Dooley v. Dooley, 1
| Decision Date | 09 July 1985 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 708 P.2d 1323,147 Ariz. 132 |
| Parties | In re the Marriage of Ray DOOLEY, Petitioner/Appellant, v. Mary DOOLEY, Respondent/Appellee. 7554. |
| Court | Arizona Court of Appeals |
The parties were divorced in 1980. The property settlement agreement, incorporated in the dissolution decree, provided that the husband would pay the wife $1600 per month for eleven years as support and maintenance. The agreement further provided that this provision "under no circumstances whatsoever ... shall be subject to modification by either party...." In 1983 the husband petitioned for modification of this provision claiming changed economic circumstances. He appeals from the dismissal of this petition.
Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012 (1958), held that a fixed amount of spousal maintenance (or alimony as it was then termed) payable in installments was not subject to modification. The reason for this ruling was contained in the language of a Nebraska case quoted with approval by the court:
"Without discussing the matter further, it is our view that an unqualified allowance in gross, in a divorce decree, whether payable immediately in full or periodically in instalments, and whether intended solely as a property settlement or as an allowance for support, or both, is such a definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute an absolute judgment, and the court cannot subsequently modify the amount thereof....
In some of the situations which present themselves between husband and wife, it is unquestionably better for both parties that their rights and obligations be definitely fixed, so that the ties between them can be completely severed and they can face with certainty the measure of the final adjustment which they will be required to make...." Id. at 339-340, 327 P.2d at 1016-17 (quoting Ziegenbein v. Damme, 138 Neb. 320, 292 N.W. 921, 923 (1940) )
Notwithstanding the strength of this policy, the husband contends that the Cummings rule was repealed by the 1973 amendments concerning dissolution of marriage. He points to no legislative history evincing an intention to overturn Cummings. Neither the requirement in A.R.S. § 25-319 that maintenance be premised on spousal need nor the authorization in A.R.S. § 25-317 to modify on a showing of changed circumstances can be found by implication to accomplish this because analogous provisions existed at the time Cummings was decided. And the provision in A.R.S. § 25-327 allowing the parties to agree that spousal maintenance payment will continue after death or remarriage can...
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