Modifying Non Modifiable Alimony in Arizona

Questions have arisen regarding modifying non modifiable alimony in Arizona. In Arizona, courts award alimony – also called spousal support in Arizona – when one spouse earns considerably more than the other. Generally, the superior court has authority to change the amount of alimony if the circumstances of one of the spouses change after the divorce.

However, if the spouses agree in writing that the alimony cannot be altered, the court cannot change the support amount regardless of changes of circumstances. In the case of McNeil v. Hoskyns, 236 Ariz. 173, 337 P.3d 46 (App. 2014) the Arizona Court of Appeals discussed what happens when a divorcing couple has entered into this type of agreement, but it is later discovered that one of the spouses lied to or deceived the court.

Nancy S. McNeil and Robert Hoskyns were a married couple who decided to divorce. They agreed in writing that Robert would pay Nancy $5,000 per month in temporary support while the divorce was pending, and then $5000 per month for six years after the divorce as spousal support. The agreement also stated that the spousal support amount could not be modified or terminated by the court.

Robert was a dentist, and, through a mix-up in his office, Nancy was sent two checks for $5,000 each month for 17 months without his noticing the overpayment. Nancy noticed it but she said nothing either to Robert or the court.

Just before the divorce judgment was entered, the court questioned the two spouses about the spousal support payments, and both agreed that Robert owed $2500 in back temporary support. At that time, he had actually overpaid Nancy by $85,000, but she did not mention this and the court signed the judgment, incorporating the couple’s agreement that the spousal support payments could not be modified.

After the divorce, Nancy received several more double payments. Then Robert missed several months of payments and Nancy asked the court to enforce the agreement. The court entered an order that Robert owed $59,000 in back support.

At this point, Robert learned of the over payments and asked the court to reopen the question of how much support was owed. The court ruled that Nancy had committed fraud on the court. It vacated its order that Robert owed back support, terminated spousal support and ordered Nancy to pay $5,000 in sanctions and also pay Robert’s attorney fees.

Nancy appealed, arguing that the court could not reopen the decree awarding her alimony because of the couple’s agreement that the spousal support amount could not be modified or terminated.


Modifying a Non-Modifiable Alimony Award | Fraud Voids Agreement and Court Order

The Court of Appeals noted that a court is generally bound by a couple’s agreement that a spousal support/alimony award cannot be the modified. However, it ruled that where one of the parties has committed a fraud on the court, the agreement is voided.

Fraud on the court happens when one party to a lawsuit prevents the other party from having his claims fairly heard and decided. When a party obtains a judgment by concealing important facts and suppressing the truth, the court can set aside a judgment. The party’s fraud damages the integrity of the judicial process and is a wrong against the institutions set up to protect and safeguard the public.

Given this, the Court of Appeals ruled that a superior court has authority to modify a spousal support decree — even if there is a signed agreement that it cannot be modified — when it results from a fraud on the court.

The appellate court agreed with the divorce court that Nancy had an obligation to mention David’s overpayment when the court asked about the status of temporary support. Her failure to reveal the overpayment, the Court of Appeals said, was fraud on the court.

By failing to disclose that she had received thousands of dollars in double payments drawn from David’s account, Nancy prevented a fair ruling on the amount David should be ordered to pay in spousal support after the divorce.

Nancy argued that only an officer of the court – like an attorney – could commit fraud on the court, but the Court of Appeals rejected this position. It ruled that a person representing herself could also commit fraud on the court.

Nancy also argued that David could have discovered the overpayment himself. The Court of Appeals noted that David’s lack of diligence might be relevant to a common-law fraud case between Nancy and David. However, it was not relevant to a case of fraud on the court, where the goal is the preservation of the integrity of the judicial process.


Parties Are Subject to Sanctions for False Statements in Court Papers

Nancy objected to the court’s order that she pay $5,000 in sanctions for the misrepresentations and concealments in her post-decree filings. Although those direct misrepresentations do not constitute fraud, false statements under oath may subject that party to sanctions. Therefore, the Court of Appeals ruled, the superior court acted appropriately in imposing penalties, including the $5,000 sanction and David’s attorney’s fees.