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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Jana Waldren v. George Waldren
Combined Opinion