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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CYNTHIA MORROW, Petitioner/Appellee,

v.

DOUGLAS MORROW, Respondent/Appellant.

No. 1 CA-CV 17-0658 FC

Appeal from the Superior Court in Maricopa County

No. FN2012-091997

The Honorable Jeffrey A. Rueter, Judge

AFFIRMED IN PART; REMANDED IN PART

COUNSEL

Harmon Law Office, PLLC, Tempe

By Emile J. Harmon

Co-Counsel for Petitioner/Appellee

McCulloch Law Offices, Tempe

By Diana McCulloch

Co-Counsel for Petitioner/Appellee

Stanley David Murray Attorney at Law, Scottsdale

By Stanley David Murray

Counsel for Respondent/Appellant

FILED 6-19-2018
MORROW v. MORROW

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Judge James P. Beene joined.

C R U Z, Presiding Judge:

¶1 Appellant Douglas Morrow (“Husband”) appeals from the 

superior court’s orders granting modification of spousal maintenance and 

denying his motion for new trial. For the following reasons, we affirm in 

part and remand in part.

FACTUAL AND PROCEDURAL HISTORY

¶2 Cynthia Morrow (“Wife”) filed for divorce in 2012. At the 

time, the parties had two adult children. Prior to the divorce trial, Wife was 

granted the exclusive use and possession of the marital residence and was 

ordered to pay Husband $2,000 per month in temporary spousal 

maintenance.

¶3 Wife is employed and earned $117,434 in gross wages in 2012. 

Although Husband holds Bachelor’s and Master’s Degrees, at the time of 

his pretrial statement, he had not been employed or applied for a job since 

2001. Husband testified during trial that he had a serious car accident in 

2000 that required multiple surgeries. Husband applied for social security 

disability in 2005, but was denied benefits in 2006.

¶4 The court issued its decree in December 2013. Based on the 

evidence presented at trial, the court awarded Husband $4,000 per month 

in spousal maintenance for an indefinite term based on the court’s finding 

that Husband was unlikely to achieve financial independence. In the 

decree, the court also noted Husband’s medical issues and lack of 

employment since 2001.

¶5 On January 14, 2014, Wife filed a notice of appeal, and 

Husband filed a notice of cross-appeal the next month. On January 29, 2014, 

Husband left Wife a voicemail stating he had told his attorney to put 

spousal payments “on hold” and he was going to “hold off” on seeking to 

collect his spousal maintenance award. Wife did not pursue her appeal. In 

March 2014, this Court deemed both the appeal and cross-appeal 

abandoned, and dismissed the appeals.
MORROW v. MORROW

Decision of the Court

3

¶6 In June 2016, Husband and Wife exchanged a series of text 

messages where Husband asked Wife for financial help. During the text 

exchange, Husband brought up the “alimony” but never requested back 

pay or maintenance going forward. Wife ultimately gave Husband a onetime payment of $2,500.

¶7 In March 2017, Husband filed a contempt petition alleging

that Wife failed to pay spousal maintenance and requested a judgment for 

$156,000 in unpaid spousal support. Wife answered the petition, arguing 

that Husband failed to request a single spousal support payment in the 

previous 39 months and that she believes Husband had been working since 

shortly after the dissolution of their marriage. Wife also raised affirmative 

defenses, including waiver, laches, fraud and unclean hands.

1 Along with 

her answer, Wife filed a counter-petition for modification of spousal 

maintenance based on substantial and continuing changes in 

circumstances. Husband denied waiving spousal support. Deductions 

from Wife’s earnings commenced in August 2017.

¶8 After an evidentiary hearing on Husband’s contempt motion 

and Wife’s modification petition, the superior court denied Husband’s 

request to find Wife in contempt related to the spousal maintenance 

payments and found that Wife established waiver and estoppel on any 

maintenance arrearages by clear and compelling evidence. The court, after

analyzing Arizona Revised Statutes (“A.R.S.”) section 25-319(B) factors, 

determined that Wife was entitled to a modification of spousal maintenance 

and reduced the award from $4,000 per month to $0 per month. The court 

also awarded Wife a portion of her reasonable attorneys’ fees based on 

Husband’s unreasonable conduct. Husband filed a notice of appeal 

regarding the spousal modification.

¶9 After filing his notice, Husband filed a motion for new trial 

related to spousal maintenance arrearages, spousal maintenance, and the 

award of attorneys’ fees to Wife. The superior court denied Husband’s

motion. Husband also objected to Wife’s application for attorneys’ fees,

and the court ultimately ordered Husband to pay Wife $1,000 in attorneys’ 

 

1 Wife asserted the equitable defense of estoppel in her amended 

pretrial statement.
MORROW v. MORROW

Decision of the Court

4

fees. Husband amended his notice of appeal to include the denial of the 

motion for new trial and the attorneys’ fee award.2

¶10 We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2) and 

(A)(5).

DISCUSSION

I. Husband Is Not Entitled to Spousal Support Arrears

¶11 The superior court denied Husband’s request to find Wife in 

contempt for failure to pay spousal maintenance arrears by applying the 

equitable defenses of waiver and estoppel. Husband argues the court erred

in finding waiver and estoppel prevented him from asserting a claim for 

spousal maintenance arrears.

¶12 We review a superior court’s contempt order for an abuse of 

discretion. Danielson v. Evans, 201 Ariz. 401, 412, ¶ 40 (App. 2001).

Additionally, Arizona courts have consistently held that waiver is “a 

question of fact to be determined by the trier of fact.” Chaney Bldg. Co., Inc.

v. Sunnyside Sch. Dist. No. 12, 147 Ariz. 270, 273 (App. 1985). We will not 

disturb the superior court’s factual findings supported by the record, even 

if based on conflicting evidence, and we will give due regard to the court’s 

opportunity and ability to judge witness credibility. See Concannon v. 

Yewell, 16 Ariz. App. 320, 321 (1972); Gutierrez v. Gutierrez, 193 Ariz. 343, 

347, ¶ 13 (App. 1998).

¶13 Support payments may not be retroactively modified by a 

court nor by the parties. See Lamb v. Superior Court, 127 Ariz. 400, 402 (1980); 

Hatch v. Hatch, 113 Ariz. 130, 134 (1976); Cordova v. Lucero, 129 Ariz. 184, 185 

(App. 1981). However, the equitable defenses of waiver, estoppel, and 

laches may apply to support arrearages. See Coburn v. Rhodig, 243 Ariz. 24, 

26, ¶¶ 10-12 (App. 2017). These defenses must be established by clear and 

compelling evidence. Schnepp v. State ex rel. Dep’t of Econ. Sec., 183 Ariz. 24, 

28-30 (App. 1995).

A. Waiver

¶14 To establish waiver, Wife must show that Husband 

“voluntarily and intentionally abandoned a known right.” Id. at 28. Clear 

 

2 Husband failed to present any arguments concerning the attorneys’ 

fee award on appeal.
MORROW v. MORROW

Decision of the Court

5

and compelling evidence of waiver can take the form of a written waiver or 

an admission of waiver. Ray v. Mangum, 163 Ariz. 329, 333 (1989).

¶15 Husband left Wife a voicemail in January 2014 stating he 

instructed his attorney “to get that garnishment on hold”3 and he was going 

to “hold off on the garnishment” for his spousal maintenance payments.

After putting spousal maintenance “on hold” in January of 2014, Husband

failed to pursue spousal maintenance payments until March 2017 when he 

filed the contempt petition and requested $156,000 in past-due spousal 

maintenance. In May 2017, Husband filed a petition for an income 

withholding order, requesting the $4,000 monthly spousal maintenance 

payment from Wife.4

¶16 Husband relies on Ray to argue Mother’s belief that Husband 

waived spousal maintenance is not enough to meet the clear and 

compelling burden. 163 Ariz. at 333 (“Where conflicting testimony exists 

and the parties’ unspoken assumptions and intentions conflict, one party’s 

belief [that the other waived child support] cannot provide clear and 

compelling evidence of [a waiver].”). In Ray, the parties entered into a child 

support5 modification agreement almost ten years after their divorce 

wherein father agreed to pay the mother $450 per month in child support.

Id. at 330-31. The agreement was silent as to child support arrears. Id. at 

331. A year after the modification agreement, the mother filed a petition for 

child support arrearages. Id. At trial, the mother and the parties’ daughter 

testified that the father agreed he would pay back child support during 

their meeting to discuss the modification agreement. Id. at 332-33. The 

Arizona Supreme Court found that there was no clear and compelling

evidence that the mother waived her claim for past due child support. Id.

at 333.

 

3 Husband used the term “garnishment,” but no wage garnishment 

had yet been proposed. Husband uses garnishment in place of enforcement 

of Wife’s spousal payments.

4 Despite requesting unpaid spousal support in his March 2017 

petition, Husband failed to request a past due obligation for spousal 

support, despite it being an optional box to check in his petition for income 

withholding order.

5 There is a strong public policy of promoting the welfare of children. 

State v. Garcia, 187 Ariz. 527, 530 (App. 1996). There is no similar policy

related to the consideration for spousal maintenance awards.
MORROW v. MORROW

Decision of the Court

6

¶17 We find the facts of this case more analogous with Cordova. In 

Cordova, the father stopped making child support payments after the 

mother sent him a letter stating she did not want support payments. 129 

Ariz. at 185. After more than three years, the mother made a claim for child 

support arrearages. Id. We held that the mother waived her claim to child 

support arrearages by expressly stating she did not want child support, and

then waited approximately three-and-a-half years without making any 

further claim. Id. at 186. After the mother revoked the waiver, the father 

started making child support payments again. Id. at 185.

¶18 Husband’s voicemail putting spousal maintenance “on hold,”

coupled with his inaction in commencing collection efforts for spousal 

maintenance, despite being able to do so at any point, constitute clear and 

compelling evidence of his admission of waiver of his spousal maintenance

award. Ray, 163 Ariz. at 333. Husband’s waiver of spousal maintenance 

was revoked upon the filing his contempt petition, thereby putting Wife on 

notice of her obligation to pay the ordered spousal maintenance. We

remand this matter to the superior court to determine the amount of 

spousal maintenance due to Husband for the time period between the 

revocation of his waiver and garnishment of Wife’s wages.

B. Estoppel

¶19 Husband next contends the superior court erred in 

determining that he was estopped from claiming spousal maintenance 

arrears. The requirements for estoppel are (1) conduct by which one 

induces another to believe in certain material facts, (2) the inducement 

results in acts in justifiable reliance thereon, and (3) the resulting acts cause 

injury. Id. (Citations omitted.) Like waiver, equitable estoppel bars the 

recovery of support “only when there is clear and compelling evidence in 

the record to support such a determination.” See State ex rel. Dep’t of Econ. 

Sec. v. Dodd, 181 Ariz. 183, 187 (App. 1994). We review the equitable 

estoppel ruling for an abuse of discretion. City of Tucson v. Clear Channel 

Outdoor, Inc., 218 Ariz. 172, 190, ¶ 65 (App. 2008).

¶20 Husband, citing dicta in an unpublished memorandum 

decision, argues Wife unjustifiably relied on his verbal promise to forego 

spousal maintenance because Wife and her attorney “knew and understood 

the necessity of formalizing their agreement.” In re Marriage of Richardson 

v. Richardson, 1 CA-CV 16-0215 FC, 2017 WL 586423, at *3, ¶ 15 (Ariz. App. 

Feb. 14, 2017) (mem decision). We find Richardson to be inapposite to this 

matter. First, Richardson is a child support matter, which has different 

policy considerations from spousal maintenance. Id. at *1, ¶ 1. The father 
MORROW v. MORROW

Decision of the Court

7

in Richardson never appealed the original support obligation, unlike Wife in 

this matter. Id. at *1, ¶ 2. Additionally, text messages exchanged between 

the Richardson parties show that the father understood that the agreement 

needed to be formalized in court, but failed to do so; there are no similar 

text messages in this matter. Id. at **2-3, ¶¶ 12, 15. In Richardson, we found 

the superior court did not abuse its discretion in declining to apply 

estoppel. Id. at *3, ¶ 15. Given the factual and policy differences between 

this matter and Richardson, we do not find Richardson persuasive.

¶21 In this case, Wife testified that Husband’s voicemail putting 

the garnishment “on hold” induced her into not pursing her appeal. Wife 

was injured in relying on Husband’s voicemail because she forever lost the 

ability to have a higher court review the spousal maintenance award. Given 

Wife’s justified reliance on Husband’s voicemail and the injury she incurred 

in not pursing her appeal, the superior court did not abuse its discretion in 

applying estoppel. Husband is estopped from asserting a claim for spousal 

maintenance arrearages from the time he waived the maintenance

obligation until he filed his contempt petition. At that point, Wife no longer 

could have reasonably relied on Husband’s waiver.

II. The Superior Court Did Not Abuse Its Discretion in Awarding 

Spousal Support Modification

¶22 We review the superior court’s ruling modifying spousal 

maintenance for abuse of discretion. In re Marriage of Priessman, 228 Ariz. 

336, 338, ¶ 7 (App. 2011). We defer to the court’s factual findings unless 

they are clearly erroneous or unsupported by substantial evidence. Bobrow 

v. Bobrow, 241 Ariz. 592, 595, ¶¶ 11, 20 (App. 2017).

¶23 Husband argues the superior court had no basis to modify his 

spousal maintenance award from $4,000 per month to $0. Spousal 

maintenance “may be modified or terminated only on a showing of changed 

circumstances that are substantial and continuing[.]” A.R.S. § 25–327(A)

(emphasis added). “The burden of proving changed circumstances is on 

the party seeking modification.” Scott v. Scott, 121 Ariz. 492, 494 (1979).

¶24 The amount and duration of spousal maintenance is 

determined pursuant to A.R.S. § 25–319(B). The superior court’s minute 

entry demonstrates it considered those factors when reaching its 

determination. Specifically, at the 2013 trial, Husband provided evidence

that he was unable to work and presented medical testimony to support his 

allegation. However, within months of the decree throughout the 2017 

hearing, Husband worked continually, despite a variety of medical 
MORROW v. MORROW

Decision of the Court

8

conditions. A.R.S. § 25-319(B)(3). Additionally, Husband’s employment 

with various companies provided enough income to meet his monthly 

expenses. A.R.S. § 25-319(B)(9). Husband will also receive additional funds 

upon the sale of the marital residence and after the division of Wife’s 

retirement accounts by a Qualified Domestic Relations Order. A.R.S. § 25-

319(B)(9). The court determined that Husband did not reduce his income 

for the benefit of Wife, A.R.S. § 25-319(B)(7), and that Wife paid for their

children’s education without contribution from Husband, A.R.S. § 25-

319(B)(8). The court also determined that Husband has maintained 

appropriate employment to meet his needs. A.R.S. § 25-319(B)(10).

¶25 The superior court did not abuse its discretion in modifying 

the spousal maintenance award. Evidence presented at the hearing 

supports the court’s findings that Husband went from not working to 

obtaining employment where he made enough to meet his needs and 

achieve financial independence.

III. The Superior Court Did Not Abuse Its Discretion in Denying

Husband’s Motion for New Trial

¶26 A motion for new trial may be granted for the following 

reasons: (1) irregularity in the proceedings or abuse of discretion that 

deprived moving party of a fair trial; (2) misconduct of a party; (3) accident 

or surprise; (4) newly discovered material evidence; (5) error in the 

admission or rejection of evidence or other errors of law; or (6) a ruling not 

justified by the evidence or contrary to law. Ariz. R. Fam. Law P. 83(A). 

We will not reverse the denial of a motion for new trial absent a showing 

that the court abused its discretion. Wendling v. Sw. Sav. & Loan Ass’n, 143 

Ariz. 599, 602 (App. 1984). On appeal, we view the evidence in the light 

most favorable to supporting the superior court’s decision. See Sommerfield 

v. Sommerfield, 121 Ariz. 575, 577 (1979).

¶27 In his motion for new trial, Husband contends that he neither 

waived nor is estopped from asserting spousal maintenance arrearages and 

that the court abused its discretion in modifying the spousal maintenance

award. As explained above, the superior court did not err in determining

that the equitable defenses of waiver and estoppel applied to Husband’s 

claim for spousal maintenance arrearages. Additionally, Wife showed 

substantial and continuing changed circumstances to warrant the spousal 

maintenance modification. Therefore, we hold the court did not abuse its 

discretion in denying Husband’s motion for new trial.
MORROW v. MORROW

Decision of the Court

9

IV. Attorneys’ Fees

¶28 Husband requests an award of his attorneys’ fees and costs 

on appeal pursuant to A.R.S. § 25-324. Wife requests an award of her 

attorneys’ fees and costs pursuant to A.R.S. § 25-324 and Arizona Rule of 

Civil Appellate Procedure (“ARCAP”) 21. After considering the parties’

financial resources and reasonableness of their respective positions, we 

decline to award attorneys’ fees to either party. We award costs to Wife in 

compliance with ARCAP 21.

CONCLUSION

¶29 For the foregoing reasons, we affirm in part and remand in 

part. We instruct the superior court to determine the amount of spousal 

maintenance owed to Husband from the date of his contempt petition 

through the time Wife started making spousal maintenance payments.