Wright v. Wright

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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: HASKELL S. WRIGHT, Petitioner/Appellee, v. JOAN M. WRIGHT, Respondent/Appellant. ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/03/2012 RUTH A. WILLINGHAM, CLERK BY: GH 1 CA-CV 10-0882 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FN 2006-051059 The Honorable Michael D. Gordon, Judge AFFIRMED Sampair & Associates, P.C. By Patrick S. Sampair Attorney for Petitioner/Appellee Peoria Bregman Burt Feldman By Sandra Burt Michael J. Ponzo Attorneys for Respondent/Appellant Scottsdale T H O M P S O N, Judge ¶1 denial Joan Wright ( Wife ) appeals from the trial court s of her post-decree petition for orders regarding a purported marital asset. Her principal argument centers on the court s determination that the asset was intentionally omitted from the stipulated decree of dissolution thereby precluding the asset s post-decree ( Husband ). division between Wife and Haskell Wright For the reasons that follow, we find no error and therefore affirm. BACKGROUND ¶2 Husband and Wife were married on January 2, 1971, and Husband initiated dissolution proceedings on May 23, 2006. The trial court entered a consent decree of dissolution ( Decree ) on January 25, 2007. Wife petitioned the court on October 31, 2007 for an order requiring Husband to provide an accounting of an oil well asset (the Oil Well ) that was allegedly owned by the parties trust ( Trust ). Wife also requested the court order Husband to pay her one-half of all income he had earned from the Oil Well and that he pay her one-half of all future disbursements. Wife conceded that the Decree did not delineate the Oil Well as a marital asset. ¶3 The parties cross-moved for summary judgment on this issue with Husband arguing that the Oil Well was never properly conveyed to the Trust, 1 and alternatively, 1 that the parties The Oil Well belonged to Husband s parents trust and was conveyed to the beneficiaries, including Husband, upon the parents deaths before ownership was allegedly transferred to the Trust. 2 mutually understood the Oil Well was Husband s sole and separate property, which they intentionally did not include in the Decree to be divided as a marital asset. Husband acquired the Oil Well as Wife argued that although his separate property, he transmuted it to community property when he transferred the Oil Well to the Trust, and she argued a fact issue existed regarding the parties intent to omit the Oil Well from the Decree. Specifically, Wife asserted [Husband s] beneficiary interest in the [Oil Well] was not considered or appropriately considered during the dissolution process. The court found that the Oil Well asset was transmuted to community property as a matter of law when it was transferred to the Trust, but the court determined a factual issue remained as to whether the parties (1) intentionally omitted the asset from the Decree because they intended it inadvertently to be Husband s omitted community property. the separate asset whereby property, it or would (2) remain Accordingly, the court held an evidentiary hearing on August 23, 2010 to resolve this issue. ¶4 Husband and Wife each testified at the hearing and introduced various documents into evidence. of the hearing, the court found by At the conclusion clear and convincing evidence, that both parties intended to omit [the Oil Well] as an asset in the decree. Accordingly, the court declined to divide the asset pursuant to Arizona Revised Statutes ( A.R.S. ) 3 section 25-318(D) and denied Wife s petition. Wife unsuccessfully sought a new trial under Arizona Rule of Family Law Procedure ( Rule ) 83 or alternatively relief from judgment pursuant to Rule 85. Wife appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1), (5)(a) (Supp. 2011). DISCUSSION ¶5 In a marriage dissolution proceeding, if the decree of dissolution makes no provision A.R.S. § 25-318(D) provides: for commonly held property, The community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common, each possessed of an undivided one-half interest. ¶6 Wife propriety of raises the trial various court s arguments denial petition to divide the Oil Well asset. erroneously determined an of challenging her the post-decree She contends the court intentionality requirement was embedded in section [25-]318(D), 2 in violation of the Arizona Constitution. See Ariz. Const. art 2, § 4 ( No person shall be deprived of life, liberty, or property without due process of 2 We note, however, that in her cross-motion for summary judgment, Wife requested the court to determine whether the parties intended to omit the Oil Well from the Decree: Alternatively, if the Court believes there is a question of intent of the parties [regarding omitting the Oil Well from the Decree], then the Court must set an evidentiary hearing . . . . 4 law. ). She also challenges the court s reliance on parol evidence to interpret the Decree, 3 and she argues the court was divested of subject matter jurisdiction to further address the [Oil Well asset] once the court determined the Oil Well was community property judgment motions. ¶7 when the court disposed of the summary These arguments are without merit. Our opinion in Thomas v. Thomas is dispositive. Ariz. 290, 205 P.3d 1137 (2009). 220 In that case, the parties in a dissolution proceeding intentionally omitted any reference to a marital asset, a condo, in their stipulated decree. ¶ 2, 205 P.3d at 1138. Id. at 291, Approximately eight months after the decree, husband conveyed the condo to wife by quitclaim deed. Id. at ¶ 3. Years later, husband requested the trial court award him half the condo s equity. Id. at ¶ 2. a hearing and granted husband s request. ¶8 Wife appealed arguing The court held Id. at ¶ 6. that, upon entry of the dissolution decree, the condo lost its character as a marital asset because the decree was silent allocation among the parties. 1139. Thus, according to regarding the condo s Id. at 292, ¶ 7, 205 P.3d at wife, the trial court lacked jurisdiction to order her to convey any interest in the condo to 3 Because in her opening brief Wife acknowledges that the parties omitted the Oil Well from the decree because the parties believed it belonged to Husband, we need not address this challenge. 5 husband. Id.; see Weaver v. Weaver, 131 Ariz. 586, 587, 643 P.2d 499, 500 (1982) ( [A] dissolution proceeding . . . [is] a statutory action, and the trial court has only such jurisdiction as is granted by [Title 25]. ). Relying on the plain language of § 25-218(D), we agreed with wife and determined that the lack of reference to the condo in the decree transmuted the condo from community to separate property. ¶ 10, 205 P.3d at 1139. Thomas, 220 Ariz. at 292, Because the condo was no longer marital property, we noted it was not subject to Title 25, and we thus held that the trial court lacked statutory authority in the dissolution action to rule on the parties dispute pertaining to ownership of the condo. ¶9 Id. at 294, ¶ 16, 205 P.3d at 1141. Thomas controls the outcome in this case. court found, and Wife does not challenge, 4 that Here, the the parties intentionally did not refer to the Oil Well in the Decree. As a result, the Oil Well became either the separate property of both Wife and Husband pursuant to A.R.S. § 25-318(D) or was left to 4 Even if Wife did contest the court s factual finding, we would affirm it because the evidence at the hearing supports the court s conclusion regarding the parties intent. See Donahoe v. Marston, 26 Ariz. App. 187, 191, 547 P.2d 39, 43 (1976) (appellate court bound by trial court s factual findings that are supported by the record unless they are clearly erroneous, giving due regard to the opportunity of the trial court to view the evidence and weigh the credibility of witnesses. ). 6 Husband if this was the parties intent. 5 In either case, the property was not a marital asset when Wife sought relief postdecree and thus was not subject to the authority of the court in the dissolution following Thomas, 6 action. properly Accordingly, determined the that family it did court, not have statutory authority to resolve the dispute between the parties over the income from the Oil Well. Consequently, we affirm the court s order denying Wife s post-decree petition. 7 5 Husband does not argue on appeal that Wife waived her claim that the Oil Well was community property by allowing it to be excluded from the decree, although at trial he argued that everybody intended the rights [to the Oil Well] to be Husband s. On appeal, Husband acknowledges that under A.R.S. § 25-318(D) the property as held by the parties is separate property as tenants in common. 6 See also McCready v. McCready, 168 Ariz. 1, 3-4, 810 P.2d 624, 626-27 (App. 1991) (property which parties to dissolution acquired post-decree was not a marital asset and was not subject to division under Title 25). 7 Because we reject Wife s contention that the trial court incorrectly applied Thomas, we also affirm the court s denial of Wife s requested relief pursuant to Rules 83 and 85. 7 CONCLUSION ¶10 The family petition is affirmed. court s order denying wife s post-decree We deny Wife s request for attorneys fees on appeal. /s/ JON W. THOMPSON, Presiding Judge CONCURRING: /s/ MAURICE PORTLEY, Judge /s/ JOHN C. GEMMILL, Judge 8

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