divorce decree. See Scott, 121 Ariz. at 494. The court in Scott did not address changes to subsequent modifications. The reasoning in Scott supports our interpretation of
¶12 In contrast, the superior court concluded here that “the relevant time period for assessing [the substantial and continuing] change is the time from dissolution [in 2007] to present, not [from] 2014 [the first modification] to present.” To support its conclusion, the court relied on Richards v. Richards, 137 Ariz. 225, 226 (App. 1983) (“The changed circumstances alleged must be proved by a comparison with the circumstances existing at dissolution.”) (citing Scott, 121 Ariz. at 494). The court erred, however, because neither Richards nor Scott specifically addressed issues related to subsequent orders modifying the original award. Here, Husband sought to modify the 2014 Order. Husband relied on the same circumstances that existed before the 2014 Order was entered: Wife’s full-time employment and payments from Wife’s share of the ASRS proceeds. Because these changes existed and were the basis for the modification in 2014, they cannot support a change in circumstances in 2016. See
¶13 Husband further argues the 2014 Order was not a “court-determined” modification under
¶14 All court orders modifying a spousal maintenance award are “court-determined,” whether such an order results from an evidentiary hearing or from the parties’ agreement. In the latter case, the record need not reflect the parties’ motivations or calculations underlying a Rule 69 agreement, provided the parties enter the agreement voluntarily, and the agreement was fair and equitable. See Sharp v. Sharp, 179 Ariz. 205, 210 (App. 1994) (the superior court “is obliged to achieve a fair and equitable distribution of the property and is ‘not foreclosed from doing so by the parties’ . . . agreement.’”) (quoting Wick v. Wick, 107 Ariz. 382, 385 (1971)). Here, the court made those findings in 2014, and concluded the agreement was “enforceable by the Court consistent with the record made by counsel.” Evidence in the record reasonably supports the superior court’s 2014 findings. See Mitchell v. Mitchell, 152 Ariz. 317, 323 (1987).
¶15 Husband further argues the court properly considered evidence of Wife’s circumstances as they existed before the 2014 Order because the 2014 Order “was not a final judgment on the merits.” If the parties’ agreement is entered in accordance with Rule 69, the superior court may enter a final judgment. Ariz. R. Fam. Law P. 70(B). A petition to modify spousal maintenance commences a new proceeding. See Williams v. Williams, 228 Ariz. 160, 166, ¶ 24 (App. 2011); Ariz. R. Fam. Law P. 3(B)(5).
While a party may petition for modification of spousal maintenance, res judicata prevents the party “from obtaining a modification . . . based on facts which could have
¶16 As Husband sought to modify the 2014 Order, he had the burden to prove changed circumstances arising after the order was entered. See Scott, 121 Ariz. at 494. On remand, Husband may introduce evidence of the circumstances existing at the time of the 2014 Order to meet that burden. See Rowe, 117 Ariz. at 475–76 (without the ability to produce evidence of the circumstances existing at the time a decree is entered, a party “could never satisfy the prerequisites needed to modify a support order, as set forth in
¶17 Because the superior court misapplied the law in assessing whether Husband had presented a substantial and continuing change in circumstances, we remand for the court to reconsider the 2016 order.4
B. Wife is Entitled to Reconsideration of Her Request for Attorney’s Fees.
¶18 Wife contends the superior court should have awarded her attorney’s fees under
C. Attorney’s Fees on Appeal.
¶19 Both parties seek attorney’s fees on appeal pursuant to
CONCLUSION
¶20 For the forgoing reasons, we reverse the superior court’s 2016 order and remand for further proceedings consistent with this opinion.
AMY M. WOOD • Clerk of the Court
FILED: AA