Arizona Court of Appeals Division One Holds that Rule 60(c)(5) Relief May be Available With Respect to Spousal Maintenance Obligation Designated as Non-Modifiable.

Mother filed for divorce from Father in 1999, and a divorce trial was held in 2002. In the course of the trial, the parties announced a settlement agreement, and a decree was entered that included a non-modifiable spousal maintenance obligation. The decree also found Father to be in contempt for his failure to pay pendente lite child support and spousal maintenance and provided that Father would be immediately incarcerated upon the filing by Mother of an affidavit advising the court that Father had failed to purge the contempt. Father subsequently was determined to be disabled. Father filed a motion under Rule 60(c), asking the court to set aside the portions of the decree allowing him to be found in contempt based solely on Mother’s affidavit, and arguing that under Rule 60(c)(5), because he was permanently disabled, the spousal maintenance obligations should be set aside. Father also sought a further hearing on the issue of allocating the couple’s children’s Social Security benefits to each parent in proportion to their parenting time. The court set aside the provision regarding contempt but did not set aside the spousal maintenance or grant a further hearing. Father appealed. Division One first noted that in refusing to modify the maintenance obligation, the trial court had relied on A.R.S. 25-319(C), which provides that a divorce decree may be made non-modifiable. The decree in question stated that the spousal maintenance terms “shall not be subject to modification,” and the trial court concluded that Rule 60(c)(5) relief was foreclosed by this language. The Court of Appeals disagreed, noting that the Rule applies to authorize relief from judgments having “prospective application,” such as a spousal maintenance obligation, and is designed to allow relief to be granted in extraordinary circumstances. The Court determined that the case should be remanded to give the trial court the opportunity to determine whether such circumstances were present and justified relief. The Court found no error in the trial court’s refusal to grant a further hearing regarding the children’s Social Security benefits.

The opinion was authored by Judge Gemmill and joined by Judges Norris and Lankford.