VA Disability Payments Used to Pay Alimony in Arizona
In the case of Dougall v. Dougall, the Arizona Court of Appeals addressed an appeal by Mr. Dougall of the trial court’s denial of his motion for reconsideration challenging an order pertaining to payment of spousal maintenance arrearages to Mrs. Dougall.
Husband argued that Arizona Revised Statute 25-530 prevents the court from considering Veterans Administration (VA) disability benefits as income when calculating and determining the payment of a spousal maintenance arrearage.
The marriage between the two parties involved was dissolved in 2008. The Decree required the husband to pay wife $750 per month in spousal maintenance.
Mr. Dougall was ordered by the court to obtain appraisals of two parcels of property owned by the parties and, further, to pay Mrs. Dougall a fair share of the equity in the parcels. In 2011, the court entered two judgments against the husband for failing to comply with the court’s final orders set forth in the Decree of Dissolution of marriage.
Specifically, the court granted Mrs. Dougall a $5,000 judgment for her interest in one of the parcels of property. The second judgment for $4,745 represented spousal maintenance arrearages. The court also reduced husband’s spousal maintenance obligation to $500 per month effective August 2011.
In August 2012, wife filed a petition to enforce the two judgments against Mr. Dougall alleging he had made no effort to pay the judgments issued against him. Husband responded by filing a memorandum seeking credit toward the two judgments for debts he paid on wife’s behalf, a loan he gave her, and a vehicle he gave her.
After a hearing, the trial court held Mr. Dougall in contempt (December 11, 2012) and concluded he could purge the contempt charge by paying the awarded $500 per month in spousal maintenance and an additional $200 per month paid towards the spousal maintenance arrearages until that obligation is paid in full.
The Court Can Consider Disability Pay Used to Pay Past Due Alimony in Arizona
A separate income withholding order directed at husband’s VA disability benefits was issued by the trial court for him to pay Mrs. Dougall an additional $200 per month. The court denied husband’s request for offsets. Mr. Dougall filed a combined a motion for a new trial, a motion for the court to reconsider its ruling, and a motion for the court to “stay” its orders on January 4, 2013. The court held a hearing on the motions and denied the motions by a minute entry order entered on February 8, 2013.
The court did modify the arrearages order at Mr. Dougall’s request reducing the monthly payment amount from $200 per month to $100 per month for the first three months then increasing the monthly payment amount to $220 per month for fifteen months and then reinstating the original $200 per month arrearage payment.
Mr. Dougall challenged the trial court’s orders (December 11, 2012, and February 8, 2013) by filing a Notice of Appeal contending the Arizona Court of Appeals had jurisdiction, pursuant to Arizona Revised Statute Section 12-120.21 and 12-2101.
The Arizona Court of Appeals exercised its independent duty to review whether it had jurisdiction to consider Mr. Dougall’s appeal. A Notice of Appeal must be filed within thirty days of the entry of the order or judgment from which the appeal is taken. The Arizona Court of Appeals had no jurisdiction over the December 11, 2012, order as the Notice of Appeal was filed well beyond the time allotted.
While husband’s motions for new trial and motion to amend or alter the judgment are “time-extending” motions in relation to the mandatory time limit for filing a notice of appeal, those motions must be filed no later than fifteen days after the entry of the judgments and orders which those motions address.
When those time extending motions are untimely filed, they do not extend the time to file a Notice of Appeal. Thus the Arizona Court of Appeals did not have jurisdiction to consider the husband’s appeal directly challenging the December 11th order. The Arizona Court of Appeals did have jurisdiction to address the appeal of the February 8th order.
Court Cannot Consider VA Disability Pay in Calculating Alimony in Arizona
The modification of spousal maintenance ordered by the court in 2011 did not take into consideration Mr. Dougall’s VA disability benefits. Arizona state law prohibits the court from considering service related VA disability benefits when determining the amount of spousal maintenance to be ordered.
The trial judge, however, did consider husband’s total income (including VA disability benefits) when addressing wife’s petition to enforce spousal maintenance. Mr. Dougall was ordered to pay $200 per month in addition to the $500 per month spousal maintenance currently in place until he had paid the entire spousal maintenance arrearage.
In determining the $200 per month payment amount, the court considered testimony regarding husband’s total income, including his disability benefits, to conclude he had $3,400 in income after paying the court ordered $500 per month spousal maintenance payment.
The Arizona Court of Appeals concluded the trial judge did not make a determination regarding whether to award spousal maintenance the amount of the alimony award. Those determinations had already been made and were, in fact, affirmed by the court on appeal.
The proceedings under review arose from husband’s failure to pay spousal maintenance arrearages that were previously awarded. Thus, the Arizona Court of Appeals found that Arizona Revised Statute Section 25-530 does not prevent a court from considering VA disability benefits when determining the ability of the person to pay an additional amount towards spousal maintenance arrearages.
The trial court also entered an income withholding orders directed at Mr. Dougall’s VA disability benefits directing the VA to withhold $200 per month to be applied towards his spousal maintenance arrearage. The trial court order also provided that the husband would be responsible for paying the additional $200.00 arrearage payment if the VA refused to honor the income withholding order.
The VA refused to withhold any monies from husband’s VA disability payments as ordered. The Arizona Court of Appeals vacated the income withholding order directed at husband’s VA disability benefits.
The Arizona Court of Appeals concluded Mr. Dougall could use any portion of his income, including his VA disability payments, to pay the additional monthly payment for spousal maintenance arrearages without violating Arizona Revised Statute Section 25-530.
The Arizona Court of Appeals decided to dismiss in part, affirm in part and vacate in part the trial court’s rulings. The Arizona Court of Appeals determined that the trial court did not err when considering Mr. Dougall’s VA disability benefits in relation to his ability to pay his spousal maintenance arrearages.
The Arizona Court of Appeals affirmed the spousal maintenance award, the division of property and debts, as well as the modification of spousal maintenance. Husband’s appeal challenging the December 11, 2012, order was dismissed. The income withholding order directed at the husband’s VA disability benefits was vacated. All other trial court orders were affirmed.
Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.