Dickey v. Dickey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LORI ANN DICKEY, Petitioner/Appellee,

v.

ARTHUR ANDREW DICKEY, Respondent/Appellant.

No. 1 CA-CV 22-0071 FC
FILED 1-10-2023

Appeal from the Superior Court in La Paz County
No. S1500DO201900001
The Honorable Robert Duber II, Judge (Retired)

AFFIRMED

COUNSEL

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin
Counsel Petitioner/Appellee

R.J. Peters & Associates PC, Phoenix
By Rich J. Peters
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.

T H U M M A, Judge:

¶1 Arthur Andrew Dickey (Husband) appeals various rulings in
the decree dissolving his marriage to Lori Ann Dickey (Wife). Because he
has shown no error, the decree is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 The parties married in 1995. Wife petitioned for dissolution in
2019. Husband later petitioned for an order to show cause why Wife should
not be found in contempt for violating the preliminary injunction
preventing either party from disposing of community property without
written consent or court order. Among other things, Husband alleged Wife
improperly took their deceased son’s cremated remains. Wife also asked
that the remains be divided equally, which Husband opposed. The court
deferred ruling on Husband’s show cause petition until trial.

¶3 At a three-day bench trial, the court heard evidence, mainly
centered on precious metals bought by Husband over the years. The
resulting decree: (1) found Husband had not proved that certain accounts
were his sole and separate property; (2) divided the community property;
(3) awarded Wife spousal maintenance support; (4) ordered division of the
parties’ son’s remains and (5) effectively denied Husband’s petition for an
order to show cause. This court has jurisdiction over Husband’s timely
appeal under Article 6, Section 9, of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1) (2023).1

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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DISCUSSION

¶4 Absent an abuse of discretion, this court will not disturb the
superior court’s rulings on division of property, Hammett v. Hammett, 247
Ariz. 556, 559 ¶ 13 (App. 2019), spousal maintenance, Gutierrez v. Gutierrez, 193 Ariz. 343, 348 ¶ 14 (App. 1998), or determinations of violations of
preliminary injunctions, Lonergan v. Strom, 145 Ariz. 195, 200 (App. 1985).
The characterization of property is reviewed de novo. Hammett, 247 Ariz. at
559 ¶ 13. The facts are viewed in a light most favorable to upholding the
superior court’s ruling. Ball v. Ball, 250 Ariz. 273, 275 ¶ 1 n.1 (App. 2020).

I. Husband Has Shown No Error in the Property Distribution.

A. Husband’s Sole and Separate Property Arguments.

¶5 Husband argues the court abused its discretion in failing to
find certain accounts were his sole and separate property. Husband had the
burden to prove an asset’s separate nature by clear and convincing
evidence. Cockrill v. Cockrill, 124 Ariz. 50, 52 (1979).

1. Funds Traceable to 401(k).

¶6 Husband argues the court erred in awarding Wife $299,319.86
because transactions made with precious-metals dealer Lear Capital and
money in an Equity Institutional fund derived from his premarital, sole and
separate 401(k).2 Husband testified funds from his premarital 401(k) rolled
over to various institutions over the years. The court found no clear and
convincing evidence supporting a tracing of premarital funds, and the trial
record supports the court’s findings.

2. Inheritance Funds.

¶7 Husband argues the court erred in finding he did not meet his
burden of proving that any property held at the service of the petition
derived from his inheritance from his mother. The court found no
documents in the record of his mother’s death, probate proceedings, will,
proof of estate or trust distributions, or direct or indirect contributions from

2Although Wife challenges statements in Husband’s opening brief about a
TD Ameritrade Account, Husband does not develop any substantive
argument for that account, meaning he has waived any such argument.
Nelson v. Rice, 198 Ariz. 563, 567 ¶ 11 n.3 (App. 2000).

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any probate-like source. The court also found no evidence that any
purported money from the inheritance deposited into Husband’s alleged
sole and separate sub-account was traceable to any funds transferred from
that account into Husband’s sole and separate IRA or was used to purchase
coins. The record on appeal supports the court’s finding that Husband had
not met his burden of proof.

B. Husband’s Community Property Arguments.

1. Wife’s IRA.

¶8 Husband argues the court erred in failing to award him half
of the funds in Wife’s School First IRA. Although the court did not divide
this asset, Husband did not request its division in his pretrial statement and
testified that Wife should keep all the funds in this IRA. See Leathers v.
Leathers, 216 Ariz. 374, 378 ¶ 19 (App. 2007) (noting issue is not properly
before the superior court when not raised in pretrial statement or at trial).
Given this waiver, Husband has shown no error.

2. Valuation of Wife’s Award.

¶9 Husband argues the court erred in awarding Wife $253,301.63
related to transactions with Lear Capital, contending there is no Lear
Capital asset to divide and that the records the court relied on did not
accurately reflect the value of the asset as of the date of service. Husband
made various purchases, exchanges and sales through Lear Capital during
the marriage, totaling about $1.6 million. The court found that the precious
metals referred to in records from Lear Capital could not be properly
allocated. The court also reviewed the records documenting Husband’s
transactions and awarded Wife an amount based on purchases that were
either picked up by or shipped to Husband and not accounted for, that were
linked to retirement accounts in Husband’s name only and exchanges that
created revenue. As noted by Husband, the superior court has the
discretion to select the valuation date in such a circumstance. Sample v.
Sample, 152 Ariz. 239, 242-43 (App. 1986). The record supports the court’s
award to Wife and Husband has shown no error.

3. Child’s Remains.

¶10 Husband argues the court erred in failing to permit the
parties’ deceased child’s remains be in Husband’s possession for the same
duration of time that Wife had been in wrongful possession of the remains
and in failing to order that the remains then be interred at a particular

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cemetery. Husband also objects to the court ordering that the remains be
divided.

¶11 Parents have equal responsibility for final disposition of a
child’s remains, with the court to resolve any dispute when the parents
disagree. See A.R.S. §§ 36-831 and 32-1365.02(J); In re Ghostley, 248 Ariz. 112,
115-16 ¶¶ 10-12 (App. 2020). In resolving such a dispute, the court must
consider the decedent’s wishes and whether the disposition of the remains
will cause economic or emotional hardship. A.R.S. § 36-831.01(A). Wife
offered to divide the decedent’s remains and Husband declined. The court
found no evidence of the decedent’s wishes, considered the wishes of each
parent, and ultimately ordered the remains divided by a professional third
party. Husband has shown no abuse of discretion.

4. Reimbursement Requests.

¶12 Husband argues the court erred in failing to rule on specific
reimbursement requests. Husband sought reimbursement for half the
$3,200 in funds Wife allegedly removed from an account, guardianship care
funds and a subsidy, mortgage and insurance payments, half the balance in
Wife’s AEA bank account and asked that each IRA be kept in their
respective names.

¶13 Contrary to Husband’s arguments, the court expressly
ordered Wife to reimburse him the requested $1,296 in guardianship care
funds. Husband’s testimony indicates that the subsidy he requested is the
same amount as the guardianship care funds. Husband did not seek
reimbursement for mortgage payments or dental insurance premiums in
the pretrial statement or at trial and thus waived these arguments. Leathers,
216 Ariz. at 378 ¶ 19. Husband asked that the IRAs be kept in each party’s
name, and it appears these accounts remained in their respective names.

¶14 As for the remaining reimbursement items, requests not
expressly granted or addressed by the court are considered denied. See
McElwain v. Schuckert, 13 Ariz. App. 468, 470 (1970). The record supports
the denial of these items. No evidence in the record shows who withdrew
the challenged $3,200. Husband also points to no evidence about amounts
paid for insurance premiums or any supporting evidence showing the
balance of Wife’s AEA bank account on the date of service, or other
information that would have been needed for the court to grant his
requests. Husband has shown no abuse of discretion.

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II. Husband Has Shown No Error in the Spousal Maintenance Award.

¶15 Husband argues the superior court abused its discretion in
awarding Wife spousal maintenance, failing to cease temporary spousal
maintenance retroactive to July 2020, and failing to order reimbursement
for all amounts paid. Given Wife’s circumstances (including her work
history and physical condition), the court found she was unlikely to find
more than half-time employment at entry level wages. The court noted that
Wife is not yet qualified to receive social security benefits or Medicare, and
that her IRA assets cannot meet her needs. The court also found that Wife
had a reasonable expectation that she would be able to receive adequate
support from Husband’s earnings, his retirements accounts and social
security benefits. The court found that the division of investment assets was
in the nature of support and ordered that, until Wife had obtained an
amount equal to 25 percent of the amount awarded to her, temporary
spousal maintenance would continue until Wife obtained at least $75,000.

¶16 Husband argues Wife’s testimony about her expenses and
health condition lacked credibility. This court, however, defers to the
superior court’s determinations of witness credibility. Lehn v. Al-Thanayyan,
246 Ariz. 277, 284 ¶ 20 (App. 2019). Because the record supports the court’s
findings, Husband has not shown that the court abused its discretion.

III. Alleged Violation of the Preliminary Injunction.

¶17 Husband argues the superior court failed to rule on his
petition to show cause, arguing Wife should be held in contempt for
violating the statutory preliminary injunction. Because the court did not
rule on Husband’s petition, it is deemed denied. See McElwain, 13 Ariz.
App. at 470.

¶18 In pressing this argument, Husband ultimately challenges the
disposition of certain property. Many items were awarded to Husband or
equally, meaning he was not aggrieved. Other items either were not
community property, were broken, were in the possession of other family
members, or Wife agreed to give to Husband. Husband has not shown that
the court abused its discretion in denying his petition to show cause.

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CONCLUSION

¶19 The decree is affirmed. Having assessed the parties’ financial
circumstances and their arguments on appeal, Wife’s request for an award
of attorneys’ fees on appeal is granted. Wife is awarded her reasonable
attorneys’ fees incurred on appeal, as well as her taxable costs incurred on
appeal, contingent upon her compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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