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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

JANE BACKUS, Petitioner/Appellee, 

v.

LARRY A. BACKUS, Respondent/Appellant. 

No. 1 CA-CV 14-0649 FC

Appeal from the Superior Court in Yavapai County 

No. V1300DO201380132 

The Honorable Jeffrey G. Paupore, Judge Pro Tempore 

The Honorable Mark M. Moore, Judge Pro Tempore

VACATED AND REMANDED 

COUNSEL 

Aspey Watkins & Diesel PLLC, Flagstaff 

By Zachary J. Markham, Staci Lynn Foulks, Edward Jakob Walneck 

Counsel for Petitioner/Appellee

Bryon Middlebrook PC, Flagstaff 

By Bryon Middlebrook 

Counsel for Respondent/Appellant
BACKUS v. BACKUS 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined. 

G E M M I L L, Judge: 

¶1 Lawrence Backus (“Husband”) appeals an amended consent 

decree and order denying his motion for clarification/new trial. For the 

following reasons, we vacate the amended decree and the order denying 

Husband’s motion for clarification/new trial and remand for further 

proceedings consistent with this decision. 

BACKGROUND 

¶2 Upon dissolution of their marriage, Husband and Jane Backus 

(“Wife”) negotiated a Partial Property Settlement Agreement (“the 

Agreement”). The Agreement laid out the parties’ provisions for Wife’s 

“spousal maintenance” as follows: 

Wife is unemployed and has no monthly income. Husband is 

retired and has gross monthly income on the sum of $7,593.14 

from several sources (Social Security: $2,108.00; [Orange 

County] Assessor: $2,246.02; USMC (DFAS): $2,793.25; 

Boeing: $445.89). Husband shall pay to Wife, as and for 

spousal maintenance, the sum of $3,300 per month. Said 

payments shall commence on May 1, 2013 and [are] payable 

before or on the 5th day of each and every month thereafter, 

indefinitely. It is specifically agreed that this provision for 

spousal maintenance is not subject to modification. It is 

further agreed that spousal maintenance, payable pursuant to 

this provision, shall terminate immediately upon any of the 

following events with no further payments being required 

thereafter: Wife’s death; Husband’s death; Wife’s remarriage 

or cohabitation. 

The Agreement divided Husband’s Boeing and Orange County pensions 

equally between the two spouses. It also set forth an unequal division of 

(1) Husband’s USMC pension, with Wife receiving 9.38 percent and 

Husband receiving 90.62 percent; and (2) Husband’s Social Security 
BACKUS v. BACKUS 

Decision of the Court 

3

benefits, with Wife receiving 30 percent and Husband receiving 50 percent.1 

The Agreement also stated: 

The division of these retirement accounts and assets is for the 

purpose of providing Wife with a spousal maintenance/ 

property equalization payment in the sum of $3,300 per 

month. The division of the assets is not in addition to the 

spousal maintenance/equalization payment. 

¶3 The parties then presented the family court with a proposed 

consent decree that referred to the Agreement. The consent decree 

contained an order stating: 

Petitioner [sic] is ordered to continue to pay to Respondent 

[sic] the sum of $3,300.00 per month as and for spousal 

maintenance, which began on the first day of May 2013, 

pursuant to the parties’ Partial Property Settlement 

Agreement dated March 28, 2013. This monthly payment of 

$3,300.00 includes the Petitioner’s interests in the 

Respondent’s Boeing and Orange County Pensions, 

Respondent’s social security and USMC pension. Each 

payment shall be made by the fifth day of each month and 

shall continue until either the Petitioner is remarried or 

deceased or until the Respondent is deceased. . . . Payments 

made shall be included in the receiving spouse’s taxable 

income and is tax deductible from the paying spouse’s income 

as required by law. 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.

The decree also awarded each party various other property and one-half of

the Boeing and Orange County pensions pursuant to the “pre-approved”

Qualified Domestic Relations Orders (“QDROs”) filed with the court. The 

Orange County pension payments terminate upon Husband’s death, but 

 

1 There is no explanation in the record or appellate briefs regarding the 

remaining 20 percent of Husband’s Social Security benefits. 
BACKUS v. BACKUS 

Decision of the Court 

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upon Wife’s death become payable to her estate. Wife’s payments from the 

Boeing pension terminate upon the death of either party. 

¶4 Five months after the family court signed the consent decree, 

Husband filed a motion to set it aside pursuant to Arizona Rule of Family 

Law Procedure (“Rule”) 85(C). Husband argued the decree erroneously 

ordered Wife to pay Husband support and awarded Wife an interest in 

Husband’s Social Security benefits. Husband also argued the decree 

improperly granted Wife spousal maintenance in lieu of her property rights 

in the Boeing and Orange County pensions, but also inconsistently granted 

her community property rights in those pensions through the QDROs. 

Husband asked the court to set aside the decree, equitably allocate the 

community property, and determine whether Wife was entitled to spousal 

maintenance pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-

319. Wife moved to dismiss Husband’s motion and argued that any errors 

in the decree were merely clerical errors the court could correct without 

setting it aside. 

¶5 Following argument on Husband’s motion, the court signed 

an order setting aside the 2013 consent decree and the two QDROs. The 

court also signed an amended decree submitted by Wife. The amended 

decree provides as follows: 

Respondent is ordered to continue to pay to Petitioner the sum 

of $3,300.00 per month as and for spousal maintenance, which 

began on the first day of May 2013, pursuant to the parties’ 

Consent Decree signed on August 6, 2013, which by this 

reference is incorporated herein. Petitioner is to receive 

$3,300.00 per month as and for spousal maintenance. This monthly 

payment of $3,300.00 consists of a payment from Respondent’s 

Boeing pension in the amount of $220.60 per month (representing 

Petitioner’s community interest in Respondent’s pension), a 

payment from Respondent’s Orange County pension in the amount 

of $1,173.92 (representing Petitioner’s community interest in 

Respondent’s pension), and the balance of $1,905.48 per month shall 

be paid to Petitioner directly by Respondent. Each payment shall 

be made by the fifth day of each month and shall continue 

until either the Petitioner is remarried or deceased or until the 

Respondent is deceased. . . . Payments made shall be included 

in the receiving spouse’s taxable income and is [sic] tax 

deductible from the paying spouse’s income as required by

law. The parties acknowledge that the circumstances of their 

futures are unknown but each desires that this maintenance 
BACKUS v. BACKUS 

Decision of the Court 

5

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. 

(Emphasis in original.) The amended decree also awarded Wife, as her 

separate property: 

Petitioner’s one-half community interest in Respondent’s 

Boeing Pension in Respondent’s name payable at the rate of 

$220.00 per month [and] Petitioner’s one-half community 

interest in Respondent’s Orange County Assessor pension in 

Respondent’s name payable at the rate of $1,173.92 per 

month. 

No new QDROs were issued. 

¶6 Following the trial court’s orders, Husband filed a motion for 

clarification/motion for new trial. The family court denied Husband’s 

motion, and Husband filed a notice of appeal. At the time of filing, 

however, the trial court’s order was still unsigned. Accordingly, this court 

stayed the appeal and re-vested jurisdiction in the family court to allow it 

to issue an appealable, signed order. Husband then timely filed a second 

notice of appeal that included the signed order denying his motion for 

clarification/motion for new trial. We have jurisdiction pursuant to A.R.S. 

§§ 12-2101(A)(2) and 12-2101(A)(5)(a). 

DISCUSSION 

¶7 Husband argues the court erred by denying his motion to set 

aside. He argues the trial court should not have entered the amended 

decree without hearing additional evidence, and that the amended decree 

did not fix the legal errors contained in the original decree. We review the 

trial court’s ruling on a Rule 85(C) motion to set aside for an abuse of 

discretion. Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012). 

I. Errors in Decree Were Not Merely Clerical 

¶8 Wife maintains any errors in the original decree were clerical 

errors because the court did not “intend” to approve mistaken language. 

See Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 142–43 (App. 1987) 

(explaining that courts may correct clerical errors, but may not change the 
BACKUS v. BACKUS 

Decision of the Court 

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substance of a judgment if it reflects the court’s intended result); Rule 85(A). 

We agree that the decree’s mislabeling of the parties, which provided Wife 

would pay support to Husband rather than Husband paying support to 

Wife, was a clerical error that was properly corrected under Rule 85(A). See 

Ace Auto. Prods., 156 Ariz. at 142 (holding difference between judgmental 

and clerical error is “whether the error occurred in rendering the judgment 

or in recording the judgment rendered.”). But the remaining issues 

Husband raises are legal questions. 

¶9 When it is presented with a consent decree, the family court 

has a statutory obligation to determine whether the parties’ agreement 

achieves a fair and equitable property distribution. See A.R.S. § 25-317(B); 

Wick v. Wick, 107 Ariz. 382, 385 (1971); Sharp v. Sharp, 179 Ariz. 205, 210 

(App. 1994). The existence of a consent decree does not give the family 

court discretion to delegate this obligation to the parties by signing a 

consent decree without reviewing its terms. See Wick, 107 Ariz. at 385; 

A.R.S. § 25-318(A). Because the amended decree contains legal mistakes, 

Husband was entitled to seek review of the amended decree under Rule 

85(C). 

II. Legal Errors in Amended Decree 

¶10 Husband argues the original consent decree contained 

irreconcilable provisions. According to Husband’s interpretation, the 

parties intended to award Wife spousal maintenance in lieu of her 

community property interests in Husband’s pensions. He therefore 

contends it was inconsistent to award Wife an interest in those pensions 

under the QDROs. Husband also argues the court abused its discretion by 

entering an amended decree that substantively changed the original 

consent decree without evidence supporting the changes.2 Although we 

reject Husband’s interpretation of the consent decree and the Agreement, 

we agree there are several errors in both the original and amended decrees. 

¶11 First, the decree conflates property rights with “spousal 

maintenance.” “Property division and spousal maintenance are two 

 

2 Wife argues Husband waived his right to object to the amended decree 

because he did not submit an amended decree to the family court. Instead, 

Husband submitted an order setting aside the consent decree, consistent 

with the relief he sought. This is what the family court anticipated from 

Husband, and we find no waiver. 
BACKUS v. BACKUS 

Decision of the Court 

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separate and distinct considerations at dissolution and [ ] increased spousal 

maintenance cannot justify depriving a spouse of his or her property right.” 

Cooper v. Cooper, 167 Ariz. 482, 488 (App. 1990); see also Koelsch v. Koelsch, 

148 Ariz. 176, 182 (1986). Spousal maintenance is not a proper vehicle for 

settling the parties’ community property interests. Instead, it is awarded 

where necessary for the spouse’s support. See Buttram v. Buttram, 122 Ariz. 

581, 582 (App. 1979). The court may consider the community property 

allocated to the spouse in determining whether that spouse is entitled to 

spousal maintenance, but the parties cannot deny a spouse his or her 

property rights in exchange for spousal maintenance. See A.R.S. § 25-

319(A); see also Cooper, 167 Ariz. at 488. 

¶12 Generally, pension plans are community property subject to 

equitable division upon dissolution. Koelsch, 148 Ariz. at 181; Cooper, 167 

Ariz. at 487; A.R.S. § 25-318(A). But under the decree, Wife’s “spousal 

maintenance” payments, which include a portion of her community 

interest in Husband’s Boeing and Orange County pension, terminate upon 

either party’s death or Wife’s remarriage. Thus, the decree runs afoul of 

Arizona community property law by improperly divesting Wife of her 

vested rights in community property that should survive her death or 

remarriage. See Koelsch, 148 Ariz. at 181. 

¶13 The decree also deprives Husband of his separate property 

interest. The original decree awarded Wife a portion of Husband’s separate 

property, namely, his Social Security benefits and USMC pension. See Kelly 

v. Kelly, 198 Ariz. 307, 308, ¶ 5 (2000) (explaining that federal law prohibits 

Social Security benefits from being divided by state courts upon 

dissolution). Wife concedes that Husband’s Social Security benefits and his 

USMC pension are his separate property and not subject to equitable 

allocation, but argues the amended decree corrects the error by deleting 

those two property awards. We disagree, because the original decree 

specifically stated that the $3,300 payment amount included Wife’s interest 

in Husband’s Social Security benefits and USMC pension. Under the 

amended decree, Wife is still entitled to $3,300 per month. Accordingly, the 

amended decree presumably still places some monetary value on 

Husband’s separate property interests. 

¶14 Finally, the amended decree contemplates that a portion of 

the $3,300 “spousal maintenance” payment will come from the QDROs. But 

the family court set aside the QDROs when it set aside the original decree. 

Therefore, the decree is flawed because it relies on QDROs no longer in 

effect. The fact that Wife may be receiving the previously designated 
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Decision of the Court 

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payment amounts from the QDROs does not, by itself, breathe life into 

QDROs that have been set aside by court order. 

¶15 Because the amended decree contains legal errors, the family 

court erred by denying Husband’s motion for clarification/motion for new 

trial.3 See Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 50, ¶ 27 

(App. 2007) (holding a trial court abuses its discretion if it commits an error 

of law). 

III. Non-Modifiability Language Does Not Preclude Relief 

¶16 Wife contends that, even if it is flawed, the court could not set 

aside the entire spousal maintenance award because Husband agreed to a 

“non-modifiable” spousal maintenance payment of $3,300. Under A.R.S. § 

25-317(G), “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[.]” 

Interpreting this statute, our supreme court has held that when parties 

agree to non-modifiable spousal maintenance, the family court may not 

consider a petition to modify a decree even if a substantial change in 

circumstances has occurred. In re Marriage of Waldren, 217 Ariz. 173, 175, 

¶¶ 9–10 (2007). Wife argues that A.R.S. § 25-317(G) should apply to the 

consent decree here and that the family court was precluded from 

modifying it beyond correcting the clerical errors it contained. 

¶17 As discussed above, however, the payment here is not 

entirely “spousal maintenance,” and on this record, it is not possible to 

determine what portion of the lump sum payment may accurately be 

classified as spousal maintenance. Additionally, to the extent that it 

deemed Wife’s community property as a portion of her spousal 

maintenance, the decree is erroneous. The parties cannot prevent the court 

from exercising its authority to grant relief by classifying a legally 

erroneous payment provision as “non-modifiable.” Sharp, 179 Ariz. at 210 

(explaining that parties cannot by agreement “‘completely defeat the 

 

3 Wife argues for the first time on appeal that Husband improperly 

combined a motion for clarification with a motion for new trial. We will 

not address arguments raised for the first time on appeal. See K.B. v. State 

Farm Fire & Cas. Co., 189 Ariz. 263, 268 (App. 1997). Moreover, at the time 

Husband filed his motion in 2014, combined motions were not prohibited. 

Compare Rule 84(B) (2016) with Rules 83, 84, 85 (2014). 
BACKUS v. BACKUS 

Decision of the Court 

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authority expressly conferred upon the trial court by our statute.’” (quoting 

Wick, 107 Ariz. at 385)). 

¶18 Because the decree is legally erroneous, the parties’ “nonmodifiable” language does not prevent the court from vacating it. 

Accordingly, the family court erred by denying Husband’s motion for 

clarification/motion for new trial. 

CONCLUSION 

¶19 We vacate the amended decree and remand for a new trial 

regarding allocation of the community property and the award of spousal 

maintenance to Wife. Having found the amended decree was erroneous, 

we also vacate the order denying Husband’s motion for clarification/

motion for new trial. 

¶20 Both parties request an award of attorneys’ fees and costs 

pursuant to A.R.S. § 25-324. Husband also asks for an award of fees as a 

sanction for Wife’s allegedly baseless positions. See Rule 31 and A.R.S. § 12-

349. We do not agree that a sanction is warranted on this record, and we 

therefore deny the request under Rule 31 and A.R.S. § 12-349. Additionally, 

in the exercise of our discretion under A.R.S. § 25-324, we decline to award 

fees to either party. As the successful party on appeal, however, Husband 

is entitled to his taxable costs on appeal pursuant to A.R.S. § 12-342.