Masta v. Lurie ex rel. Superior Court In and For Maricopa County, 1
| Decision Date | 20 August 1974 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 525 P.2d 301,22 Ariz.App. 170 |
| Parties | Glen T. MASTA, Petitioner, v. The Honorable David M. LURIE ex rel. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, and Muriel MASTA, real party in interest, Respondent. 2805. |
| Court | Arizona Court of Appeals |
This special action was filed to prohibit the Honorable David M. Lurie, Judge of the Maricopa County Superior Court, from proceeding to incarcerate the Petitioner Glen T. Masta (husband) for a contempt of court created by his failure to comply with certain court orders in a decree of dissolution.
On February 19, 1974 a decree of dissolution was entered terminating the marriage of the husband and Muriel L. Masta, the real party in interest (wife). The pertinent portion of the property settlement agreement entered into by the parties and incorporated into the decree reads:
'Husband agrees to pay any and all community indebtedness, owed by the parties as of December 13, 1973, and to hold Wife harmless therefrom . . .'
The husband failed to pay certain community debts and the wife filed an order to show cause requesting the court to find the husband in contempt for his failure to comply with the terms of the decree of dissolution. A hearing was held and Judge Lurie found the husband in contempt. The husband is now petitioning this Court, seeking an order prohibiting his incarceration, alleging that such incarceration will be an abuse of discretion in violation of Article 2, Section 18 of the Constitution of the State of Arizona, A.R.S., which reads:
'There shall be no imprisonment for debt, except in cases of fraud.'
There has been no allegation of fraud raised in this case.
The wife maintains that under the provisions of our new marital and domestic relations law the terms of a property settlement agreement incorporated by reference into a decree of dissolution are enforceable by contempt. The pertinent portions of ARS § 25--317(D) and (E), revised effective August 8, 1973, state:
'D. If the Court finds that the separation agreement is not unfair as to disposition of property or maintenance, and that it is reasonable as to support, custody and visitation of children, the separation agreement shall be set forth or incorporated by reference in the decree of dissolution or legal separation and the party shall be ordered to perform them . . .
E. Terms of the agreement set forth or incorporated by reference in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt.'
Prior to the enactment of the new domestic relations law, our appellate courts have consistently held that in a fact...
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