Opinion
1 CA-CV 22-0470 FC
06-27-2023
In re the Matter of: MICHELLE LYNN GUERRA, Petitioner/Appellee, v. RONALD GUERRA, JR., Respondent/Appellant.
Gillespie Shields Goldfarb &Taylor, Phoenix By DeeAn Gillespie Strub, Mark A. Shields Counsel for Petitioner/Appellee Parley Family Law Solutions PLC, Phoenix By Jared Sandler Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2009-004661 The Honorable Tracey Westerhausen, Judge
Gillespie Shields Goldfarb &Taylor, Phoenix By DeeAn Gillespie Strub, Mark A. Shields Counsel for Petitioner/Appellee
Parley Family Law Solutions PLC, Phoenix By Jared Sandler Counsel for Respondent/Appellant
Judge Brian Y. Furuya delivered the decision of the Court, in which Vice Chief Judge David B. Gass and Judge Andrew M. Jacobs joined.
MEMORANDUM DECISION
FURUYA, JUDGE
¶1 Ronald appeals the superior court's orders rejecting his petition to modify or terminate the "family support" order between him and Michelle, and his motion to set aside the same. For the following reasons, we affirm.
We refer to the parties by their first names because although they are divorced, they share a last name.
FACTS AND PROCEDURAL HISTORY
¶2 The parties divorced in January 2011 after 12 years of marriage. Since then, all three of their children have become adults and no longer require child support.
¶3 Per the terms of the parties' 2011 dissolution decree, Ronald must pay Michelle $1 monthly in spousal maintenance. The court originally intended the $1 to be a placeholder so it could maintain jurisdiction over spousal maintenance. The decree also requires Ronald to pay $2,296 total per month, which was sufficient to cover the two mortgage payments at Michelle's parent's house, where she lived with the parties' children at the time of the dissolution. Now, Michelle lives at this house approximately half of her time. The court categorized these payments as "family support," unallocated between child support and spousal maintenance.
¶4 Ronald originally challenged the decree in 2012 with arguments different from those on this appeal. His 2012 motion to modify the decree was denied. Since then, the parties have litigated multiple petitions for enforcement and contempt because of Ronald's irregular compliance with the decree.
¶5 In June 2021, Ronald moved to modify or terminate the decree, alleging a substantial change in circumstances. The court treated the family support as spousal maintenance and denied his motion because he "failed to set forth detailed facts" to support a substantial change in circumstances and to "substantiate his claim at trial."
¶6 In February 2022, Ronald moved to set aside the decree under Arizona Rule of Family Law Procedure ("Rule") 85(b)(4), arguing the decree is void because there is no provision for family support in Arizona Revised Statutes ("A.R.S.") Title 25, which governs family law. The court denied his motion as untimely under Rule 85(c).
¶7 Ronald timely appealed from both decisions and we have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 8-235(A), 12-120.21(A), and -2101(A).
DISCUSSION
I. Standard of Review
¶8 "To promote amicable settlement of disputes," parties to a dissolution proceeding may reach an independent agreement that contains "provisions for disposition of any property owned by either of them," as well as "maintenance, . . . support, legal decision-making and parenting time of their children." A.R.S. § 25-317(A). The validity and enforceability of such agreements, as with all contracts, "is a mixed question of law and fact, which we review de novo." Buckholtz v. Buckholtz, 246 Ariz. 126, 129 ¶ 10 (App. 2019) (citation omitted) (considering a marital separation agreement). We review questions of law de novo. Van Dyke v. Steinle, 183 Ariz. 268, 273 (App. 1995).
¶9 We review the superior court's ruling "regarding the existence of changed circumstances to support a modification" of support or maintenance for an abuse of discretion. Id.; see Nia v. Nia, 242 Ariz. 419, 423 ¶ 9 (App. 2017). We will affirm unless the court's findings were clearly erroneous or "devoid of competent evidence." Nia, 242 Ariz. at 422 ¶ 7 (internal quotation omitted); see Van Dyke, 183 Ariz. at 273.
II. The Support Order is Not Void.
¶10 Ronald argues the family support provision is void for lack of subject matter jurisdiction because there is no provision for "family support" in A.R.S. Title 25.
¶11 An order can be void for want of subject matter jurisdiction, personal jurisdiction, or authority to "render the particular judgment or order entered." Shinn v. Ariz. Bd. of Exec. Clemency, 254 Ariz. 255, 262 ¶¶ 26-27 (2022) (citations omitted). If an order is void, it can be challenged and vacated at any time as a nullity. Id.
¶12 Because a party may challenge an order at any time for voidness, the court here erred when, on grounds of untimeliness, it declined to reach the question of whether the original support order was void for want of subject matter jurisdiction, as Ronald contends. Id. However, we will affirm the superior court if it was correct for any reason. See Nia, 242 Ariz. at 422 ¶ 7.
¶13 We thus reach the question the superior court did not. And though we conclude the court had subject matter jurisdiction to enter the order, we do not rely on the reasons Michelle suggests. Michelle correctly notes the court has subject matter jurisdiction to preside over dissolution proceedings. See Shinn, 254 Ariz. at 262-63 ¶¶ 29-30; Ariz. Const. art. VI, § 14 ("The superior court shall have original jurisdiction of: . . . Divorce and for annulment of marriage."). But that point is not the crux of Ronald's challenge. Rather, Ronald's argument suggests the "family support" provision is void because the court did not have "authority to render" it, making the resulting decree void for lack of subject matter jurisdiction. Shinn, 254 Ariz. at 264 ¶ 35; see also In re Marriage of Thorn, 235 Ariz. 216, 220 ¶ 17 (App. 2014) (considering court's authority to return property as opposed to its broader subject matter jurisdiction to divide marital property).
¶14 We therefore evaluate whether the court acted within its authority by including the stipulated family support provision in the decree. Within that framework, Ronald's argument misses the mark. His jurisdictional challenge cites the absence of a statute that authorizes the court to order "family support" in the parties' decree. But he ignores the stipulated separation agreement that constitutes the basis for this award. As noted above, parties in a dissolution proceeding are free to contract for terms regarding "support." A.R.S. § 25-317(A).
¶15 If the court finds the agreement is "reasonable as to support," the court must incorporate the agreed-upon support term into the decree of dissolution, unless the parties provided otherwise. A.R.S. § 25-317(D). "Terms of the [written separation] agreement set forth or incorporated by reference in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt." A.R.S. § 25-317(E). We have held this statute "provide[s] the superior court with broad authority to enforce separation agreements." Eans-Snoderly v. Snoderly, 249 Ariz. 552, 557 ¶ 14 (App. 2020). This broad authority permits courts to adopt, incorporate, and enforce separation agreements, including through findings of contempt, so long as a party is not incarcerated for failure to pay a debt. Id. At 557 ¶ 15.
¶16 The analysis here boils down to intent. To determine whether the terms of the separation agreement are "set forth" or "incorporated by reference in the decree," courts look to the parties' intent at the time of the agreement. LaPrade v. LaPrade, 189 Ariz. 243, 249 (1997). If the parties did not intend to include terms in the decree, the agreement in which they are written "retain[s] its independent contractual status." Id. at 248; see Solomon v. Findley, 167 Ariz. 409, 412 (1991) (holding contract for post-majority child support was only enforceable as a suit in contract when decree was entered outside of the presence of the party against whom enforcement was sought). If the parties did intend to include the terms in the decree, and the court does not find the agreement is unfair, the terms "are binding on the court." A.R.S. § 25-317(B), (D). And this court has long recognized, "incorporation causing merger would be the rule and incorporation merely to identify the agreement would be the exception . . . and would occur if the separation agreement provides that its terms shall not be set forth in the decree." Young v. Burkholder, 142 Ariz. 415, 419 (App. 1984) (internal citation omitted).
¶17 Here, the parties' intent is clear because their family support plan is included in the decree itself. The court found the parties "knowingly, intelligently and voluntarily entered into" the agreement, and that it was equitable. Both parties signed the decree and had their signatures notarized below where it states they approve the decree "as to form and content," which was located a few paragraphs below a provision stating that the "Decree represent[s] the complete and final agreement of the parties." The decree also specified the payments "are enforceable with the same remedies as a spousal maintenance order.... [They] are being paid for the benefit of the family, and are in the nature of support." And Ronald's own history of litigating the family support in this family court matter provides further evidence of the parties' intent.
¶18 Though Ronald argues otherwise, nothing requires the court to restrict the terms of the parties' settlement agreement in a dissolution proceeding to those matters expressly referenced in A.R.S. Title 25. Ronald cites no authority that supports that proposition, and we decline to read A.R.S. § 25-317 so narrowly. Likewise, Ronald cites no authority for the specific proposition that a "family support" order is unenforceable as ultra vires. Confirming our broader reading of A.R.S. § 25-317, we have previously affirmed such orders. See Maximov v. Maximov, 220 Ariz. 299, 301-302 ¶ 10 (App. 2009) (affirming order modifying temporary family support); Hauff v. Hauff. 1 CA-CV 15-0605 FC, 2017 WL 406147 at *1 ¶¶ 1-4, (Ariz. App. Jan. 31, 2017) (mem. decision) (mentioning post-decree "family support"). Accordingly, the court did not act beyond its authority by incorporating the parties' settlement agreement as to "family support" within their decree. Nor did the court act beyond its authority in enforcing that decree provision after it was incorporated. Therefore, Ronald's subject matter jurisdiction argument fails.
We cite unpublished cases for persuasive value under Arizona Supreme Court Rule 111(c)(1)(C).
¶19 In a related argument, Ronald contends the family support order should be vacated because the court never analyzed the factors for spousal maintenance in A.R.S. § 25-319 and the court most recently treated the family support as similar to spousal maintenance. But again, he stipulated to the original family support order, and "parties may enter into a written separation agreement [for] . . . maintenance." A.R.S. § 25-317(A). Thus, this argument fails as well.
¶20 We hold the provision for family support is not void. We must therefore determine whether the court erred in denying Ronald's petition to modify or terminate the provision.
III. The Court Did Not Err in Denying Ronald's Petition to Modify.
¶21 Ronald argues the court erred in denying his petition to modify because he provided examples of changes of circumstances such as "a reduction of his income, a change in [Michelle]'s living arrangements," and changes in Michelle's budget because of their children emancipating and third parties providing her with financial support.
¶22 "[T]he provisions of any decree respecting maintenance or support may be modified or terminated only on a showing of changed circumstances that are substantial and continuing." A.R.S. § 25-327(A). The burden of showing a sufficient change of circumstances is on the party seeking modification. Scott v. Scott, 121 Ariz. 492, 494 (1979). A party seeking to modify a maintenance or support order must "file and exchange current Affidavits of Financial Information" within 20 days after service of the motion. Rules 91.1(c), 91(g).
¶23 Here, Ronald did not file a financial affidavit. That fact alone supports the court's denial of his petition. Rules 91.1(c), 91(g). Further, he admitted he sells automobiles for cash, but failed to submit any evidence concerning how much money he makes from selling them. Given his further failure to present sufficient financial evidence at trial to corroborate his self-serving testimony, the court inferred the proper documents would have proved he makes sufficient money to cover his support obligations. This was not error. In its discretion as part of its assessment of credibility, the court was entitled to disregard any uncorroborated self-interested testimony Ronald made concerning his financial circumstances. See Dumes v. Harold Laz Advert. Co., 2 Ariz.App. 387, 388 (1965) ("The uncontradicted testimony of an interested party may be rejected."). Moreover, analyzing the family support provision as spousal maintenance, the court considered all modification factors listed in A.R.S. § 25-319(B) and found Ronald was not entitled to a modification. Ronald's argument on this issue amounts to a request for us to reweigh the evidence. This we will not do. See Nia, 242 Ariz. at 422 ¶ 7.
¶24 Accordingly, the court did not err in declining to modify or terminate the family support provision.
CONCLUSION
¶25 We affirm.
¶26 As the prevailing party on appeal, we award Michelle her costs upon compliance with Arizona Rule of Civil Appellate Procedure 21. Upon consideration and in exercise of our discretion, we decline her request for attorney's fees.