Dougall v. Dougall

• Decision Date: 18 December 2013
• Docket Number: No. 2 CA–CV 2013–0056.,2 CA–CV 2013–0056.
• Citation: 676 Ariz. Adv. Rep. 21,316 P.3d 591,234 Ariz. 2
• Parties: In re the MARRIAGE OF Richard S. DOUGALL, Petitioner/Appellant, and Myrna R. Dougall, Respondent/Appellee.
• Court: Arizona Court of Appeals

234 Ariz. 2

316 P.3d 591

676 Ariz. Adv. Rep. 21

In re the MARRIAGE OF Richard S. DOUGALL, Petitioner/Appellant,

and

Myrna R. Dougall, Respondent/Appellee.

No. 2 CA–CV 2013–0056.

Court of Appeals of Arizona,

Division 2.

Dec. 18, 2013.

David Lipartito, Tucson, Counsel for Petitioner/Appellant.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 In this domestic-relations case, appellant Richard Dougall appeals from the trial court's post-dissolution-decree order for the payment of spousal maintenance arrearages to appellee Myrna Dougall and the denial of his subsequent motion for reconsideration challenging that order. The issue presented here is whether A.R.S. § 25–530 precludes a trial court from considering Veterans Administration (VA) disability benefits as income in determining the payment of arrearages on an award of spousal maintenance. We hold a court may consider such benefits in making that determination. For the reasons stated below, we dismiss in part, affirm in part, and vacate in part. ¹

Factual and Procedural Background

¶ 2 We view the evidence in the light most favorable to sustaining the trial court's rulings. See In re Marriage of Yuro, 192 Ariz. 568, ¶ 3, 968 P.2d 1053, 1055 (App.1998). The parties' marriage was dissolved in 2008. The dissolution decree ordered Richard to pay Myrna $750 per month in spousal maintenance. The court also awarded each of the parties one-half interest in two parcels of real property and ordered that Richard obtain appraisals of the properties and pay Myrna her share of the equity. On appeal, this court affirmed the spousal maintenance award and the division of community property and debts. In re Marriage of Dougall, No. 2 CA–CV 2009–0058, 2010 WL 457129 (memorandum decision filed Feb. 10, 2010).

¶ 3 In 2011, the trial court entered two judgments against Richard for his failure to fulfill his obligations under the decree of dissolution. The first judgment for $5,000 represented the value of Myrna's interest in one of the properties. The second judgment was for $4,745 in spousal maintenance arrearages. Effective August 2011, the court also reduced Richard's spousal maintenance obligation to $500 per month. This court affirmed the spousal maintenance modification. In re Marriage of Dougall, No. 2 CA–CV 2011–0182, 2012 WL 1808838 (memorandum decision filed May 17, 2012).

¶ 4 In August 2012, Myrna filed petitions to enforce the two judgments, claiming Richard “ha[d] made no efforts to pay.” In response, Richard filed a memorandum seeking credits against the judgments for debts he had paid on behalf of Myrna and for a loan and vehicle he had given to her. After a hearing, the trial court entered its minute entry order on December 11, 2012, finding Richard in contempt but concluding he could purge himself of the contempt by paying, in addition to the $500 per month in current spousal maintenance, $200 per month toward the judgment for arrearages until paid in full.² The court entered a separate income-withholding order of $200 per month directed at Richard's VA disability benefits and also denied his requests for offsets.

¶ 5 On January 4, 2013, Richard filed a combined “motion for new trial/motion to reconsider/motion for stay.” After a hearing, the court denied the motion by minute entry order entered February 8, 2013. However, at Richard's request, the court modified its arrearages order by reducing the $200 payment to $100 per month for three months, then increasing it to $220 per month for fifteen months, and reinstating the $200 amount thereafter. This appeal followed.

Discussion

I. Appellate Jurisdiction

¶ 6 According to his notice of appeal, Richard is challenging the trial court's December 11, 2012 and February 8, 2013 orders. Although Richard contends we have jurisdiction pursuant to A.R.S. §§ 12–120.21 and 12–2101, we have an independent duty to review our jurisdiction and, if lacking, to dismiss the appeal. See In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 6, 289 P.3d 946, 948 (App.2012). “We have no authority to entertain an appeal over which we do not have jurisdiction.” In re Marriage of Johnson & Gravino, 231 Ariz. 228, ¶ 5, 293 P.3d 504, 506 (App.2012).

¶ 7 Generally, a notice of appeal must be filed no later than thirty days after entry of the judgment or order from which the appeal is taken. Ariz. R. Civ.App. P. 9(a); Wilkinson v. Fabry, 177 Ariz. 506, 506, 869 P.2d 182, 182 (App.1992). “[T]he timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review.” In re Marriage of Gray, 144 Ariz. 89, 90, 695 P.2d 1127, 1128 (1985). However, Rule 9(b), Ariz. R. Civ.App. P., provides an extension of time for filing a notice of appeal when certain motions are “timely filed” with the trial court. These time-extending motions include a motion for a new trial pursuant to Rule 83(A), Ariz. R. Fam. Law P., and a motion to alter or amend the judgment pursuant to Rule 84, Ariz. R. Fam. Law P. SeeAriz. R. Civ.App. P. 9(b)(3), (4). Such motions must be filed not later than fifteen days after entry of the judgment. Ariz. R. Fam. Law P. 83(D)(1), 84. And when they are not timely filed, a trial court does not have jurisdiction to address them, see Mark Lighting Fixture Co. v. Gen. Elec. Supply Co., 155 Ariz. 27, 32, 745 P.2d 85, 90 (1987), and they do not extend the time for an appeal, see Edwards v. Young, 107 Ariz. 283, 285, 486 P.2d 181, 183 (1971).

¶ 8 Here, Richard filed his notice of appeal from both the December 11 and February 8 orders on March 4, 2013. Thus, his notice of appeal as to the December 11 order was filed well beyond the thirty-day requirement of Rule 9(a), Ariz. R. Civ.App. P.³ Richard's motion for a new trial constitutes a time-extending motion under Rule 9(b), Ariz. R. Civ.App. P., because he requested a new trial and “reconsideration, alteration, and/or amendment” pursuant to Rules 83 and 84, Ariz. R. Fam. Law P. However, the motion was not timely filed because it was filed more than fifteen days after entry of the December 11 order. See Ariz. R. Fam. Law P. 83(D)(1), 84. We thus do not have jurisdiction to consider Richard's appeal directly challenging the December 11 order.⁴See Edwards, 107 Ariz. at 285, 486 P.2d at 183.

¶ 9 However, Richard also appeals from the trial court's February 8 order denying his “motion for a new trial/motion for reconsideration/motion for stay,” pursuant to Rule 85(C), Ariz. R. Fam. Law P. The denial of a Rule 85(C) motion is appealable as a “special order made after final judgment.” A.R.S. § 12–2101(A)(2); see M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141, 791 P.2d 665, 667 (App.1990) (discussing comparable Rule 60(c), Ariz. R. Civ. P.); ⁵ In re Marriage of Dorman & Cabrera, 198 Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000). And, to the extent the motion was based on Rule 85(C), it was timely filed. See Ariz. R. Fam. Law P. 85(C)(2); see also Duckstein v. Wolf, 230 Ariz. 227, ¶ 9, 282 P.3d 428, 432 (App.2012). We thus have jurisdiction to address the court's denial of Richard's Rule 85(C) motion.

II. Denial of Rule 85(C) MotionA. Trial Court Did Not Exceed Jurisdiction

¶ 10 When the trial court modified Richard's spousal maintenance obligation in 2011, it stated that pursuant to § 25–530 it did not consider Richard's VA disability benefits. But at the December 2012 hearing on Myrna's petition for enforcement of spousal maintenance, the court did consider those benefits when it ordered Richard to pay an additional $200 per month toward spousal maintenance arrearages. The court based its December 11, 2012 order on testimony that Richard's total income was $3,918 per month, including $1,245 in social security and $2,673 in VA disability benefits. In setting the $200 amount, the court noted that, after paying the $500 spousal maintenance obligation, Richard “continues to have $3,400 of income available to him.”

¶ 11 Pursuant to Rule 85(C)(1)(d), Richard argues the trial court's December 11 “order is void, outside the [c]ourt's jurisdiction, and must be vacated.” ⁶ He contends that, pursuant to 38 U.S.C. § 5301, the court had no authority to require him to pay spousal maintenance arrearages, directly or indirectly, from his VA disability benefits. Citing § 25–530 and Downing v. Downing, 228 Ariz. 298, 265 P.3d 1097 (App.2011), he further maintains the court could not even consider those benefits when determining the amount of the monthly arrearages payment. We review the denial of a Rule 85(C) motion for relief from judgment for an abuse of discretion. Fry v. Garcia, 213 Ariz. 70, ¶ 7, 138 P.3d 1197, 1199 (App.2006). An abuse of discretion occurs when a trial court commits an error of law in exercising its discretion. Fuentes v. Fuentes, 209 Ariz. 51, ¶ 23, 97 P.3d 876, 881 (App.2004).

¶ 12 Although Rule 85(C)(1)(d) provides an avenue for challenging a void judgment, we disagree with the underlying premise of Richard's argument—that a trial court exceeds its jurisdiction and thus renders a void judgment by considering VA disability benefits in violation of § 25–530. The word “void” often is misused, Auman v. Auman, 134 Ariz. 40, 42, 653 P.2d 688, 690 (1982), as is the word “jurisdiction,” Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 101, 907 P.2d 67, 70 (1995). “A judgment or order is ‘void’ if the court entering it lacked jurisdiction: (1) over the subject matter, (2) over the person involved, or (3) to render the particular judgment or order entered.” Martin v. Martin, 182 Ariz. 11, 15, 893 P.2d 11, 15 (App.1994). “If a judgment or order is void, the trial court has no discretion but to vacate it.” Id. at 14, 893 P.2d at 14. By contrast, a judgment or order is voidable “when the trial court has subject matter jurisdiction but errs in issuing an order.” State v. Bryant, 219 Ariz. 514, ¶ 14, 200 P.3d 1011, 1015 (App.2008). A voidable judgment or order has “all the ordinary attributes of a valid judgment [or order] until it is reversed or vacated.” State v....