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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of: 

SCOTT E. HOWITT, Petitioner/Appellant,

v.

PAMELA A. WRINKLE, Respondent/Appellee.

No. 1 CA-CV 17-0760 FC

Appeal from the Superior Court in Maricopa County

No. FN2012-091539

The Honorable Theodore Campagnolo, Judge

REVERSED AND REMANDED

COUNSEL

Berkshire Law Office, PLLC, Tempe

By Keith Berkshire, Erica L. Gadberry

Counsel for Petitioner/Appellant

Pamela A. Wrinkle, Phoenix

Respondent/Appellee

FILED 10-18-2018
HOWITT v. WRINKLE

Decision of the Court

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MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which 

Presiding Judge James P. Beene and Judge Michael J. Brown joined.

M O R S E, Judge:

¶1 Scott Howitt ("Husband") appeals from the family court's 

order denying his petition to modify his spousal maintenance obligation to 

Pamela Wrinkle ("Wife"). For the following reasons, we reverse and 

remand for proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶2 The parties were married in 1984. They were divorced in 2012 

by a consent decree, which they filled out using a form provided by the 

Maricopa County Superior Court.1 As relevant on appeal, the court ordered 

Husband to pay spousal maintenance of $1,100 per month for 15 years.2 At 

section 10 of the findings the decree provides:

If spousal maintenance is to be awarded, the parties further 

agree:

Spousal maintenance awarded shall be modified in 

accordance with Arizona law, OR

X The parties acknowledge that the circumstances of 

their futures are unknown, but each desires that this 

maintenance award, so awarded by their agreement, not be 

modified in the future for any reason. Therefore, it is at this 

time ordered that this spousal maintenance award shall NOT

be modifiable for any reason.

Further down the same page, though, section 4 of the orders provides:

 

1 The parties were ordered to appear at an early resolution conference 

at 1:30 p.m. on August 23, 2012. The (signed) decree was entered by the 

clerk at 3:36 p.m. that same day.

2 The parties further agreed that spousal maintenance would increase 

to $1,700 per month "upon the [sale] of the house."
HOWITT v. WRINKLE

Decision of the Court

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In accordance with the parties' agreements,

X The spousal maintenance award shall be modifiable in 

accordance with Arizona law, OR

The spousal maintenance award shall NOT be 

modifiable for any reason.

¶3 In 2017, Husband filed a petition to modify the spousal 

maintenance award, alleging changed circumstances based on a recent 

cancer diagnosis.3 See Ariz. Rev. Stat. ("A.R.S.") § 25-327(A). Wife objected, 

arguing that the spousal maintenance award was non-modifiable per the 

decree. The family court agreed with Wife and rejected the petition.

¶4 Husband moved for reconsideration, contending that the 

court orders in the decree specify that the maintenance award is modifiable, 

or at the very least, the decree presented a "contradiction of sorts" regarding 

modifiability that "should allow for considerable review."

4 Again, Wife 

objected, asserting (among other things):

It is my understanding that the divorce decree was never 

intended to be modifiable. I believe that [it] is stated in the 

earlier part of the document. A possible mistake was made 

later in the document that wasn't caught by anyone present at 

the time including [Husband]. I believe he is now using this 

as a reason to not honor our mutually agreed upon 

arrangement. 

The family court denied the motion, reasoning as follows:

In order to harmonize and effectuate the Decree, Section 4 

Orders that the spousal maintenance award is either 

modifiable or non-modifiable according to the agreement of 

the parties. Section 10 of the Findings clearly shows that the 

parties agreed that the spousal maintenance award was non-

 

3 The form-based petition stated: "You cannot ask for a change in 

spousal maintenance/support if you signed an agreement that says that 

spousal maintenance/support cannot be changed or modified." (Emphasis 

in original.)

4 Ultimately, the family court considered the motion as one filed 

pursuant to Arizona Rules of Family Law Procedure 83, 84, and 85. In the 

context of this case, however, the characterization of Husband's post-ruling 

motion is a distinction without a difference.
HOWITT v. WRINKLE

Decision of the Court

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modifiable. Any other interpretation would require the 

introduction of parol or extrinsic evidence to change the terms 

of the Decree.

¶5 Husband timely appealed. We have jurisdiction pursuant to 

A.R.S. § 12-2101(A)(2).

DISCUSSION

¶6 We review de novo questions of law, including those 

involving interpretation of a decree or statute. Cohen v. Frey, 215 Ariz. 62, 

66, ¶ 10 (App. 2007); In re Marriage of Waldren, 217 Ariz. 173, 175, ¶ 6 (2007).

¶7 As Husband points out, a spousal maintenance award is 

presumed to be modifiable (upon a showing of changed circumstances that 

are substantial and continuing) unless the parties specifically agree 

otherwise. A.R.S. §§ 25-319(C), -327(A); Schroeder v. Schroeder, 161 Ariz. 316, 

323 (1989); Waldren, 217 Ariz. at 175, ¶ 9. At issue here is whether the decree 

evinces such an agreement. See Waldren, 217 Ariz. at 175, ¶ 9 (discussing 

A.R.S. §§ 25-319(C) and -317(G)). The decree—which delineates the spousal 

maintenance award as both modifiable and non-modifiable—is ambiguous. 

See Cohen, 215 Ariz. at 66, ¶ 11 (a decree is ambiguous if it "can reasonably 

be construed to have more than one meaning") (quoting In re Estate of 

Lamparella, 210 Ariz. 246, 250, ¶ 21 (App. 2005)); see also In re Marriage of 

Johnson & Gravino, 231 Ariz. 228, 233, ¶¶ 16-17 (App. 2012). We agree with 

Husband that this ambiguity cannot be resolved without (impermissibly) 

considering extrinsic evidence of intent. Cf. In re Marriage of Zale, 193 Ariz. 

246, 249-50, ¶¶ 10-15 (1999) (noting that it was error to consider parol 

evidence to resolve a dispute about the duration of an award of spousal 

maintenance).

¶8 Attempting to "harmonize" the conflicting sections, the family 

court held that section 10 of the findings took precedence over section 4 of 

the order because "Section 10 of the Findings clearly shows that the parties 

agreed and that the spousal maintenance award was non-modifiable." 

However, the opposite could also be said—that section 4 of the order

"clearly shows" that the parties agreed that the spousal maintenance award 

was to be modifiable. The two sections are diametrically opposed and cannot 

be read in harmony with one another. A court may not assign a meaning 

to one provision that would render another meaningless. See Cohen, 215 

Ariz. at 66, ¶ 12. We cannot say, looking within the four corners of the 

Decree, which section controls, or, said differently, which "X" is in the 

"right" place.
HOWITT v. WRINKLE

Decision of the Court

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¶9 It appears that there was a clerical error in the drafting of the 

document. Before a court can determine whether the maintenance award

is modifiable or non-modifiable, this error must first be corrected. A family 

court can correct a clerical error—i.e., "to show what the court actually 

decided but did not correctly represent in the written judgment"—at any 

time. Egan-Ryan Mech. Co. v. Cardon Meadows Dev. Corp., 169 Ariz. 161, 166 

(App. 1990) (interpreting Ariz. R. Civ. P. 60(a)); Ariz. R. Fam. L. P. 85(A). In 

correcting a clerical error, the family court should look outside the decree 

to other documents in the record. Vincent v. Shanovich, 243 Ariz. 269, 271, 

¶ 8 (2017). We therefore remand to the family court to correct the apparent 

clerical error in the decree. If the court determines that the award is 

modifiable, it should consider the merits of Husband's petition to modify. 

To be clear, the party seeking modification bears the burden of proving 

changed circumstances by comparison with the circumstances existing at 

dissolution, Scott v. Scott, 121 Ariz. 492, 494 (1979); Richards v. Richards, 137 

Ariz. 225, 226 (App. 1983), and the question whether circumstances have 

changed lies with the family court, Schroeder, 161 Ariz. at 323.

¶10 That said, we note that Wife referred to the issue of arrearages

below and in her answering brief. Spousal maintenance payments that 

accrued before Husband filed his petition to modify were vested when due 

and are not subject to modification. See In re Marriage of Priessman, 228 Ariz.

336, 340, ¶ 13 (App. 2011) (discussing § 25-327(A)). A spousal maintenance 

obligation may be enforced by a contempt proceeding. Danielson v. Evans, 

201 Ariz. 401, 411, ¶ 37 (App. 2001); see generally Ariz. R. Fam. Law P. 92.

CONCLUSION

¶11 For the foregoing reasons, we reverse and remand for 

proceedings consistent with this decision. In our discretion, we deny 

Husband's request for attorneys' fees on appeal. See A.R.S. § 25-324(A). We 

award costs to Husband upon compliance with Arizona Rule of Civil 

Appellate Procedure 21.