Jana Waldren v. George Waldren

SUPREME COURT OF ARIZONA
En Banc

In re the Marriage of: ) Arizona Supreme Court
) No. CV-07-0019-PR
JANA WALDREN, )
) Court of Appeals
Petitioner-Appellee, ) Division One
) No. 1 CA-CV 04-0466
and )
) Maricopa County
STATE OF ARIZONA ex rel. THE ) Superior Court
DEPARTMENT OF ECONOMIC SECURITY, ) No. DR1999-015441
)
Appellee, )
)
v. ) O P I N I O N
)
GEORGE WALDREN, )
)
Respondent-Appellant. )
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Cari A. Harrison, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
212 Ariz. 337, 131 P.3d 1067 (2006)

VACATED IN PART
________________________________________________________________

FRANKS & SHELDON, P.C. Phoenix
By Todd Franks
Paula G. Kirby

And

THE CAVANAGH LAW FIRM, P.A. Phoenix
By Philip C. Gerard
Helen R. Davis
Christopher Robbins
And

LAW OFFICES OF ROBERT JENSEN, P.L.C. Phoenix
By Robert A. Jensen
Attorneys for Jana Charisse Waldren

GILLESPIE, SHIELDS & ASSOCIATES, P.C. Phoenix
By DeeAn Gillespie
Mark A. Shields
Attorneys for George Waldren

BARRY L. BRODY, P.C. Phoenix
By Barry L. Brody
Attorneys for Amicus Curiae Arizona Chapter –
American Academy of Matrimonial Lawyers

STATE BAR OF ARIZONA Phoenix
By Robert B. Van Wyck, Chief Bar Counsel
Attorneys for Amicus Curiae State Bar of Arizona

________________________________________________________________

B E R C H, Vice Chief Justice

¶1 We have been asked to decide whether a statutorily

non-modifiable spousal maintenance provision in a decree of

dissolution of marriage is subject to termination under Arizona

Rule of Civil Procedure 60(c)(5). We hold that it is not.

I. FACTS AND PROCEDURAL HISTORY

¶2 In 1986, George Waldren (“Husband”) and Jana Larson

(“Wife”) married. Thirteen years and three children later, Wife

petitioned to dissolve the marriage. In February 2002, the

superior court ended the marriage by entering a twelve-page

decree, which included the parties’ settlement agreement. The

decree required Husband to pay child support, attorneys’ fees,

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and spousal maintenance. The seventh provision of the decree

set forth the maintenance agreement and purported to make the

spousal maintenance payments non-modifiable:

7. Spousal Maintenance. Husband shall pay Wife
spousal maintenance in the sum of $1,000.00 per month
for sixty (60) months, commencing March 1, 2002 and
continuing on the 1st day of each month thereafter.
Spousal maintenance shall terminate upon Wife’s death,
but shall not terminate upon Husband’s death or upon
Wife’s remarriage. In accordance with the parties’
agreement, spousal maintenance shall not be subject to
modification.

(Emphasis added.)

¶3 During the following months, Husband failed to fulfill

some of his obligations, and Husband and Wife returned to court

on several occasions. The Social Security Administration

declared that Husband had become disabled in 2003 and awarded

him $1,376 per month in disability benefits. In November 2003,

based in part on his disability, Husband moved under Rule 60(c)

to set aside provisions of the decree, alleging that his support

and maintenance obligations were excessive in light of his

reduced income. In May 2004, the superior court denied

Husband’s request to terminate the spousal maintenance award.1

¶4 The court of appeals vacated the superior court

1
In the superior court and court of appeals, Husband also
sought to modify the distribution of Social Security benefits to
his children. Waldren v. Waldren, 212 Ariz. 337, 342-43, ¶¶ 28-
30, 131 P.3d 1067, 1072-73 (App. 2006). That issue is not
before this court.

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judgment and found that Husband was entitled to an evidentiary

hearing under Rule 60(c)(5) to determine whether extraordinary

circumstances justified prospective relief from the spousal

maintenance provision. Waldren v. Waldren, 212 Ariz. 337, 343,

¶ 31, 131 P.3d 1067, 1073 (App. 2006). The court reasoned that

while Arizona Revised Statutes (“A.R.S.”) sections 25-317(G) and

25-319(C) (2007)2 protect non-modifiable spousal maintenance

orders from modification under ordinary circumstances, courts

may afford relief under Rule 60(c)(5) in extraordinary

circumstances. Waldren, 212 Ariz. at 342, ¶ 25, 131 P.3d at

1072. It concluded that A.R.S. §§ 25-317(G) and 25-319(C) do

not prevent courts from exercising equitable powers under Rule

60(c)(5). Id. ¶¶ 26-27.

¶5 We granted Wife’s petition for review because this

case presents an issue of statewide importance. See ARCAP

23(c)(3). We have jurisdiction pursuant to Article 6, Section

5(3), of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II. DISCUSSION

¶6 Whether the court may grant equitable relief from

purportedly non-modifiable spousal maintenance provisions

implicates two issues: first, whether A.R.S. §§ 25-317(G) and

2
This opinion cites the current version of A.R.S. §§ 25-317
and 25-319. Neither statute has been changed since this case
was filed in 2003.

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25-319(C) deprive the court of jurisdiction to modify or

terminate such spousal maintenance provisions; second, if so,

whether equitable relief may nonetheless be had under Rule

60(c)(5). Both inquiries present questions of law, which we

review de novo. See Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12,

69 P.3d 7, 11 (2003).

A. Jurisdiction to Modify or Terminate

¶7 Interpreting a statute requires us to “look to its

language as ‘the best and most reliable index of [the] statute’s

meaning.’” Roubos v. Miller, 214 Ariz. 416, 417, ¶ 7, 153 P.3d

1045, 1046 (2007) (quoting N. Valley Emergency Specialists,

L.L.C. v. Santana, 208 Ariz. 301, 303, ¶ 9, 93 P.3d 501, 503

(2004)). “We give words their ordinary meaning unless the

legislature clearly intended a different meaning.” Id. at 417-

18, ¶ 7, 153 P.3d at 1046-47 (citing Mail Boxes, etc., U.S.A. v.

Indus. Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995)).

¶8 In Arizona, dissolution of marriage proceedings are

creatures of statute, and jurisdiction to decide such cases is

conferred on the courts by the legislature. Weaver v. Weaver,

131 Ariz. 586, 587, 643 P.2d 499, 500 (1982). The dissolution

statutes require the filing of a petition and the entry of a

decree. A.R.S. §§ 25-311, -312 (2007). Unlike other types of

court orders, however, decrees of dissolution generally remain

subject to the court’s continuing jurisdiction to modify

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maintenance and support provisions. A.R.S. §§ 25-327, -319(D).

If the parties’ circumstances substantially change, courts

generally may modify or terminate support and maintenance

provisions accordingly. The legislature provided for changes in

support and maintenance orders in A.R.S. § 25-327(A), which

reads as follows:

Except as otherwise provided in § 25-317, subsections
F and G, the provisions of any decree respecting
maintenance or support may be modified or terminated
only on a showing of changed circumstances that are
substantial and continuing . . . .

¶9 An exception to this rule lies at the heart of this

case. The legislature has expressly provided that parties may

specifically agree to prospectively deprive courts of the

ability to modify spousal maintenance provisions of a decree,

even if substantial changes in circumstances occur. Section 25-

319(C) provides that “[i]f both parties agree, the maintenance

order and a decree of dissolution of marriage . . . may state

that its maintenance terms shall not be modified.” Such an

agreement “prevents the court from exercising jurisdiction to

modify the decree and the separation agreement regarding

maintenance.” A.R.S. § 25-317(G). These statutes demonstrate a

clear legislative directive that once a decree meeting the

statutory requirements has been entered, courts lack

jurisdiction to modify the decree regarding spousal maintenance.

A.R.S. §§ 25-319(C), -317(G).

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¶10 This case requires a straightforward application of

this statutory framework. In 2002, Husband and Wife entered

into a non-modifiable spousal maintenance agreement that is

contained in the twelve-page decree dissolving the parties’

marriage. Later, based on his disability and changed financial

circumstances, Husband sought to terminate the maintenance

provision of the decree requiring him to pay Wife $1000 per

month for five years. Husband’s request to terminate a

provision of the decree necessarily requires the court to modify

the decree itself. But, as A.R.S. § 25-317(D) and (G) make

clear, once the parties agree that a maintenance provision is

not modifiable and the superior court has found that the

maintenance provision is “not unfair,” courts may not “modify

the decree . . . regarding maintenance.”3

¶11 Husband argues that the legislature has stripped the

courts of jurisdiction only to modify, but not to terminate,

maintenance provisions. Husband bases his argument on the

language of A.R.S. § 25-317(G), which prevents courts from

modifying maintenance awards, but is silent regarding

termination of such agreements. The legislature knew the

difference between “modification” and “termination,” he

contends, because A.R.S. § 25-327(A) uses both terms.

3
We do not address whether fraud or duress in the making of
a non-modification agreement may render such a provision void.

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Therefore, he asserts, the legislature must have intended that

courts retain jurisdiction to terminate maintenance agreements,

but not to modify them. We disagree with Husband’s analysis.

¶12 Husband is correct that A.R.S. § 25-327(A) uses both

the terms “modified” and “terminated,” while A.R.S. § 25-317(G)

uses only “modified.” Husband contends that A.R.S. § 25-317(G)

would have to include the term “terminate,” in addition to

“modify,” to achieve the result Wife seeks. In other words,

Husband argues that, for Wife to prevail, A.R.S. § 25-317(G)

would have to read: a non-modification agreement “prevents the

court from exercising jurisdiction to modify or terminate the

decree and separation agreement regarding maintenance.”

¶13 A careful reading of the statutes, however, reveals

precisely what can be modified or terminated under each section.

Section 25-327(A) allows modification or termination of general

maintenance and support provisions of a decree, while section

25-317(G) prevents the court from exercising jurisdiction to

modify the decree itself regarding maintenance once a

maintenance provision has been made non-modifiable. Terminating

the maintenance provision has the same effect as modifying the

decree itself regarding maintenance. Such a modification,

however, is specifically prohibited by section 25-317(G)

(divesting courts of “jurisdiction to modify the decree . . .

regarding maintenance”). Thus, as written, A.R.S. § 25-317(G)

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harmonizes with A.R.S. § 25-327(A), and each serves its separate

purpose.

¶14 Husband’s interpretation also leads to the

counterintuitive notion that the legislature stripped courts of

jurisdiction to make simple modifications, yet allowed courts to

retain jurisdiction to provide the more drastic remedy of

termination. We do not believe the legislature intended such a

result. Enforcing the statutory provisions relating to non-

modification of maintenance provisions helps ensure finality,

certainty, and predictability in divorce settlements. See Unif.

Marriage & Divorce Act § 306 cmt. (1973); see also A.R.S. § 25-

317(A); Schroeder v. Schroeder, 161 Ariz. 316, 321-23, 778 P.2d

1212, 1217-19 (1989). Those policies would be thwarted if

statutorily non-modifiable maintenance provisions could later be

terminated because of changed circumstances.

¶15 The legislative history of the amendments to A.R.S.

§ 25-327(A) supports our conclusion. The term “terminate” was

added to A.R.S. § 25-327(A) in 2002 by Senate Bill 1028 (“S.B.

1028”), 2002 Ariz. Sess. Laws, ch. 310, § 2 (2d Reg. Sess.), six

years after the legislature enacted A.R.S. § 25-317(G). 1996

Ariz. Sess. Laws, ch. 145, § 7 (2d Reg. Sess.). Thus, for six

years, between 1996 and 2002, both A.R.S. §§ 25-317(G) and 25-

327(A) used only the term “modify.” The fact sheet for S.B.

1028 states that the 2002 amendment to section

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§ 25-327(A) altered the section for statutory consistency and to

conform the Arizona statute to federal statutes. S.B. 1028 Fact

Sheet. This history shows that the legislature did not deem the

addition of the word “termination” a substantive change; that

is, A.R.S. § 25-327 was viewed as including the power to modify

and terminate maintenance and support provisions both before and

after the amendment. See In re Marriage of Zale, 193 Ariz. 246,

251, ¶ 21, 972 P.3d 230, 235 (1999) (recognizing that

termination of a spousal maintenance award is permitted). The

parties also do not dispute that during those six years

“modification” was understood to include “termination.” We

therefore conclude that the 2002 clarifying amendment did not

change that understanding.

¶16 Husband next suggests that this court should follow

the court of appeals opinion in Diefenbach v. Holmberg, 200

Ariz. 415, 416-17, ¶¶ 4-5, 26 P.3d 1186, 1187-88 (App. 2001).

In Diefenbach, the parties signed a spousal maintenance

agreement requiring the husband to make payments that were “non-

modifiable in amount or duration for any reason by either

party.” Id. at 416, ¶ 2, 26 P.3d at 1187. The wife died before

the husband finished making payments. Id. ¶ 3. The court in

Diefenbach had to decide whether Diefenbach’s maintenance

payments should terminate or continue.

¶17 Diefenbach does not guide our inquiry because it

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addressed a unique provision in A.R.S. § 25-327(B), a provision

not at issue in this case. That section provides that “the

obligation to pay future maintenance is terminated on the death

of either party” unless the decree “expressly provide[s]” that

the obligation to pay future maintenance is to survive the death

of either party. Id. The decree in Diefenbach provided that

the maintenance obligation was “non-modifiable” as to “both

amount or duration.” 200 Ariz. at 416, ¶ 2, 26 P.3d at 1187.

It did not, however, expressly provide that the obligation to

pay maintenance would survive the death of either party. See

A.R.S. § 25-327(B). The court therefore concluded that the

obligation to pay “non-modifiable” maintenance did not survive

the death of the wife.4 We address a different provision in this

case.

¶18 Having concluded that A.R.S. § 25-317(G) removes

jurisdiction from our courts to modify or terminate a

statutorily non-modifiable spousal maintenance provision in a

decree of dissolution, we turn to our second inquiry, whether

Rule 60(c)(5) allows the court to provide equitable relief.

4
We disapprove of dictum in Diefenbach stating that while
courts lack jurisdiction under A.R.S. § 25-317(G) to modify
decrees regarding non-modifiable maintenance terms, they retain
jurisdiction to terminate such provisions. Diefenbach, 200
Ariz. at 418, ¶ 10, 26 P.3d at 1189.

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B. Rule 60(c)(5)

¶19 Husband argues that he is entitled to equitable relief

under Rule 60(c)(5). That rule provides relief from a “final

judgment, order or proceeding [if] it is no longer equitable

that the judgment should have prospective application.” Id.

Husband claims that despite any statute purporting to divest

jurisdiction to modify or terminate the maintenance provision,

the court nonetheless retains equitable power to grant relief by

terminating the maintenance provision at issue.

¶20 The Arizona legislature is charged with the

responsibility for enacting substantive law that “creates,

defines and regulates rights.” State v. Birmingham, 96 Ariz.

109, 110, 392 P.2d 775, 776 (1964). The Arizona Constitution,

however, grants this court the “[p]ower to make rules relative

to all procedural matters in any court.” Ariz. Const. art. 6,

§ 5(5). Rules promulgated by the court may address only

procedural matters. E.g., State v. Superior Court (Ahrens), 154

Ariz. 574, 576, 744 P.2d 675, 677 (1987). Court rules may not

“abridge, enlarge or modify substantive rights of a litigant.”

A.R.S. § 12-109(A) (2003).

¶21 For statutory dissolution actions, the legislature

“defines the boundaries of a dissolution court’s jurisdiction,

and the court may not exceed its jurisdiction even when

exercising its equitable powers.” Weaver, 131 Ariz. at 587, 643

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P.2d at 500. Thus, the court’s rules must yield to statutory

provisions on substantive matters such as the court’s subject

matter jurisdiction.

¶22 Like other court rules, Rule 60(c) affects procedural

matters. E.g., Ahrens, 154 Ariz. at 576, 744 P.2d at 677

(citing State v. Birmingham, 95 Ariz. 310, 316, 390 P.2d 103,

107 (1964)); see also In re Marriage of Worcester, 192 Ariz. 24,

27, ¶ 9, 960 P.2d 624, 627 (1998) (“Where the legislature has

spoken by statute, we will not construe [Rule 60(c)] so as to

interfere with the proper application of those statutes.”). The

legislature’s substantive divestiture of jurisdiction in this

area supersedes the court’s procedural rule. We therefore hold

that, once the statutory conditions making a maintenance

provision non-modifiable have been met, A.R.S. § 25-317(G)

removes jurisdiction from the courts to modify decrees regarding

spousal maintenance. Allowing 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. In such a situation, the rule must yield to the

substantive law.

¶23 Citing Fye v. Zigoures, 114 Ariz. 579, 562 P.2d 1077

(App. 1977), Husband claims that Arizona courts have allowed

equitable relief from non-modification agreements in the past

and should continue to do so. Although the court in Fye did

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permit relief under Rule 60(c)(5) from a non-modifiable

provision, it does not control the disposition of this case.

114 Ariz. at 581-82, 562 P.2d at 1079-80. Like Diefenbach, Fye

addressed the application of Rule 60(c)(5) in the context of

death, a situation not controlled by A.R.S. §§ 25-317 or 25-319,

but rather by a separate statutory provision in A.R.S. § 25-

327(B). More significantly, Fye was decided nineteen years

before the amendment of A.R.S. § 25-317 that deprives the courts

of jurisdiction to modify spousal maintenance provisions. Fye

does not control; instead, A.R.S. § 25-317(G) governs our

inquiry.

¶24 Husband alternatively argues that the legislature

overstepped its authority by enacting A.R.S. § 25-317(G) because

the restriction on the courts’ jurisdiction unconstitutionally

interferes with the courts’ inherent equitable powers.5 We

disagree. Dissolution actions are creatures of statute and

involve substantive rights. E.g., Worcester, 192 Ariz. at 27,

¶ 9, 960 P.2d at 627; Weaver, 131 Ariz. at 587, 643 P.2d at 500.

In this context, the legislature has the power to circumscribe

the courts’ jurisdiction.

¶25 We hold that courts may not grant relief under Rule

5
Husband admits that this issue was raised for the first
time on appeal, but urges the court to exercise its discretion
to consider the constitutional issue.

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60(c)(5) from spousal maintenance agreements made non-modifiable

pursuant to A.R.S. §§ 25-319(C) and 25-317(G).

III. ATTORNEYS’ FEES

¶26 We deny Husband’s request for attorneys’ fees under

A.R.S. § 25-324 (2007) and Rule 21(c) of the Arizona Rules of

Civil Appellate Procedure.

IV. CONCLUSION

¶27 For the foregoing reasons, we hold that spousal

maintenance agreements made non-modifiable pursuant to A.R.S. §§

25-319(C) and 25–317(G) are not subject to modification or

termination, nor is relief from such provisions available under

Rule 60(c)(5). Accordingly, we vacate paragraphs seventeen to

twenty-seven of the opinion of the court of appeals and affirm

the judgment of the trial court.

_______________________________________
Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

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_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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