In Smith v. Smith, the Arizona Court of Appeals vacated the family court’s ruling that a litigant was procedurally barred from seeking reimbursement of spousal maintenance payments made after the underlying maintenance award was voided.

In 2003, Wife filed for divorce. In her petition for dissolution, she requested spousal maintenance of $4,000 per month. Husband signed and notarized an acceptance of service, a document that a litigant can sign to acknowledge receipt of pleadings and waive formal process service. Husband did not file a response to the petition.

Wife filed for default judgment and avowed she mailed a copy to Husband. Husband did not appear or file a response, so the family court entered default judgment for Wife and awarded her $3,500 in monthly spousal maintenance.

Years later, Wife filed a petition for contempt to enforce the spousal maintenance decree. Husband filed a petition to terminate spousal maintenance and a Rule 85(C) motion where he alleged Wife never mailed a copy of the application for default judgment and that, as a result, the decree was “void.”

At an evidentiary hearing, the family court found that Wife had not properly mailed the default paperwork to Husband. The family court agreed the spousal maintenance decree was void.

About a year later, Husband filed a petition to enforce the decree where he requested reimbursement from Wife for the spousal maintenance he paid under the original default judgment. The family court denied this motion and ruled that Husband waived right to request reimbursement when he did not include the request in the Rule 85 motion he filed previously.

On appeal, the Court of Appeals first distinguished between void and voidable judgments. A judgment is void when rendered by a court without jurisdiction. Conversely, a judgment is voidable when jurisdiction is properly asserted but the judgment is otherwise erroneous and subject to reversal. In this case, the judgment was voidable based on Wife’s non-compliance with Rule 44.

The family court cited Rule 29 when it ruled that Husband waived his right to seek reimbursement. However, that rule applies to pleadings only, and Husband’s motion for relief was not a pleading. Because Rule 29 did not apply, the Court of Appeals remanded the issue to family court without addressing the merits of Husband’s request.