Cox v. Goretti, No. 2 CA-CV 2015-0029

CourtCourt of Appeals of Arizona
Writing for the CourtESPINOSA, Judge
PartiesIN RE THE MARRIAGE OF DAVID ROBERT COX, Petitioner/Appellant, v. ELLEN GORETTI, Respondent/Appellee.
Decision Date31 May 2016
Docket NumberNo. 2 CA-CV 2015-0029

ELLEN GORETTI, Respondent/Appellee.

No. 2 CA-CV 2015-0029


May 31, 2016

See Ariz.
R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pima County
The Honorable Jeffrey T. Bergin, Judge



David Lipartito, Tucson
Counsel for Petitioner/Appellant

Christopher W. Caine, Tucson
Counsel for Respondent/Appellee

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Judge Espinosa authored the decision of the Court, in which Presiding Judge Howard and Judge Staring concurred.


¶1 David Cox appeals from the trial court's order denying his petition to terminate spousal maintenance based on appellee Ellen Goretti's remarriage and his alternative motion to set aside the spousal maintenance provisions in their decree of dissolution of marriage as unenforceable. Cox also challenges the order on the ground the court improperly considered extrinsic evidence that was not admitted. For the following reasons, we reverse.

Factual and Procedural Background

¶2 David Cox and Ellen Goretti were married in 1986. In July 2012, after the parties reached a marital settlement agreement (MSA), Cox's attorney, R.K., prepared a proposed consent decree and submitted it to the trial court. Under the terms of the MSA and the decree, Cox, who was unemployed at the time, agreed to pay Goretti spousal maintenance for ninety-six months, with payments to "commence the first day of the first month after [he] obtain[ed] employment." Cox would pay Goretti $2,000 per month in maintenance if his annual salary was "$50,000 or more per year," or fifty percent of his income if his salary was less than $50,000. Both the MSA and the decree provided that the spousal maintenance order "shall not be modifiable under any circumstances whatsoever" with the exception of "the death of either party." The decree, however, also stated the order could be modified upon "the remarriage of the recipient spouse." The decree additionally provided that "upon the filing of this Decree of Dissolution[, R.K. wa]s released as attorney of record in any post-decree proceedings." The trial court approved and signed the decree.

¶3 Shortly after the decree was entered, Goretti realized it contained different language from the MSA regarding modifiability

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and she contacted R.K. regarding the discrepancy. After consulting with the Arizona State Bar, R.K. filed a notice informing the trial court and parties that the decree "d[id] not reflect the final and actual agreement of the parties" and "the jointly submitted [MSA] signed by both parties and merged into the decree contain[ed] the correct statement of the parties' agreement regarding spousal maintenance." The notice further stated "[t]he award of spousal maintenance was specifically intended to continue even if [Goretti] remarried," and asked that "[t]he phrase 'the remarriage of the recipient spouse or' . . . be struck" from the decree. R.K. noted that the decree also terminated her representation of Cox, which was why she had "filed th[e] notice and not a Motion to Set Aside." In October 2012, after no objection had been filed, the trial court issued an order striking the remarriage condition and further ordering "spousal maintenance [to] continue even in the event [Goretti] remarries."

¶4 Goretti remarried in December 2012. In March 2013, she filed a motion to enforce the MSA and the decree, complaining Cox had not paid her moving expenses or provided her with certain money, in violation of their agreement. In April 2013, after Cox failed to appear at the hearing on Goretti's motion, the trial court awarded Goretti a $9,050.67 judgment against Cox.1

¶5 In June 2014, Cox obtained new counsel and the parties entered into a stipulation "regarding spousal maintenance and satisfaction of judgments," which stated, in part, "[Cox] shall pay [Goretti] spousal maintenance in the amount of $2,250 per month for a period of 96 months. Spousal maintenance shall terminate June 30, 2022." In exchange, Goretti waived "all past due amounts . . . owed on the [April 2013 j]udgment" and acknowledged "said [j]udgment [a]s satisfied." The trial court entered an order consistent with that stipulation.

¶6 Two months later, Cox filed a petition for termination of spousal maintenance, citing Goretti's remarriage and "the absence of any express written language in the parties' decree" obligating him

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to "continue paying spousal maintenance upon [Goretti's] remarriage." Cox also moved to set aside the trial court's October 2012 order, which he claimed was "based on the [n]otice [filed by his] former counsel to which [he] had no opportunity to reply." He claimed he was unaware of the notice R.K. had filed in 2012 and asserted he had not authorized her to do so. He also stated that, in the event the trial court granted his requested relief, "any judgments deemed satisfied as part of the [s]tipulation . . . should be reinstated." Goretti responded that Cox's petition and motion to set aside should be denied as untimely under Rule 85, Ariz. R. Fam. Law P., and on the basis of laches.

¶7 At a hearing on Cox's petition, he testified he had never received notice of R.K.'s "Notice Re: Incorrect Decree of Dissolution" or the court's October 2012 order correcting the decree. To refute that claim, Goretti provided a copy of an e-mail exchange between her and R.K. that reflected Cox had been copied with that exchange. She also noted that Cox "was named on the routing/distribution list for both [R.K.]'s Notice and [the trial court]'s October 10, 2012[,] Order." Cox acknowledged that the address listed on the distribution was correct and current. R.K. was present at the start of the hearing but left after Cox asserted attorney-client privilege.

¶8 The trial court issued an under-advisement ruling denying Cox's petition and motion, "find[ing] that the doctrine of laches applie[d]." Relying in part on the e-mail between Goretti and R.K., the trial court found Cox "ha[d] notice of the Decree and the Court's orders," and concluded Cox's position was "inconsistent with his own actions in negotiating new terms to spousal maintenance" and "long overdue." It further noted Cox's "position . . . would severely prejudice [Goretti] as he argues she is not entitled to maintenance that has been established through the corrected decree and through his stipulated modification." We have jurisdiction over Cox's appeal pursuant to A.R.S. §§ 12-120.21(A) and 12-2101(A)(2).


¶9 Cox first argues the trial court erred in dismissing his petition to terminate spousal maintenance on the basis of laches,

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contending the equitable doctrine "does not apply where, as here, a party is seeking relief based on a recognition of an event that has occurred by operation of law." He asserts that the language contained in the decree and MSA did not meet "the requirements of A.R.S. § 25-327(B) for a spousal maintenance order t[o] continue past the recipient's remarriage," and as a result, his spousal maintenance obligation automatically terminated "as a matter of law" when Goretti remarried. Goretti counters that Cox's request to terminate spousal maintenance was appropriately barred by the doctrine of laches because Cox "waited too long to prosecute his action . . . and [Goretti wa]s prejudiced by that delay." She also argues the petition was otherwise untimely under Rule 85(c). We review a trial court's ruling on laches for an abuse of discretion, deferring to the court's factual findings unless clearly erroneous, but reviewing de novo its legal conclusions. Rash v. Town of Mammoth, 233 Ariz. 577, ¶ 17, 315 P.3d 1234, 1240 (App. 2013).

¶10 The defense of laches bars a claim when, under the totality of the circumstances, the delay in prosecuting the claim "'would produce an unjust result.'" Prutch v. Town of Quartzite, 231 Ariz. 431, ¶ 13, 296 P.3d 94, 98 (App. 2013), quoting Harris v. Purcell, 193 Ariz. 409, n.2, 973 P.2d 1166, 1167 n.2 (1998). But "laches may not be imputed to a party for mere delay in the assertion of a claim." Flynn v. Rogers, 172 Ariz. 62, 66, 834 P.2d 148, 152 (1992). Instead, the delay must be unreasonable under the circumstances and it must be shown that any change in circumstances caused by the delay resulted in prejudice to the other party sufficient to justify denial of relief. Id.; see also Sotomayor v. Burns, 199 Ariz. 81, ¶ 6, 13 P.3d 1198, 1200 (2000).

¶11 Here, Cox filed his petition for termination around twenty-one months after learning Goretti had remarried. The trial court determined the petition was "long overdue" because Cox had been "aware or should have been aware" of R.K.'s notice for nearly two years before the petition was filed, but it is unclear whether the court found that Cox "acted unreasonably." See Prutch, 231 Ariz. 431, ¶ 13, 296 P.3d at 98. But even if Cox's substantial delay in filing his petition was unreasonable, the only prejudice found by the trial court was "eliminati[on of] a maintenance obligation that is included

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in the Decree and signed by the Court." Cf. Sotomayor, 199 Ariz. 81, ¶ 8, 13 P.3d at 1200 (laches defense cannot stand on unreasonable conduct alone). As Cox points out, "[p]rejudice, in this context, would require proof that [Goretti] had changed her position in reliance on the [2012] order" or the decree, "or had been placed in a detrimental financial position as a result, not of . . . [Cox seeking] relief [from the 2012 order and decree], but of his delay in seeking relief." See League of Ariz. Cities & Towns v. Martin, 219 Ariz. 556, ¶ 6, 201 P.3d 517, 519 (2009) (prejudice demonstrated by showing injury or change in position as result of delay).

¶12 Most importantly, the equitable doctrine was inapplicable here, where Cox was seeking...

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