                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                           In re the Matter of:

                 LAURIN COBURN, Petitioner/Appellee,

                                    v.

               MICHAEL RHODIG, Respondent/Appellant.

                        No. 1 CA-CV 16-0399 FC
                            FILED 8-3-2017


          Appeal from the Superior Court in Maricopa County
                         No. FN2009-052965
         The Honorable Richard F. Albrecht, Judge Pro Tempore

                    REVERSED AND REMANDED


                               COUNSEL

Schmillen Law Firm, PLLC, Scottsdale
By James R. Schmillen
Counsel for Petitioner/Appellee

Dickinson Wright PLLC, Phoenix
By Marlene A. Pontrelli, Michael R. Scheurich
Counsel for Respondent/Appellant



                               OPINION

Judge Maria Elena Cruz delivered the opinion of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
                          COBURN v. RHODIG
                          Opinion of the Court

C R U Z, Judge:

¶1            Michael Rhodig (“Husband”) appeals from the superior
court’s order granting Laurin Coburn’s (“Wife”) petition to enforce spousal
maintenance arrearages. Husband did not request modification of the
decree, but rather asserted the parties’ subsequent written agreement—in
which Wife adjusted the amount owed—established the equitable defenses
of waiver, estoppel, and laches. Because application of these equitable
defenses did not require the court to modify the decree, the court erred in
concluding it lacked jurisdiction to consider the agreement pursuant to
Arizona Revised Statutes (“A.R.S.”) section 25-317(G)1 and In re Marriage of
Waldren, 217 Ariz. 173, 171 P.3d 1214 (2007). We reverse the superior court
order and remand for consideration of the written agreement and
Husband’s equitable defenses.

              FACTUAL AND PROCEDURAL HISTORY

¶2           The parties divorced in 2010 pursuant to a consent decree that
ordered Husband to pay spousal maintenance of $3000 a month for sixty
months, ending December 15, 2014. The decree also stated spousal
maintenance was non-modifiable as to duration or amount. Husband fell
behind in his spousal maintenance obligation. After exchanging several
emails, the parties signed an agreement in December 2010 to settle the
arrearage. The agreement provided Husband would pay Wife a $5000
lump sum plus $1000 per month for twelve months, with the final payment
due December 15, 2011. Wife expressly agreed to “waive any other unpaid
support owed her by [Husband].”

¶3           Husband made all the payments due under the December
2010 agreement. In December 2014, Wife filed a petition to enforce spousal
maintenance arrearages, claiming she had been unable to locate Husband
after the December 2010 agreement to request payment of the arrearages
pertaining to the 2010 consent decree and had signed the subsequent
agreement under duress. Husband argued the agreement was enforceable
pursuant to Arizona Rule of Family Law Procedure (“Family Law Rule”)
69(A) and supported the equitable defenses of waiver, estoppel, or laches
to Wife’s arrearages claim. Wife argued the consent decree made the
spousal maintenance non-modifiable, and despite the written agreement,




1     We cite the current version of relevant statutes unless revisions
material to this opinion have occurred since the events in question.


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                           COBURN v. RHODIG
                           Opinion of the Court

the superior court lacked jurisdiction to modify the decree pursuant to
A.R.S. § 25-317(G).

¶4            The parties agreed the superior court would decide as a
matter of law whether the written agreement was enforceable. The court
did not hear any testimony at the hearing but considered the parties’
arguments and written briefs. The court concluded it lacked jurisdiction to
consider Husband’s request to modify or terminate the non-modifiable
spousal maintenance provision and granted Wife’s petition to enforce the
consent decree. After denying Husband’s motion for new trial or to amend
the judgment, the court entered an arrearage judgment of $136,000 plus
$37,259.39 in interest.

¶5            Husband filed a timely notice of appeal from the order
granting Wife’s petition to enforce the consent decree, the order denying
his motion for new trial, and the judgment for arrearages. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶6            Pursuant to A.R.S. § 25-317(G), “entry of a decree that sets
forth or incorporates by reference a separation agreement that provides that
its maintenance terms shall not be modified prevents the court from
exercising jurisdiction to modify the decree and the separation agreement
regarding maintenance . . . .” Whether this statute precludes the superior
court from considering Husband’s equitable defenses is a question of law
that we review de novo. Waldren, 217 Ariz. at 175, ¶ 6, 171 P.3d at 1216.

¶7             The superior court concluded it lacked jurisdiction to modify
the spousal maintenance provision in the decree, citing Waldren. In
Waldren, the decree incorporated the parties’ agreement that the husband
would pay spousal maintenance for sixty months and that payments would
be non-modifiable. Id. at 174, ¶ 2, 171 P.3d at 1215. Less than two years
later, the husband became disabled and his income was limited. Id. at ¶ 3.
He moved to modify or terminate the spousal maintenance provision of the
decree under Arizona Rule Civil Procedure (“Rule”) 60(c)(5), which
“provides relief from a ‘final judgment, order or proceeding [if] it is no
longer equitable that the judgment should have prospective application.’”
Waldren, 217 Ariz. at 177, ¶ 19, 171 P.3d at 1218 (quoting rule then in effect)
(alteration in original).

¶8             Waldren held that as a procedural rule, Rule 60(c)(5) could not
operate to “abridge, enlarge or modify substantive rights of a litigant.” Id.
at ¶¶ 20-22 (citing A.R.S. § 12-109(A) (2003)). The court held that procedural


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                             Opinion of the Court

“rules must yield to statutory provisions on substantive matters such as the
court’s subject matter jurisdiction.” Id. Because A.R.S. § 25-317(G)
eliminated the superior court’s jurisdiction to modify decrees regarding
non-modifiable spousal maintenance, “[a]llowing Husband relief under
Rule 60(c)(5) would permit the court’s procedural rule to govern the
substantive statute that limits the court’s jurisdiction in such matters.” Id.
Under Waldren, relief was not available under Rule 60(c)(5). Id. at 178,
¶ 25, 171 P.3d at 1219.

¶9            In Waldren, the husband petitioned to modify or terminate the
indefinite spousal maintenance order, so the court was not asked to address
equitable defenses. Id. at 174, ¶ 3, 171 P.3d at 1215. The court in Waldren
could not have granted the petition without entering an order modifying or
terminating the spousal maintenance provision, an act that A.R.S. § 25-
317(G) expressly prohibits. In this case, however, there was no request to
invade the content of the decree; Wife simply agreed to forgo collection.

¶10            Section 25-317(G) “prevents the court from exercising
jurisdiction to modify the decree and the separation agreement regarding
maintenance . . . .” (Emphasis added.). Waldren held the court may not
exceed this jurisdiction when exercising its equitable powers. 217 Ariz. at
177, ¶ 21, 171 P.3d at 1218. Application of equitable defenses in response to
a petition to collect arrearages does not require the court to modify or
terminate the decree and thus would not violate A.R.S. § 25-317(G). If
Husband establishes an equitable defense by clear and compelling
evidence, the court need only deny Wife’s petition to enforce. See Ray v.
Mangum, 163 Ariz. 329, 332, 788 P.2d 62, 65 (1989) (stating party asserting
equitable defenses must demonstrate them by “clear and compelling
evidence”). If Husband does not establish an equitable defense, the court
may grant the petition and enter an arrearage judgment. Therefore, the
jurisdictional restriction in A.R.S. § 25-317(G) does not preclude application
of equitable defenses to a petition to enforce spousal maintenance
arrearages. The court need not modify the decree and, therefore, would not
“exceed its jurisdiction” as defined in A.R.S. § 25-317(G). Cf. Waldren, 217
Ariz. at 177, ¶ 21, 171 P.3d at 1218.

¶11           The distinction between a modification and equitable
defenses to enforcement is also found in cases holding that child support
arrearages are subject to the equitable defenses of waiver, estoppel, and
laches. See Ray, 163 Ariz. at 332, 788 P.2d at 65; State ex rel. Dep’t of Econ. Sec.
v. Dodd, 181 Ariz. 183, 186-88, 888 P.2d 1370, 1373-75 (App. 1994); Cordova v.
Lucero, 129 Ariz. 184, 186, 629 P.2d 1020, 1022 (App. 1981). Equitable
defenses to child support arrearages are permitted even though child


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                            Opinion of the Court

support orders cannot be retroactively modified. See Ray, 163 Ariz. at 332,
788 P.2d at 65; A.R.S. § 25-327(A). Cordova expressly recognized the
distinction between modification of a support order and the application of
equitable defenses, noting that although parties cannot retroactively
modify a child support judgment, “a custodial parent can, in certain fact
situations, effectively waive the collection of child support arrearages as
ordered in such a judgment.” 129 Ariz. at 185, 629 P.2d at 1021.

¶12            Our courts have found no public policy reason to preclude the
application of equitable defenses to child support arrearages. See Ray, 163
Ariz. at 332, 788 P.2d at 65; State v. Garcia, 187 Ariz. 527, 530, 931 P.2d 427,
430 (App. 1996) (holding application of laches defense did not “detract from
the strong public policy of promoting the welfare of children.”). Requiring
the party asserting equitable defenses to demonstrate them by “clear and
compelling evidence” adequately protects the welfare of children. Ray, 163
Ariz. at 332, 788 P.2d at 65. Applying the same heightened burden of proof
to spousal maintenance arrearages will adequately protect the public
policies of certainty, finality, and reduce the prospect of post-decree
litigation. See Waldren, 217 Ariz. at 176, ¶ 14, 171 P.3d at 1217 (recognizing
policies of finality, certainty, and predictability in divorce settlements).

¶13            Wife contends these child support cases do not support
application of equitable defenses to spousal maintenance arrearages
because of the differences between child support and spousal maintenance.
Wife cites Ames v. Ames, 239 Ariz. 246, 247, ¶ 2, 370 P.3d 115, 116 (App.
2016), in which the husband was ordered to pay spousal maintenance for
four years, ending June 2007. The wife filed a petition to enforce the decree
in May 2014, which the superior court dismissed pursuant to the three-year
statute of limitations applying to spousal maintenance enforcement actions
found in A.R.S. § 25-553(A). Id. at ¶¶ 3, 5. On appeal, the wife argued the
court should apply the exception found in the statute of limitations
applicable to child support arrearages, which places the burden on the
obligor to demonstrate the obligee unreasonably delayed in bringing the
enforcement action before applying the statute of limitations. Id. at 250,
¶ 20, 370 P.3d at 119 (citing A.R.S. § 25-503(J) (2013)). Noting that the
legislature did not similarly amend the spousal maintenance statute of
limitations to include the unreasonable delay language when it amended
the child support statute of limitations, Ames refused to read this exception
into the spousal maintenance statute of limitations. Id. at 250-51, ¶¶ 22-23,
370 P.3d at 119-20. Ames concluded the three-year statute of limitations
served the public policies of prompt accounting of arrearage claims and
notice to the obligor and creditors of the debt, as well as the “policy
underpinning spousal maintenance, namely, to encourage and assist a


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                            COBURN v. RHODIG
                            Opinion of the Court

spouse’s independence within a limited timeframe.” Id. at ¶¶ 21, 23 (citing
State ex rel. Dep’t of Econ. Sec. v. Hayden, 210 Ariz. 522, 526-27, ¶ 17, 115 P.3d
116, 120-21 (2005); Schroeder v. Schroeder, 161 Ariz. 316, 321, 778 P.2d 1212,
1217 (1989)). Although Ames recognized a difference in the child support
and spousal maintenance statutes of limitation, it does not support Wife’s
contention that equitable defenses, allowed in child support arrearage
cases, should not also apply to spousal maintenance arrearages.

¶14            The superior court erroneously concluded it lacked
jurisdiction to consider Husband’s equitable defenses. Thus, the court did
not decide whether the parties’ agreement was enforceable or consider
whether Husband established waiver, estoppel, or laches.

¶15           Husband argues the written agreement was enforceable
under Family Law Rule 69(A) and superseded or waived the terms of the
consent decree. He contends this Court can grant him relief on appeal as a
matter of law. However, Wife contested the validity of the written
agreement and argued she signed it under duress. The parties stipulated
to have the superior court decide a “threshold” “legal issue” before
considering whether evidence was needed regarding the enforceability of
the agreement. In the superior court proceedings, Wife challenged the
validity and meaning of the written agreement. These are questions of fact
for the superior court to determine in the first instance. The court did not
reach these issues because it erroneously concluded it lacked jurisdiction to
do so. Accordingly, an evidentiary hearing is necessary on remand.

¶16            Both parties request an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. § 25-324. We find neither party took an
unreasonable position on appeal, and the record does not contain current
information regarding the parties’ relative financial resources. Therefore,
in the exercise of our discretion, we decline to award attorneys’ fees to
either party on appeal. As the successful party on appeal, Husband is
entitled to an award of costs on appeal upon compliance with Arizona Rule
of Civil Appellate Procedure (“ARCAP”) 21. See A.R.S. § 12-342.




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                         COBURN v. RHODIG
                         Opinion of the Court

                             CONCLUSION

¶17          We reverse the order granting the petition to enforce the
decree and remand for an evidentiary hearing to determine the validity of
the December 2010 written agreement and address Husband’s equitable
defenses. Husband is awarded his costs on appeal upon compliance with
ARCAP 21.




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




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