Snow v. Snow

FIDEL, Judge,

dissenting:

Our domestic relations statutes give the trial court power after marital dissolution to modify the amount and duration of spousal maintenance to meet changed circumstances of the parties. A.R.S. §§ 25-327(A), 25-317(F). Does the trial court relinquish or retain this power when, in the decree of dissolution, it awards a period of spousal maintenance, but says nothing about the susceptibility of that award to future modification? Divisions One and Two of the court of appeals give contradictory answers to this question, much to the confusion of domestic relations practice in this state. We treat silence as relinquishment, Lindsay v. Lindsay, 115 Ariz. 322, 565 P.2d 199 (1977); Division Two treats it as retention, Raley v. Wilber, 122 Ariz. 336, 594 P.2d 1032 (1979). The conflict has persisted since 1979, unresolved by the supreme court, and this court now perpetuates it. Because I find our position unsound in conception and harmful in practice, I dissent.

Division One established its position on this question by dictum on an undisputed point in Lindsay. The issue there was whether, absent the parties’ stipulation to make maintenance unmodifiable, the trial court abused its discretion by failing, when awarding a term of maintenance, to preserve its power to modify maintenance post-decree. Underlying this issue was the uncontested assumption of both parties that the trial court had forfeited such power by its silence on the subject. We decided—correctly, in. my view—that a court’s forfeiture of such power, absent the parties’ stipulation, is generally an abuse of its discretion, 115 Ariz. at 329, 565 P.2d at 206. Yet we built this holding on the parties’ joint assumption that, although the court had not expressly divested itself of its post-decree power to adjust maintenance, it had nonetheless accomplished such a divestiture by its failure to employ language that expressly reserved the power. This assumption, without benefit of analysis, we unfortunately called “sound.” 115 Ariz. at 325, 565 P.2d at 202.

Lindsay’s dictum has been pernicious in effect because of its allocation of the consequences of unfamiliarity or oversight. Preservation of the court’s statutory power to modify maintenance in Division One requires that the decree contain a rote recitation of that power. Domestic relations lawyers call this recitation “the Lindsay clause,” and it goes something like this:

The court expressly reserves jurisdiction to increase or decrease the amount or term of spousal maintenance if warranted by a substantial and continuing change of circumstances of either party.

A variation on this boilerplate theme preserves post-decree modification power if one knows or remembers to include it in the decree. But, as our supreme court recently reminded in another context, all of us make mistakes. See City of Phoenix v. Geyler, 144 Ariz. 323, 332, 697 P.2d 1073, 1082 (1985).

Many judges and court commissioners take the bench without domestic relations experience. Orientation, however extensive, is not comprehensive, and on-the-job training counts for much. A judge or commissioner unalerted to the issue would not recognize the court’s need to build boilerplate into a decree to avoid the abrogation of a statutory power. A lawyer new to this area of the law might likewise overlook the need for a “Lindsay clause.” And the risk of a judge’s or lawyer’s unfamiliarity or oversight pales by comparison to that of an unrepresented party. Many persons represent themselves in domestic relations proceedings and agree as part of a settlement to pay or receive a stipulated amount of maintenance for a set term. Such persons cannot be expected to know that, by failing to insist that the decree include a “Lindsay clause,” they have forfeited a statutory right to later petition the court to alter the amount or term.

Lindsay’s dictum was expressly rejected by Division Two in Raley v. Wilber. Raley subscribed to Lindsay’s holding that a trial court should generally retain its post-decree modification power in the absence of the parties’ agreement to the contrary. 122 Ariz. at 337, 594 P.2d at 1033. (In Mori v. Mori, 124 Ariz. 193, 196, 603 P.2d 85, 88 (1979), the supreme court reached the same conclusion.) However, under Raley, if the parties and the court indeed wish to foreclose the possibility of post-decree modification of maintenance, they must do so expressly within the decree; if the decree is silent on the subject, the court retains its statutory power. This approach corrects Lindsay’s misallocation of the burden of unfamiliarity or oversight. Under Raley a trial court cannot unwittingly relinquish a statutory power that it generally ought to keep; it must do so expressly and deliberately. Moreover, Division Two’s approach alleviates the risk that an inexpert lawyer or an unrepresented party will unknowingly accede to unmodifiable terms of maintenance. An opposing party or counsel seeking to make maintenance unmodifiable must do so expressly, thereby giving notice.

The members of the majority in this case, endorsing Lindsay’s approach as superior to Raley’s, claim to find support in Cummings v. Lockwood, 84 Ariz. 335, 327 P.2d 1012 (1958). This, I believe, is wrong. Cummings, which preceded both Lindsay and Raley, compels neither one approach nor the other. Although it holds, as do Lindsay and Raley, that parties may agree to fixed, unmodifiable terms of maintenance, it says nothing as to whether they should be presumed to have done so by silence on the subject or must, rather, be required to do so expressly.

I generally subscribe, for the reasons stated above, to Division Two’s approach; but I would not entirely follow Raley. The court there held that parties cannot insulate maintenance provisions from post-decree modification unless they expressly foreclose the possibility of modification for any reason, including death or remarriage. 122 Ariz. at 337, 594 P.2d at 1033. I don’t believe we ought to go so far. In my view, death and remarriage are logically severable from each other and from other types of changed circumstances as components of a stipulation on the subject of modifiability. One divorcing couple might wish to stipulate to an amount and term of maintenance terminable upon the death of the receiving spouse, but unmodifiable for any other reason. Another couple might wish to make maintenance payments terminable upon the remarriage of the receiving spouse, but unmodifiable for any other reason. A third couple might wish to leave maintenance terminable upon either death or remarriage, but expressly foreclose modification for any change of circumstances other than those two. Raley appears to preclude such options. I would leave parties free to enter such agreements so long as they do so expressly.

I recognize that an abandonment of Lindsay, if retroactive, would disrupt the expectations of parties to certain fixed term maintenance agreements. I refer to those whose lawyers, following Lindsay, drafted stipulated decrees silent as to modifiability with the deliberate purpose to make maintenance unmodifiable. The answer to this concern is not, however, to extend the dominion of Lindsay’s dictum in perpetuity; rather, this is a case for prospective overruling. To overrule Lindsay’s dictum prospectively would satisfy what are known as “the reliance, purpose, and inequity” criteria. It would avoid inequity to those who had previously relied upon that case without “affectpng] adversely the purpose behind the new rule.” See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 504, 733 P.2d 1073, 1087 (1987); Mark Lighting Fixture Co. v. General Electric Supply Co., 155 Ariz. 27, 30, 745 P.2d 85, 88 (1987).

I would like finally to address the harmful implications of the unresolved conflict between Divisions One and Two. In a special concurring opinion in Senor T’s Restaurant v. Industrial Com’n, 131 Ariz. 389, 393-394, 641 P.2d 877, 882-83 (App.1981), reversed on other grounds, 131 Ariz. 360, 641 P.2d 848 (1982), Judge Proeb wrote,

I would hold that given conflicting decisions between Division One and Division Two, the Superior Court must follow the decision of the division in which it is located.

Among his reasons for this position were that

predictability in the decisional process is greatly enhanced when it is known to the Superior Court that the decision of the division in which it is located will provide the controlling precedent.

Id. The Supreme Court, while overruling this court’s holding in Señor T’s, indicated its “general agreement with ... the opinions expressed in Judge Froeb’s special concurrence.” 131 Ariz. at 355-366, n. 2, 641 P.2d at 853-854, n. 2.

One hopes that members of the superior court adopt the view Judge Froeb expressed in Señor T’s, even though there is as yet only dictum on the subject'. Even if they do, however, so long as the split between divisions remains, parties to stipulated maintenance agreements cannot be sanguine that their intentions as to future modifiability will be enforced. One reason is that parties move. A dissolution decree entered in the superior court in Pima County might become the subject of a modification petition heard in a Maricopa or Yavapai County division. Additionally, there are case transfers between divisions of the court of appeals. As an example, in Dooley v. Dooley, 147 Ariz. 132, 708 P.2d 1323 (App.1985), a case cited by the majority, parties to a dissolution decree entered in the Superior Court of Maricopa County processed a modification proceeding in the same court and then briefed their appeal to Division One. The case was assigned to a panel of judges of Division Two, whq, pursuant to A.R.S. § 12-120(E), sat as Division One to decide it.

We can only bring true predictability to the law in this area with a prospective overruling of Lindsay or Raley. I would overrule Lindsay, though, for the reasons indicated above, I would not go as far as Raley, and I would hold that the court retains its statutory power to modify spousal maintenance post-decree, unless, in the decree of dissolution, it expressly relinquishes that power.