Effect of Concurrent Disability and Retirement Pay on Alimony in Arizona
The Arizona Court of Appeals addressed the issue of the effect of “CDRP” pay on alimony in Arizona. If you are ordered to pay spousal support, you can move to modify the amount if you show changed circumstances, like the loss of a job or a significant change in earnings. Some types of income cannot be considered by the court in determining appropriate spousal support, including military disability pay awarded under 38 United States Code chapter 11.
In the recent case of In re Marriage of Priessman 266 P.3d 362 (Ariz. Ct. App. 2011), the Arizona Court of Appeals discussed whether the law also prohibited a divorce court from considering military disability pay awarded under other provisions of federal law.
Kurt and Chong Priessman met and married in Korea in 1979 and divorced in 2005. The divorce court awarded Chong $1,750.00 a month spousal support, to continue indefinitely. This award was based Kurt’s income of $6,966 per month and Chong’s income of $800 per month. Over time, Kurt quit his job and fell behind on his payments.
In 2006, Kurt filed two motions to modify spousal support based on the change of circumstances. The court found that the change in circumstances – loss of employment — was initiated by Kurt himself. Therefore, it denied the motion.
In 2010, he filed a third motion seeking a reduction in spousal support and back support, which amounted to over $63.000. He claimed that both the Department of Veterans Affairs and the Social Security Administration made findings that he was unemployable and that the findings were retroactive to 2006 and 2007.
The court reduced Chong’s support to $1,000 going forward but refused to reduce the back spousal support amount. This appeal followed. Divorce Court Properly Considered Kurt’s CRDP Income When the divorce court made its ruling, it considered Kurt’s Social Security disability income, his retirement income, and his income under Concurrent Retirement and Disability Pay or “CRDP,” awarded under 10 United States Code § 1413a.
Kurt argues that the court could not consider CRDP income for spousal support purposes because of Arizona law § 25–530. That law prohibits Arizona trial courts from considering certain military disability benefits: those awarded under title 38 United States Code chapter 11. Kurt’s CRDP was based on his military disability, but it was not awarded under title 38, but rather title 10.
Therefore, the Arizona law did not apply to it. The Court of Appeal declined to consider the legislative history of the Arizona law since it was perfectly clear and specific about what type of disability pay a trial court could not consider. Therefore, it ruled that the Priessman judge was permitted to consider Kurt’s CRDP pay.
Back Spousal-Support Amounts Cannot Be Modified Kurt’s second argument was the judge should have reduced the amount of back spousal support he owed because the federal ruling on his inability to work was back-dated to 2006.
However, the Arizona law permitting motions to modify states that any support provisions in a divorce decree can be modified “except as to any amount that may have accrued as an arrearage before the date of the notice of the motion … to modify or terminate.” Since the back support, in this case, had already accrued, the later court modification could not alter the sum due.