                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   RHONDA S. CERNY, Petitioner/Appellee,

                                         v.

                   CRAIG J. CERNY, Respondent/Appellant.

                            No. 1 CA-CV 18-0065 FC
                                 FILED 12-20-2018


            Appeal from the Superior Court in Maricopa County
                           No. FN2013-003197
                   The Honorable Dewain D. Fox, Judge

                                   AFFIRMED


                                    COUNSEL

Van Wickler Law, PLLC, Scottsdale
By Tracey Van Wickler
Co-Counsel for Petitioner/Appellee

Mied Law Group, PC, Scottsdale
By Amber L. Mied
Co-Counsel for Petitioner/Appellee

Duenas Eden, PLC, Phoenix
By Dorian L. Eden
Counsel for Respondent/Appellant
                            CERNY v. CERNY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Michael J. Brown and Judge James B. Morse Jr. joined.


B E E N E, Judge:

¶1            Craig Cerny (“Husband”) appeals the superior court’s
dismissal of his petition to terminate a non-modifiable spousal maintenance
award. For the reasons stated below, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Husband and Rhonda Cerny (“Wife”) executed a Property
Settlement Agreement and a Consent Decree of Dissolution of Marriage,
signed and entered by the superior court on October 10, 2014. Both the
agreement and the decree stated that Husband was to pay a non-modifiable
spousal maintenance of $8,000 per month for the period of 90 months
commencing on September 1, 2014. This obligation was to “terminate upon
the earliest of the following events: Wife’s death; or Wife’s remarriage; or
Date of last payment anticipated to occur in February, 2022, if all payments
are timely made.”

¶3          On July 17, 2015, nine months after their divorce, Wife shot
Husband in the chest. She pled guilty to Aggravated Assault, a Class 3
dangerous domestic violence felony, and was sentenced to a term of
imprisonment for a period of five years to commence on February 13, 2017.

¶4             Husband had been paying the agreed-upon spousal
maintenance payments but stopped in September 2016. Wife filed a
Verified Petition for Order to Show Cause Re: Contempt of Court for
Failure to Pay Spousal Maintenance on August 8, 2017 (“Petition to
Collect”). Husband filed a response to the Petition to Collect, but also filed
his own Petition to Terminate Spousal Maintenance on October 9, 2017
(“Petition to Terminate”). Wife then filed a Motion to Dismiss the Petition
to Terminate, which the superior court granted “without prejudice to
Former Husband raising any equitable defenses he has in response to
Former Wife’s Petition to [Collect].”

¶5         Husband timely appealed the dismissal of his Petition to
Terminate. We have jurisdiction pursuant to Article 6, Section 9, of the


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                             CERNY v. CERNY
                            Decision of the Court

Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶6            Husband argues the superior court erred by failing to
terminate the non-modifiable spousal maintenance because Wife should
not be entitled to the award after she attempted to kill him.

¶7              “In Arizona, dissolution of marriage proceedings are
creatures of statute, and jurisdiction to decide such cases is conferred on the
courts by the legislature.” In re Marriage of Waldren, 217 Ariz. 173, 175, ¶ 8
(2007); see also A.R.S. § 25-317. The legislature expressly enabled the parties
to agree to a spousal maintenance obligation that is not modifiable by the
court. See A.R.S. § 25-317(A), (G), -319(C). Section “25-317(G) removes
jurisdiction from our courts to modify or terminate a statutorily
non-modifiable spousal maintenance provision in a decree of dissolution.”
Waldren, 217 Ariz. at 177, ¶ 18 (emphasis added). The court may not exceed
the jurisdiction defined by the legislature “even when exercising its
equitable powers.” Id. at ¶¶ 21, 19 (finding a non-modifiable spousal
maintenance provision in a decree could not be terminated by application
of Ariz. R. Civ. P. 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”) (brackets in original); cf. McNeil v. Hoskyns,
236 Ariz. 173, 177, ¶ 16 (App. 2014) (holding the superior court retains
jurisdiction to modify a decree awarding a non-modifiable spousal
maintenance “when the decree is the product of a fraud on the court”).

¶8              Because subject matter jurisdiction is a question of law to be
decided by the superior court, In re Marriage of Crawford, 180 Ariz. 324, 326
(App. 1994), we review the superior court’s determination de novo, Waldren,
217 Ariz. at 175, ¶ 6. Once a court determines it lacks subject matter
jurisdiction, it has no authority to address the merits of a case. Washburn v.
Pima County, 206 Ariz. 571, 575, ¶ 7 (App. 2003).

¶9            In their decree of dissolution, Husband and Wife agreed that
Husband’s spousal maintenance obligation would not be modifiable by the
court and in this proceeding neither party argued the decree was the
product of a fraud on the court. We thus conclude that the superior court
correctly dismissed Husband’s Petition to Terminate because the parties’
agreement satisfied the statutory requirements of § 25-317(G). See Waldren,
217 Ariz. at 175, 177, ¶¶ 6, 18.




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                             CERNY v. CERNY
                            Decision of the Court

¶10            The superior court, however, retains jurisdiction to assess one
spouse’s equitable defenses to the other spouse’s efforts to collect the
non-modifiable spousal maintenance. See Coburn v. Rhodig, 243 Ariz. 24, 26,
¶ 10 (App. 2017) (“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 a
spouse can establish an equitable defense “by clear and compelling
evidence, the court need only deny [the other spouse’s] petition to enforce.”
Id.; cf. Waldren, 217 Ariz. at 177, ¶¶ 18, 21 (holding superior court has no
jurisdiction to grant a petition for termination of a non-modifiable spousal
maintenance). An evidentiary hearing, however, must be conducted to
determine the validity of a party’s equitable defense. See Coburn, 243 Ariz.
at 27, ¶ 15. Any proceeding regarding Wife’s Petition to Collect that
occurred after Husband sought appellate review of the court’s dismissal of
his Petition to Terminate is not properly before this Court and will not be
considered.

¶11            On appeal, both parties request we award them reasonable
attorneys’ fees pursuant to A.R.S. § 25-324, arguing the other’s position on
appeal was unreasonable. In our discretion, we decline to award attorneys’
fees to either party. Upon compliance with the Arizona Rules of Appellate
Procedure 21, we award taxable costs to Wife because she is the prevailing
party.

                               CONCLUSION

¶12           For the foregoing reasons, we affirm the superior court’s
dismissal of Husband’s Petition to Terminate non-modifiable spousal
maintenance, but emphasize that this decision does not preclude Husband
from asserting the same facts and arguments in his defense to Wife’s
Petition to Collect.




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




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