                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                              In re the Matter of:

                MARGARET M. COLBY, Petitioner/Appellee,

                                        v.

               REGINALD D. COLBY, Respondent/Appellant.

                           No. 1 CA-CV 18-0280 FC
                             FILED 5-7-2019


           Appeal from the Superior Court in Maricopa County
                          No. DR 1999-017774
                The Honorable Roy C. Whitehead, Judge
            The Honorable Richard F. Albrecht, Commissioner

                      REVERSED AND REMANDED


                                   COUNSEL

Law Office of Louis Lombardo PC, Chandler
By Louis K. Lombardo
Counsel for Respondent/Appellant

Buffington Law LLC, Cortez, CO
By Drew P. Buffington
Counsel for Petitioner/Appellee
                            COLBY v. COLBY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


B R O W N, Judge:

¶1            Reginald D. Colby (“Husband”) appeals the superior court’s
order denying his motion to set aside a dissolution decree’s spousal
maintenance award and the court’s judgment requiring him to pay
Margaret M. Colby (“Wife”) spousal maintenance arrears. For the reasons
that follow, we reverse the order and the judgment and remand for further
proceedings consistent with this decision.

                             BACKGROUND

¶2            Husband and Wife married on July 30, 1967. On October 8,
1999, Wife filed a petition for dissolution of marriage, requesting in part:

      12. That the Respondent shall pay to the Petitioner the sum of
      one thousand dollars ($1,000.00) per month for life for spousal
      maintenance.

      13. That the Respondent shall pay to the Petitioner one half of
      the Respondent’s Military Retirement.

On October 18, Wife filed an amended petition for dissolution that changed
the prior requests:

      12. Neither party is desirous of receiving spousal maintenance,
      except as may be hereinafter sought for in the prayer of this
      Petition for Dissolution.

      13. That the Respondent shall pay to the Petitioner all of
      Respondent’s Military Retirement for a period of six (6)
      months and thereafter one half of the Respondent’s Military
      Retirement.

(Emphasis added.) The prayer for relief in the amended petition asked
“[t]hat no spousal maintenance be awarded.” Other than these provisions,
the amended petition was identical to the original petition. Also on October


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                            Decision of the Court

18, Husband filed a notarized acceptance of service, waiving formal process
and acknowledging receipt of various documents, including the amended
petition, to which he “decline[d] to plead.” Husband’s acceptance
acknowledged that if he did not “agree with any relief asked for by [Wife],
[he] must respond or [a]nswer within 20 days from the day [he] signed the
original of this Acceptance of Service” and “failure to [r]espond . . . could
result in the Court giving the other party any and all things requested in . . .
her legal papers, through a Default . . . Decree.” (Emphasis added.)

¶3            After Husband declined to respond, Wife filed an application
for default. Husband filed another acceptance of service in February 2000,
acknowledging receipt of the original and amended petitions. Wife then
filed a second application for default. At a default hearing in May 2000, the
superior court entered a decree of dissolution of marriage by default on a
form of judgment Wife submitted, which tracked the language of the first
petition by awarding Wife spousal maintenance of $1,000 per month and
half of Husband’s military retirement account. For the next 17 years, the
parties informally agreed to an allocation of Husband’s military retirement
pay. As far as the record reveals, Husband never provided Wife any
support denominated “spousal maintenance.”

¶4           In 2017, Husband filed a motion to set aside the spousal
maintenance award in the decree under Arizona Rule of Family Law
Procedure (“ARFLP”) 85(b),1 asserting the award was void because Wife’s
amended petition superseded the original petition and “the specific relief
granted was not requested in the [a]mended [p]etition . . . but nevertheless
was granted by the court at the default hearing.” Wife countered that (1)
Husband’s request was untimely; (2) he waived the right to challenge the
award by failing to file an answer or appear at the default hearing; (3) his
motion was barred by the doctrine of laches, and (4) he did not show the
judgment was void. The superior court summarily denied the motion.

¶5             Wife then petitioned to enforce the spousal maintenance
award and establish arrears. After an evidentiary hearing, the parties
stipulated to the principal amount Husband owed, but Husband expressly
stated he was “not waiv[ing] his defenses to this enforcement action.” The




1     Husband filed his motion under ARFLP 85(c); however, the ARFLP
were revised effective January 1, 2019 and 85(c) was renumbered as 85(b).
See ARFLP, Correlation Table. For ease of reference, we refer to 85(b)
throughout this decision.


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                             Decision of the Court

superior court entered judgment in favor of Wife, and against Husband, in
the amount of $152,354.68. Husband timely appealed.

                                DISCUSSION

¶6             Husband asserts the superior court erred in denying his
motion to set aside the spousal maintenance award, arguing the award in
the decree is void because Wife did not request spousal maintenance in the
amended petition. See ARFLP 85(b)(4) (stating “the court may relieve a
party from a final judgment” if “the judgment is void”); see also Ariz. R. Civ.
P. 60(b)(4) (same).2 We review the denial of a motion to set aside for an
abuse of discretion, but we determine de novo whether a decree is void.
Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012); see also Martin v. Martin,
182 Ariz. 11, 15 (App. 1994) (“A judgment . . . is ‘void’ if the court entering
it lacked jurisdiction: (1) over the subject matter, (2) over the person
involved, or (3) to render the particular judgment or order entered.”).

¶7           We note that although both parties’ arguments focus on the
ARFLP and cases applying those rules, we will apply the Arizona Rules of
Civil Procedure (“Rule”) (1999) because the ARFLP were not adopted until
2006. See Ariz. S. Ct., Admin. Order R-05-008. Accordingly, whether the
spousal maintenance award was void when entered in 2000 is governed by
Rule 54(d), which stated that “[a] judgment by default shall not be different
in kind from or exceed in amount that prayed for in the demand for
judgment.” Ariz. R. Civ. P. 54(d) (1999) (emphasis added).

¶8             Rule 54(d)’s purpose is “to assure the defendant who
consciously allows a default judgment to be taken against him that he may
rest secure in the knowledge that the judgment will not exceed the relief
requested in the complaint,” thereby “[guaranteeing] the defendant due
process.” Consequently, a default judgment that does not comply with
Rule 54(d) is “null and void . . . to the extent that it exceeded the demand.”
Darnell v. Denton, 137 Ariz. 204, 206 (App. 1983); S. Ariz. Sch. for Boys, Inc. v.
Chery, 119 Ariz. 277, 283 (App. 1978) (explaining that a default hearing is
subject to the limitation of Rule 54(d) in that a court cannot award relief that
“is more than or different in kind from that requested”); see Cockerham v.
Zikratch, 127 Ariz. 230, 234 (1980) (recognizing that due process
considerations may negate a court’s jurisdiction); see also United Student Aid
Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (construing Federal Rule of


2      Effective January 1, 2017, Rule 60(c) was re-numbered as Rule 60(b)
but there are no substantive differences. See Ariz. S. Ct., Admin. Order R-
16-0010 attachment B at 11.


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                            Decision of the Court

Civil Procedure 60(b)(4) as “applying . . . where a judgment is premised on
a certain type of jurisdictional error or on a violation of due process that
deprives a party of notice of the opportunity to be heard”).

¶9             Wife contends Husband was not denied due process because
he chose not to answer the petition and not to attend the default hearing.
We reject this argument. “Once the defendant is served with a copy of the
complaint, he can respond or do nothing. If he opts for the latter course,
the defendant knows that greater relief than that prayed for or relief
different in kind will not be entered against him.” Tarnoff v. Jones, 17 Ariz.
App. 240, 244 (1972); see also Darnell, 137 Ariz. at 206. As this court
previously explained, Rule 54(d)’s “explicit and emphatic mandate . . . does
not differentiate between a default based on a total failure to appear and a
default following an appearance.” Chery, 119 Ariz. at 283. By granting
spousal maintenance when the amended petition unequivocally did not
request such an award (and in fact stated that none was sought), the court
exceeded its authority under Rule 54(d) and violated Husband’s due
process right to “fair notice of the allegations.” See Cockerham, 127 Ariz. at
234. Such a violation is a defect that “undermin[es] jurisdiction so as to
render [the] judgment void.” Id. at 235; see also Espinosa, 559 U.S. at 271.

¶10            Wife argues the original petition provided Husband fair
notice of the allegation because it made a specific request for spousal
maintenance and Husband acknowledged service of that petition. Wife
directs us to Kline v. Kline, 221 Ariz. 564, 569, ¶ 15 (App. 2009), where we
held that a default judgment for spousal maintenance is valid pursuant to
ARFLP 44(G)3—which was identical to Rule 54—if the petitioner
specifically requested spousal maintenance in a pleading and provided the
opposing party legally adequate notice of the pleading. Wife’s argument,
however, ignores the general rule that when a “complaint is amended in a
material way,” the original complaint becomes functus officio; a defendant
has the right to respond to the amended complaint de novo; and “all
subsequent proceedings are regarded as based on the amended complaint.”
Campbell v. Deddens, 21 Ariz. App. 295, 297 (1974); see Functus Officio, Black’s
Law Dictionary (10th ed. 2014) (“[W]ithout further authority or legal
competence. . . .”). Here, the amended petition was materially different
from the original petition, see supra ¶ 2, and Wife does not argue the

3      Subsection G of ARFLP 44 is no longer part of the ARFLP. Under
the revised ARFLP, the court may enter a default decree on all issues in a
case, with or without a hearing, but “the petitioner must use a new Form 6
to provide an evidentiary basis for entering a default decree for spousal
maintenance.” See ARFLP Prefatory Cmt. to the 2019 Amendments.


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                            Decision of the Court

amended petition was not the operative pleading for the purposes of Rule
54(d). Cf. Rodriguez v. Rodriguez, 8 Ariz. App. 5, 8–9 (1968) (“Although a
superseded pleading becomes functus officio, the effect of the trial court’s
dismissal of the amended complaints was to restore the original
complaint.” (citation omitted)).      Accordingly, paragraph 10 of the
dissolution decree, awarding Wife $1,000 per month indefinitely, is void
because it granted relief that exceeded and was different in kind from that
requested. See Darnell, 137 Ariz. at 206.

¶11           Wife also argues that Husband’s motion to set aside was
untimely because he failed to show (1) his delay was excusable, (2) he acted
promptly in seeking relief, and (3) he had a “meritorious defense” to an
award of spousal maintenance, citing Blair v. Burgener, 226 Ariz. 213, 216,
¶ 7 (App. 2010). Wife is correct in that most motions seeking to set aside
judgments “must be made within a reasonable time.” ARFLP 85(c)(1); see
also ARFLP 78(a)(1) (stating that a judgment “includes a decree or an order
from which an appeal lies”). However, that requirement does not apply
when the judgment is void. Martin, 182 Ariz. at 14 (“There is no time limit
in which a motion [alleging a judgment is void] may be brought; the court
must vacate a void judgment or order . . . .”); Darnell, 137 Ariz. at 206
(explaining that a party seeking relief from a void judgment does not have
to show there was prompt action in seeking relief); Int’l Glass & Mirror, Inc.
v. Banco Ganadero Y Agricola, S.A., 25 Ariz. App. 604, 605 (1976) (citing cases
where the judgments were set aside decades after entry and explaining that
the general “reasonable time” requirement does not apply when the
judgment is void).

¶12            Finally, we reject Wife’s argument that Husband’s request for
relief is barred by the doctrine of laches. “A void judgment cannot acquire
validity because of laches.” Int’l Glass & Mirror, Inc., 25 Ariz. App. at 605.

¶13            Given our conclusion that the decree’s award of spousal
maintenance is void, we also vacate the order granting Wife spousal
maintenance arrears. Smith v. Smith, 235 Ariz. 181, 184, ¶ 12 (App. 2014)
(explaining that a void decree “is a nullity, is not entitled to enforcement
and . . . [a]ll proceedings founded on the void [decree] are themselves
regarded as invalid and ineffective for any purpose” (alterations in original)
(quoting State v. Cramer, 192 Ariz. 150, 153, ¶ 12 (App. 1998))).




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                           COLBY v. COLBY
                          Decision of the Court

                            CONCLUSION

¶14            We hold that paragraph 10 of the dissolution decree,
awarding spousal maintenance, is void because it exceeded the relief
requested in the amended petition. We therefore reverse the court’s order
denying Husband’s motion to set aside and the judgment awarding spousal
maintenance arrears and remand for further proceedings consistent with
this decision. In our discretion, we deny both parties’ requests for
attorneys’ fees under Arizona Revised Statutes section 25-324. We award
taxable costs to Husband upon compliance with ARCAP 21.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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