IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Marriage of:

NANCY SAILORS McNEIL, Petitioner/Appellant,

v.

ROBERT NICHOLAS HOSKYNS, Respondent/Appellee.

No. 1 CA-CV 12-0685

Appeal from the Superior Court in Maricopa County

No. FC2005-052833, FC2005-092137

The Honorable Gerald Porter, Judge

AFFIRMED 

COUNSEL

Hymson, Goldstein & Pantiliat, PLLC, Scottsdale

By Yvette D. Ansel

Counsel for Petitioner/Appellant

Gillespie, Shields & Durrant, Mesa

By Mark A. Shields, DeeAn Gillespie Strub

Counsel for Respondent/Appellee
McNEIL v. HOSKYNS

Opinion of the Court

2

OPINION

Chief Judge Diane M. Johnsen delivered the opinion of the Court, in 

which Acting Presiding Judge Patricia K. Norris and Judge Kenton D. 

Jones joined.

J O H N S E N, Judge:

¶1 By statute, the superior court lacks jurisdiction to modify a 

dissolution decree approving the parties’ agreement that spousal support 

may not be modified. We hold in this appeal that the statute does not 

apply to a non-modifiable spousal support order that is the product of a 

fraud on the court.

FACTS AND PROCEDURAL HISTORY

¶2 Nancy S. McNeil ("Wife") and Robert Hoskyns ("Husband") 

married in 1985.1 In 2005, Wife petitioned for dissolution, and the parties 

signed an agreement, which the court adopted, by which Husband agreed 

to pay Wife $5,000 a month in temporary child and spousal support, 

commencing January 2006. Husband is a dentist. Through an oversight, 

he and someone else at his dental office each arranged for automatic 

withdrawals of his monthly support payment from his office account. As 

a result, for the next 17 months, double payments were withdrawn from 

Husband's account and forwarded to Wife. Wife knew she was receiving 

double payments, but did not alert Husband, who did not know of the 

overpayments.

¶3 At the trial on their dissolution in May 2007, the parties 

orally affirmed an agreement their lawyers put on the record, consistent 

with Arizona Rule of Family Law Procedure 69, that Husband would pay 

Wife $5,000 each month in spousal support for an additional six years, 

commencing June 2007. The agreement also provided that spousal 

support would be non-modifiable and non-terminable. The superior court 

 

1 We view the facts in the light most favorable to upholding the 

superior court's ruling on spousal support and will affirm the judgment if 

reasonable evidence supports it. Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8, 290 

P.3d 456, 458 (App. 2012).
McNEIL v. HOSKYNS

Opinion of the Court

3

questioned both parties about any spousal support payments still owing 

under their prior agreement. Husband responded that he still owed 

$2,500. Wife did not disclose that as of that date, Husband unwittingly 

had paid $85,000 more than was due. In October 2007, the court approved 

the agreement and repeated its terms in the dissolution decree. After 

entry of the decree, Wife continued to receive some double spousal 

support payments, but still did not notify Husband of the mix-up.

¶4 In October 2009, Wife filed a Petition to Enforce Spousal 

Maintenance, claiming Husband owed more than $14,000 in arrears. At 

the time, she knew that even though Husband had missed some postdecree payments, overall, he had overpaid her by tens of thousands of 

dollars since the start of the dissolution proceedings. After reviewing a 

court-ordered accounting that revealed the overpayments, Husband filed 

a response and counter-petition asking the court for relief from provisions 

in the decree waiving all pendente lite claims and establishing the nonmodifiable spousal support obligation. Husband attached an email from 

Wife in which she had threatened to notify the dental licensing board of 

his alleged nonpayment in order to have his dental license revoked.

¶5 Wife filed a response to Husband's counter-petition and a 

separate petition to hold him in contempt, claiming he owed $49,102 in 

arrearages. She eventually withdrew her contempt petition, but not 

before Husband was arrested and briefly jailed. After a hearing on Wife's 

petition to enforce, the superior court found in October 2010 that Husband

was entitled to interest of $3,147 on overpayments made between June 

2007 and July 2009, but that he still owed spousal support payments 

totaling $59,100 through July 2010. Postponing consideration of 

Husband's contention that any post-decree arrearages should be reduced 

by the sum of the pre-decree overpayments, the court awarded Wife 

$59,100 in past-due spousal support, along with attorney's fees and costs, 

less the accrued interest due Husband.

¶6 At an evidentiary hearing in August 2011, the superior court 

heard Husband's petition to set aside spousal maintenance. Wife testified

she had known she was receiving overpayments and that the pre-decree 

overpayments totaled about $85,000. Husband testified he was unaware 

of the overpayments until November 2009. 

¶7 The superior court found Wife had committed three 

instances of fraud on the court that authorized it to modify the nonmodifiable spousal maintenance term of the decree pursuant to In re 

Marriage of Waldren, 217 Ariz. 173, 175 n.3, ¶ 10, 171 P.3d 1214, 1216 n.3
McNEIL v. HOSKYNS

Opinion of the Court

4

(2007). The court vacated the prior order requiring Husband to pay postdecree arrearages, terminated Husband's spousal maintenance obligation

effective May 1, 2010, and imposed a $5,000 sanction pursuant to Arizona 

Revised Statutes ("A.R.S.") section 12-349 (2014) against Wife for her 

"repeated fraud and misrepresentations to the Court which resulted in 

numerous, unnecessary hearings."2 The court also awarded Husband his

attorney's fees and costs. 

¶8 We have jurisdiction of Wife's timely appeal pursuant to 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101(A)(2) 

(2014).

DISCUSSION

¶9 Wife argues that pursuant to A.R.S. § 25-317(G) (2014), the 

superior court lacked jurisdiction to modify the agreed non-modifiable 

spousal support provision of the dissolution decree. We review de novo

the court's jurisdiction to modify the award. Waldren, 217 Ariz. at 175, ¶ 6, 

171 P.3d at 1216. 

¶10 Dissolution proceedings are statutory actions, and "the trial 

court has only such jurisdiction as is granted by statute." Weaver v. 

Weaver, 131 Ariz. 586, 587, 643 P.2d 499, 500 (1982) (citations omitted). In 

the ordinary course, the superior court maintains "continuing jurisdiction" 

over spousal maintenance, and it may modify a support award if the 

parties' circumstances substantially change. See Waldren, 217 Ariz. at 175, 

¶ 8, 171 P.3d at 1216. 

¶11 By statute, however, "[i]f both parties agree, the maintenance 

order and a decree of dissolution of marriage or of legal separation may 

state that its maintenance terms shall not be modified." A.R.S. § 25-319(C) 

(2014). Moreover, "entry of a decree that sets forth or incorporates by 

reference a separation agreement that provides that its maintenance terms 

shall not be modified prevents the court from exercising jurisdiction to 

modify the decree and the separation agreement regarding maintenance . . 

. ." A.R.S. § 25-317(G) (2014). Waldren held that even in the face of 

substantially changed circumstances that otherwise might permit 

modification of spousal maintenance, if the parties have agreed that 

 

2 Absent material revision after the date of the events at issue, we cite 

a statute's current version.
McNEIL v. HOSKYNS

Opinion of the Court

5

maintenance may not be modified and the decree so orders, § 25-317(G) 

divests the court of jurisdiction to consider a subsequent petition to 

modify. 217 Ariz. at 175, ¶¶ 9-10, 171 P.3d at 1216.

¶12 Waldren left open, however, whether fraud by one of the 

parties may render the statutory bar ineffective. There were no allegations 

of fraud in that case, and the supreme court noted, "We do not address 

whether fraud or duress in the making of a non-modification agreement 

may render such a provision void." Id. at 175 n.3, ¶ 10, 171 P.3d at 1216 

n.3; see also Ariz. R. Fam. Law P. 85(C)(3) (time limits applying to motion 

to set aside judgment do "not limit the power of a court . . . to set aside a 

judgment for fraud upon the court").

¶13 The superior court in this case found Wife committed fraud 

on the court that voided the parties' agreement that spousal maintenance 

could not be modified. We will affirm a finding of fact by the superior 

court unless it is clearly erroneous. Ariz. R. Fam. Law P. 82(A); see also 

Valley Med. Specialists v. Farber, 194 Ariz. 363, 366, ¶ 9, 982 P.2d 1277, 1280 

(1999). Factual findings are not clearly erroneous if substantial evidence 

supports them, even if there is substantial conflicting evidence. Kocher v. 

Dep't of Revenue of State of Ariz., 206 Ariz. 480, 482, ¶ 9, 80 P.3d 287, 289 

(App. 2003). 

¶14 Fraud on the court is a variety of extrinsic fraud. See, e.g., 

Dockery v. Cent. Ariz. Power & Light Co., 45 Ariz. 434, 450-51, 45 P.2d 656, 

662-63 (1935). The doctrine may allow relief when, by fraud, a party has 

prevented "a real contest before the court of the subject matter of the suit,"

id., or, put differently, has committed "some intentional act or conduct . . . 

[that] has prevented the unsuccessful party from having a fair submission 

of the controversy," Bates v. Bates, 1 Ariz. App. 165, 169, 400 P.2d 593, 597

(1965). The court has the power to set aside a judgment "[w]hen a party 

obtains a judgment by concealing material facts and suppressing the truth 

with the intent to mislead the court." Cypress on Sunland Homeowners 

Ass'n v. Orlandini, 227 Ariz. 288, 299, ¶ 42, 257 P.3d 1168, 1179 (App. 2011) 

(complaint contained false statements and material omissions, and 

counsel made false statements in ex parte hearing); see also Gordon v. 

Gordon, 35 Ariz. 357, 364-65, 278 P. 375, 377-78 (1929) (wife lied in affidavit 

about where husband lived to excuse her failure to provide notice).

¶15 A judgment resulting from a fraud on the court may be set 

aside by motion or by an independent action. Cypress, 227 Ariz. at 299, ¶ 

42, 257 P.3d at 1179. More specifically, we have held that a party may be 

entitled to equitable relief from a provision of a dissolution decree that is
McNEIL v. HOSKYNS

Opinion of the Court

6

"procured by extrinsic fraud." Bates, 1 Ariz. App. at 168, 400 P.2d at 596 

(when judgment is the product of extrinsic fraud, "equity will act to 

prevent a failure of justice, for fraud is the arch enemy of equity"). 

¶16 Consistent with these cases, we hold that A.R.S. § 25-317(G) 

does not divest the superior court of jurisdiction to modify a decree 

imposing spousal support that the parties have agreed may not be 

modified when the decree is the product of a fraud on the court. In such a 

case, the party's fraud has damaged the "integrity of the judicial process"

and is a "wrong against the institutions set up to protect and safeguard the 

public." Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. 238, 246 

(1944), abrogated on other grounds, Standard Oil of Cal. v. United States, 429 

U.S. 17 (1976); see also Cleveland Demolition Co., Inc. v. Azcon Scrap Corp., 

827 F.2d 984, 986 (4th Cir. 1987) (fraud on the court is a "corruption of the 

judicial process itself") (quoting In re Whitney-Forbes, 770 F.2d 692, 698 (7th 

Cir. 1985)). When such fraud prevents the court from considering the 

fairness of an agreement that spousal support may not be modified, § 25-

317(G) will not preclude relief. 

¶17 The superior court found Wife committed fraud on the court 

when she entered in the Rule 69 agreement and submitted it for approval 

in May 2007, and knew but did not disclose in response to the court's 

question about the status of Husband's then-current obligations that he 

had overpaid her roughly $85,000 in pre-decree support payments. The 

court found that because of Wife's failure to disclose the overpayments, 

the parties' spousal support agreement "was shrouded in fraud and 

misrepresentation at the time of the entry of the Decree." 

¶18 The record supports the superior court's findings. So far as 

Husband and the court were aware, the status of Husband's support 

payments was not a matter in dispute at the time of the dissolution trial in 

2007, and Husband's response to the court's query, uncorrected by Wife, 

constituted the premise of the court's decision to accept as fair the parties'

agreement concerning his post-decree support obligations. When Wife 

failed to disclose the overpayments to the court, she permitted the court to 

proceed on the misunderstanding that Husband actually owed $2,500 in 

pre-decree payments when in reality he had overpaid by more than 

$85,000.

¶19 Wife argues fraudulent concealment cannot constitute a 

fraud on the court justifying relief from a judgment. To the contrary, 

"concealment of material facts may form the basis of an action in equity 

for extrinsic fraud." Bates, 1 Ariz. App. at 168, 400 P.2d at 596. By failing 
McNEIL v. HOSKYNS

Opinion of the Court

7

to disclose when she and Husband presented their spousal support 

agreement to the court that she had received thousands of dollars in 

double payments drawn from Husband's account, Wife effectively 

prevented a fair adjudication of the amount Husband should be ordered 

to pay in post-decree spousal maintenance. See A.R.S. § 25-317(B), (C) 

(court may decline to adopt a spousal maintenance agreement it concludes 

is unfair).

¶20 Wife also argues that fraud on the court may be committed 

only by an officer of the court, not by a party. We do not accept that 

contention. See Gordon, 35 Ariz. at 365-66, 278 P. at 378 (plaintiff 

committed fraud on the court by affidavit falsely representing she did not 

know where defendant lived); Bates, 1 Ariz. App. at 168-69, 400 P.2d at 

597-98 (husband concealed real property during divorce decree 

proceedings); Mt. Ivy Press, LP v. Defonseca, 937 N.E.2d 501, 509 (Mass. 

App. 2010) ("Although fraud on the court typically involves officers of the 

court, we are unprepared to say that pro se litigants are in all 

circumstances insulated from committing fraud on the court."); Ray v. Ray, 

647 S.E.2d 237, 241 (S.C. 2007) (wife committed fraud on court by 

misrepresenting existence of marital assets in court-ordered accounting). 

The fact that the false statements and concealments the superior court 

found were made by Wife, rather than by her lawyer, does not invalidate 

its finding. 

¶21 Wife finally argues Husband could have discovered the 

overpayments and called them to the court’s attention at the 2007 

dissolution trial. Although Husband's diligence, or lack of it, would be 

relevant to a claim of common-law fraud, no such defense applies to a 

claim of fraud on the court. See, e.g., Hazel-Atlas Glass, 322 U.S. at 246, 250; 

see also Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1262 n.2 (10th Cir. 

1995). As the Supreme Court explained in Hazel-Atlas Glass, fraud on the 

court "involves far more than an injury to a single litigant. It is a wrong 

against the institutions set up to protect and safeguard the public . . . ." 

322 U.S. at 246. For that reason, the Court held, "preservation of the 

integrity of the judicial process" must not always "wait upon the diligence 

of litigants." Id. Although Hazel-Atlas Glass involved a patent, the same 

rule has been applied in a purely private dispute. Pumphrey v. K.W. 

Thompson Tool Co., 62 F.3d 1128, 1133 (9th Cir. 1995) ("even assuming [the 

plaintiff] was not diligent in uncovering the fraud, the district court was 

still empowered to set aside the verdict, as the court itself was a victim of 

the fraud."). 
McNEIL v. HOSKYNS

Opinion of the Court

8

¶22 We affirm the superior court’s finding that the 2007 order 

adopting the parties' spousal support agreement was the product of a 

fraud on the court. Wife’s fraud authorized the superior court to exercise 

its equitable power in 2011 to grant Husband's petition to modify the 

support obligation and to grant any appropriate associated relief. See 

Ariz. R. Fam. Law P. 85(C)(3); see also Cypress, 227 Ariz. at 299, ¶ 42, 257 

P.3d at 1179.3

¶23 The superior court also found Wife committed fraud when 

she failed to disclose Husband’s overpayments in her subsequent petitions 

for contempt and for enforcement. On those occasions, unlike in the 

dissolution trial, the amount Husband had paid in support, and any 

cumulative arrearages due, were directly before the court for resolution. 

A false statement to the court about a matter in dispute rarely will 

constitute a fraud on the court. See Dockery, 45 Ariz. at 454, 45 P.2d at 664 

(collateral attack on judgment not allowed by complaint presenting issue 

decided in the judgment); George P. Reintjes Co., Inc. v. Riley Stoker Corp., 71 

F.3d 44, 49 (1st Cir. 1995) (perjury is "hazard of the adversary process with 

which litigants are equipped to deal through discovery and crossexamination").4

¶24 Although misrepresentations and concealments in Wife’s

post-decree filings did not constitute extrinsic fraud, a false statement 

under oath about a matter in dispute may subject that party to sanctions. 

 

3 Wife argues only that the superior court lacked jurisdiction to 

modify the agreed-upon spousal support obligation. She does not argue 

that, if the court had jurisdiction, it abused its discretion by deciding to 

terminate Husband’s spousal support payments as of 2010.

 

4 As the Supreme Court explained in Hazel-Atlas Glass Co., 322 U.S. at 

261, n.18: 

The classical example of intrinsic as contrasted with extrinsic 

fraud is the commission of perjury by a witness. While 

perjury is a fraud upon the court, the credibility of witnesses 

is in issue, for it is one of the matters on which the trier of 

fact must pass in order to reach a final judgment. An 

allegation that a witness perjured himself is insufficient [to 

justify relief as extrinsic fraud] because the materiality of the 

testimony, and opportunity to attack it, was open at the trial.
McNEIL v. HOSKYNS

Opinion of the Court

9

See A.R.S. § 12-349; Ariz. R. Fam. Law P. 31. Having found Wife’s postdecree filings contained false statements and fraudulent concealment, the 

superior court was authorized to impose appropriate penalties, including 

the $5,000 sanction and Husband’s attorney’s fees and costs. Id. 

¶25 Both parties ask for their attorney's fees on appeal pursuant 

to A.R.S. § 25-324 (2014) (court may grant fees after considering parties'

financial resources and the reasonableness of their positions). Because we 

are unaware of the parties' current financial resources, we deny the 

requests without prejudice to renewal in the superior court. We grant 

Husband his costs on appeal contingent on compliance with Arizona Rule 

of Civil Appellate Procedure 21. 

CONCLUSION

¶26 For the foregoing reasons, we affirm the relief the superior 

court granted Husband in its orders issued September 19, 2011, and 

February 10, 2012.