Elliston v. Elliston

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID ELLISTON, Petitioner/Appellee,

v.

CINDA ELLISTON, Respondent/Appellant.

No. 1 CA-CV 23-0089 FC
FILED 08-08-2024

Appeal from the Superior Court in Coconino County
No. S0300DO202100459
The Honorable Brent Davidson Harris, Judge Pro Tempore

AFFIRMED

COUNSEL

Davis Miles McGuire Gardner, PLLC, Tempe
By Michael D. Girgenti
Counsel for Petitioner/Appellee

Harris & Winger PC, Flagstaff
By Chad Joshua Winger
Counsel for Respondent/Appellant
 ELLISTON v. ELLISTON
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Daniel J. Kiley and Judge D. Steven Williams joined.

C A T T A N I, Judge:

¶1 Cinda Elliston (“Wife”) appeals from a dissolution decree that
categorized the marital residence she acquired with David Elliston
(“Husband”) during their marriage as community property. Wife
challenges in particular the superior court’s finding that disclaimer and
quitclaim deeds signed by Husband were not valid because they were
signed under duress. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2019, the parties married in Idaho, where they lived in a
home Wife owned before marriage. They later decided to move to Arizona
and bought a new home there, paying the down payment with $27,000 in
community funds and $25,000 in Husband’s separate funds. They took title
to the Arizona home as community property in late 2020. Wife then moved
to Arizona while Husband stayed behind to prepare the Idaho home for
sale. He made multiple trips from Idaho to Arizona to move the couple’s
belongings.

¶3 In late August 2021, while Husband was in Idaho and Wife
was in Arizona, Wife demanded that Husband sign disclaimer and
quitclaim deeds giving up his interest in the Arizona home. According to
Husband, Wife threatened “to destroy everything [he] own[ed]” and “ruin
[his] life” if he did not comply. Husband testified that all of his personal
property, including heirlooms from his late father, was in the Arizona home
under Wife’s control.

¶4 Wife arranged for delivery of the deeds about a week later,
and Husband scheduled a time and signed the deeds at his workplace in
Washington state on August 27, 2021. Husband returned to Arizona a few
days after that, and the parties lived together for several months. Husband
petitioned for divorce in December 2021.

¶5 At trial, Husband claimed the deeds were invalid because he
signed them under duress due to Wife’s threats. Wife denied threatening

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Husband and claimed he signed because she used her separate property
(proceeds from the sale of her Idaho home) to pay off a substantial amount
of the Arizona mortgage. Finding Husband to be more credible, the
superior court found that Husband had signed the deeds under duress and
thus that the deeds were void and the home was community property. The
court ordered the home sold and the proceeds divided equally after
accounting for the parties’ separate property contributions. The dissolution
decree allocated other community property and debts that are not relevant
to this appeal.

¶6 Wife timely appealed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶7 Wife argues that the court erred by finding that Husband
signed the deeds under duress. She further asserts that, even assuming
initial duress, Husband subsequently ratified the deeds and waived his
claim of duress.

¶8 We review de novo the court’s assessment of validity and
enforceability of a contract as well as its ultimate classification of property
as community or separate. Estate of DeCamacho v. La Solana Care & Rehab,
Inc., 234 Ariz. 18, 20, ¶ 9 (App. 2014); Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz.
521, 523, ¶ 4 (App. 2007). We consider the evidence in the light most
favorable to upholding the decree, giving deference to the superior court’s
assessment of witness credibility. Bell-Kilbourn, 216 Ariz. at 522 n.1; Lehn v.
Al-Thanayyan, 246 Ariz. 277, 284, ¶ 20 (App. 2019).

¶9 Property acquired during the marriage is presumed to be
community property, see A.R.S. § 25-211; In re Marriage of Pownall, 197 Ariz.
577, 582, ¶ 16 (App. 2000), and the party seeking to rebut that presumption
must prove that the property is separate by clear and convincing evidence.
Brebaugh v. Deane, 211 Ariz. 95, 98, ¶ 6 (App. 2005). A valid disclaimer deed,
however, provides such proof and rebuts the community presumption.
Bell-Kilbourn, 216 Ariz. at 523–24, ¶¶ 7, 11. The party seeking to overcome
the effect of a disclaimer deed must prove grounds to invalidate the deed,
such as duress, by clear and convincing evidence. See Kline v. Kline, 14 Ariz.
369, 374 (1912).

¶10 Preliminarily, Wife argues Husband waived the duress
defense by failing to affirmatively assert it in his dissolution petition. But
neither his petition nor Wife’s response delineated specific assets as
community or separate property or specifically addressed the character of

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the Arizona home. Husband’s proposed resolution statement listed the
home as community property and, after Wife disputed that characterization
in her motion for summary judgment, Husband timely and affirmatively
asserted duress. He likewise raised duress as a contested issue in his
pretrial statement. Husband’s argument was not waived.

¶11 Wife next argues that the superior court lacked an adequate
evidentiary basis to find that Husband had signed the disclaimer and
quitclaim deeds under duress. Cognizable duress occurs when one party
induces another to enter a contract by means of a wrongful threat that
overrides the other’s exercise of free will and judgment. Dunbar v. Dunbar, 102 Ariz. 352, 355–56 (1967); Inter-Tel, Inc. v. Bank of Am., 195 Ariz. 111, 117,
¶¶ 35–36 (App. 1999); see also Restatement (First) of Contracts (“First
Restatement”) § 492(b) (1932) (assent induced by wrongful threat that
causes “such fear as precludes [another] from exercising free will and
judgment”); Restatement (Second) of Contracts (“Second Restatement”) §
175(1) (1981) (assent induced by “improper threat . . . that leaves the victim
no reasonable alternative”).

¶12 Wife asserts that Husband failed to show any wrongful
threat, instead acting solely on his own subjective belief that he had to sign
the deed. A showing of duress requires proof of a “wrongful” or
“improper” threat. First Restatement §§ 492–93; Second Restatement § 175
& cmt. a, § 176. A threat to wrongfully destroy another’s property may
constitute such a wrongful threat. See First Restatement § 493(d); Second
Restatement § 176(1)(a); cf. Republic Nat’l Life Ins. Co. v. Rudine, 137 Ariz. 62,
66 (App. 1983) (suggesting that “a situation where one party acquiesces to
avoid irreparable damage to its business or property interests” would
qualify). And here, Husband testified that Wife had possession of all his
personal property, including family heirlooms, when she threatened “to
destroy everything [he] own[ed]” unless he signed the deeds. Although
Wife denied making such threats, the court found Husband to be more
credible than Wife in this regard, and we defer to that credibility
assessment. See Lehn, 246 Ariz. at 284, ¶ 20.

¶13 Noting that Husband was unable to provide examples of past
threats, Wife argues that Husband was acting based only on a subjective
belief that she would destroy his property, which she asserts is insufficient
to meet his burden of proof under In re Estate of Cohen, 105 Ariz. 337, 341–
42 (1970). But in Estate of Cohen, the party asserting duress relied only on
unpleasant but otherwise-innocuous statements as purported threats: that
“[w]e don’t want you in [the company]; that’s a family company,” and
urging her to “[s]ettle this thing. If I have to fight, I’ll fight, and I don’t think

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you want to fight. . . . You won’t like the way I fight. I can be mean.” Id. at
341. The party asserting duress construed these statements as threats of
violence based on her perception of the speaker’s tone of voice and on her
own beliefs about the speaker’s violent character based on “conversations
with others.” Id. The court noted that a threat to “fight” was “equally
consistent with a threat of a legal fight as with a physical confrontation.”
Id. The court thus held that the claim of duress was based only on a “state
of mind rather than hard facts” and was insufficient to establish duress. Id.

¶14 Here, in contrast, the threat “to destroy everything [Husband]
own[ed]” unless he complied was an improper threat by its very terms, not
a neutral statement that was perceived as improper based on tone. Compare
id. And Husband’s belief that Wife would follow through on the threat was
based on his personal knowledge and interactions with Wife throughout
the marriage, not expectations about her character built on hearsay.
Compare id. Further, this statement was not equally consistent with an
intention to resort to litigation; it was a wrongful threat to destroy property.
Compare id. To be sure, the superior court could have credited the evidence
differently, but the court had a reasoned basis for the conclusions it reached.

¶15 Wife next argues that Husband had reasonable alternatives to
signing the deeds, so he necessarily was not acting under duress. The First
Restatement characterizes this element as fear that “precludes [the]
exercis[e] [of] free will and judgment,” whereas the Second Restatement
adopts the “no reasonable alternative” phrasing. Compare First Restatement
§ 492(b), with Second Restatement § 175(1). Wife invites us to clarify
whether the First or Second Restatement framing of duress applies in
Arizona. We need not resolve that issue here, however, because as applied
in this case, both express the same concept. Under the First Restatement,
the fear inducing the transaction need not be “the sole cause, [but] must be
one without which the transaction would not have occurred.” First
Restatement § 492 cmt. f. Put differently, an individual lacks free will (as
contemplated under the First Restatement) when the individual has no
reasonable alternative (as phrased in the Second Restatement). Our
analysis here is thus the same under either framework.

¶16 Wife highlights that several days passed between the threat
and when Husband ultimately signed the deeds, and she argues that
Husband could have consulted an attorney, initiated legal proceedings, or
returned to Arizona to secure his property himself (perhaps with the
assistance of law enforcement) rather than sign the deeds. Although the
time between the threat and when Husband signed the deeds arguably
weighs against Husband’s assertion of duress, the timing is not

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independently dispositive, and the superior court reasonably found that
Husband’s fears were not alleviated in the interim. Recourse to counsel or
filing legal proceedings might have been viable options if Husband had
been nearby, but Husband was a 22-hour drive away from the Arizona
home where Wife had exclusive control over the property at the time.
Neither of these options would necessarily have prevented Wife from
destroying the property in her exclusive possession 1,200 miles away. See
Second Restatement § 175 cmt. b (“[T]he mere availability of a legal remedy
is not controlling if it will not afford effective relief to one in the victim’s
circumstances.”). Likewise, as the superior court found, given the distance
involved and the nature of the dispute, it would have been difficult for
Husband to protect his property on his own or to expect law enforcement
to intervene in time. Although there was evidence from which the superior
court could have reached a different conclusion, we do not reweigh
conflicting evidence or redetermine the preponderance of the evidence on
appeal. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13 (1999). Accordingly,
we affirm the court’s ruling that Husband signed the deeds under duress.

¶17 Finally, Wife argues that Husband ratified the deeds by
conduct, thereby forfeiting his right to void them based on duress. “A
contract entered into under duress may be ratified and become binding” if,
after no longer under duress, the injured party “manifests . . . an intention
to affirm it, or exercises dominion over things restoration of which is a
condition of his power of avoidance.” Hubbard v. Geare, 77 Ariz. 262, 264–
65 (1954) (emphasis omitted) (quoting First Restatement § 484). Here, Wife
contends Husband ratified the deeds when he returned to Arizona,
continued living with Wife, and made improvements to the Arizona home.
But this conduct is not necessarily incompatible with Husband’s view that
because he signed the deeds under duress, he remained a joint owner of the
Arizona home. Wife’s position, in contrast, would have forced Husband to
immediately make other living arrangements, notwithstanding remaining
married and notwithstanding the challenges that changing residences
would entail. Husband’s conduct did not ratify the deeds.

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CONCLUSION

¶18 We affirm. Both sides request an award of attorney’s fees and
costs on appeal under A.R.S. § 25-324. After considering relevant factors
and in an exercise of our discretion, we deny both requests. As the
successful party, Husband is entitled to an award of costs on appeal upon
compliance with ARCAP 21. See A.R.S. § 12-342(A).

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

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