Change in Circumstances to Modify Alimony in Arizona
In the unpublished Arizona Court of Appeals case of Costa v. Costa, Nanci J. Costa, Wife appealed the trial court’s order granting Husband a modification of spousal maintenance. In Arizona, a modification of spousal maintenance may only be granted when a substantial and continuing change of circumstances is shown. On appeal, the Court of Appeals had to determine whether or not Husband met the burden of proof validating the trial court’s modification.
A Background on the Case: Costa v. Costa
The parties were married in 1983 and Wife petitioned for dissolution of the parties marriage in July 2013. Wife requested spousal maintenance of $200 per month for life. Husband did not respond and the court entered a default decree of dissolution of marriage, including the requested spousal maintenance. That divorce decree was entered in October 2013. Husband filed for a modification in July 2014 stating that he had experienced a significant, substantial and continuing change of circumstance and that qualified him to terminate the spousal maintenance obligation. Husband stated that at the time the divorce decree was issued, he was employed part-time, but that he was now unable to maintain employment due to his health.
He claimed he only had Social Security Disability Benefits as his only source of income. Husband testified at the evidentiary hearing that in the past eighteen month period he worked part-time at a retail store, but quit due to health problems. Specifically, he claimed his emphysema prevented him from completing required tasks at work. When the decree was entered, Husband was earning $750 per month from his part-time employment in addition to the $1,550 per month he received in Social Security Disability Benefits. Husband did acknowledge that his health condition had not changed since the time the divorce decree was entered but argued his financial situation changed significantly.
Wife testified that the spousal maintenance enables her to meet her monthly expenses. Wife’s income was $1,489 per month. She testified she was not aware of Husband’s employment at the time of the original decree and that evidence of such was not presented. The trial court found that the situation did represent a substantial and continuing change in circumstances and that it was appropriate to decrease Husband’s monthly spousal maintenance obligation to $42.85 per month.
Arguing that the Trial Court Erred in Finding Voluntary Termination of Employment Justified Reduction of Obligation
Wife argued on appeal that the trial court erred when it found Husband’s voluntary termination of employment justified a reduction of the spousal maintenance obligation in accordance with A.R.S. Section 25-327(A). Changed circumstances alleged as the basis for a modification of support obligation must be proved in comparison to the circumstances that existed at the time of the original order. Wife argued on appeal that the trial court should have compared Husband’s current financial circumstances to the circumstances that were considered by the court at the time the decree was entered.
The doctrine of res judicata prevents a party who failed to participate in divorce proceedings and did not appeal the award of spousal maintenance in a default decree from being granted a modification based on facts that could have been raised at the hearing. Yet the doctrine of res judicata does not prevent a party from introducing evidence of circumstances that existed at the time of the dissolution in order to show that a change in circumstances has occurred since the divorce.
Husband did establish through the presentation of evidence that he was employed at the time of the original divorce decree, but he did not establish that the court was aware of his employment at that time or that awareness of his part-time employment would have impacted the award of spousal maintenance. There is no reasonable argument that can be made that the court would have decreased the amount of the spousal maintenance award had the court been aware of the additional income.
Judging from the record, the court approved the spousal maintenance award based solely on Husband’s disability income, which would mean his loss of part-time work that the court was unaware he had in the first place, does not constitute a change at all. The Arizona Court of Appeals of Arizona, therefore, reversed the trial court’s order to modify spousal maintenance. The appeals court also denied both parties requests for attorneys’ fees on appeal.