Smith v. Smith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHERRI LYNN SMITH, Petitioner/Appellee,

v.

STEVEN JOHN SMITH, Respondent/Appellant.

No. 1 CA-CV 22-0585 FC
FILED 11-7-2023

Appeal from the Superior Court in Yavapai County
No. P1300DO202100089
The Honorable Cele Hancock, Judge

AFFIRMED

COUNSEL

Mull & Brown PLLC, Prescott
By John G. Mull
Counsel for Petitioner/Appellee

Hoffman Legal, LLC, Phoenix
By Amy W. Hoffman
Counsel for Respondent/Appellant

SMITH v. SMITH
Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Chief Judge David B. Gass joined.

J A C O B S, Judge:

¶1 Appellee Sherri Lynn Smith (“Mother”) exclusively occupied
the parties’ marital residence for more than two years before entry of the
final dissolution decree in this case. Appellant Steven John Smith
(“Father”) challenges the portion of the dissolution decree denying him rent
for that time period. For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mother petitioned to dissolve the parties’ marriage in
February 2021. The parties have one minor child. When Mother filed the
petition, she lived with the child at the marital residence, and Father lived
in Wisconsin. Father has not lived at the marital residence since a 2019
domestic violence incident after which Mother obtained an order of
protection. He later pleaded no contest to disorderly conduct.

¶3 In the dissolution proceedings, Mother wanted to buy out
Father’s interest in the marital residence so she could continue to live there
with the child. Father preferred that the marital residence be sold with the
proceeds split equally. Father also asked the court to award him 25 months
of pre-decree rent because Mother had “lived in the marital home . . . ‘rent-
free’” since the 2019 incident. He initially claimed he was entitled to $1,150
per month based on a Zillow estimate of $2,300 per month but later testified
at trial that the fair market rental value was $2,600 per month.

¶4 The superior court entered a decree directing the parties to
sell the marital residence and divide the proceeds equally. The court denied
Father’s rent claim, finding that he was not entitled to rent “in an equitable
division of the property” and that he did not present sufficient evidence to
establish the marital residence’s fair market rental value. Father appeals
that ruling. We have jurisdiction under A.R.S. § 12-2101(A)(1).

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SMITH v. SMITH
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DISCUSSION

¶5 Father contends “[i]t was inequitable for the . . . court to allow
Mother the exclusive use of community property without reimbursing the
community.” Upon dissolution of a marriage, the court must divide
community property “equitably, though not necessarily in kind.” A.R.S. §
25-318(A). Section 25-318(A) does not require an equal and like division,
and the court has broad discretion to determine what is equitable under the
circumstances of each case. In re Marriage of Flower, 223 Ariz. 531, 538 ¶ 28
(App. 2010). We review the division of community property for abuse of
discretion. Ertl v. Ertl, 252 Ariz. 308, 314 ¶ 20 (App. 2021). We view the
evidence in the light most favorable to affirming the decree and will affirm
if the evidence reasonably supports it. Lehn v. Al-Thanayyan, 246 Ariz. 277,
283 ¶ 14 (App. 2019).

I. The Superior Court Did Not Abuse Its Discretion by Denying
Father’s Rent Claim.

¶6 Father bases his claim for rent in substantial part on Ferrill v.
Ferrill. 253 Ariz. 393 (App. 2022). There, husband left the marital residence
a few months before wife petitioned to dissolve the marriage. Id. at 395 ¶ 3.
After serving the petition, wife continued to make mortgage payments
using her separate funds. Id. She requested reimbursement for those
payments, but husband contended “it was within the superior court’s
discretion to offset any reimbursement . . . by the value of the benefit [w]ife
received by having exclusive possession of the marital home.” Id. at 396
¶ 9. We concluded the superior court could order an offset for wife’s post-
service possession if husband was ousted from the marital residence and
remanded for findings as to whether ouster had occurred. Id. at 396, 398
¶¶ 9, 11, 19. We also held that reimbursement, if warranted, could be
“valued at up to one-half the reasonable rental value of the marital home.”
Id. at 398 ¶ 21.

¶7 Father contends he was ousted in December 2019. Mother
responds that she did not “wrongfully oust” him and that his “intentional
criminal behavior was the reason he was required to vacate” the marital
residence. She cites no authority suggesting that an ouster must be
wrongful or that a spouse who has been accused of crimes cannot be ousted.
Indeed, we said in Ferrill that “[t]he court may base its finding of exclusion
on any evidence that one party possessed the property with the intent to
occupy the premises in a way that excludes or denies the rights of the
other.” Id. at 398 ¶ 18.

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SMITH v. SMITH
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¶8 As in Ferrill, the superior court here did not determine
whether Father was ousted. For purposes of this appeal, we assume he was.
That assumption, however, does not divest the superior court of its
“’discretion to decide what is equitable in each case’” in dividing
community property. Meister v. Meister, 252 Ariz. 391, 396 ¶ 13 (App. 2021)
(quoting Toth v. Toth, 190 Ariz. 218, 221 (1997)). Section 25-318(C) allows
the court to consider “excessive or abnormal expenditures, destruction,
concealment or fraudulent disposition,” and the court also may consider
“any other factors that bear on the equities of a case.” In re Marriage of
Inboden, 223 Ariz. 542, 546 ¶ 14 (App. 2010).

¶9 Father also cites McIlwain v. McIlwain, which the superior
court relied on in the decree, to support his rent claim. 666 S.E.2d 538 (Va.
Ct. App. 2008). There, husband excluded wife from the marital residence,
which the parties owned outright, and lived there for six years “at virtually
no cost” after they separated. Id. at 540. But the Virginia court found
several other considerations supported awarding rent to wife, as husband
had:

• “unnecessarily increased the family’s debt by refusing
to pay the taxes in a timely manner,”

• “made very few nonmonetary contributions to the
marriage,”

• “loaned huge sums of money to his companies without
wife's knowledge,” and

• “made de minim[i]s payments toward this marital
debt, even though he lived in the marital home and did
not have to pay rent or a mortgage.”

Id. at 542. The court concluded that while Virginia law did not require a
rent award, it was not an abuse of discretion to grant wife’s request because
“the fact that [she] had to address this problem, a problem of husband’s
creation, for years after their separation . . . created additional equity
concerns.” Id. at 544.

¶10 Even assuming Virginia law might help our analysis,
McIlwain does not aid Father because its facts are not analogous to those in
this case, and Father cites no evidence to suggest Mother caused any such
problems for the marital community, financial or otherwise. He also fails
to support his contention that Mother “received favorable and [i]nequitable
treatment at [his] expense.” Indeed, his main evidence that he was treated

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unfairly—that he “was required to make monthly . . . ‘temporary family
support’ payments” greater than his child support obligation later
established in the decree—was part of a set of temporary orders he agreed
to in March 2021. Father also conceded he made no financial contributions
to support Mother or the child before the court entered those temporary
orders. He thus does not show that the denial of his rent claim was
inequitable under the circumstances. See In re Marriage of Flower, 223 Ariz.
at 535 ¶ 14 (“In determining an equitable division, the family court has
broad discretion in the specific allocation of individual assets and
liabilities.”); Neely v. Neely, 115 Ariz. 47, 49 (App. 1977) (“The discretionary
power [to divide community property] is very broad and will not be
disturbed unless it clearly appears that it has been abused.”).

¶11 We also reject Father’s contention that he was entitled to rent
simply because the superior court “otherwise equally divided the
community’s property.” The court is not “‘bound by any per se rule of
equality.’” Meister, 252 Ariz. at 396 ¶ 13 (quoting Toth, 190 Ariz. at 221). As
such, while a division of property typically should be substantially equal,
it need not be exactly equal. Kelly v. Kelly, 198 Ariz. 307, 309 ¶ 7 (2000); Wick
v. Wick, 107 Ariz. 382, 385 (1971). The court therefore did not abuse its
discretion by denying Father’s rent claim. See Cockrill v. Cockrill, 139 Ariz.
72, 75 (App. 1983) (“[N]o abuse of discretion will be found as long as the
court acts equitably.”).

II. Attorneys’ Fees and Taxable Costs on Appeal

¶12 Both parties request their attorney fees incurred in this appeal
under A.R.S. § 25-324(A). Before awarding fees, we must consider the
parties’ financial resources and the reasonableness of their positions
throughout the proceedings. Keefer v. Keefer, 225 Ariz. 437, 441 ¶ 16 (App.
2010). Having considered these matters, we decline to award fees. Mother
may recover her taxable costs incurred in this appeal upon compliance with
Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶13 We affirm the denial of Father’s pre-decree rent claim.

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