Schoenherr v. Carey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHIRLEY JEAN SCHOENHERR, Petitioner/Appellant,

v.

THOMAS CRAIG CAREY, Respondent/Appellee.

No. 1 CA-CV 23-0087 FC
FILED 11-7-2023

Appeal from the Superior Court in Mohave County
No. S8015DO202200559
The Honorable Megan A. McCoy, Judge

AFFIRMED

COUNSEL

Law Offices of Heather C. Wellborn P.C., Lake Havasu City
By Heather C. Wellborn, Russell Woemmel, Anita Dale
Counsel for Petitioner/Appellant

Thomas Craig Carey, Lake Havasu City
Respondent/Appellee
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MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr., and Judge Cynthia J. Bailey joined.

F U R U Y A, Judge:

¶1 Shirley Jean Schoenherr (“Wife”) appeals the decree
dissolving her marriage to Thomas Craig Carey (“Husband”). Wife
challenges the division of the marital residence and the superior court’s
denial of her request for attorney’s fees and costs at trial. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Wife and Husband married in 2007 and have no children in
common. Before marriage, the parties secured a mortgage in both their
names for a property in Lake Havasu City (“Havasu Home”). Wife and
Husband lived in the home during the marriage. But shortly before Wife
filed a petition for dissolution in 2022, she moved to Pinetop because
Husband obtained an order of protection against her.

¶3 Two months after moving out, Wife moved for temporary
orders allowing her to reside in the Havasu Home, arguing worsening
health conditions and that the Havasu Home was designed for her
infirmities. But Wife later withdrew her motion after Husband demurred.

¶4 The parties agree the Havasu Home is community property
but disagree as to its division. At trial in November 2022, Wife testified she
wanted to retain the Havasu Home and believed she deserved more than
half of its value. This position differed from Wife’s petition, which asked
that the Havasu Home be ordered sold and the proceeds split. Consistent
with all his previous filings, Husband testified he wanted the Havasu
Home as his own, he would refinance and pay Wife one-half the value of
the home, and he could get an advance on his inheritance to assist in
refinancing. Wife did not dispute his testimony, nor express any desire to
buy Husband out of his share in the Havasu Home.

¶5 In December 2022, the court entered a decree of dissolution
allowing Husband to “purchase Wife’s portion of [the] home and refinance
the mortgage exclusively in his name.” Under the decree, if Husband did

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not pay Wife by May 2023, then the parties would equally divide the profit
from the sale of the home.

¶6 Both parties requested attorney’s fees and costs alleging the
other party acted unreasonably. Husband claimed Wife acted unreasonably
because she shut off the utilities to the Havasu Home after she moved out,
had no standing to move for temporary orders, and refused to accept his
settlement offer. He testified to the same at trial. Wife’s pretrial statement
does not include any factual details showing Husband acted unreasonably.
Nevertheless, she testified Husband withdrew $30,000 unexpectedly from
a joint account while she was in jail and alleged he prevented her from
living in a trailer they owned. The court denied both parties’ request for
attorney’s fees and costs, finding the parties had “no substantial financial
disparity,” acted reasonably, and did not knowingly present any false
claims.

¶7 Wife timely appealed and we have jurisdiction under Arizona
Revised Statues (“A.R.S.”) §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Wife Waived her Arguments Related to the Havasu Home.

¶8 “Generally, arguments raised for the first time on appeal are
untimely and deemed waived.” Odom v. Farmers Ins. Co. of Ariz., 216 Ariz.
530, 535 ¶ 18 (App. 2007). Appellants also waive “arguments not supported
by adequate explanation, citations to the record, or authority.” In re
Aubuchon, 233 Ariz. 62, 64–65 ¶ 6 (2013); see also ARCAP 13(a)(7)(B)
(requiring appellant’s opening brief contain “references to the record on
appeal where the particular issue was raised and ruled on, and the
applicable standard of appellate review with citation to supporting legal
authority”).

¶9 Here, Wife argues: (1) the court erred by not giving her the
option to buy Husband out of the Havasu Home, and (2) the court should
have awarded her reimbursement of the “sole and separate funds she used
to purchase” the Havasu Home.

A. No Error as to Buyout

¶10 Regarding her first argument, Wife cites no authority to
support her position that the superior court erred by not awarding her the
option of buying out Husband’s share of the Havasu Home. This failure

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constitutes waiver of the argument. Aubuchon, 233 Ariz. at 64–65 ¶ 6.
Moreover, it fails on its merits.

¶11 The superior court must “divide the community [property]
equitably, though not necessarily in kind,” A.R.S. § 25-318(A), and it has
discretion to do so. Meister v. Meister, 252 Ariz. 391, 396 ¶ 13 (App. 2021).
We review the apportionment of community property between spouses in
the “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 (App. 2005).

¶12 Wife contends the court should have given her the buyout
option because she owned the home before the marriage and used sole and
separate property to buy it. But Wife admits the Havasu Home is
community property. Husband consistently requested he retain the home
and buyout Wife’s share by getting an advance on his inheritance and
refinancing. Wife neither disputed Husband’s testimony nor alleged she
could afford to buy out husband.

¶13 On this record, the court did not abuse its discretion in
allowing Husband to buy out Wife’s interest in the Havasu Home.

B. No Error as to Reimbursement

¶14 Wife argues the superior court should have awarded her
reimbursement for “sole and separate funds she used to purchase” the
Havasu Home because she did not intend to “gift” those funds to Husband
when they bought the home before marriage. But Wife never asked for such
reimbursement in her pretrial filings, during trial, or in her motion to alter
or amend. The only mention in the record of her alleged contribution of
separate funds was in support of her request to be awarded the house—not
in a request for reimbursement. Because she raises reimbursement for the
first time on appeal, she has waived the argument. See Odom, 216 Ariz. at
535 ¶ 18.

¶15 Waiver aside, Wife cites no authority requiring the court to
order reimbursement of separate funds used to purchase real property with
Husband. Instead, she cites Stevenson v. Stevenson, 132 Ariz. 44 (1982) for
the proposition that “when separate funds are placed into a joint account,
there is no presumption that the owner of the funds intended to gift half of
the funds to the other spouse.” (Emphasis added.) But Stevenson is
inapposite because Wife’s funds were not placed in a joint account. They
were used to purchase real property with Husband. In fact, Stevenson itself
instructs that “when real property is paid for by one spouse and taken

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jointly in both spouses’ names, a rebuttable presumption arises that the
contributing spouse has made a gift of one-half the property to the other
spouse.” Stevenson, 132 Ariz. at 45–46. Thus, this record supports a
presumption of a gift from Wife to Husband of the separate funds used to
purchase the Havasu Home.

¶16 To overcome a presumption of gift, the contributing spouse
must present “clear and convincing evidence to the contrary.” Valladee v.
Valladee, 149 Ariz. 304, 307 (App. 1986). “[T]estimony of the hidden
intentions of one of the parties” is insufficient to rebut the presumption. Id.
(citation omitted). Rather, the contributing spouse must show evidence of
a “common understanding or an agreement that the character of the
property was to be other than joint tenancy.” Id. (citation omitted).

¶17 It was Wife’s burden to prove she did not intend to gift
Husband a one-half interest in the Havasu Home. Id.; see also Stevenson, 132
Ariz. at 45–46. But she did not present any evidence of any agreement or
understanding between her and Husband showing she did not intend a gift.
She merely asserts she did not intend a gift. As a matter of law, this was not
enough. On this record, the court did not abuse its discretion by not
awarding Wife reimbursement of funds she contributed to purchasing the
Havasu Home.

II. The Superior Court Did Not Err When It Denied Wife’s Request
for Attorney’s Fees and Costs.

¶18 Wife argues the court erred in denying her request for
attorney’s fees and costs because Husband “acted unreasonably
throughout [the] matter.” She does not contest the court’s finding of “no
substantial disparity of financial resources between the parties” or that
neither party “knowingly presented a false claim.”

¶19 “We review a trial court’s denial of a party’s request for an
award of attorney fees for an abuse of discretion.” In re Marriage of Williams,
219 Ariz. 546, 548 ¶ 8 (App. 2008). We give deference to the court’s
determinations in that regard, as it is in the best position to assess the
arguments of the parties to the action, observe their conduct, and review
their financial records. See MacMillan v. Schwartz, 226 Ariz. 584, 592 ¶ 38
(App. 2011). An abuse of discretion occurs “when the record is devoid of
competent evidence to support the court’s decision.” Woyton v. Ward, 247
Ariz. 529, 531 ¶ 5 (App. 2019) (cleaned up). Under A.R.S. § 25-324(A), the
court has discretion to award fees after considering “the financial resources

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of both parties and the reasonableness of the positions each party has taken
throughout the proceedings.”

¶20 Wife argues Husband acted unreasonably because he filed an
order of protection which forced her out of the Havasu Home, withdrew
$30,000 from a joint account while Wife was in jail, refused to allow her to
live in a travel trailer, and refused to disclose the actual location of the
trailer. The court considered both parties’ allegations at trial and declined
to find unreasonableness in either party’s conduct or to award fees. We see
no cause to disturb that decision. On this record, we do not find the court
abused its discretion in denying both parties’ requests for attorney’s fees
and costs.

CONCLUSION

¶21 We affirm.

¶22 Wife requests her attorney’s fees and costs on appeal under
ARCAP 21, and A.R.S. §§ 12-342 and 25-324(A). In our discretion, after
considering the financial resources and reasonableness of the parties’
positions, we deny Wife’s request for fees. See A.R.S. § 25-324(A).

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

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