In Re Marriage of Dougall

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

IN RE THE MARRIAGE OF:

RICHARD S. DOUGALL,
Petitioner/Appellant,

AND

MYRNA R. DOUGALL,
Respondent/Appellee.

No. 2 CA-CV 2013-0056
Filed December 18, 2013

Appeal from the Superior Court in Pima County
No. D20074351
The Honorable Dean Christoffel, Judge Pro Tempore

DISMISSED IN PART; AFFIRMED IN PART;
VACATED IN PART

COUNSEL

David Lipartito, Tucson
Counsel for Petitioner/Appellant

OPINION

Presiding Judge Vásquez authored the decision of the Court, in
which Chief Judge Howard and Judge Miller concurred.

V Á S Q U E Z, Presiding Judge:
 DOUGALL V. DOUGALL
Opinion of the Court

¶1 In this domestic-relations case, appellant Richard
Dougall appeals from the trial court’s post-dissolution-decree order
for the payment of spousal maintenance arrearages to appellee
Myrna Dougall and the denial of his subsequent motion for
reconsideration challenging that order. The issue presented here is
whether A.R.S. § 25-530 precludes a trial court from considering
Veterans Administration (VA) disability benefits as income in
determining the payment of arrearages on an award of spousal
maintenance. We hold a court may consider such benefits in making
that determination. For the reasons stated below, we dismiss in
part, affirm in part, and vacate in part.1

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to
sustaining the trial court’s rulings. See In re Marriage of Yuro, 192
Ariz. 568, ¶ 3, 968 P.2d 1053, 1055 (App. 1998). The parties’ marriage
was dissolved in 2008. The dissolution decree ordered Richard to
pay Myrna $750 per month in spousal maintenance. The court also
awarded each of the parties one-half interest in two parcels of real
property and ordered that Richard obtain appraisals of the
properties and pay Myrna her share of the equity. On appeal, this
court affirmed the spousal maintenance award and the division of
community property and debts. In re Marriage of Dougall, No. 2 CA–
CV 2009–0058 (memorandum decision filed Feb. 10, 2010).

¶3 In 2011, the trial court entered two judgments against
Richard for his failure to fulfill his obligations under the decree of
dissolution. The first judgment for $5,000 represented the value of
Myrna’s interest in one of the properties. The second judgment was
for $4,745 in spousal maintenance arrearages. Effective August 2011,
the court also reduced Richard’s spousal maintenance obligation to
$500 per month. This court affirmed the spousal maintenance

1Myrna has not filed an answering brief in this court.
Although we may consider her failure to do so an admission of
error, in our discretion, we decline to do so. See In re Marriage of
Diezsi, 201 Ariz. 524, ¶ 2, 38 P.3d 1189, 1190 (App. 2002).

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Opinion of the Court

modification. In re Marriage of Dougall, No. 2 CA–CV 2011–0182
(memorandum decision filed May 17, 2012).

¶4 In August 2012, Myrna filed petitions to enforce the two
judgments, claiming Richard “ha[d] made no efforts to pay.” In
response, Richard filed a memorandum seeking credits against the
judgments for debts he had paid on behalf of Myrna and for a loan
and vehicle he had given to her. After a hearing, the trial court
entered its minute entry order on December 11, 2012, finding
Richard in contempt but concluding he could purge himself of the
contempt by paying, in addition to the $500 per month in current
spousal maintenance, $200 per month toward the judgment for
arrearages until paid in full.2 The court entered a separate income-
withholding order of $200 per month directed at Richard’s VA
disability benefits and also denied his requests for offsets.

¶5 On January 4, 2013, Richard filed a combined “motion
for new trial/motion to reconsider/motion for stay.” After a
hearing, the court denied the motion by minute entry order entered
February 8, 2013. However, at Richard’s request, the court modified
its arrearages order by reducing the $200 payment to $100 per
month for three months, then increasing it to $220 per month for
fifteen months, and reinstating the $200 amount thereafter. This
appeal followed.

Discussion

I. Appellate Jurisdiction

¶6 According to his notice of appeal, Richard is
challenging the trial court’s December 11, 2012 and February 8, 2013
orders. Although Richard contends we have jurisdiction pursuant
to A.R.S. §§ 12-120.21 and 12-2101, we have an independent duty to
review our jurisdiction and, if lacking, to dismiss the appeal. See In
re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 6, 289 P.3d 946, 948

2Although the trial court’s December 11, 2012 minute entry
order referred to the $5,000 judgment and the court refused to give
Richard any credits against it, the court did not enter any orders
relating to that judgment.

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Opinion of the Court

(App. 2012). “We have no authority to entertain an appeal over
which we do not have jurisdiction.” In re Marriage of Johnson &
Gravino, 231 Ariz. 228, ¶ 5, 293 P.3d 504, 506 (App. 2012).

¶7 Generally, a notice of appeal must be filed no later than
thirty days after entry of the judgment or order from which the
appeal is taken. Ariz. R. Civ. App. P. 9(a); Wilkinson v. Fabry, 177
Ariz. 506, 506, 869 P.2d 182, 182 (App. 1992). “[T]he timely filing of
a notice of appeal is a jurisdictional prerequisite to appellate
review.” In re Marriage of Gray, 144 Ariz. 89, 90, 695 P.2d 1127, 1128
(1985). However, Rule 9(b), Ariz. R. Civ. App. P., provides an
extension of time for filing a notice of appeal when certain motions
are “timely filed” with the trial court. These time-extending motions
include a motion for a new trial pursuant to Rule 83(A), Ariz. R.
Fam. Law P., and a motion to alter or amend the judgment pursuant
to Rule 84, Ariz. R. Fam. Law P. See Ariz. R. Civ. App. P. 9(b)(3), (4).
Such motions must be filed not later than fifteen days after entry of
the judgment. Ariz. R. Fam. Law P. 83(D)(1), 84. And when they are
not timely filed, a trial court does not have jurisdiction to address
them, see Mark Lighting Fixture Co. v. Gen. Elec. Supply Co., 155 Ariz.
27, 32, 745 P.2d 85, 90 (1987), and they do not extend the time for an
appeal, see Edwards v. Young, 107 Ariz. 283, 285, 486 P.2d 181, 183
(1971).

¶8 Here, Richard filed his notice of appeal from both the
December 11 and February 8 orders on March 4, 2013. Thus, his
notice of appeal as to the December 11 order was filed well beyond
the thirty-day requirement of Rule 9(a), Ariz. R. Civ. App. P.3

3The December 11 order also included a finding that Richard
was in contempt of court. “[C]ontempt orders are unappealable
unless the substance or effect of the order in question—beyond
including a ‘finding[] of contempt,’—qualifies the order as one of
those made appealable pursuant to § 12-2101.” Green v. Lisa Frank,
Inc., 221 Ariz. 138, ¶ 21, 211 P.3d 16, 26 (App. 2009), quoting State v.
Mulligan, 126 Ariz. 210, 216, 613 P.2d 1266, 1272 (1980). Therefore,
even assuming the December 11 order was appealable because it
went beyond a finding of contempt, we nevertheless lack

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Opinion of the Court

Richard’s motion for a new trial constitutes a time-extending motion
under Rule 9(b), Ariz. R. Civ. App. P., because he requested a new
trial and “reconsideration, alteration, and/or amendment” pursuant
to Rules 83 and 84, Ariz. R. Fam. Law P. However, the motion was
not timely filed because it was filed more than fifteen days after
entry of the December 11 order. See Ariz. R. Fam. Law P. 83(D)(1),
84. We thus do not have jurisdiction to consider Richard’s appeal
directly challenging the December 11 order.4 See Edwards, 107 Ariz.
at 285, 486 P.2d at 183.

¶9 However, Richard also appeals from the trial court’s
February 8 order denying his “motion for a new trial/motion for
reconsideration/motion for stay,” pursuant to Rule 85(C), Ariz. R.
Fam. Law P. The denial of a Rule 85(C) motion is appealable as a
“special order made after final judgment.” A.R.S. § 12-2101(A)(2);
see M & M Auto Storage Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz.
139, 141, 791 P.2d 665, 667 (App. 1990) (discussing comparable
Rule 60(c), Ariz. R. Civ. P.);5 In re Marriage of Dorman & Cabrera, 198
Ariz. 298, ¶ 3, 9 P.3d 329, 331 (App. 2000). And, to the extent the
motion was based on Rule 85(C), it was timely filed. See Ariz. R.
Fam. Law P. 85(C)(2); see also Duckstein v. Wolf, 230 Ariz. 227, ¶ 9, 282
P.3d 428, 432 (App. 2012). We thus have jurisdiction to address the
court’s denial of Richard’s Rule 85(C) motion.

jurisdiction over Richard’s appeal from this order for the reasons
stated above.
4We therefore do not address Richard’s claims directly
challenging the December 11 order, including his argument that the
trial court erred by not offsetting the judgments with payments he
made to or on behalf of Myrna. See Goglia v. Bodnar, 156 Ariz. 12, 16,
749 P.2d 921, 925 (App. 1987) (review restricted to questions raised
in Rule 60(c), Ariz. R. Civ. P., motion).
5“Wherever the language in [the Arizona Rules of Family Law
Procedure] is substantially the same as the language in other
statewide rules, the case law interpreting that language will apply to
these rules.” Ariz. R. Fam. Law P. 1 cmt. Compare Ariz. R. Fam. Law
P. 85(C), with Ariz. R. Civ. P. 60(c).

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Opinion of the Court

II. Denial of Rule 85(C) Motion

A. Trial Court Did Not Exceed Jurisdiction

¶10 When the trial court modified Richard’s spousal
maintenance obligation in 2011, it stated that pursuant to § 25-530 it
did not consider Richard’s VA disability benefits. But at the
December 2012 hearing on Myrna’s petition for enforcement of
spousal maintenance, the court did consider those benefits when it
ordered Richard to pay an additional $200 per month toward
spousal maintenance arrearages. The court based its December 11,
2012 order on testimony that Richard’s total income was $3,918 per
month, including $1,245 in social security and $2,673 in VA
disability benefits. In setting the $200 amount, the court noted that,
after paying the $500 spousal maintenance obligation, Richard
“continues to have $3,400 of income available to him.”

¶11 Pursuant to Rule 85(C)(1)(d), Richard argues the trial
court’s December 11 “order is void, outside the [c]ourt’s jurisdiction,
and must be vacated.”6 He contends that, pursuant to 38 U.S.C.
§ 5301, the court had no authority to require him to pay spousal
maintenance arrearages, directly or indirectly, from his VA disability
benefits. Citing § 25-530 and Downing v. Downing, 228 Ariz. 298, 265
P.3d 1097 (App. 2011), he further maintains the court could not even
consider those benefits when determining the amount of the
monthly arrearages payment. We review the denial of a Rule 85(C)
motion for relief from judgment for an abuse of discretion. Fry v.
Garcia, 213 Ariz. 70, ¶ 7, 138 P.3d 1197, 1199 (App. 2006). An abuse
of discretion occurs when a trial court commits an error of law in
exercising its discretion. Fuentes v. Fuentes, 209 Ariz. 51, ¶ 23, 97
P.3d 876, 881 (App. 2004).

¶12 Although Rule 85(C)(1)(d) provides an avenue for
challenging a void judgment, we disagree with the underlying

6On
appeal, Richard does not expressly cite Rule 85(C) as a
basis for his argument. However, he did so below, and we
understand his argument on appeal to be substantially the same; we
thus address it accordingly.

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Opinion of the Court

premise of Richard’s argument—that a trial court exceeds its
jurisdiction and thus renders a void judgment by considering VA
disability benefits in violation of § 25-530. The word “void” often is
misused, Auman v. Auman, 134 Ariz. 40, 42, 653 P.2d 688, 690 (1982),
as is the word “jurisdiction,” Marvin Johnson, P.C. v. Myers, 184 Ariz.
98, 101, 907 P.2d 67, 70 (1995). “A judgment or order is ‘void’ if the
court entering it lacked jurisdiction: (1) over the subject matter, (2)
over the person involved, or (3) to render the particular judgment or
order entered.” Martin v. Martin, 182 Ariz. 11, 15, 893 P.2d 11, 15
(App. 1994). “If a judgment or order is void, the trial court has no
discretion but to vacate it.” Id. at 14, 893 P.2d at 14. By contrast, a
judgment or order is voidable “when the trial court has subject
matter jurisdiction but errs in issuing an order.” State v. Bryant, 219
Ariz. 514, ¶ 14, 200 P.3d 1011, 1015 (App. 2008). A voidable
judgment or order has “all the ordinary attributes of a valid
judgment [or order] until it is reversed or vacated.” State v. Cramer,
192 Ariz. 150, ¶ 16, 962 P.2d 224, 227 (App. 1998).

¶13 Here, the trial court had subject matter jurisdiction to
decide issues involving spousal maintenance, including arrearages.
See A.R.S. § 25-552(A). And even if, as Richard argues, the court
violated § 25-530 by considering his VA disability benefits, such an
error “fall[s] short of undermining jurisdiction so as to render that
[order] void and subject to vacation” under Rule 85(C)(1)(d).
Cockerham v. Zikratch, 127 Ariz. 230, 235, 619 P.2d 739, 744 (1980). In
any event, for the reasons that follow, we find no such statutory
violation here.7

B. Federal Law and Consideration of VA Disability Benefits

¶14 In relevant part, 38 U.S.C. § 5301(a)(1), dealing with
veteran benefits, provides:

7“Because we conclude that the issue presented here,
involving the interpretation of [§ 25-530], is an issue of law and a
matter of statewide importance, we exercise our discretion to
address the merits of [Richard’s] claim.” Searchtoppers.com, L.L.C. v.
TrustCash LLC, 231 Ariz. 236, ¶ 8, 293 P.3d 512, 514 (App. 2012).

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Opinion of the Court

Payments of benefits due or to become due
under any law administered by the
Secretary shall not be assignable except to
the extent specifically authorized by law,
and such payments made to, or on account
of, a beneficiary shall be exempt from
taxation, shall be exempt from the claim of
creditors, and shall not be liable to
attachment, levy, or seizure by or under
any legal or equitable process whatever,
either before or after receipt by the
beneficiary.

¶15 In Rose v. Rose, 481 U.S. 619, 621-22 (1987), the Supreme
Court addressed the scope of the federal statute in considering
whether a Tennessee state court had jurisdiction to hold a veteran in
contempt for nonpayment of child support when the veteran’s only
means of satisfying the obligation was chapter 38 service-connected
disability benefits. The veteran argued that various federal laws,
including 38 U.S.C. § 5301(a)(1),8 evinced a Congressional intent to
preempt state statutes that give state courts jurisdiction over
veterans’ disability benefits. Rose, 481 U.S. at 625, 630. According to
the Court, 38 U.S.C. § 5301 has “two purposes: [1] to ‘avoid the
possibility of the Veterans’ Administration . . . being placed in the
position of a collection agency,’” and [2] “to ‘prevent the deprivation
and depletion of the means of subsistence of veterans dependent
upon these benefits as the main source of their income.’” Rose, 481
U.S. at 630, quoting S. Rep. No. 94-1243, at 147-48 (1976). The Court
determined that neither of these purposes was “constrained by
allowing the state court . . . to hold [the veteran] in contempt for
failing to pay child support.” Id. Specifically, the Court noted that
veteran disability benefits “are intended to ‘provide reasonable and
adequate compensation for disabled veterans and their families.’” Id.,
quoting S. Rep. No. 98–604, at 24 (1984) (emphasis in Rose). The
Court thus concluded that 38 U.S.C. § 5301(a)(1) “does not extend to

8Congress renumbered 38 U.S.C. § 3101 to 38 U.S.C. § 5301.
Department of Veterans Affairs Health-Care Personnel Act of 1991,
Pub. L. No. 102-40, 105 Stat. 187.

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protect a veteran’s disability benefits from seizure where the veteran
invokes that provision to avoid an otherwise valid order of child
support.”9 Rose, 481 U.S. at 634.

¶16 The Court also rejected the veteran’s argument based on
other federal laws and affirmed the contempt finding. Id. at 636. In
doing so, the Court stated that, even though a veteran’s disability
benefits may be “exempt from garnishment or attachment while in
the hands of the Administrator, we are not persuaded that once
these funds are delivered to the veteran a state court cannot require
that veteran to use them to satisfy an order of child support.” Id. at
635.

¶17 After Rose, state courts generally have concluded that,
although 38 U.S.C. § 5301(a)(1) “would preclude an assignment or
apportionment of [a] veteran[’s] disability benefits, it does not
preclude consideration of disability benefits by a trial court as a
source of income upon which an award of alimony may be based.”10
Repash v. Repash, 528 A.2d 744, 745 (Vt. 1987); see also Urbaniak v.
Urbaniak, 807 N.W.2d 621, ¶¶ 18, 20 (S.D. 2011); Zickerfoose v.
Zickerfoose, 724 S.E.2d 312, 317-18 (W. Va. 2012). This court has

9We are unpersuaded by Richard’s argument that Rose is
limited to child support and “does not extend to spousal
maintenance.” As noted above, Rose discusses “family support
obligations” generally; the Court did not expressly limit its analysis
to child support. 481 U.S. at 632. And other state courts have
extended Rose’s reasoning to spousal maintenance. See In re
Marriage of Anderson, 522 N.W.2d 99, 102 (Iowa Ct. App. 1994) (“It is
clear veteran’s benefits are not solely for the benefit of the veteran,
but for his family as well.”). Richard’s reliance on Mansell v. Mansell,
490 U.S. 581 (1989), also is unavailing. There the Court confirmed
that federal law precludes division of VA disability benefits as
community property, it said nothing about considering those
benefits in the context of spousal maintenance. Id. at 594-95.
10In 1997, Congress provided for garnishment of service-
connected disability benefits for child support and alimony
obligations if the veteran waived a portion of his or her military
retired pay to obtain the benefits. See 42 U.S.C. § 659(h)(1)(A)(ii)(V).

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reached the same conclusion. Cf. In re Marriage of Priessman, 228
Ariz. 336, 340, 266 P.3d 362, 366 (App. 2011) (affirming trial court’s
consideration of such benefits in modifying spousal maintenance).
However, in July 2010, the Arizona legislature enacted § 25-530,
which provides: “In determining whether to award spousal
maintenance or the amount of any award of spousal maintenance,
the court shall not consider any federal disability benefits awarded
to the other spouse for service-connected disabilities pursuant to 38
United States Code chapter 11.”

C. Applicability of § 25-530 to Arrearages

¶18 We therefore turn to whether § 25-530 precludes a trial
court from considering VA disability benefits in ordering the
payment of arrearages on a spousal maintenance award. Because
this issue requires us to interpret § 25-530, our review is de novo.
See Danielson v. Evans, 201 Ariz. 401, ¶ 13, 36 P.3d 749, 754 (App.
2001). Our primary goal in interpreting statutes is to determine and
give effect to the legislature’s intent. Simpson v. Simpson, 224 Ariz.
224, ¶ 6, 229 P.3d 236, 237 (App. 2010). “The best indicator of
legislative intent is the plain language of the statute,” id., and “we
will give terms ‘their ordinary meanings, unless the legislature has
provided a specific definition or the context of the statute indicates a
term carries a special meaning.’” Kessen v. Stewart, 195 Ariz. 488,
¶ 6, 990 P.2d 689, 692 (App. 1999), quoting Wells Fargo Credit Corp. v.
Tolliver, 183 Ariz. 343, 345, 903 P.2d 1101, 1103 (App. 1995). When
the language of a statute is clear and unambiguous, we apply its
plain meaning without resorting to other methods of statutory
interpretation. Merrill v. Merrill, 230 Ariz. 369, ¶ 27, 284 P.3d 880,
887 (App. 2012).

¶19 According to the plain language of the statute, § 25-530
applies when a court is determining “whether to award spousal
maintenance” or “the amount of any award of spousal
maintenance.” In Downing, this court held the statute also applies to
a modification of spousal maintenance. 228 Ariz. 298, ¶¶ 6, 12, 265
P.3d at 1099, 1100. But here, the trial court was not making a
determination “whether to award spousal maintenance” or “the
amount of any award.” Indeed those determinations already had
been made and, as noted above, were affirmed by this court on

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appeal.11 Nor was the trial court modifying the amount of spousal
maintenance. Rather, the current proceedings arose from Richard’s
failure to pay arrearages on spousal maintenance previously
awarded. See A.R.S. § 25-500(1) (defining “[a]rrearage” as “the total
unpaid support owed”). Thus, we conclude that § 25-530 does not
preclude a trial court from considering VA disability benefits in
determining the payment of arrearages on an award of spousal
maintenance. The trial court therefore did not err by considering
Richard’s VA disability benefits in determining his ability to pay the
arrearages.

¶20 Richard nonetheless argues that the “prohibition [under
§ 25-530] logically extends to an arrears payment order.” He reasons
that § 25-530 coupled with A.R.S. § 25-318.01 “evince a public policy
to protect the benefits of disabled veterans from having these
benefits taken to satisfy property division or spousal maintenance
orders.”12 But, “absent a clear indication of legislative intent to the
contrary, we are reluctant to construe the words of a statute to mean
something other than what they plainly state.” Canon Sch. Dist. No.
50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994);
see also City of Tempe v. Fleming, 168 Ariz. 454, 457, 815 P.2d 1, 4
(App. 1991) (“[W]e will not read into a statute something which is
not within the manifest intent of the legislature as indicated by the
statute itself.”). And, we decline to do so here. Section 25-318.01
applies to the division of property and thus does not apply in this
case.

11Section 25-530 became effective in July 2010, before the initial
spousal maintenance award in this case. However, because we
conclude the statute does not apply to a trial court’s determination
of arrearages, the effective date is not determinative of the issue
presented here.
12Section25-318.01 provides, in part: “In making a disposition
of property pursuant to section 25-318 or 25-327, a court shall not . . .
[c]onsider any federal disability benefits awarded to a veteran for
service-connected disabilities pursuant to 38 United States Code
chapter 11.” The legislature enacted § 25-318.01 at the same time as
§ 25-530. 2010 Ariz. Sess. Laws, ch. 70, §§ 2-3.

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¶21 Lastly, we address Richard’s contention that the trial
court erred by entering an income-withholding order against his VA
disability benefits. The court’s order directed the VA to withhold
$200 per month from Richard’s disability benefits, but further stated,
“[i]n the event that the Veteran’s Administration does not honor the
income withholding order[,] it shall be [Richard]’s responsibility to
pay.” At the February 5 hearing, the court noted “the VA will not
withhold any of [Richard]’s funds for spousal maintenance arrears”
and then ordered Richard to make the payments directly. Although
the court indicated it was not enforcing it, we vacate the income-
withholding order directed at Richard’s VA disability benefits. See
also 38 U.S.C. § 5301(a)(1); Danielson, 201 Ariz. 401, ¶ 33, 36 P.3d at
758. Notably, the court ordered Richard “to make . . . the
payments,” without specifying the source of the funds. After the
$500 spousal maintenance garnishment, Richard receives $740 in
social security, in addition to the $2,673 in VA disability benefits. He
could use any portion of those funds to pay $200 per month toward
the judgment for arrearages. See Danielson, 201 Ariz. 401, ¶ 19, 36
P.3d at 755; Merrill, 230 Ariz. 369, ¶ 29, 284 P.3d at 887.

Conclusion

¶22 For the reasons stated above, we dismiss Richard’s
appeal directly challenging the trial court’s December 11, 2012 order,
vacate the income-withholding order directed at Richard’s VA
disability benefits, but otherwise affirm the trial court’s orders.

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