Johnson v. Johnson, 1CA-CV98-0690.

• Court: Court of Appeals of Arizona
• Citation: 988 P.2d 621,195 Ariz. 389
• Docket Number: No. 1CA-CV98-0690.,1CA-CV98-0690.
• Parties: In re the Marriage of Nancy Marie JOHNSON, Petitioner-Appellee, v. Gerald Lloyd JOHNSON, Respondent-Appellant.
• Decision Date: 21 September 1999

988 P.2d 621
195 Ariz. 389

In re the Marriage of Nancy Marie JOHNSON, Petitioner-Appellee,
v.
Gerald Lloyd JOHNSON, Respondent-Appellant

No. 1CA-CV98-0690.

Court of Appeals of Arizona, Division 1, Department E.

September 21, 1999.

988 P.2d 622

Troy L. Brown, P.C. by Troy L. Brown, Mesa, Attorneys for Petitioner-Appellee

Steiner & Steiner, P.C. by Richard A. Steiner, Norris C. Livoni, Phoenix, Attorneys for Respondent-Appellant.

OPINION

VOSS, Judge.

¶ 1 Appellant/husband appeals from an order entering judgment for monies that had been ordered to be paid on a monthly basis in a decree of dissolution. The only issue husband raises on appeal is whether the trial court erred in determining the amount of the judgment for appellee/wife to include payments that had accrued under the decree of dissolution more than five years before the date of her petition seeking enforcement of the decree.

FACTS AND PROCEDURAL HISTORY

¶ 2 The marriage of Nancy Marie Johnson and Gerald Lloyd Johnson was dissolved by decree entered on April 27, 1978. The parties' property settlement agreement, which was incorporated into the decree, gave wife an interest in husband's military retirement account funds by providing for her to receive $200.00 per month indefinitely as her interest in the retirement funds and for husband to cause an allotment in favor of wife to be issued so that she would receive the payments directly.

¶ 3 In 1982, wife brought an action to enforce this provision of the decree because the payments were in arrears. The trial court entered judgment for the arrearages in the amount of $1,600.00.

¶ 4 Husband failed to pay part of the judgment for arrearages. As for the monthly payments coming due thereafter, he neither caused the allotment to be made in wife's favor nor made any of the payments to her himself.

¶ 5 Meanwhile, though, wife allowed fifteen more years to pass without taking further action to protect her rights to receive the payments ordered under the dissolution decree. She did not renew the arrearage judgment nor take any legal action to collect any of the payments that would have accrued thereafter until December 2, 1997, when she filed the instant petition to enforce the decree.

¶ 6 Husband's primary argument in the trial court was that he and wife had entered

988 P.2d 623

into an oral agreement soon after the decree was entered that wife would waive her right to the monthly payments in return for his taking custody of their youngest child and supporting her without receiving any contribution for her support from wife. Secondarily, he argued that A.R.S. § 12-1551(B) prevented wife from recovering any of the monthly payments that had become due and payable pursuant to the property settlement agreement more than five years prior to wife's present petition to enforce the decree

¶ 7 Wife disputed that the parties had entered into an agreement by which she gave up her rights to the monthly payments. She also argued that, even if the parties had reached an agreement to change some of the provisions of their property settlement agreement, it would not have been effective without court approval because of the merger of the property settlement agreement into the decree. Finally, she argued that A.R.S. § 12-1551(B) did not prevent her from collecting some of the payments that had come due, but cited no authority for that position. She sought judgment for all the payments that had accrued, including those she had been awarded previously in the arrearage judgment entered in 1982.

¶ 8 The trial court determined that the property settlement agreement had merged into the decree, and concluded that there had been no binding...