Marquez v. Marquez
| Decision Date | 29 April 1982 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 132 Ariz. 593,647 P.2d 1191 |
| Parties | Georgeanna S. MARQUEZ, Petitioner/Appellee/Cross Appellant, v. Alfred C. MARQUEZ, Respondent/Appellant/Cross Appellee. 4123. |
| Court | Arizona Court of Appeals |
Slutes, Browning, Sakrison & Grant, P. C. by William D. Browning, Tucson, for respondent/appellant/cross appellee.
This is an appeal from the denial of the husband's petition to terminate spousal maintenance and the wife's cross-petition to increase it. The wife also appeals from an alleged inadequacy in the award of attorney's fees.
Alfred and Georgeanna Marquez were married about 25 years until the dissolution of their marriage in 1973. At the time of the dissolution, Alfred (appellant) was a successful attorney. Georgeanna (cross-appellant) was a homemaker. She held a bachelor's degree in psychology, earned about 30 years previously.
The decree of dissolution incorporated a settlement agreement which stated in part:
"The husband shall pay to the wife the sum of NINE HUNDRED ($900.00) DOLLARS per month as and for her spousal support, said payments to continue until the wife's remarriage or her death, whichever is sooner, or until further order of the Court."
Appellant sought termination of this provision in 1978. Evidence at that hearing showed that the cross-appellant was working as a real estate salesperson but not earning much. The trial court denied the petition and this court affirmed in a memorandum decision, Marquez v. Marquez, 2 CA-CIV 3154 (filed 6/8/79), in which we found that the cross-appellant, under the circumstances was making reasonable and good faith efforts in her new career.
A year after that decision, the appellant again petitioned the court to terminate his spousal maintenance obligations. At this second hearing, he showed that the cross-appellant had voluntarily cut back the hours she spent at her real estate business so that she worked only when a client sought her out. The appellant also showed that his ex-wife was working as a biofeedback counselor for her church. Her income from these two endeavors was $760 in 1980. The appellant's expert witness listed nine social service jobs paying between $9,000 and $12,600 which were available at various times before the hearing to persons with the cross-appellant's skills. The cross-appellant testified that she did not apply for any of these jobs because she expected the biofeedback work to produce more income, because she was not sure she could work a nine-to-five job and because she and the appellant had an understanding that she would not have to work in her later years. The appellant showed, in addition, that he had taken a cut in pay to become a federal district court judge and that he had lost money on some business investments. The trial court found that the cross-appellant "could not sustain herself in the job market" and that there was no substantial and continuing change of circumstances.
The appellant believes the evidence showed that the cross-appellant was able to support herself. He raises as his sole issue whether an able-bodied ex-spouse may refuse to work and thus continue to receive spousal maintenance. The cross-appeal is predicated on the trial court's alleged abuse of discretion in refusing to increase maintenance and to award the full amount of attorney's fees requested. We assume for the sake of argument that the cross-appellant is able to work at one of the jobs listed by the appellant's witness.
Appellant argues that spousal maintenance may be awarded only if the ex-spouse is unable to support herself and that maintenance must be discontinued if she becomes able to support herself. See A.R.S. § 25-319; Nace v. Nace, 107 Ariz. 411, 489 P.2d 48 (1971). It follows, he argues, that a wilful refusal to look for work requires a termination of spousal maintenance. This is a decided misstatement of the law.
The spousal maintenance provisions in this decree were governed, not by A.R.S. § 25-319, but by A.R.S. § 25-317, which allows the parties to reach their own agreement as to the property division, spousal maintenance and child support, custody and visitation. The spousal maintenance arrangements in the separation agreement are binding on the court unless it finds that they are unfair. Id. In a proceeding to modify, the moving party must show a substantial and continuing change of circumstances. A.R.S. § 25-327; In re Marriage of Rowe, 117 Ariz. 474, 573 P.2d 874 (1978).
In the instant case, the cross-appellant was about 45 years old when the marriage ended. She had a 30-year-old college degree but had never established a career. According to her testimony, nothing was ever said about her returning to work. The settlement agreement did not indicate any understanding that she would. In fact, its provision for maintenance payments until death, remarriage or the vague "further order of the Court" would indicate an intention to provide for her needs indefinitely. The settlement agreement should be given great evidentiary weight. Quinn v. Quinn, 307 So.2d 848 (Fla.App.1975). The evidence supports the conclusion that the parties agreed the cross-appellant would not be expected to work. In such a case, the appellant must show something other than the fact that cross-appellant is able to work.
The appellant urges other changes that he claims support his petition. They are (1) his decrease in salary and the loss of benefits due to his...
To continue reading
Request your trial
-
Amadore v. Lifgren
...$42,500 in November 2015 does not mean she could have been earning the same amount in September 2014. Cf . Marquez v. Marquez , 132 Ariz. 593, 595, 647 P.2d 1191, 1193 (App. 1982) (finding that because the parties agreed that wife would not be expected to work, husband had to show "somethin......
-
Carroll v.
...been a substantial and continuing change of circumstances since entry of the decree. See A.R.S. § 25-327(A); see also Marquez v. Marquez, 132 Ariz. 593, 595 (App. 1982).¶10 Conversely, after determining an award of spousal maintenance is appropriate, see A.R.S. § 25-319(A), the trial court ......
-
In re Marriage of Sherman
...Modification cannot be based on conditions that were reasonably anticipated when the parties' decree was entered. Marquez v. Marquez, 132 Ariz. 593, 595 (App. 1982); see also Alford v. Alford, 18 Ariz. App. 1, 2 (1972) ("The future realization of conditions which could be reasonably anticip......
-
In re Noel
...as to . . . spousal maintenance," the terms of which are binding upon the court unless it finds them unfair. Marquez v. Marquez, 132 Ariz. 593, 595, 647 P.2d 1191, 1193 (App. 1982). Therefore, once a court has jurisdiction over a divorce and personal jurisdiction over both parties, it has a......