Bartholomew v. Superior Court In and For Pima County

• Decision Date: 10 August 1966
• Docket Number: No. 2CA-CIV,2CA-CIV
• Citation: 417 P.2d 563,4 Ariz.App. 50
• Parties: William D. BARTHOLOMEW, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Honorable Lee Garrett, Presiding, Respondent, and Bernice B. Bartholomew, Real Party in Interest. 225.
• Court: Arizona Court of Appeals

Page 563

417 P.2d 563

4 Ariz.App. 50

William D. BARTHOLOMEW, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, Honorable Lee Garrett, Presiding, Respondent and Bernice B. Bartholomew, Real Party in Interest.

No. 2CA-CIV 225.

Court of Appeals of Arizona.

Aug. 10, 1966.

John Aboud, Tucson, for petitioner.

Eugene J. Lane, Tucson, for respondent.

MOLLOY, Judge.

Petitioner has applied to this Court to have the superior court prohibited from proceeding further on an order to show cause why the petitioner should not be held in contempt for failure to make alimony payments. The proceedings below in this action have been continued subject to call pending the outcome of the application to this Court for prohibitory relief.

On April 17, 1958, a decree of divorce was rendered, dissolving the bonds of matrimony entered on July 16, 1955, between the petitioner, William D. Bartholmew, and the respondent-wife, Bernice B. Bartholmew. The wife was granted all of the community property of the parties and the husband was required to make certain payments upon liens thereon. There were no children of the parties and hence no child support was ordered. An alimony award was made as follows:

'IT IS FURTHER ORDERED that defendant pay to the plaintiff as alimony the sum of $50.00 per month for a period of eighteen (18) months, said payments to begin on the first day of May, 1958, and thereafter, defendant shall be released from the payment of any further alimony.'

On September 28, 1959, the petitioner-husband moved the superior court to modify the judgment of April 17, 1958. The motion for modification of judgment was accompanied by a stipulated between the parties and an affidavit of the petitioner-husband which stated in pertinent part as follows:

'* * * that he has been advised by his attorney, Donald W. Lynch, that his legal obligation to pay said alimony under said judgment ceases with the October 1, 1959 alimony payment in that all prior alimony payments under the judgment above indicated have been paid, but that due to the changed circumstances of the plaintiff, including health of plaintiff and ability of plaintiff to adequately support herself, lack of any income to plaintiff other than alimony from defendant, and being advised by his attorney, Donald W. Lynch, that various defenses could be interposed in favor of the defendant in the event plaintiff moved for increase in alimony payments or continuance of alimony payments beyond October 1, 1959, because of change in circumstances of the plaintiff; nevertheless, the defendant desires to effectuate, as the moving party, a modification of the judgment entered on April 17, 1958, and it is the express desire of the defendant, William D. Bartholomew, that the alimony provisions be stricken as they now read and that there be substituted a provision ordering the defendant to pay the plaintiff the sum of $150.00 per month as and for permanent alimony. * * *'

On September 29, 1959, modification of judgment was entered in conformity with the affidavit and stipulation. For six years the petitioner-husband made the payments required by the modified judgment, and then, in November, 1965, the petitioner moved the superior court to set aside the modification of judgment, on the grounds that it was void. Petitioner's motion was denied on December 13, 1965. On February 25, 1966, on motion of the respondent-wife, the superior court issued an order to show cause why the petitioner should not be held in contempt for failure to obey the modification judgment. On petition to this court we granted an alternative writ of prohibition May 17, 1966.

A.R.S. § 25--319 makes provision for alimony and support in divorce proceedings and specifically indicates that '(t)he court may adjudge that the amount be paid in one sum or in installments.' A.R.S. § 25--321 provides for modification of judgment affecting alimony and support as follows:

' § 25--321. Modification of judgment affecting alimony, support or children

'The court may from time to time after entry of final judgment, on petition of either party, amend, reverse and alter the portions of the decree which relate to payment of money for the support and maintenance of the wife or the expenses of the proceedings, as may be just, and may amend, change or alter any provision of the judgment respecting the care, custody or maintenance of the children of the parties as circumstances of the parents and welfare of the children require.'

In Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012 (1958), the Supreme Court indicated that the two statutory provisions, A.R.S. §§ 25--319 and 25--321 are to be read together, that the award of a monthly sum of alimony for a limited number of months is in effect an award of alimony in a gross or lump sum, and that the modification provisions of A.R.S. § 25--321 are inapplicable to such alimony awards. The decision holds that it is beyond the jurisdiction of the court to modify such a provision in a divorce decree once the decree has become final.

In Barnett v. Barnett, 95 Ariz. 226, 388 P.2d 433 (1964), the Supreme Court declined to overrule the Cummings case stating that '(w)here a lump sum payment is awarded, it constitutes an absolute judgment and cannot be subsequently modified.' 95 Ariz. at 228, 388 P.2d at 435.

It has been urged that the petitioner is estopped to deny the validity of the modification judgment. In Decker v. Hendricks, 97 Ariz. 36, 396 P.2d 609 (1964), our Supreme Court said:

'The three elements of estoppel are (1) affirmative acts inconsistent with a claim afterwards relied upon, (2) action by a party relying on such conduct and (3) injury to the party resulting from a repudiation of such conduct. Holmes v. Graves, 83 Ariz. 174, 318 P.2d 354.'

97 Ariz. at p. 40, 396 P.2d at p. 611.

The following general statements serve to clarify the object and purpose of the doctrine of estoppel:

'The remedy of estoppel has for its purpose the promotion of the ends of justice, and the doctrine is grounded on equity and good conscience. It is based on the grounds of public policy and good faith, and is interposed to prevent injury, fraud, injustice, and inequitable consequences by denying to a person the right to repudiate his acts, admissions, or representations, when they have been relied on by persons to whom they were directed and whose conduct they were intended to and did influence. The vital principle of equitable estoppel is that a person who by his language or conduct leads another to do what he would not otherwise have done may not subject such person to loss or injury by disappointing the expectations on which he acted.' 31 C.J.S. Estoppel § 63, pp. 392--394.

Restatement, Conflicts of Law (1948 Supplement), § 112, contains the following comment:

'Any person may be precluded from questioning the validity of a divorce decree if, under all the circumstances, his conduct has led to the obtaining of the divorce decree, or for any other reason his been such as to make it inequitable to permit him to deny the validity of the divorce decree.'

The language of the Restatement has been quoted with approval by our Supreme Court in Brandt v. Brandt, 76 Ariz. 154, 261 P.2d 978 (1953). In the Brandt case, the Supreme Court observed that estoppel 'can' be a defense to an action attacking the validity of a divorce decree, that estoppel is an equitable defense '* * * greatly within the sound discretion of the...