Palmer v. Palmer

• Decision Date: 06 November 2007
• Docket Number: No. 1 CA-CV 06-0674.,1 CA-CV 06-0674.
• Citation: Palmer v. Palmer, 170 P.3d 676, 217 Ariz. 67 (Ariz. App. 2007)
• Parties: In re the Marriage of Kathy I. PALMER, Petitioner/Appellee, v. Sydney N. PALMER, Respondent/Appellant.
• Court: Arizona Court of Appeals

170 P.3d 676

217 Ariz. 67

In re the Marriage of Kathy I. PALMER, Petitioner/Appellee, v. Sydney N. PALMER, Respondent/Appellant.

No. 1 CA-CV 06-0674.

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

November 6, 2007.

Doyle-Best, P.C. by John C. Doyle, Scottsdale, Attorneys for Petitioner/Appellee.

Pearlstein Law Offices, P.L.L.C. by Suzan V. Pearlstein, Phoenix, Attorneys for Respondent-Appellant.

OPINION

GEMMILL, Chief Judge.

¶ 1 After the dissolution of a marriage, a person's obligation to pay future maintenance to a former spouse terminates upon the death of either party or upon the remarriage of the party receiving maintenance, unless the decree of dissolution expressly provides to the contrary or the parties have otherwise agreed in writing. Ariz.Rev.Stat. ("A.R.S.") § 25-327(B) (2007). In this appeal we decide whether a decree of dissolution "expressly" provides that the former husband's spousal maintenance obligation will continue beyond the remarriage of the former wife.

¶ 2 Sydney M. Palmer ("Husband") appeals the family court's ruling that his spousal maintenance obligations must continue notwithstanding the remarriage of Kathy I. Palmer ("Wife"). Husband also argues that the court erred by awarding attorneys' fees to Wife without an evidentiary hearing. For the following reasons, we reverse and remand for entry of an order terminating Husband's spousal maintenance obligation and for further proceedings regarding attorneys' fees.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Husband's marriage to Wife was dissolved on November 9, 2004. According to the decree of dissolution ("Decree"), Husband is obligated to provide spousal maintenance to Wife in the sum of $3,100.00 per month until October 31, 2008. The relevant portion of the Decree provides that:

Commencing this date, and payable on the first (1st) day of each month hereafter, [Husband] shall pay [Wife] as and for spousal maintenance, the sum of Three Thousand One Hundred Dollars ($3,100.00) per month until October 31, 2008. Said term and amount of spousal maintenance is non-modifiable until October 31, 2008, except such shall end upon the death of [Wife].

¶ 4 Wife remarried in March 2005. In September 2005, Husband filed a petition to terminate spousal maintenance based upon Arizona Revised Statute ("A.R.S.") section 25-327(B): "Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated on the death of either party or the remarriage of the party receiving maintenance." In May 2006, while Husband's motion was still pending, the parties submitted a joint pretrial statement that set forth pertinent undisputed facts. On June 7, 2006, the parties appeared before the family court for an evidentiary hearing. The court concluded that there were no factual issues to be determined and that the issue of Husband's continuing obligation for spousal maintenance could be decided as a matter of law. The court heard argument from each party as though cross-motions for summary judgment were pending.

¶ 5 The family court determined that Husband must continue providing spousal maintenance to Wife until October 31, 2008, as required by the Decree, notwithstanding A.R.S. § 25-327(B). The court also awarded attorneys' fees to Wife. After entry of formal judgment, Husband filed motions for new trial that were denied.

¶ 6 We have jurisdiction to consider Husband's appeal pursuant to A.R.S. § 12-2101(B) (2003).

ANALYSIS

¶ 7 We apply a de novo standard when reviewing a trial court's grant of summary judgment. Urias v. PCS Health Sys., Inc., 211 Ariz. 81, 85, ¶ 20, 118 P.3d 29, 33 (App.2005). We also apply a de novo standard regarding the interpretation of statutes and decrees of dissolution. Maycock v. Asilomar Dev., Inc., 207 Ariz. 495, 500, ¶ 24, 88 P.3d 565, 570 (App.2004) (applying de novo standard when reviewing issues of statutory interpretation); Cohen v. Frey, 215 Ariz. 62, 66, ¶ 11, 157 P.3d 482, 486 (App.2007) (applying same standard regarding interpretation of dissolution decree); Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13, 36 P.3d 749, 754 (App.2001) (same). The material facts in this case are undisputed. What remains to be determined is the legal question whether the Decree expressly provides, as required by A.R.S. § 25-327(B), that Husband's obligation to make monthly spousal support payments will continue after Wife's remarriage.

¶ 8 Husband argues that under § 25-327(B) his spousal maintenance obligation ended when Wife remarried because the Decree does not contain the express language required to impose a continuing obligation. That is, the Decree does not expressly state that his obligation to continue paying spousal maintenance survives Wife's remarriage. Wife argues that the Decree should be viewed as a contract and, as such, this court should read the "contract" in light of the parties' intentions. Additionally, Wife argues that because the Decree provides that spousal maintenance is non-modifiable and terminable only upon her death, it does in fact expressly provide that spousal maintenance must continue after Wife's remarriage.

¶ 9 The family court determined that § 25-327(B) did not mandate termination of Husband's payments "because the termination of spousal maintenance was expressly provided in the Decree: `[Said] term and amount of spousal maintenance is non-modifiable until October 31, 2008 except such shall end upon the death of [Wife].'" Thus, the court concluded that the express inclusion in the Decree that Husband's spousal maintenance obligations would terminate upon the death of Wife was tantamount to expressly providing that the remarriage of Wife would not terminate Husband's spousal maintenance obligations. Based on the language of the statute and guidance from our supreme court, we disagree.

¶ 10 The Arizona Supreme Court has considered the meaning of the word "expressly" in § 25-327(B) and has explained that "[t]he word `expressly' is customarily defined as: `directly and distinctly stated; expressed, not merely implied or left to inference.'" In re Estelle's Estate, 122 Ariz. 109, 113, 593 P.2d 663, 667 (1979) (quoting State ex rel. Ashauer v. Hostetter, 344 Mo. 665, 670, 127 S.W.2d 697, 699 (Mo.1939)). Similarly, the New Oxford American Dictionary defines "express" as "definitely stated, not merely implied" and "precisely and specifically identified to the exclusion of anything else." NEW OXFORD AMERICAN DICTIONARY 595 (2d ed.2005). The word "express" is derived from the Latin word expressus which literally means "distinctly presented." Id. Under the plain language of § 25-327(B), therefore, an obligation to continue paying spousal maintenance will be terminated upon the remarriage of the spouse receiving the payments unless the decree distinctly expresses, without the need of implication or inference, that the spousal maintenance will continue notwithstanding remarriage. See also Johnson v. Hispanic Broadcasters of Tucson, Inc., 196 Ariz. 597, 601, ¶ 9, 2 P.3d 687, 691 (App.2000) (similarly construing the word "expressly" in a different statute).

¶ 11 The Decree states that the "term and amount of spousal maintenance is non-modifiable until October 31, 2008 except such shall end upon the death" of Wife. To conclude that such language means that spousal maintenance will continue after Wife's remarriage requires at least one level of inference. One must reason from "non-modifiable" and "except such shall end upon the death of Wife" to the conclusion that spousal maintenance was intended to continue notwithstanding Wife's remarriage.

¶ 12 The inference or reasoning that is required to arrive at this conclusion is precisely that which Wife urges and the family court adopted. Namely, because the Decree specifically mentions the death of Wife as a reason for terminating the spousal maintenance obligation but omits any mention of Wife's remarriage, this is equivalent to an express provision in the Decree that spousal maintenance shall continue despite Wife's remarriage. Such an inference may be entirely reasonable, especially if we were engaging in routine interpretation of the intent of the Decree. But A.R.S. § 25-327(B) mandates a different standard—an express provision regarding the effect of remarriage—which this Decree does not contain.

¶ 13 "Because even the intentional omission of termination language ... is not equivalent to an affirmative, unambiguous statement that the parties intended the spousal maintenance obligations to continue, we hold that, when former spouses seek to avoid the application of § 25-327(B), they must make their intention unmistakably clear." Diefenbach v. Holmberg, 200 Ariz. 415, 418, ¶ 8, 26 P.3d 1186, 1189 (App.2001) (emphasis added). Because the Decree does not expressly state that spousal maintenance shall not be terminated upon the remarriage of Wife, we conclude that Husband's obligation to pay spousal maintenance terminated upon Wife's remarriage by operation of law under § 25-327(B). See In re Estelle's Estate, 122 Ariz. at 113, 593 P.2d at 667; Diefenbach, 200 Ariz. at 417-18, ¶¶ 5-8, 26 P.3d at 1188-89.

¶ 14 Several courts from other jurisdictions have reached similar conclusions under similar statutes and decrees. See, e.g., Messer v. Messer, 134 S.W.3d 570, 573 (Ky.2004) ("We conclude that absent a specific statement in the written agreement or in the decree that maintenance will not terminate upon the death of either party or the obligee's remarriage, the occurrence of one of those statutory contingencies terminates the maintenance obligation by operation of law."); Moore v. Jacobsen, 373 Md. 185, 817 A.2d 212, 218 (2003) ("An agreement must mention marriage expressly; other agreements, such as those in this case addressing nonmodification, will not suffice. The parties here did not agree so as to avoid the operation of § 11-108; therefore, alimony terminated upon respondent's remarriage."); Gunderson...