Chaney v. Chaney, 1

• Decision Date: 25 April 1985
• Docket Number: No. 1,CA-CIV,1
• Parties: William L. CHANEY, Petitioner-Appellant, v. Evelyn CHANEY, Respondent-Appellee. 7824.
• Court: Arizona Court of Appeals

Page 398

699 P.2d 398

145 Ariz. 23

William L. CHANEY, Petitioner-Appellant, v. Evelyn CHANEY, Respondent-Appellee.

No. 1 CA-CIV 7824.

Court of Appeals of Arizona,

Division 1, Department D.

April 25, 1985.

Friedl & Richter by Joseph C. Richter, Phoenix, for petitioner-appellant

Osborn & Associates, Ltd. by Roy Osborn, Phoenix, for respondent-appellee.

Evelyn Chaney, in pro per.

OPINION

HAIRE, Judge.

This is an appeal from the trial court's denial of a petition for modification of the spousal maintenance provisions of a divorce decree. William Chaney (husband) sought modification of the award of $450 per month spousal maintenance to Evelyn Chaney (wife).

The parties were granted a dissolution of their marriage on July 31, 1980. At the time of the decree, the husband was employed as a postal clerk, earning approximately $1200 per month and drawing a military pension of $550 per month. The decree ordered division of the property, including his military retirement and the civil service retirement he would receive upon retiring from the post office, awarding approximately half of each to the wife. The decree also awarded the wife $450 per month spousal maintenance.

Approximately three years later, on July 11, 1983, the husband filed a petition seeking relief from the award of spousal maintenance alleging that his retirement from the post office and resultant reduction in income constituted a substantial change in circumstances justifying modification of the maintenance award. After a hearing, the trial court found that the husband's income, consisting solely of his interest in both his civil service and military retirements and his social security, totalled only $876 per month. It concluded, however, that because the parties knew at the time of the decree that he would be retiring in a few years and living off a reduced retirement income, the change was not material under Linton v. Linton, 17 Ariz.App. 560, 499 P.2d 174 (1972). The trial court stated: "Where, as here, the change in circumstances relied upon by the party seeking to modify the spousal maintenance was within the party's contemplation at the time of the decree, no relief is available since the change is not a material change in circumstances." Upon review of the evidence, we find that the trial court misapplied Linton.

Clearly, modification of an award of spousal maintenance may be allowed only after the party seeking relief demonstrates a substantial change in the financial circumstances of either the husband or wife. Scott v. Scott, 121 Ariz. 492, 591 P.2d 980 (1979); Nace v. Nace, 107 Ariz. 411, 489 P.2d 48 (1971). This change of circumstances must occur after the entry of the original decree in order to be material. Linton.

In considering the principles set forth in Linton, it is important to note that the spousal maintenance award in that case resulted from a property settlement agreement which provided for the disposition of the community property of the parties and for the payment of spousal maintenance to the wife in the sum set forth in the decree. The husband then sought modification of the award of maintenance only nine months after the decree had been issued. This court held that the trial court's finding of a substantial change of circumstances was erroneous because most of the evidence presented by the husband in support of his petition related to facts and events that predated the decree. The husband had been planning retirement for some three years prior to the entry of the divorce decree, knew exactly when he would retire and what his retirement income would be. Both parties knew all the facts surrounding his impending retirement and structured the property settlement agreement which included the spousal maintenance provisions with these facts in mind. Thus, Linton is essentially based upon the principle that the court will look with disfavor upon a party who attempts to evade contractually agreed upon spousal maintenance responsibilities by asserting a change of circumstances when the parties originally made their agreement with such changes in mind.

All of the subsequent decisions which have discussed the Linton rationale have involved situations in which the support or maintenance obligation sought to be changed was initially established by agreement of the parties. See Jorgensen v. Jorgensen, 131 Ariz. 271, 640 P.2d 202 (App.1981) (modification allowed because subsequent change in income found not within the contemplation of the parties at the time of their separation agreement); Scott, 121 Ariz. 492, 591 P.2d 980, (modification denied because the husband knew of and contemplated the claimed changes at the time of the parties' agreement); Hornbaker v. Hornbaker, 25 Ariz.App. 577, 545 P.2d 425 (1976) (trial court's denial of husband's 1973 application for modification of a 1967 decree reversed because parties at time of agreement in 1967 could not have known of changed circumstances with sufficient particularity to justify application of Linton ); Alford v. Alford, 18 Ariz.App. 1, 499 P.2d 732 (1972) (summarizing Linton rationale: "The future realization of conditions which could be reasonably anticipated by the parties at the time of their initial agreement cannot be considered as evidence of changed circumstances justifying a modification of the initial decree." 18 Ariz.App. at 2, 499 P.2d 732).

In contrast to the facts involved in Linton and the above-cited decisions, there was no property settlement agreement or any other agreement pursuant to which the husband in this case agreed to pay spousal maintenance to the wife. The obligation to pay spousal maintenance and the amount thereof was...