                                   IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE




                          In re the Marriage of:

                   GENE R. AMES, Petitioner/Appellee,

                                     v.

                  JULIE L. AMES, Respondent/Appellant.

                        No. 1 CA-CV 15-0013 FC
                             FILED 3-10-2016


          Appeal from the Superior Court in Maricopa County
                         No. FN2003-001250
          The Honorable Richard Albrecht, Judge Pro Tempore

                              AFFIRMED


                               COUNSEL

Scott L. Patterson, PLLC, Tempe
By Scott L. Patterson
Counsel for Respondent/Appellant

Owens & Perkins, P.C., Scottsdale
By Max Nicholas Hanson
Counsel for Petitioner/Appellee
                              AMES v. AMES
                            Opinion of the Court



                                 OPINION

Chief Judge Michael J. Brown delivered the opinion of the Court, in which
Acting Presiding Judge Samuel A. Thumma and Judge Randall M. Howe
joined.


B R O W N, Chief Judge:

¶1            This opinion addresses whether the trial court erred in
dismissing a petition for enforcement of spousal maintenance based on
Arizona Revised Statutes (“A.R.S.”) section 25-553, which provides that a
party may not seek a judgment on spousal maintenance arrearages more
than “three years after the spousal maintenance order terminates.” Because
the court properly concluded that the petition was not timely filed, we
affirm.

                             BACKGROUND

¶2           The marriage of Julie L. Ames (“Wife”) and Gene R. Ames
(“Husband”) terminated in June 2003 upon the entry of a consent judgment
and decree of dissolution. The decree stated that Husband would pay Wife
spousal maintenance of $1,000 per month for four years.

¶3            In May 2014, Wife filed a petition to enforce the spousal
maintenance order, alleging Husband owed her more than $46,000 for
missed payments plus interest from July 2003 through April 2014. In
support of her petition, Wife filed an unsigned pleading titled “Affidavit of
Direct Payments,” together with email correspondence, alleging that
Husband made only eighteen of the forty-eight monthly payments and,
even then, paid less than the designated amount when he made sixteen out
of those eighteen payments. Wife alleged further that she had repeatedly
contacted Husband regarding his failure to make the court-ordered
payments, which often resulted in Husband making renewed efforts to
meet his obligation.

¶4            Husband and Wife represented themselves at a subsequent
hearing on the petition. In response to questioning from the trial court, they
agreed that the “total of [the] past due obligation” was $29,673.26. At that
point, however, Husband orally moved to dismiss the petition, contending
the action was barred by a three-year statute of limitations (A.R.S. § 25-553)



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                            Opinion of the Court

governing enforcement of spousal maintenance orders. Wife responded
that she had “addressed” that issue in her petition, and the trial court took
the matter under advisement.

¶5           Several days later, the trial court entered a signed order
dismissing the petition to enforce spousal maintenance. The court
explained that the spousal maintenance obligation began in July 2003,
terminated in July 2007, and that Wife waited more than three years after
the order terminated to seek enforcement, in contravention of A.R.S. § 25-
553(A).

¶6             Through counsel, Wife filed a motion to amend the order or,
alternatively, for a new trial. With greater specificity, Wife argued that she
and Husband had “kept in contact over the years regarding the payment of
the spousal maintenance award,” Husband “made repeated promises to
make additional payments in the future,” and he had made continuous
monthly payments of differing amounts from January 2007 to February
2011. Wife also argued the court violated her right to procedural due
process by ruling on the oral motion to dismiss without providing her an
opportunity to file a written response. Finally, Wife argued that because
the decree did not expressly identify a specific date on which the spousal
maintenance order would end, it did not terminate until the obligation was
paid in full, and therefore A.R.S. § 25-553 did not bar her claim. The trial
court denied Wife’s motion to amend/motion for new trial and this timely
appeal followed.

                               DISCUSSION

       A.     Due Process

¶7            Wife contends the trial court violated her right to due process
by dismissing her petition without affording her an opportunity to respond,
in writing, to Husband’s oral motion to dismiss. The parties dispute
whether the court should have treated Husband’s motion as one for
summary judgment. See Ariz. R. Fam. L.P. (“Rule”) 32(B) (explaining that,
in the event matters outside the pleadings are presented to and not
excluded by the court, a motion to dismiss shall be treated as a motion for
summary judgment). Regardless of the label, it makes no difference here
because (1) in either case our review is de novo; (2) the only evidence in the
record was submitted by Wife; (3) for purposes of assessing Husband’s
motion, such evidence is undisputed; and (4) Wife has not identified any
other evidence she would have presented to the trial court in support of her
petition.



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                            Opinion of the Court

¶8             Given the unique procedural posture of Husband’s motion,
the trial court properly could have waited for the applicable response time
to run before issuing its ruling on the motion. But we do not agree with
Wife’s assertion on appeal that she was denied due process.

¶9            Responding to Husband’s motion at the hearing, Wife
informed the court she had anticipated and already “addressed”
Husband’s claim that her petition was barred by statute as untimely. Wife
identified the relevant section of her affidavit and informed the court she
had consulted with an attorney on that issue and had cited a superior court
ruling that purportedly held “there’s no[] statute of limitations on spousal
maintenance enforcement.” Given Wife’s representations to the court that
she had consulted counsel, conducted legal research, and addressed
Husband’s argument in writing, we cannot say the court abused its
discretion by ruling on the motion without waiting for a written response.

       B.     Application of A.R.S. § 25-553(A)

¶10            Wife contends the statutory deadline for enforcing a spousal
maintenance order established by A.R.S. § 25-553(A) has no application in
this case. Specifically, Wife argues the decree did not expressly identify
dates of commencement and termination, and the spousal maintenance
order therefore remains in effect until Husband pays $48,000 (and accruing
interest) in full.

¶11           “The interpretation of a statute is a question of law that we
review de novo.” Bonito Partners, L.L.C. v. City of Flagstaff, 229 Ariz. 75, 83,
¶ 30 (App. 2012). In interpreting a statute, we “look[] first to the statutory
language itself.” Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 383, ¶ 8
(2013). As set forth in A.R.S. § 25-553(A):

       The person to whom the spousal maintenance obligation is
       owed may file a request for judgment for spousal
       maintenance arrearages not later than three years after the
       date the spousal maintenance order terminates. In that
       proceeding there is no bar to establishing a money judgment
       for all of the unpaid spousal maintenance arrearages.

In this case, the decree ordered Husband to pay Wife spousal maintenance
“in the amount of One Thousand Dollars ($1,000.00) per month for a period
of four (4) years.” Contrary to Wife’s argument, absent express language
delaying the commencement of a spousal maintenance order, the obligation
to pay begins when the decree is entered. Thus, when the trial court issued
the decree in June 2003, the first monthly spousal maintenance payment


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                            Opinion of the Court

was due the following month. This interpretation is consistent with Wife’s
claim for monetary relief, as she is seeking interest on missed payments as
of July 2003.

¶12           Under the statute, a party owed spousal maintenance “may
file a request for judgment for spousal maintenance arrearages not later
than three years after the date the spousal maintenance order terminates.”
A.R.S. § 25-553(A). In this case, the spousal maintenance order terminated,
by operation of law, when the four-year period specified in the decree
ended. Thus, applying the plain language of A.R.S. § 25-553(A), Wife was
authorized to seek a judgment until July 2010, and after that, was
procedurally barred from pursuing such a remedy.

       C.     Extension by Agreement

¶13           Wife alternatively argues the parties entered an agreement
enforceable under Rule 69 that “extend[ed] the termination of the spousal
maintenance payments.”1 As evidence of this agreement, Wife cites email
exchanges in which she claims that “Husband [made] an unambiguous
agreement to make additional spousal maintenance payments.” Wife
asserts she “demonstrated her acceptance of the agreement by not filing an
enforcement action (prior to May 23, 2014).”

¶14           As provided by Rule 69(A)(1), an “agreement between the
parties shall be valid and binding if the agreement is in writing[.]” We
interpret procedural rules de novo. Aksamit v. Krahn, 224 Ariz. 68, 70, ¶ 8
(App. 2010).

¶15           Even assuming that the parties’ exchange of email satisfies the
“writing” requirement of Rule 69(A)(1), the record does not reflect the
parties reached any agreement extending the operative period of the
spousal maintenance order. An agreement is formed only when a
manifestation of mutual assent occurs “based on objective evidence, not the
hidden intent of the parties.” Hill-Shafer P’ship v. Chilson Family Trust, 165
Ariz. 469, 474 (1990). In 2011, Husband sent Wife an email apologizing for
not making payments, explaining he had been out of work, and stating “[a]s


1       Husband argues Wife waived any Rule 69 argument by failing to
raise it in the trial court. Although Wife failed to specifically reference Rule
69, she did advance the substance of the claim that the parties, through their
email exchanges, had agreed to extend the operative period of the spousal
maintenance order. We therefore address her appellate argument alleging
a valid Rule 69 agreement.

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                            Opinion of the Court

soon as I’m able, I will start paying again.” In 2012, Husband sent Wife an
email stating he would pay her $1,000 and explaining he obtained new
employment and expected to make payments “routinely” going forward.
In 2013, Husband sent Wife an email informing her he had sent her $500.
Later in 2013, Wife informed Husband she would consider the matter “paid
in full” if Husband paid her $20,000, but Husband responded that he had
“no assets.” Neither Husband nor Wife mentioned extending the operative
period of the spousal maintenance order or the time in which Wife could
pursue an enforcement action in any email communication. In February
2014, Wife emailed Husband that she would “file with the courts now” to
obtain the unpaid spousal maintenance payments. In July 2014, after Wife
filed the petition to enforce spousal maintenance, Husband emailed Wife a
“proposed” settlement offer of $7,200 to be paid over twelve months at $600
per month, but Wife never responded.

¶16           Based on this record, Husband did not agree to waive A.R.S.
§ 25-553(A) or otherwise extend the operation of the spousal maintenance
order.    Instead, the email exchanges demonstrate that Husband
acknowledged he failed to pay Wife as required and hoped he would be
able to do so in the future. Although settlement offers were made, they
were rejected expressly (in 2013) or impliedly (in 2014, when Wife
continued to pursue an enforcement order for an award far greater than
Husband’s $7,200 offer). Moreover, Wife does not argue, and the record
does not reflect, that Husband entered a contract with her to pay her any
amount that might be enforceable outside of the spousal maintenance
statutes. Thus, nothing in the record supports Wife’s claim that the parties
reached a Rule 69 agreement halting application of the three-year
limitations period prescribed by A.R.S. § 25-553(A).

       D.     Application of A.R.S. § 25-553(C)

¶17            Wife contends that because she disputes termination of the
spousal maintenance order, a summary judgment ruling based on the
application of A.R.S. § 25-553(A) was barred by § 25-553(C). When
construing a statute, “we examine its individual provisions in the context
of the entire statute to achieve a consistent interpretation” and strive to give
effect to each word or phrase of the statute. State v. Gaynor-Fonte, 211 Ariz.
516, 518, ¶ 13 (App. 2005) (citations omitted); Dowling v. Stapley, 218 Ariz.
80, 84, ¶ 8 (App. 2008). In addition, we interpret statutes to give them a fair
and sensible meaning and to avoid absurd results. Ariz. Dep’t of Revenue v.
Raby, 204 Ariz. 509, 511, ¶ 15 (App. 2003).




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                             Opinion of the Court

¶18           Pursuant to A.R.S. § 25-553(C), when “termination of the spousal
maintenance order is disputed, this section shall be liberally construed to effect
its intention of diminishing the limitation on the collection of spousal
maintenance arrearages.” (Emphasis added.) According to Wife, a claim
that a spousal maintenance order never terminated is sufficient to survive
a request for dismissal predicated on application of § 25-553(A)’s time bar.
Although the term “disputed” is neither defined nor qualified, § 25-553 as
a whole would be rendered absurd if an unsubstantiated claim that a
spousal maintenance order is still due and owing could thwart application
of § 25-553(A)’s procedural bar. Instead, construing subsection (C) in a
reasonable manner and consistent with subsection (A), the “dispute” must
be supported by competent evidence showing that the support obligation
did not terminate.

¶19           In this case, the language of the spousal maintenance order is
unambiguous. Husband’s obligation commenced at the time the consent
decree was entered and terminated, by operation of law, four years later.
Wife submitted her evidence of a Rule 69 agreement, and has not claimed,
either in the trial court or on appeal, that any additional evidence of an
agreement could be procured through discovery. Thus, the trial court had
all the relevant evidence before it and properly concluded that the parties
did not reach a Rule 69 agreement that would support Wife’s claim that the
spousal maintenance order never terminated. On this record, Wife has not
shown that § 25-553(C) prevented the trial court from dismissing Wife’s
petition based on § 25-553(A).

       E.      Policy Considerations

¶20            Wife argues “there is no reason to distinguish the collection
of spousal maintenance from child support, as long as the result can be
reconciled within the statutory framework.” Citing A.R.S. § 25-503(J),
which governs the collection of child support arrearages following the
termination of a child support order and places a burden on an obligor to
demonstrate that the obligee “unreasonably delay[ed] in attempting to
collect” arrearages before a statute of limitations will be imposed, Wife
asserts that a similar burden should be placed on the obligor of a spousal
maintenance order, through application of A.R.S. § 25-553(C).

¶21           In 2005, A.R.S. § 25-503(I) (later redesignated A.R.S. § 25-
503(J)) provided as follows:

       The department or its agent or a party entitled to receive
       support may file a request for judgment for support



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                            Opinion of the Court

       arrearages not later than three years after the emancipation of
       all of the children who were the subject of the court order. In
       such a proceeding there is no bar to establishing a money
       judgment for all of the unpaid child support arrearages for all
       of the children who were the subject of the court order.
       Notwithstanding any other law, formal written judgments for
       support and for associated costs and attorney fees are exempt
       from renewal and are enforceable until paid in full. If
       emancipation is disputed, this subsection shall be liberally
       construed to effect its intention of diminishing the limitation
       on the collection of child support arrearages.

Construing this statute, our supreme court concluded that the legislature
had made the “policy determination” that child support obligations “upon
which no request has been made for a written judgment within three years
of emancipation . . . should expire.” Ariz. Dep’t. of Econ. Sec. v. Hayden, 210
Ariz. 522, 526, ¶ 17 (2005). In reaching this conclusion, the court explained
that the “policy encourages a reasonably prompt accounting of the support
arrearage before relevant evidence becomes hard to obtain or unavailable.
It also serves as notice to the obligor and creditors of the obligor of the
amount of the outstanding debt.” Id. at 526-27, ¶ 17.

¶22           Soon after Hayden, the legislature substantively modified
A.R.S. § 25-503, removing the three-year limitation and placing a burden on
the obligor to prove unreasonable delay if the obligee seeks child support
arrearages more than ten years after emancipation of the youngest child.
2006 Ariz. Sess. Laws, ch. 209, § 1. Notwithstanding the extensive similarity
in language between the statutes governing spousal maintenance
arrearages and child support arrearages at that time, the legislature elected
not to similarly modify A.R.S. § 25-553.

¶23            The continuing three-year limitation on the collection of
spousal maintenance arrearages is consistent with the accounting and
notice factors recognized in Hayden, 210 Ariz. at 526-27, ¶ 17. Additionally,
allowing a protracted period for recovery of arrearages is contrary to the
policy underpinning spousal maintenance, namely, to encourage and assist
a spouse’s independence within a limited timeframe. See Schroeder v.
Schroeder, 161 Ariz. 316, 321 (1989) (explaining the purpose of spousal
maintenance “is to achieve independence for both parties and to require an
effort toward independence by the party requesting maintenance”);
Rainwater v. Rainwater, 177 Ariz. 500, 503-04 (App. 1993) (recognizing that
public policy favors limiting the duration of spousal maintenance to
encourage a “transition toward independence”). Moreover, nothing in


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                            Opinion of the Court

A.R.S. § 25-553(C) suggests an evidentiary burden on the obligor should be
read into the statute. See Collins v. Stockwell, 137 Ariz. 416, 420 (1983)
(“Courts will not read into a statute something that is not within the
manifest intent of the Legislature as gathered from the statute itself.”).2

                               CONCLUSION

¶24           Because Wife’s petition for enforcement of spousal
maintenance was filed after the three-year statute of limitation governing
such actions had expired, we affirm the trial court’s dismissal of her
petition. In the exercise of our discretion, we deny both parties’ requests
for attorneys’ fees under A.R.S. § 25-324.




                                  :ama




2       Wife also asserts the trial court erred by denying her motion for new
trial; however, because the issues she raised mirror those we have
addressed above, the court did not err in denying Wife’s motion. See Pullen
v. Pullen, 223 Ariz. 293, 296, ¶ 10 (App. 2009) (noting that a court errs if, in
reaching its decision, it applies an erroneous rule of law).

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