Kline v. Kline – 5/21/2009

June 2, 2009

Arizona Court of Appeals Division One Holds That an Award of Spousal Maintenance by Default Judgment is Invalid Under ARFLP 44(G) Where the Pleading Requesting Spousal Maintenance Is Never Served, Unless the Lack of Service Causes No Prejudice.

Wife filed a petition for dissolution of marriage, which she served on Husband.  Wife amended the petition, and for the first time asserted a specific demand for spousal maintenance, but failed to serve Husband with the amended petition.  Thereafter, Wife served a petition for temporary orders, seeking a temporary award of spousal maintenance.  Husband’s counsel appeared at the evidentiary hearing and expressly confirmed his knowledge of the request for spousal maintenance.  Husband failed to respond to Wife’s petitions, Wife filed for entry of a default judgment, and the trial court entered default judgment, including an award for spousal maintenance.  This appeal followed.

The Arizona Appeals Court affirmed both the default award of spousal maintenance and the default judgment.  First, the Court found that while the trial court’s entry of a default judgment ordinarily cannot be appealed, Husband’s appeal could proceed because he challenged the validity of the default judgment under ARFLP 44(G), which is analogous to ARCP 55 (allowing appeals addressing the validity of default judgments). 

Addressing the merits, the Court held that an award of spousal maintenance by default is not valid under ARFLP 44(G) when the specific demand for maintenance is contained in a pleading that was never served, unless the lack of proper service does not prejudice the defaulting party.  The Court concluded that Wife’s first amended petition was the only basis for the spousal maintenance award and that wife had failed to properly serve the amended petition.  Nonetheless, the Court found that Husband was not prejudiced because Husband’s counsel acknowledged at the hearing on Wife’s petition for temporary orders that the first amended petition contained a request for spousal maintenance.  Because Husband had notice that Wife sought spousal maintenance prior to default, he could not benefit from ARFLP 44(G)’s protections.

Judge Swann authored the opinion; Judges Orozco and Irvine concurred.