Waiver of Spousal Maintenance Arrearage in Arizona

It has long been Arizona law that spousal support payments cannot be retroactively modified by the Courts. However, a recent Arizona case demonstrates that there are limited circumstances in which past due arrearages may be waived by estoppel.

The recent case of Morrow v. Morrow, decided on June 19, 2018 (No. 1 CA-CV 17—658 FC), has established that spousal maintenance arrearages may be waved by certain actions of the obligee that constitute equitable estoppel and waiver.

In December of 2013, the Husband in Morrow was awarded spousal maintenance of $4,000 per month for an indefinite term as the Court found that Husband was unlikely to achieve financial independence (Husband had been unemployed for 12 years due to medical issues resulting from a car accident). Wife appealed the Superior Court decision on January 14, 2014. On January 29, 2014, Husband left Wife a voicemail stating that he was going to “hold off” on seeking to collect his spousal maintenance and claiming that he told his attorney to put the issue of spousal maintenance “on hold.” Based upon these statements from Husband, Wife abandoned her appeal, which was dismissed by the Court in March of 2014.

In June of 2016, the parties exchanged text messages in which Husband requested financial help from Wife. During this text message exchange, Husband mentioned “alimony” but never brought up any past due amounts or requested that Wife begin paying spousal maintenance. As a result of the text message exchange, Wife did agree to assist Husband with a single payment of $2,500.
Wife heard nothing more regarding spousal maintenance until March of 2017, when Husband filed a contempt petition stating that Wife had failed to pay spousal maintenance and requesting that Wife pay arrearages of $156,000. Wife responded to the petition, stating that Husband had failed to request a single payment since January of 2014. Wife also raised the defense of estoppel and waiver based upon Husband’s statements that he was putting spousal maintenance “on hold” which resulted in her abandoning her appeal – which she could no longer pursue. Wife further stated that Husband had been working since shortly after the final decree and she filed a cross-petition to modify spousal maintenance.

After a hearing, the Superior Court Judge determined that Wife was not in contempt. The Court found that Wife had established waiver and estoppel regarding the past due spousal maintenance arrearages and determined that Wife did not owe the $156,000 in past due support. The Court also modified Wife’s spousal maintenance from $4,000 per month to $0. Husband appealed the Superior Court decision.

The Court of Appeals upheld the decision of the Superior Court based upon the equitable principles of estoppel and waiver. The Court found that Husband’s voicemail putting spousal maintenance on hold, together with his failure to commence collection efforts for the past due spousal maintenance, despite being able to do so at any time, constituted clear and compelling evidence of a waiver of his spousal maintenance.

Husband also argued that the Superior court erred in finding that the principle of estoppel barred him from pursuing the past due spousal support. The Court of Appeals reviewed the requirements of estoppel and found that Husband’s actions and statements and the results thereof did estop Husband from now pursuing the past due arrearages. The Court found that Husband’s voicemail putting the spousal maintenance “on hold” had induced Wife into abandoning her appeal. As such, Wife’s reliance on Husband’s statements caused injury to Wife because she forever lost the ability to appeal and have a higher court review the spousal maintenance award. The Court also found that Wife’s reliance on Husband’s statements was justified, under the circumstance. The Court held that all these facts, taken together, established estoppel.

The Court of Appeals also upheld the Superior Court decision to modify Wife’s spousal maintenance to $0, given that Husband had been working since shortly after the final decree was signed and that he was earning enough to support his reasonable needs.
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Here is a link to the full Court of Appeals decision: Morrow v. Morrow