Norton v. Norton

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Marriage of: ) ) MICHAEL A. NORTON, ) ) Petitioner-Appellee, ) ) v. ) ) SHARON NORTON, ) ) Respondent-Appellant. ) ) DIVISION ONE FILED: 04-06-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 08-0805 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28(c), Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN2005-051511 The Honorable Ruth Harris Hilliard, Judge AFFIRMED Law Offices of Steven C. Polgar PC By Steven C. Polgar Attorneys for Petitioner-Appellee Carefree The Murray Law Offices PC By Stanley D. Murray Attorneys for Respondent-Appellant Phoenix T H O M P S O N, Judge ¶1 This is a divorce case. Sharon Norton (wife) challenges the family court s allocation of certain property and debts following (husband). a one-day hearing to Michael A. Norton We affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Husband parties and initially corporation wife lived called married in on Texas, Creative April and Cement 21, 1984. operated The Texas Inc. Coatings, a They eventually sold this business to wife s two adult sons in 2001. Meanwhile, husband formed a similar community business, Creative Cement Coatings, L.L.C., an Arizona limited liability company, and the parties acquired a residence in Phoenix, Arizona. 1 ¶3 Husband filed a petition for dissolution in Maricopa County Superior Court on November 4, 2005. requested an award of attorneys fees. Wife responded and Neither party requested spousal maintenance. ¶4 The family court continued the trial initially scheduled for December 12, 2006, and Husband s attorney filed a notice of settlement Disagreements settlement emerged agreement, of all over in the which issues final the on March terms of parties had 26, the 2007. alleged attempted to allocate their property, and the family court again continued the case on its inactive calendar. 1 The family court s order refers to the property as the marital residence. The parties filings characterize the residence as community property, yet their purported settlement document states that it is held in joint tenancy. The appellate record contains no documents pertaining to title. 2 ¶5 Wife filed an unsuccessful motion for partial summary judgment based upon property issues. ¶6 the parties alleged settlement of the Trial occurred on June 9, 2008. The family court entered a minute entry ruling and directed Husband s counsel to prepare a decree. It then entered the decree (decree) over Wife s objection that it misstated the amount of rent calculated in the minute entry. The decree also denies both parties requests for attorneys fees pursuant to Arizona Revised Statutes (A.R.S.) section 25-324(A)(Supp. 2008). This appeal followed. DISCUSSION I. The Family Court s Order Awards Each Party A 50 Percent Interest In Creative Cement Coatings, L.L.C. ¶7 The parties advance different interpretations of the Decree s provisions Coatings, L.L.C. concerning the award of Creative The Decree provides in relevant part: CREATIVE CEMENT COATINGS, L.L.C.: The parties own a community business known as Creative Cement Coatings, L.L.C. Husband operates the business but each party is entitled to his/her share of the fair market value of the business. a. The Court finds that this business has a fair market value of $142,000.00 as of the end of 2005, when the Petition for Dissolution was served. Although the valuation is lower as of December 31, 2007, the earlier figure is the correct valuation to be used since the community ended 3 Cement upon service of the Petition for Dissolution. IT IS ORDERED that each party is entitled to one-half of the fair market value of the business, or $71,000.00. It is the Court s understanding that Husband wishes to operate the business as his sole and separate property; in order to do so he must buy out Wife s one-half interest in the business. IT IS FURTHER ORDERED awarding Husband the Community Business, Creative Cement Coatings, LLC upon payment to the Wife of $71,000.00 as her one-half share of the business. Wife shall retain her 50% interest until such time as payment is received in full from Husband. (Emphasis added). ¶8 The plain language of the Decree awards Wife a present 50 percent interest in Creative Cement Coatings, L.L.C. Husband has transferred such stock to Wife. If Husband wishes to operate the company as a separate property business, he must pay Wife $71,000. ¶9 In a hearing held on the same day that the notice of appeal was filed, Wife sought to use this language to compel a sale of her interest. The family court clarified that: I don t believe at this point that she has a right to force him to pay the 50 Decree. assets. percent. They are co-owners at this time under the The family court further explained: I did divide the They each have a 50-percent interest until such time as Husband pays her $71,000 in order to buy her out; otherwise, 4 they each have a 50-percent interest in the business. 2 Such an award is legally sustainable as a property division under A.R.S. § 25-318(A)(Supp. 2008). See Spector v. Spector, 94 Ariz. 175, 186, 382 P2d 659, 666 (1963). ¶10 Based upon the Decree s plain terms, each party received a 50 percent interest in the business and Husband must pay Wife Because $71,000 Husband if he sought decides to to enforce operate the it Decree separately. under his interpretation after filing the notice of appeal, this court lacks jurisdiction to decide enforcement issues and can only interpret the Decree. II. The Family Court Did Not Reimbursing Husband For Improvements. 2 Abuse Its Residential Discretion In Repairs And Husband cites this language in support of his interpretation of the Decree. Husband s reliance upon this language is misplaced. An analogous issue concerning the interpretation of a divorce decree arose in In re Marriage of Zale, 193 Ariz. 246, 249, ¶ 12, 972 P.2d 230, 233 (1999). After considering extrinsic evidence, the family court interpreted the decree to provide a fixed sum of spousal maintenance and denied the former wife s request to extend the award. Id. at 248, ¶ 6, 972 P.2d at 232. A final judgment exists as an independent resolution by the court of the issues before it and rightfully is regarded in that context. Id. at 249, ¶ 11, 972 P.2d at 233 (citing United States v. 60.22 Acres of Land, 638 F.2d 1176, 1178 (9th Cir. 1980), cert. denied, 451 U.S. 985 (1981)). Even the oral testimony of a judge as to what she had in mind at the time of ruling cannot overthrow or limit a judgment. Fayerweather v. Ritch, 195 U.S. 276, 307 (1904). Accordingly, Zale precludes any consideration of the family court s statements made in a hearing concerning the meaning of the Decree. 5 ¶11 All property acquired by a husband and wife during marriage is community property unless it is acquired by (1) gift, devise, or descent, or (2) acquired after service of the petition for dissolution, legal separation, or annulment if the petition results in a decree of dissolution, legal separation or annulment. A.R.S. § 25-211(A)(Supp. 2008); Cooper v. Cooper, 130 Ariz. 257, 259, 635 P.2d 850, 852 (1981). The court shall . . . divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct. A.R.S. § 25-318(A)(Supp. 2008). In making allocations, the court is not required to make an absolutely equal distribution of the community property as long as it does not appear that the trial court s disposition of the community estate is inequitable or unfair. Nesmith v. Nesmith, 112 Ariz. 248, 252, 540 P.2d 1229, 1233 (1975). ¶12 In reviewing the family court s apportionment of community property and debts, we consider the evidence in a light most favorable to upholding the trial court s ruling and will sustain that ruling if the evidence reasonably supports it. Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2, 118 P.3d 621, 622 (App. 2005). We give due regard to the family court s acceptance or rejection of testimony in light of its ability to judge the credibility of witnesses. Ariz. 343, 347-48, ¶ 13, 972 P.2d 6 Gutierrez v. Gutierrez, 193 676, 680-81 (App. 1998). Finally, we note that Husband filed a request for findings of fact and conclusions of law pursuant Arizona Rules of Civil Procedure. to Rule 52(a) of the Consequently, we cannot set aside any factual finding unless clearly erroneous. See Ariz. R. Family L.P. 82(A). ¶13 The family court heard Husband s testimony concerning repairs and improvements made to the marital residence since the dissolution petition was filed in 2005. completely done since that time. all the entryways, He testified to having walkways, patios, walls Husband testified he paid for the repairs in an amount of $12,000-$13,000 to outside contractors plus his own work. The family court credited Husband s testimony by ordering an offset based upon the repairs value. The family court has the opportunity to judge the credibility of witnesses and the weight to give evidence. See Gutierrez, 193 Ariz. at 347-48, ¶ 13, 972 P.2d at 680-81; United Cal. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 302, 681 P.2d 390, 454 (App. 1983). ¶14 Wife disputes that repairs were made to the residence and argues that she was not liable for any repairs made prior to January 2007, the date when the parties allegedly agreed to evenly divide the costs of any repairs. See Baum v. Baum, 120 Ariz. 140, 146, 584 P.2d 604, 610 (App. 1978). We disagree. Wife can be liable for improvements made to a community asset with Husband s separate property; 7 she will benefit from the improvement at the time of sale. See Berger v. Berger, 140 Ariz. 156, 160-63, Husband s court s 680 P.2d testimony finding 1217, 1221-24 provides of evidence post-dissolution (App. 1983). supporting petition Because the family repairs that benefited a community asset, we affirm this finding. ¶15 Based on this, and in a related ruling, the trial court determined that Husband was liable for rent. The evidence shows that Wife s community share of the monthly rent was $500 for the thirteen months from July 2007 through August 2008. There was no abuse of discretion in the trial court s offset of that $6500 in rent due to Wife against $6500 share of repairs made by husband to the residence. III. The Family Court Did Not Abuse Its Discretion In Dividing The Line Of Credit Liability. ¶16 divided Wife further complains that the family court evenly the liability marital residence. for a $30,000 line of credit on the It ordered the line of credit to be paid after the sale of the residence and directed an even split of the proceeds. According to Wife, the family court should have allocated this liability to Husband because the line of credit was used to finance the purchase of his motorcycle and should not be a community liability. ¶17 The family court has indebtedness upon dissolution. jurisdiction to allocate Cadwell v. Cadwell, 126 Ariz. 8 460, 462, 616 P.2d 920, 922 (App. 1980). incurred during marriage are Generally all debts presumed to be community obligations unless there is clear and convincing evidence to the contrary. Schlaefer v. Fin. Mgmt. Serv., Inc., 196 Ariz. 336, 339, ¶ 10, 996 P.2d 745, 748 (App. 2000). ¶18 The record reflects that the line of credit and the motorcycle were both testified that acquired he bought approximately $33,000. bought the motorcycle financed it through Husband was making during the the marriage. motorcycle in Husband 2002 for Wife similarly testified that Husband in Houston Greentree monthly in 2002 Financial. payments of for $32,850 According $550.51 to out and Wife, of his personal account, not the parties joint account. ¶19 The parties opened the line of credit in 2004 and paid another 32 when refinancing occurred. rode the motorcycle once or twice. Wife testified that she The motorcycle for another vehicle in 2006. parties traded the Husband estimated the traded motorcycle s value as $14,500 at that time of trade. ¶20 We presume that the line of credit was a community debt because it was acquired during the marriage. The only evidence different in the record offered to characterization was Wife s testimony. support a The trier of fact was entitled to reject this testimony, see Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12, 9 P.3d 314, 9 318 (2000), and we defer to its assessment of a witness s testimony. See Gutierrez, 193 Ariz. at 347-48, ¶ 13, 972 P.2d at 680-81. rebut Further, there is no clear and convincing evidence to the presumption that the debt was for the community. Accordingly, we affirm the even division of the line of credit as a community debt. IV. The Family Court Did Not Abuse Its Discretion In Denying Wife An Equalization Payment For The Vehicles. ¶21 Wife also challenges the family court s denial of an equalization payment based allocated to the parties. upon the values of the vehicles [D]istribution of marital property is left to the sound discretion of the trial court and will not be disturbed unless clearly erroneous. Baum, 120 Ariz. at 142, 584 P.2d at 606. ¶22 The record reflects that Husband and Wife agreed that she would retain the 1999 Toyota Land Cruiser and the 1990 BMW, while Husband would retain the 2006 Nissan truck, the pop-up camper, the 1992 Jeep (which has been sold), and the motorcycle (which had been traded in 2006). Wife claims that she is entitled to $25,000 based upon the difference in values of the vehicles allotted to each party. A. ¶23 Vehicles Received By Husband With respect to the vehicles Husband received, Wife introduced a Kelly Blue Book valuation of $5120 for a 1992 Jeep 10 Wrangler in good condition. According to Husband, however, he bought the Jeep for $2400 in 2002 when it had 125,000 miles on it, using money from his Mother. Husband sold the 1992 Jeep for $1200. ¶24 Husband testified that he bought the pop-up camper in 2006 after the petition for dissolution had been served. Wife did not dispute that it was separate property, so it was not subject to division as community property. ¶25 Husband further testified that he bought the Nissan Titan truck in 2005 for $42,000, using $10,000 from his mother for a down payment, and it had been paid off. At the time of the petition for dissolution, he owed $2000 or $3000 more on the truck than it was worth. off using Husband. Creative Wife testified that the truck was paid Cement Coatings, L.L.C. checks issued to In Wife s opinion, the vehicle was worth $36,000 to $40,000, although her own Kelly Blue Book estimate pegged the value at vehicle, $17,980. including Wife pipe explained that modifications, improvements satellite tires, and rims, had increased the value. to the radio, new As Husband pointed out, however, Wife s valuation did not address mileage on the vehicle. ¶26 Finally, Husband testified that motorcycle cost approximately $33,000 in 2002. the original He then traded it in 2006 for a zero less expensive car and received no cash. 11 B. Vehicles Received By Wife ¶27 With respect to the vehicles Wife received, the record contains Kelly Blue Book evidence that a BMW model in good condition was worth $4375, and a Toyota Land Cruiser in good condition was worth $17,165. Husband did not testify concerning these vehicles. ¶28 Based on the Kelly Blue Book evidence, the family court could have attributed a total vehicle value to Wife of $21,540. It could have valued Husband s Jeep Wrangler and truck at either $19,180 or $23,100, using the Kelly Blue Book value for the truck and adopting either Husband s or Wife s testimony as to the Jeep Wrangler. If it adopted the $19,180 figure and accepted Husband s contention about the minimal value of the vehicle obtained vehicles were by worth trade, more it than equalization payment was due. assessment of valuation could have Husband s found that vehicles Wife s and no We credit the family court s issues testimony, and consequently affirm. and its evaluation of the See Baum, 120 Ariz. at 144, 584 P.2d at 608; Gutierrez, 193 Ariz. at 347-48, ¶ 13, 972 P.2d at 680-81. 3 3 We decline to consider the memorandum decision attached as Appendix 1 to Husband s Answering Brief. See Walden Books Co. v. Dep t of Revenue, 198 Ariz. 584, 589, ¶¶ 20-23, 12 P.3d 809, 814 (App. 2000)(holding that unpublished decisions may not be cited as precedent); A.R.C.A.P. 28(c). Nor can we consider Appendix 3 to the Brief, as the record does not contain it. See 12 V. The Trial Court Did Not Abuse Its Discretion In Denying Wife Her Attorneys Fees. ¶29 Wife also challenges the family court s refusal to award her attorneys fees pursuant to A.R.S. § 25-324(A). A family court has discretion under this statute to order one party to compensate the other for costs and expenses after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings. attorneys fees. attorneys fees issues committed A.R.S. § 25-324(A). A.R.S. § The expenses may include 25-324(B). under the statute, to the family and Whether in court s what sound to award amount, are discretion. Breitbart-Napp v. Napp, 216 Ariz. 74, 83, 84, ¶¶ 35, 39, 163 P.3d 1024, 1033, 1034 (App. 2007). ¶30 Both parties had requested fees in the family court, and there is no indication that either party requested findings of fact pursuant to A.R.S. § 25-324(A). of unnecessarily prolonging accrual of attorneys fees. the Each accused the other proceedings and causing the Neither persuaded the family court that fees should be awarded on that basis. GM Dev. Corp. v. Cmty. Am. Mortage Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990). Finally, to the extent that Husband seeks relief from the Decree s terms, this effort is foreclosed by his failure to file a cross-appeal. See Hoffman v. Greenberg, 159 Ariz. 377, 380, 767 P.2d 725, 728 (App. 1988); A.R.C.A.P. 13(b). 13 ¶31 With respect to financial resources, our record does not contain an affidavit of financial information from either party or any tax returns. Wife concedes that [n]o testimony was presented as to the parties incomes. Yet the record does include Wife s testimony that Husband s only source of income was Creative Cement Coatings, L.L.C. Husband points out that he lost medical insurance coverage and underwent dialysis prior to trial, although Wife contends he received Medicare benefits. In light of this record, we cannot say that the family court abused its discretion in declining to award fees to Wife. ¶32 For similar reasons, we decline to award attorneys fees on appeal to either party. Neither party took unreasonable positions, and we lack information enabling us to assess their current respective financial positions. See Hurd v. Hurd, 223 Ariz. 248, 254, ¶ 27, 219 P.3d 258, 264 (App. 2009). CONCLUSION ¶33 We equalization affirm the payment and family the court s $30,000 rulings line of as to credit. the In addition, we interpret the Decree to grant each party a present 50 percent interest in Creative Cement Coatings L.L.C. Husband must pay Wife $71,000 if he wishes to operate the business as separate property. We also find that the family court did not abuse its discretion in denying Wife an award of attorneys fees. Finally, in the exercise of our discretion, we deny both 14 requests for attorneys fees on appeal pursuant to A.R.S. § 25324(A). /s/ ________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ______________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ______________________________________ PATRICK IRVINE, Judge 15

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