Patterson v. Patterson
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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 ) ) ) RAQUEL HELENA PATTERSON, ) ) Petitioner/Appellant, ) ) v. ) ) SHAWN JAMAAL PATTERSON, ) ) Respondent/Appellee. _______________________________________ ) In re the Marriage of: DIVISION ONE FILED: 02/10/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CV 10-0118 DEPARTMENT D MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC 2009-070494 The Honorable Jose S. Padilla, Judge AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS Mushkatel By and Attorneys & Becker, PLLC Mathis Becker Zachary Mushkatel for Petitioner/Appellant Sun City N O R R I S, Judge ¶1 the Raquel Helena Patterson ( Mother ) timely appeals from family court s characterizing ruling Mother s in its student-loan decree debt of as dissolution her separate obligation. 1 We agree with Mother s argument; the family court should have characterized Mother s student loan as a community obligation because she incurred the loan during marriage, and it should have equitably divided the debt. Accordingly, we remand to consistent the family court for proceedings with this decision. FACTS AND PROCEDURAL BACKGROUND ¶2 At trial, the court denied Mother s request that it equitably divide a student-loan debt she had incurred during the marriage to attend college. ( Father ) presented no Although Shawn Jamaal Patterson evidence disputing Mother s testimony that she had incurred the debt during the marriage and the debt was thus a community obligation, the court characterized the student loan as a separate debt, ruling in its decree, with the exception of [Mother s] student loan, all debt incurred during the period of the parties marriage is community debt. 1 In a separate opinion, Patterson v. Patterson, 1 CA-CV 10-0118 (Ariz. App. Feb. 10, 2011), filed simultaneously with this memorandum decision, we address the other argument Mother raised on appeal. See Ariz. R. Sup. Ct. 111(h); ARCAP 28(g). For the sake of brevity and because the pertinent facts and procedural background of this matter are set out in our concurrently filed opinion, we need not repeat them except as relevant to this decision. 2 DISCUSSION 2 ¶3 A debt incurred community obligation. during marriage is presumed a Hrudka v. Hrudka, 186 Ariz. 84, 91-92, 919 P.2d 179, 186-87 (App. 1995). As discussed above, Father presented no evidence contesting the community nature of the debt, although he bore the burden of overcoming the community presumption by clear and convincing evidence. P.2d at 187. Id. at 92, 919 Thus, on this record, the family court should not have characterized the loan as a separate obligation of Mother. 3 See Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13, 167 P.3d 705, 708 (App. community 2007) property Therefore, we (family court s reviewed reverse the equitable for abuse ruling of of the division of discretion). family court characterizing the student-loan debt as Mother s obligation and remand to the court with instructions to characterize the debt as a community obligation. On remand, the court shall then equitably divide the community debt. 2 Father did not file an answering brief in this case. Although we could treat his failure to file an answering brief as a confession of reversible error, in the exercise of our discretion, we have chosen to reach the merits of the issue Mother has raised on appeal. See Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994). 3 Further, nothing in the record shows the court adjusted the debt for equitable reasons or assigned her other assets to support the unequal division of debt. See Toth v. Toth, 190 Ariz. 218, 221-22, 946 P.2d 900, 903-04 (1997). 3 CONCLUSION ¶4 court s For ruling the foregoing pertaining reasons, to Mother s we reverse student-loan the family debt, and remand to the family court to recharacterize the student loan as a community obligation and to equitably divide it, consistent with this decision. We affirm the family court s decree of dissolution in all other respects except as set forth in our opinion on this matter. /s/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ____________________________________ JOHN C. GEMMILL, Judge /s/ ____________________________________ PATRICIA A. OROZCO, Judge 4
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