                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                               In re the Matter of:

                  CYNTHIA MORROW, Petitioner/Appellee,

                                         v.

                DOUGLAS MORROW, Respondent/Appellant.


                            No. 1 CA-CV 17-0658 FC
                              FILED 6-19-2018


            Appeal from the Superior Court in Maricopa County
                           No. FN2012-091997
                 The Honorable Jeffrey A. Rueter, Judge

               AFFIRMED IN PART; REMANDED IN PART


                                    COUNSEL

Harmon Law Office, PLLC, Tempe
By Emile J. Harmon
Co-Counsel for Petitioner/Appellee

McCulloch Law Offices, Tempe
By Diana McCulloch
Co-Counsel for Petitioner/Appellee

Stanley David Murray Attorney at Law, Scottsdale
By Stanley David Murray
Counsel for Respondent/Appellant
                         MORROW v. MORROW
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.


C R U Z, Presiding Judge:

¶1           Appellant Douglas Morrow (“Husband”) appeals from the
superior court’s orders granting modification of spousal maintenance and
denying his motion for new trial. For the following reasons, we affirm in
part and remand in part.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Cynthia Morrow (“Wife”) filed for divorce in 2012. At the
time, the parties had two adult children. Prior to the divorce trial, Wife was
granted the exclusive use and possession of the marital residence and was
ordered to pay Husband $2,000 per month in temporary spousal
maintenance.

¶3             Wife is employed and earned $117,434 in gross wages in 2012.
Although Husband holds Bachelor’s and Master’s Degrees, at the time of
his pretrial statement, he had not been employed or applied for a job since
2001. Husband testified during trial that he had a serious car accident in
2000 that required multiple surgeries. Husband applied for social security
disability in 2005, but was denied benefits in 2006.

¶4           The court issued its decree in December 2013. Based on the
evidence presented at trial, the court awarded Husband $4,000 per month
in spousal maintenance for an indefinite term based on the court’s finding
that Husband was unlikely to achieve financial independence. In the
decree, the court also noted Husband’s medical issues and lack of
employment since 2001.

¶5             On January 14, 2014, Wife filed a notice of appeal, and
Husband filed a notice of cross-appeal the next month. On January 29, 2014,
Husband left Wife a voicemail stating he had told his attorney to put
spousal payments “on hold” and he was going to “hold off” on seeking to
collect his spousal maintenance award. Wife did not pursue her appeal. In
March 2014, this Court deemed both the appeal and cross-appeal
abandoned, and dismissed the appeals.


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                          Decision of the Court

¶6           In June 2016, Husband and Wife exchanged a series of text
messages where Husband asked Wife for financial help. During the text
exchange, Husband brought up the “alimony” but never requested back
pay or maintenance going forward. Wife ultimately gave Husband a one-
time payment of $2,500.

¶7             In March 2017, Husband filed a contempt petition alleging
that Wife failed to pay spousal maintenance and requested a judgment for
$156,000 in unpaid spousal support. Wife answered the petition, arguing
that Husband failed to request a single spousal support payment in the
previous 39 months and that she believes Husband had been working since
shortly after the dissolution of their marriage. Wife also raised affirmative
defenses, including waiver, laches, fraud and unclean hands.1 Along with
her answer, Wife filed a counter-petition for modification of spousal
maintenance based on substantial and continuing changes in
circumstances. Husband denied waiving spousal support. Deductions
from Wife’s earnings commenced in August 2017.

¶8           After an evidentiary hearing on Husband’s contempt motion
and Wife’s modification petition, the superior court denied Husband’s
request to find Wife in contempt related to the spousal maintenance
payments and found that Wife established waiver and estoppel on any
maintenance arrearages by clear and compelling evidence. The court, after
analyzing Arizona Revised Statutes (“A.R.S.”) section 25-319(B) factors,
determined that Wife was entitled to a modification of spousal maintenance
and reduced the award from $4,000 per month to $0 per month. The court
also awarded Wife a portion of her reasonable attorneys’ fees based on
Husband’s unreasonable conduct. Husband filed a notice of appeal
regarding the spousal modification.

¶9            After filing his notice, Husband filed a motion for new trial
related to spousal maintenance arrearages, spousal maintenance, and the
award of attorneys’ fees to Wife. The superior court denied Husband’s
motion. Husband also objected to Wife’s application for attorneys’ fees,
and the court ultimately ordered Husband to pay Wife $1,000 in attorneys’




1      Wife asserted the equitable defense of estoppel in her amended
pretrial statement.




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fees. Husband amended his notice of appeal to include the denial of the
motion for new trial and the attorneys’ fee award.2

¶10             We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2) and
(A)(5).

                                DISCUSSION

I.        Husband Is Not Entitled to Spousal Support Arrears

¶11           The superior court denied Husband’s request to find Wife in
contempt for failure to pay spousal maintenance arrears by applying the
equitable defenses of waiver and estoppel. Husband argues the court erred
in finding waiver and estoppel prevented him from asserting a claim for
spousal maintenance arrears.

¶12           We review a superior court’s contempt order for an abuse of
discretion. Danielson v. Evans, 201 Ariz. 401, 412, ¶ 40 (App. 2001).
Additionally, Arizona courts have consistently held that waiver is “a
question of fact to be determined by the trier of fact.” Chaney Bldg. Co., Inc.
v. Sunnyside Sch. Dist. No. 12, 147 Ariz. 270, 273 (App. 1985). We will not
disturb the superior court’s factual findings supported by the record, even
if based on conflicting evidence, and we will give due regard to the court’s
opportunity and ability to judge witness credibility. See Concannon v.
Yewell, 16 Ariz. App. 320, 321 (1972); Gutierrez v. Gutierrez, 193 Ariz. 343,
347, ¶ 13 (App. 1998).

¶13           Support payments may not be retroactively modified by a
court nor by the parties. See Lamb v. Superior Court, 127 Ariz. 400, 402 (1980);
Hatch v. Hatch, 113 Ariz. 130, 134 (1976); Cordova v. Lucero, 129 Ariz. 184, 185
(App. 1981). However, the equitable defenses of waiver, estoppel, and
laches may apply to support arrearages. See Coburn v. Rhodig, 243 Ariz. 24,
26, ¶¶ 10-12 (App. 2017). These defenses must be established by clear and
compelling evidence. Schnepp v. State ex rel. Dep’t of Econ. Sec., 183 Ariz. 24,
28-30 (App. 1995).

          A.    Waiver

¶14           To establish waiver, Wife must show that Husband
“voluntarily and intentionally abandoned a known right.” Id. at 28. Clear



2     Husband failed to present any arguments concerning the attorneys’
fee award on appeal.


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                          Decision of the Court

and compelling evidence of waiver can take the form of a written waiver or
an admission of waiver. Ray v. Mangum, 163 Ariz. 329, 333 (1989).

¶15           Husband left Wife a voicemail in January 2014 stating he
instructed his attorney “to get that garnishment on hold”3 and he was going
to “hold off on the garnishment” for his spousal maintenance payments.
After putting spousal maintenance “on hold” in January of 2014, Husband
failed to pursue spousal maintenance payments until March 2017 when he
filed the contempt petition and requested $156,000 in past-due spousal
maintenance. In May 2017, Husband filed a petition for an income
withholding order, requesting the $4,000 monthly spousal maintenance
payment from Wife.4

¶16            Husband relies on Ray to argue Mother’s belief that Husband
waived spousal maintenance is not enough to meet the clear and
compelling burden. 163 Ariz. at 333 (“Where conflicting testimony exists
and the parties’ unspoken assumptions and intentions conflict, one party’s
belief [that the other waived child support] cannot provide clear and
compelling evidence of [a waiver].”). In Ray, the parties entered into a child
support5 modification agreement almost ten years after their divorce
wherein father agreed to pay the mother $450 per month in child support.
Id. at 330-31. The agreement was silent as to child support arrears. Id. at
331. A year after the modification agreement, the mother filed a petition for
child support arrearages. Id. At trial, the mother and the parties’ daughter
testified that the father agreed he would pay back child support during
their meeting to discuss the modification agreement. Id. at 332-33. The
Arizona Supreme Court found that there was no clear and compelling
evidence that the mother waived her claim for past due child support. Id.
at 333.



3      Husband used the term “garnishment,” but no wage garnishment
had yet been proposed. Husband uses garnishment in place of enforcement
of Wife’s spousal payments.

4      Despite requesting unpaid spousal support in his March 2017
petition, Husband failed to request a past due obligation for spousal
support, despite it being an optional box to check in his petition for income
withholding order.
5      There is a strong public policy of promoting the welfare of children.
State v. Garcia, 187 Ariz. 527, 530 (App. 1996). There is no similar policy
related to the consideration for spousal maintenance awards.


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                           Decision of the Court

¶17           We find the facts of this case more analogous with Cordova. In
Cordova, the father stopped making child support payments after the
mother sent him a letter stating she did not want support payments. 129
Ariz. at 185. After more than three years, the mother made a claim for child
support arrearages. Id. We held that the mother waived her claim to child
support arrearages by expressly stating she did not want child support, and
then waited approximately three-and-a-half years without making any
further claim. Id. at 186. After the mother revoked the waiver, the father
started making child support payments again. Id. at 185.

¶18           Husband’s voicemail putting spousal maintenance “on hold,”
coupled with his inaction in commencing collection efforts for spousal
maintenance, despite being able to do so at any point, constitute clear and
compelling evidence of his admission of waiver of his spousal maintenance
award. Ray, 163 Ariz. at 333. Husband’s waiver of spousal maintenance
was revoked upon the filing his contempt petition, thereby putting Wife on
notice of her obligation to pay the ordered spousal maintenance. We
remand this matter to the superior court to determine the amount of
spousal maintenance due to Husband for the time period between the
revocation of his waiver and garnishment of Wife’s wages.

       B.     Estoppel

¶19            Husband next contends the superior court erred in
determining that he was estopped from claiming spousal maintenance
arrears. The requirements for estoppel are (1) conduct by which one
induces another to believe in certain material facts, (2) the inducement
results in acts in justifiable reliance thereon, and (3) the resulting acts cause
injury. Id. (Citations omitted.) Like waiver, equitable estoppel bars the
recovery of support “only when there is clear and compelling evidence in
the record to support such a determination.” See State ex rel. Dep’t of Econ.
Sec. v. Dodd, 181 Ariz. 183, 187 (App. 1994). We review the equitable
estoppel ruling for an abuse of discretion. City of Tucson v. Clear Channel
Outdoor, Inc., 218 Ariz. 172, 190, ¶ 65 (App. 2008).

¶20            Husband, citing dicta in an unpublished memorandum
decision, argues Wife unjustifiably relied on his verbal promise to forego
spousal maintenance because Wife and her attorney “knew and understood
the necessity of formalizing their agreement.” In re Marriage of Richardson
v. Richardson, 1 CA-CV 16-0215 FC, 2017 WL 586423, at *3, ¶ 15 (Ariz. App.
Feb. 14, 2017) (mem decision). We find Richardson to be inapposite to this
matter. First, Richardson is a child support matter, which has different
policy considerations from spousal maintenance. Id. at *1, ¶ 1. The father


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                          Decision of the Court

in Richardson never appealed the original support obligation, unlike Wife in
this matter. Id. at *1, ¶ 2. Additionally, text messages exchanged between
the Richardson parties show that the father understood that the agreement
needed to be formalized in court, but failed to do so; there are no similar
text messages in this matter. Id. at **2-3, ¶¶ 12, 15. In Richardson, we found
the superior court did not abuse its discretion in declining to apply
estoppel. Id. at *3, ¶ 15. Given the factual and policy differences between
this matter and Richardson, we do not find Richardson persuasive.

¶21            In this case, Wife testified that Husband’s voicemail putting
the garnishment “on hold” induced her into not pursing her appeal. Wife
was injured in relying on Husband’s voicemail because she forever lost the
ability to have a higher court review the spousal maintenance award. Given
Wife’s justified reliance on Husband’s voicemail and the injury she incurred
in not pursing her appeal, the superior court did not abuse its discretion in
applying estoppel. Husband is estopped from asserting a claim for spousal
maintenance arrearages from the time he waived the maintenance
obligation until he filed his contempt petition. At that point, Wife no longer
could have reasonably relied on Husband’s waiver.

II.    The Superior Court Did Not Abuse Its Discretion in Awarding
       Spousal Support Modification

¶22           We review the superior court’s ruling modifying spousal
maintenance for abuse of discretion. In re Marriage of Priessman, 228 Ariz.
336, 338, ¶ 7 (App. 2011). We defer to the court’s factual findings unless
they are clearly erroneous or unsupported by substantial evidence. Bobrow
v. Bobrow, 241 Ariz. 592, 595, ¶¶ 11, 20 (App. 2017).

¶23           Husband argues the superior court had no basis to modify his
spousal maintenance award from $4,000 per month to $0. Spousal
maintenance “may be modified or terminated only on a showing of changed
circumstances that are substantial and continuing[.]” A.R.S. § 25–327(A)
(emphasis added). “The burden of proving changed circumstances is on
the party seeking modification.” Scott v. Scott, 121 Ariz. 492, 494 (1979).

¶24          The amount and duration of spousal maintenance is
determined pursuant to A.R.S. § 25–319(B). The superior court’s minute
entry demonstrates it considered those factors when reaching its
determination. Specifically, at the 2013 trial, Husband provided evidence
that he was unable to work and presented medical testimony to support his
allegation. However, within months of the decree throughout the 2017
hearing, Husband worked continually, despite a variety of medical



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                          Decision of the Court

conditions. A.R.S. § 25-319(B)(3). Additionally, Husband’s employment
with various companies provided enough income to meet his monthly
expenses. A.R.S. § 25-319(B)(9). Husband will also receive additional funds
upon the sale of the marital residence and after the division of Wife’s
retirement accounts by a Qualified Domestic Relations Order. A.R.S. § 25-
319(B)(9). The court determined that Husband did not reduce his income
for the benefit of Wife, A.R.S. § 25-319(B)(7), and that Wife paid for their
children’s education without contribution from Husband, A.R.S. § 25-
319(B)(8). The court also determined that Husband has maintained
appropriate employment to meet his needs. A.R.S. § 25-319(B)(10).

¶25          The superior court did not abuse its discretion in modifying
the spousal maintenance award. Evidence presented at the hearing
supports the court’s findings that Husband went from not working to
obtaining employment where he made enough to meet his needs and
achieve financial independence.

III.   The Superior Court Did Not Abuse Its Discretion in Denying
       Husband’s Motion for New Trial

¶26            A motion for new trial may be granted for the following
reasons: (1) irregularity in the proceedings or abuse of discretion that
deprived moving party of a fair trial; (2) misconduct of a party; (3) accident
or surprise; (4) newly discovered material evidence; (5) error in the
admission or rejection of evidence or other errors of law; or (6) a ruling not
justified by the evidence or contrary to law. Ariz. R. Fam. Law P. 83(A).
We will not reverse the denial of a motion for new trial absent a showing
that the court abused its discretion. Wendling v. Sw. Sav. & Loan Ass’n, 143
Ariz. 599, 602 (App. 1984). On appeal, we view the evidence in the light
most favorable to supporting the superior court’s decision. See Sommerfield
v. Sommerfield, 121 Ariz. 575, 577 (1979).

¶27           In his motion for new trial, Husband contends that he neither
waived nor is estopped from asserting spousal maintenance arrearages and
that the court abused its discretion in modifying the spousal maintenance
award. As explained above, the superior court did not err in determining
that the equitable defenses of waiver and estoppel applied to Husband’s
claim for spousal maintenance arrearages. Additionally, Wife showed
substantial and continuing changed circumstances to warrant the spousal
maintenance modification. Therefore, we hold the court did not abuse its
discretion in denying Husband’s motion for new trial.




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                         Decision of the Court

IV.   Attorneys’ Fees

¶28           Husband requests an award of his attorneys’ fees and costs
on appeal pursuant to A.R.S. § 25-324. Wife requests an award of her
attorneys’ fees and costs pursuant to A.R.S. § 25-324 and Arizona Rule of
Civil Appellate Procedure (“ARCAP”) 21. After considering the parties’
financial resources and reasonableness of their respective positions, we
decline to award attorneys’ fees to either party. We award costs to Wife in
compliance with ARCAP 21.

                             CONCLUSION

¶29           For the foregoing reasons, we affirm in part and remand in
part. We instruct the superior court to determine the amount of spousal
maintenance owed to Husband from the date of his contempt petition
through the time Wife started making spousal maintenance payments.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




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