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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 5-7-2019
COLBY v. COLBY

Decision of the Court

2

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 
COLBY v. COLBY

Decision of the Court

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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. 
COLBY v. COLBY

Decision of the Court

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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 R16-0010 attachment B at 11.
COLBY v. COLBY

Decision of the Court

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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. 
COLBY v. COLBY

Decision of the Court

6

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))).
COLBY v. COLBY

Decision of the Court

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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.