Priessman v. Priessman, 2 CA–CV 2011–0071.

Decision Date18 November 2011
Docket NumberNo. 2 CA–CV 2011–0071.,2 CA–CV 2011–0071.
Citation266 P.3d 362,228 Ariz. 336
PartiesIn re the MARRIAGE OF Kurt PRIESSMAN, Petitioner/Appellant,andChong Priessman, Respondent/Appellee.
CourtArizona Court of Appeals


Law Office of Michael H. Gottesman By Michael H. Gottesman, Tucson, Attorney for Petitioner/Appellant.

Curtis & Cunningham By Marjorie Fisher Cunningham. Tucson, Attorneys for Respondent/Appellee.


VÁSQUEZ, Presiding Judge.

¶ 1 Kurt Priessman appeals from the trial court's order denying in part his petition for modification of spousal maintenance. He argues that pursuant to A.R.S. § 25–530, the court erred by considering his Combat–Related Special Compensation (“CRSC”) as income. He also contends the court erred by not reducing or eliminating his spousal maintenance arrearages based on retroactive determinations of disability made by two federal agencies. For the reasons set forth below, we affirm.

Factual Background and Procedural History

¶ 2 We view the evidence in the light most favorable to sustaining the trial court's findings and will uphold them unless they are clearly erroneous or unsupported by the evidence.” In re Marriage of Yuro, 192 Ariz. 568, ¶ 3, 968 P.2d 1053, 1055 (App.1998). Kurt and Chong Priessman met in Korea and were married in 1979 while Kurt was stationed there with the military. The marriage was dissolved by decree of dissolution in September 2005. Under the decree, Chong was awarded spousal maintenance in the amount of $1,750 per month for an indefinite period of time beginning September 1, 2005.1 Kurt appealed the decree, challenging the duration and amount of the spousal maintenance award. In In re Marriage of Priessman, No. 2 CA–CV 2005–0181 (memorandum decision filed June 29, 2006), this court affirmed the decree.

¶ 3 In October and December 2006, Kurt filed petitions to modify the spousal maintenance award, seeking a reduction based on changes in his employment and health. He claimed that [t]he rulings of the court [had] left [him] without sufficient means to support [himself] in a depressed economic area.” Kurt filed an affidavit of financial information indicating his only source of income was his Air Force pension and Veterans Administration disability totaling $1,438 per month. In April 2007, the trial court denied the petitions and, finding Kurt had failed to remain current on his spousal maintenance payments, entered judgment for Chong in the amount of the arrearages.

¶ 4 The trial court denied Kurt's petitions to modify spousal maintenance based on its finding that he voluntarily had quit his job “and moved ... to a rural area with neither employment opportunities nor health care resources.” The court concluded that “although [Kurt's] financial circumstances ha[d] changed, he ha[d] been solely responsible for those changes,” and that [the changes] w[ere] neither made in good faith nor necessarily continuing.” See A.R.S. § 25–327(A). It also found that Chong “continue[d] to be in serious need of the ordered spousal maintenance,” and that she “ha[d] not voluntarily and purposefully made her situation worse, and [could not] be expected to suffer the consequences of [Kurt's] fiscally irresponsible decisions.”

¶ 5 In November 2010, Kurt filed a third petition for modification, this time seeking a reduction based on a determination made by the Department of Veterans Affairs (“VA”) that he was disabled and another by the Social Security Administration (“SSA”) that he was unemployable. And because those determinations were made retroactive to 2006 and 2007, Kurt asked the trial court to [r]eevaluate” its April 2007 decision regarding his ability to find employment, to recalculate spousal maintenance effective December 17, 2006, and to reduce the amount of arrearages accordingly. He also asked the court to recalculate spousal maintenance from August 19, 2010 onward,2 “in light of A.R.S. [§§ ] 12–1539, 25–318.01 and 25–530.”

¶ 6 After an evidentiary hearing in February 2011, the trial court issued its under-advisement ruling reducing Kurt's spousal maintenance obligation to $1,100 per month from $1,750 beginning with the payment in December 2010. The court found that [t]here ha[d] been a change in ... circumstances,” specifically that Kurt no longer was employed by the Indian Health Service and, as a result, his income had changed. The court determined Kurt's sources of income at that time included $1,865 per month in social security disability, $1,607 per month in CRSC,3 and $645 per month in civil service retirement pay. The court entered judgment in favor of Chong for accrued arrearages in the amount of $63,851.79. It denied Kurt's request to recalculate the spousal maintenance award by excluding his CRSC as income, reasoning that § 25–530 was not applicable. This appeal followed.

Applicability of A.R.S. § 25–530

¶ 7 Kurt first contends that pursuant to § 25–530, the trial court improperly considered his CRSC benefits in calculating the modified spousal maintenance award.4 We review a trial court's ruling on a petition for modification for an abuse of discretion. Van Dyke v. Steinle, 183 Ariz. 268, 273, 902 P.2d 1372, 1377 (App.1995). But we review issues of statutory interpretation de novo. Hobson v. Mid–Century Ins. Co., 199 Ariz. 525, ¶ 6, 19 P.3d 1241, 1244 (App.2001).

¶ 8 Section 25–530 provides that [i]n determining whether to award spousal maintenance or the amount of any award of spousal maintenance, the court shall not consider any federal disability benefits awarded to the other spouse for service-connected disabilities pursuant to 38 United States Code chapter 11.” However, the trial court found that Kurt [was] not receiving federal disability benefits pursuant to 38 U.S.C. [chapter] 11,” rather, [h]e ha[d] been awarded [CRSC] benefits pursuant to 10 U.S.C. § 1413a.” The court therefore concluded that § 25–530 did not apply.

¶ 9 On appeal, Kurt maintains that even though CRSC benefits are authorized under title 10, the trial court nevertheless was prohibited from considering such benefits as income pursuant to § 25–530. He reasons that both his eligibility for CRSC and his CRSC benefit amounts are determined in part by his qualification in the first instance to receive benefits under title 38, chapter 11, and that § 25–530 prohibits consideration of benefits awarded pursuant to title 38, chapter 11.5 See 10 U.S.C. § 1413a(b)(1) and (e).

¶ 10 Title 38, chapter 11 of the United States Code authorizes, among other benefits, wartime and peacetime disability compensation. See 38 U.S.C. §§ 1110, 1131. But title 38, chapter 11 neither authorizes nor refers to CRSC, which is authorized in title 10, chapter 71. In contrast, 10 U.S.C. § 1413a, the statute authorizing CRSC and prescribing entitlement to CRSC benefits, refers to certain provisions of title 38.6 But despite these references, Kurt's eligibility to receive CRSC benefits is determined by, and CRSC is paid pursuant to, title 10, which has its own requirements separate from those contained in title 38.7 See 10 U.S.C. § 1413a(e) (defining “combat-related disability” for purposes of benefits eligibility). The plain language of § 25–530 prohibits trial courts from considering disability benefits awarded “pursuant to 38 United States Code chapter 11.” Thus, in determining whether to award spousal maintenance or the amount of an award, trial courts are prohibited from considering disability benefits awarded pursuant to title 38, see 38 U.S.C. §§ 1110, 1131; they are not, however, prohibited from considering CRSC benefits awarded pursuant to title 10, see 10 U.S.C. § 1413a. 8

¶ 11 Nevertheless, in support of his argument, Kurt urges us to consider the legislative history for § 25–530, which he argues demonstrates a legislative intent to apply § 25–530 more broadly. We recognize that a fundamental goal of statutory interpretation is to effectuate legislative intent. See Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994). But, “equally fundamental is the presumption that what the Legislature means, it will say.” Id., quoting Padilla v. Indus. Comm'n, 113 Ariz. 104, 106, 546 P.2d 1135, 1137 (1976). “Accordingly, absent a clear indication of legislative intent to the contrary, we are reluctant to construe the words of a statute to mean something other than what they plainly state.” Id. When the language of a statute is plain and unambiguous, we customarily look no further. Champlin v. Sargeant, 192 Ariz. 371, ¶ 15, 965 P.2d 763, 766 (1998). And [i]t is a universal rule that courts will not enlarge, stretch, expand, or extend a statute to matters not falling within its express provisions.” In re Martin M., 223 Ariz. 244, ¶ 7, 221 P.3d 1058, 1060 (App.2009), quoting Antonio P. v. Ariz. Dep't of Econ. Sec., 218 Ariz. 402, ¶ 13, 187 P.3d 1115, 1118 (App.2008). Given the plain language of § 25–530, we decline to extend its prohibition to include CRSC benefits authorized under title 10.9 The trial court did not err by including Kurt's CRSC benefits in determining the spousal maintenance award.

Retroactive Modification of Spousal Maintenance

¶ 12 Kurt also argues the trial court erred by “ignor[ing] his November 2010 request to [r]eevaluate” its April 2007 finding regarding his ability to work. He asks us to vacate the court's April 2007 order and direct it to “recalculate spousal maintenance [and reduce arrearages] based on ... actual income at the time, not [on] an attributed amount based on a false premise.” 10 We review the trial court's ruling on Kurt's petition for modification for an abuse of discretion. See Fletcher v. Fletcher, 137 Ariz. 497, 497, 671 P.2d 938, 938 (App.1983).

¶ 13 Section 25–327(A) provides that the maintenance provisions of a divorce decree may be modified “except as to any amount that may have accrued as an arrearage before the date of notice of the motion ... to modify or terminate.” Thus, spousal...

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