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Effect of Merger on Modification of Alimony in Arizona | Voted “Best of the Valley”

Posted on : January 13, 2016, By:  Christopher Hildebrand
Modification of Alimony and Merger

Effect of Merger on Modification of Alimony in Arizona

Effect of Merger on Modification of Alimony in Arizona.

Effect of Merger on Modification of Alimony in Arizona.

In Arizona, the decision of the court regarding modification of spousal maintenance is based upon Arizona Revised Statute Section 25-327(A) (2007) which requires that modification be dependent upon changed circumstances. For modification or termination of spousal support to be warranted it is also necessary that the circumstances be proven by comparison to the situation as in place at the time of dissolution. An issue was raised with the Arizona Court of Appeals regarding the effect of a merger on modification of alimony in Arizona. In MacMillan v. Schwartz, Gail E. MacMillan (“Wife”) filed an appeal after the trial court ordered a modification of spousal maintenance. She contended that the court erred in finding that her earnings triggered the modification clause of the original spousal maintenance agreement and in the determination of the actual modified award due from William C. Schwartz (“Husband”). The two parties were divorced in March of 2005 by a consent decree with a property settlement agreement (PSA) incorporated into the decree.

The PSA included this clause: “Husband shall pay spousal maintenance to Wife in the amount of $6,666.67 per month directly to Wife for a period of eight (8) years commencing April 1, 2005.” In May of 2009, Husband filed for a modification in spousal support, citing that the Wife was living with her fiancé, decreasing her expenses and that she was purposefully delaying marrying him in order to continue receiving the spousal maintenance. The Wife’s fiancé moved out the house within the month.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

In December of 2009, Wife filed for a modification of spousal support, citing that Husband’s income had increased by 30%, that he was not contributing to the care/support of their 23-year-old son (who lives with the Wife and is completely dependent upon her for financial support), Wife’s illnesses could worsen decreasing her chances to earn a living, and that Wife’s age, employment history, and experience affected her earning ability negatively. She requested an increase in spousal maintenance from the original amount to $10,000/month and to extend the duration for an additional ten years.

After several attempts to settle on the Husband’s part, Wife refused to accept Husband’s proposed settlement unless her request for access to internal documentation of the Husband’s company was provided. She refused to sign a confidentiality agreement regarding the requested access to company documents, so the two parties ended up in court.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Google User
Google User
14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
A Google User
17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

Modification of Alimony and Merger

Modification and Merger in Arizona.

Modification and Merger in Arizona.

After deliberating regarding the circumstances, the trial court decided to decrease the amount of spousal maintenance to $4,250 due to increased earnings on the part of the Wife. She appealed. Incorporation vs. Merger of Property Settlement Agreement (PSA) with Decree: The basis for the Arizona Court of Appeals’ decision to affirm the decision made by the trial court to decrease spousal maintenance was based on the fact that the PSA was incorporated into the decree; not merged. If the PSA had been merged it would have become part of the decree making spousal maintenance modifiable only upon changed circumstances. Incorporation of the agreement into the decree has a different purpose. In this type of situation, the agreement will retain the independent status granted by the incorporation, leaving it subject to rights and limitations as pertaining to contract law. The contractual intent of the two parties must be determined.

The Arizona Court of Appeals Affirmed the Trial Court’s Decision to Decrease Spousal Maintenance: Once the text of the agreement was considered as well as changed circumstances on the part of both parties, it is clear that the intent behind the original spousal maintenance amount was based on the belief that Wife’s earning capacity was minimal. As the Wife was receiving income amounting to approximately $60,000/year at the time of the filing, the appeals court found that the trial court did not err in their decision to modify spousal maintenance, in their calculations resulting in the revised award, in their acceptance of the Husband’s assertion that he did not want (or feel it necessary) to support their adult son, in executing a protective order for company documents requested by Wife and on Husband’s behalf, or in awarding partial attorney’s fees to Husband based on unreasonable positions held by wife that forced litigation.

Call us at (480)305-8300 to schedule your personalized consultation with one of our experienced Phoenix and Scottsdale Arizona alimony attorneys.



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