Howitt v. Wrinkle

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Marriage of:

SCOTT E. HOWITT, Petitioner/Appellant,

v.

PAMELA A. WRINKLE, Respondent/Appellee.

No. 1 CA-CV 17-0760 FC
FILED 10-18-2018

Appeal from the Superior Court in Maricopa County
No. FN2012-091539
The Honorable Theodore Campagnolo, Judge

REVERSED AND REMANDED

COUNSEL

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Erica L. Gadberry
Counsel for Petitioner/Appellant

Pamela A. Wrinkle, Phoenix
Respondent/Appellee

HOWITT v. WRINKLE
Decision of the Court

MEMORANDUM DECISION

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

M O R S E, Judge:

¶1 Scott Howitt ("Husband") appeals from the family court's
order denying his petition to modify his spousal maintenance obligation to
Pamela Wrinkle ("Wife"). For the following reasons, we reverse and
remand for proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶2 The parties were married in 1984. They were divorced in 2012
by a consent decree, which they filled out using a form provided by the
Maricopa County Superior Court.1 As relevant on appeal, the court ordered
Husband to pay spousal maintenance of $1,100 per month for 15 years.2 At
section 10 of the findings the decree provides:

If spousal maintenance is to be awarded, the parties further
agree:
Spousal maintenance awarded shall be modified in
accordance with Arizona law, OR
X The parties acknowledge that the circumstances of
their futures are unknown, but each desires that this
maintenance award, so awarded by their agreement, not be
modified in the future for any reason. Therefore, it is at this
time ordered that this spousal maintenance award shall NOT
be modifiable for any reason.

Further down the same page, though, section 4 of the orders provides:

1 The parties were ordered to appear at an early resolution conference
at 1:30 p.m. on August 23, 2012. The (signed) decree was entered by the
clerk at 3:36 p.m. that same day.

2 The parties further agreed that spousal maintenance would increase
to $1,700 per month "upon the [sale] of the house."

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HOWITT v. WRINKLE
Decision of the Court

In accordance with the parties' agreements,
X The spousal maintenance award shall be modifiable in
accordance with Arizona law, OR
The spousal maintenance award shall NOT be
modifiable for any reason.

¶3 In 2017, Husband filed a petition to modify the spousal
maintenance award, alleging changed circumstances based on a recent
cancer diagnosis.3 See Ariz. Rev. Stat. ("A.R.S.") § 25-327(A). Wife objected,
arguing that the spousal maintenance award was non-modifiable per the
decree. The family court agreed with Wife and rejected the petition.

¶4 Husband moved for reconsideration, contending that the
court orders in the decree specify that the maintenance award is modifiable,
or at the very least, the decree presented a "contradiction of sorts" regarding
modifiability that "should allow for considerable review."4 Again, Wife
objected, asserting (among other things):

It is my understanding that the divorce decree was never
intended to be modifiable. I believe that [it] is stated in the
earlier part of the document. A possible mistake was made
later in the document that wasn't caught by anyone present at
the time including [Husband]. I believe he is now using this
as a reason to not honor our mutually agreed upon
arrangement.

The family court denied the motion, reasoning as follows:

In order to harmonize and effectuate the Decree, Section 4
Orders that the spousal maintenance award is either
modifiable or non-modifiable according to the agreement of
the parties. Section 10 of the Findings clearly shows that the
parties agreed that the spousal maintenance award was non-

3 The form-based petition stated: "You cannot ask for a change in
spousal maintenance/support if you signed an agreement that says that
spousal maintenance/support cannot be changed or modified." (Emphasis
in original.)

4 Ultimately, the family court considered the motion as one filed
pursuant to Arizona Rules of Family Law Procedure 83, 84, and 85. In the
context of this case, however, the characterization of Husband's post-ruling
motion is a distinction without a difference.

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HOWITT v. WRINKLE
Decision of the Court

modifiable. Any other interpretation would require the
introduction of parol or extrinsic evidence to change the terms
of the Decree.

¶5 Husband timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(2).

DISCUSSION

¶6 We review de novo questions of law, including those
involving interpretation of a decree or statute. Cohen v. Frey, 215 Ariz. 62,
66, ¶ 10 (App. 2007); In re Marriage of Waldren, 217 Ariz. 173, 175, ¶ 6 (2007).

¶7 As Husband points out, a spousal maintenance award is
presumed to be modifiable (upon a showing of changed circumstances that
are substantial and continuing) unless the parties specifically agree
otherwise. A.R.S. §§ 25-319(C), -327(A); Schroeder v. Schroeder, 161 Ariz. 316,
323 (1989); Waldren, 217 Ariz. at 175, ¶ 9. At issue here is whether the decree
evinces such an agreement. See Waldren, 217 Ariz. at 175, ¶ 9 (discussing
A.R.S. §§ 25-319(C) and -317(G)). The decree—which delineates the spousal
maintenance award as both modifiable and non-modifiable—is ambiguous.
See Cohen, 215 Ariz. at 66, ¶ 11 (a decree is ambiguous if it "can reasonably
be construed to have more than one meaning") (quoting In re Estate of
Lamparella, 210 Ariz. 246, 250, ¶ 21 (App. 2005)); see also In re Marriage of
Johnson & Gravino, 231 Ariz. 228, 233, ¶¶ 16-17 (App. 2012). We agree with
Husband that this ambiguity cannot be resolved without (impermissibly)
considering extrinsic evidence of intent. Cf. In re Marriage of Zale, 193 Ariz.
246, 249-50, ¶¶ 10-15 (1999) (noting that it was error to consider parol
evidence to resolve a dispute about the duration of an award of spousal
maintenance).

¶8 Attempting to "harmonize" the conflicting sections, the family
court held that section 10 of the findings took precedence over section 4 of
the order because "Section 10 of the Findings clearly shows that the parties
agreed and that the spousal maintenance award was non-modifiable."
However, the opposite could also be said—that section 4 of the order
"clearly shows" that the parties agreed that the spousal maintenance award
was to be modifiable. The two sections are diametrically opposed and cannot
be read in harmony with one another. A court may not assign a meaning
to one provision that would render another meaningless. See Cohen, 215
Ariz. at 66, ¶ 12. We cannot say, looking within the four corners of the
Decree, which section controls, or, said differently, which "X" is in the
"right" place.

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HOWITT v. WRINKLE
Decision of the Court

¶9 It appears that there was a clerical error in the drafting of the
document. Before a court can determine whether the maintenance award
is modifiable or non-modifiable, this error must first be corrected. A family
court can correct a clerical error—i.e., "to show what the court actually
decided but did not correctly represent in the written judgment"—at any
time. Egan-Ryan Mech. Co. v. Cardon Meadows Dev. Corp., 169 Ariz. 161, 166
(App. 1990) (interpreting Ariz. R. Civ. P. 60(a)); Ariz. R. Fam. L. P. 85(A). In
correcting a clerical error, the family court should look outside the decree
to other documents in the record. Vincent v. Shanovich, 243 Ariz. 269, 271,
¶ 8 (2017). We therefore remand to the family court to correct the apparent
clerical error in the decree. If the court determines that the award is
modifiable, it should consider the merits of Husband's petition to modify.
To be clear, the party seeking modification bears the burden of proving
changed circumstances by comparison with the circumstances existing at
dissolution, Scott v. Scott, 121 Ariz. 492, 494 (1979); Richards v. Richards, 137
Ariz. 225, 226 (App. 1983), and the question whether circumstances have
changed lies with the family court, Schroeder, 161 Ariz. at 323.

¶10 That said, we note that Wife referred to the issue of arrearages
below and in her answering brief. Spousal maintenance payments that
accrued before Husband filed his petition to modify were vested when due
and are not subject to modification. See In re Marriage of Priessman, 228 Ariz.
336, 340, ¶ 13 (App. 2011) (discussing § 25-327(A)). A spousal maintenance
obligation may be enforced by a contempt proceeding. Danielson v. Evans, 201 Ariz. 401, 411, ¶ 37 (App. 2001); see generally Ariz. R. Fam. Law P. 92.

CONCLUSION

¶11 For the foregoing reasons, we reverse and remand for
proceedings consistent with this decision. In our discretion, we deny
Husband's request for attorneys' fees on appeal. See A.R.S. § 25-324(A). We
award costs to Husband upon compliance with Arizona Rule of Civil
Appellate Procedure 21.

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

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