Schroeder v. Schroeder, CV-88-0284-T
| Decision Date | 18 July 1989 |
| Docket Number | No. CV-88-0284-T,CV-88-0284-T |
| Citation | 778 P.2d 1212,161 Ariz. 316 |
| Parties | In re the Marriage of Harold R. SCHROEDER, Petitioner/Appellant, v. Bernadine Marie SCHROEDER, Respondent/Appellee. /AP. |
| Court | Arizona Supreme Court |
Petitioner Harold Schroeder appeals from the trial court's order modifying an award of four years of spousal maintenance to respondent Bernadine Schroeder. Respondent moved to extend spousal maintenance at the end of the fourth year of payment and the court ordered that spousal maintenance continue until death, remarriage, or further order of the court.
We granted a petition for transfer of this case from the court of appeals to review and resolve inconsistent opinions by the two divisions of the court of appeals.
The principal issue addressed in this decision is: May a court modify the length of a spousal maintenance order that awards a monthly amount for a limited period of time, but that does not state whether the award is modifiable? We find that if a decree is silent as to the court's power to modify spousal maintenance, a court may consider extending the length of maintenance pursuant to A.R.S. § 25-327.
Our present modification statute, A.R.S. § 25-327(A), reads as follows:
A. Except as otherwise provided in subsection F of § 25-317, the provisions of any decree respecting maintenance or support may be modified only as to installments accruing subsequent to notice of the motion for modification to the opposing party and only upon a showing of changed circumstances which are substantial and continuing. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
A.R.S. § 25-319 recites the factors a court must consider in deciding whether to award spousal maintenance, and in what amount. Paragraph B states:
B. The maintenance order shall be in such amounts and for such periods of time as the court deems just....
A.R.S. § 25-317(F), dealing with separation agreements, states:
F. Except for terms concerning the maintenance of either party and the support, custody or visitation of children, entry of the decree shall thereafter preclude the modification of the terms of the decree and the property settlement agreement, if any, set forth or incorporated by reference therein. 1
Thus, the superior court is empowered by statute to modify a spousal maintenance award while installment payments are being made.
In 1958, this court limited the superior court's power to modify an alimony allowance in some situations. The case of Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012 (1958), addressed a decree that awarded alimony installments of $75 per month "for a period of six (6) months only." Two days before the last payment was due, the wife sought a modification of the alimony award, including an increase in the amount and the length of alimony payments. The husband appealed the trial court's order granting both an increase in the amount of alimony and the length of payments. The relevant statute at that time--A.R.S. § 25-321--provided:
The court may from time to time after entry of final judgment, on petition of either party, amend, revise and alter the portions of the decree which relate to payment of money for the support and maintenance of the wife ... as may be just....
This court also considered former A.R.S. § 25-319, which concerned the court's power to award child support and spousal maintenance. That statute provided: "The court may adjudge that the amount be paid in one sum or in installments."
In refusing to modify the decree, the Cummings court held that when an alimony/spousal maintenance award was expressed in terms of a gross sum, including one sum payable in installments, the award was not modifiable upon a later petition. The court quoted the Nebraska Supreme Court, which held that the purpose of a gross amount of alimony "is to define and fix with finality the scope of the rights and the obligations of the parties." Cummings, 84 Ariz. at 339, 327 P.2d at 1015-16, citing Ziegenbein v. Damme, 138 Neb. 320, 323, 292 N.W. 921, 923 (1940). Cummings further borrowed from Ziegenbein to hold that an unqualified, gross alimony award "is such a definite and final adjustment of mutual rights and obligations as to be capable of a present vesting and to constitute an absolute judgment, and the court cannot subsequently modify the amount...." Cummings, 84 Ariz. at 340, 327 P.2d at 1016 (citing Ziegenbein, 138 Neb. at 323-24, 292 N.W. at 923).
Thus, Cummings distinguishes between spousal maintenance awards fixing the total amount of maintenance to be paid, in either a lump sum or in installments, and decrees mandating monthly spousal maintenance payments without fixing the total obligation. Cummings turned on the use of the word "only" in the decree following six months of alimony payments.
Following Cummings, the two court of appeals divisions have reviewed numerous cases that, like our case, do not neatly fall within one category or the other. They neither state the total amount of spousal maintenance to be paid as one measurable and fixed amount, nor address awards of periodic monthly payments without end. Most typically, the court of appeals has dealt with a spousal maintenance award written in terms of a monthly sum to be paid over a given number of months. Also, these decrees, whether following a settlement agreement or a trial to the court, are silent concerning the court's ability to subsquently modify the awards.
In Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d 199 (App.1977), Division One reviewed a decree awarding "the sum of Four Hundred ($400.00) Dollars per month for a period of three (3) years." The court of appeals reversed the trial court for failing to include in the decree language explicitly giving the court jurisdiction to modify and extend the award if the wife became unable to secure employment or provide adequately for her own expenses during the three years. 115 Ariz. at 328-29, 565 P.2d at 205-06. Lindsay assumed that, unless explicit language allowing for future court modification accompanied the decree, if a trial judge ordered spousal maintenance "for a limited adjustment period," the court would lack jurisdiction later to make such a modification.
Division One recently reviewed and approved Lindsay in Snow v. Snow, 155 Ariz. 138, 745 P.2d 196 (App.1987) (Fidel, J. dissenting). The Snow decree awarded the wife spousal maintenance of $150 per week "for a period of two (2) years." The court entered the decree subsequent to the husband's waiver of service of process and default. A divided court held the trial court retained no jurisdiction to modify the maintenance order, absent specific language in the decree giving the court jurisdiction. 155 Ariz. at 142, 745 P.2d at 200. In his dissent, Judge Fidel found the result an untenable forfeiture of the court's power, and a likely conversion of oversight into a legal right.
The holdings from Division Two are contrary to those of Division One because of Division Two's definition of "lump sum." In Division Two cases, a spousal maintenance award may be considered a lump sum, and therefore unmodifiable, only if the award is for a fixed amount and is not contingent upon any future event. For example, in Raley v. Wilber, 122 Ariz. 336, 594 P.2d 1032 (App.1979), the court reviewed a decree providing for $400-per-month spousal maintenance for a period of "four (4) years only." The agreement further provided that "if either party dies or if Wife remarries prior to the expiration of the four (4) year period, Wife shall be entitled to no further support from Husband." 122 Ariz. at 336, 594 P.2d at 1032. The court analyzed the 1973 amendments to the statutes, and in particular A.R.S. § 25-327(B), which provides:
Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
The Raley court found that because the spousal maintenance award was not unconditional, it could be modified within the four-year period. In Raley it was terminated. The Raley court held that all post-1973 awards would be modifiable unless the decree expressly excluded modification, even in the event of death or remarriage. 122 Ariz. at 337, 594 P.2d at 1033.
In Dooley v. Dooley, 147 Ariz. 132, 708 P.2d 1323 (App.1985), Division Two refused to find Cummings repealed by the 1973 statutory amendments. 2 Dooley holds that where a decree is considered a lump sum amount of support, and is contingent upon no events, it may not be modified. However, if the statutory conditions of death or remarriage, or any other contingencies, terminate payment, the award cannot be considered a lump sum, and the court will maintain jurisdiction to modify the award. 147 Ariz. at 133, 708 P.2d at 1324.
Dooley further illustrates the need to resolve the conflict between the Divisions. Although A.R.S. § 12-120(C) and (D) sets forth which counties constitute Division One and Division Two, A.R.S. § 12-120(E) allows for a case arising in one Division to be decided by judges of the other Division.
In our case, spousal maintenance was included in a "Property Settlement Agreement" signed by the parties and incorporated by reference into the decree. The spousal maintenance provision reads:
HUSBAND agrees to pay to wife, through the Clerk of the Superior Court of Maricopa County, Arizona, as and for spousal maintenance for WIFE, the sum of SIX HUNDRED ($600.00) DOLLARS per month, payable on the first...
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