Bellamy v. Bellamy

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DENNIS L. BELLAMY, Petitioner/Appellant,

v.

CHRISTY D. BELLAMY, Respondent/Appellee.

No. 1 CA-CV 23-0323 FC
FILED 02-22-2024

Appeal from the Superior Court in Maricopa County
No. FN2020-005272
The Honorable James Drake, Judge

AFFIRMED

COUNSEL

Genesis Legal Group, Gilbert
By Kevin Jensen
Counsel for Petitioner/Appellant

Law Office of Julie Gunnigle, PLLC, Scottsdale
By Julie R. Gunnigle
Counsel for Respondent/Appellee
 BELLAMY v. BELLAMY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

M c M U R D I E, Judge:

¶1 Dennis L. Bellamy (“Husband”) appeals the superior court’s
dissolution decree entered to dissolve his marriage with Christy D. Bellamy
(“Wife”). He challenges the court’s classification of Wife’s retirement
accounts as separate property. We find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife were married in 2001. They have no minor
children. In December 2020, Husband petitioned to dissolve the marriage.
In the parties’ joint pretrial statement, Husband asserted that Wife had two
community property retirement accounts. Husband claimed Wife emptied
one of the accounts (“the Franklin Templeton account”), so Husband asked
for “an equalization of one-half Wife’s withdrawal.” For the other
retirement account, a Roth IRA, Husband proposed that “Wife cash out the
portion of the [account] necessary to satisfy Husband’s equalization
obligation.” Wife denied she had community retirement accounts, claiming
she opened her Roth IRA before marriage and did not contribute to the
account during the marriage.

¶3 At the trial, Husband offered records of Wife’s retirement
accounts. The Franklin Templeton account statement showed Wife’s
portfolio from January 2020 through September 2020. No funds remained
in the account because Wife withdrew over $13,000. The Roth IRA
statement showed the account’s balance from April 2021 through June 2021.
Wife did not add funds to either account during the offered statement
periods.

¶4 Husband testified that Wife contributed to her retirement
accounts during the marriage. He did not know when Wife opened the
accounts but believed it was during the marriage. Wife did not have records
showing when she opened the accounts. But she testified she opened the
retirement accounts in 1995 and contributed through payroll deductions
from 1995 until the marriage. She claimed Husband, whom she worked for

2
 BELLAMY v. BELLAMY
Decision of the Court

then, stopped the payroll deductions when they married. Wife asserted
there was a record showing that her final contribution occurred before the
marriage, but she did not offer records supporting her claim.

¶5 At the trial, Husband emphasized that Wife offered no proof
she owned the retirement accounts before the marriage. He offered Wife’s
responses to discovery requests into evidence. When asked to identify
pension, profit-sharing, or retirement plans, Wife answered: “N/A.” And
Wife did not include the retirement accounts when asked to list funds she
had in any financial institution within the last three years. Finally, when
asked whether she owned any property she believed was her sole and
separate property, Wife answered: “N.” When questioned about her failure
to list the retirement accounts as her separate property, Wife explained she
thought the property inquiry was about real property. She testified she “did
not know what [Husband’s attorney was] talking about.”

¶6 The superior court entered the dissolution decree. Among
other findings irrelevant to this appeal, the court found that Wife’s
retirement “accounts were earned prior to marriage.” Thus, the court
awarded Wife the retirement accounts as her sole and separate property.

¶7 Husband appealed. We have jurisdiction under A.R.S.
§ 12-2101(A)(1) and Arizona Rule of Family Law Procedure 78(c).

DISCUSSION

¶8 Husband argues the superior court erred by awarding Wife
the retirement accounts because Wife failed to prove by clear and
convincing evidence that the accounts were her separate property. We
conclude that the superior court did not err by characterizing the accounts
as separate property, and the record supports the court’s award.

¶9 In a dissolution, the “court must divide community property
equitably and assign each spouse his or her sole and separate property.”
Bowser v. Nguyen, 249 Ariz. 454, 456, ¶ 8 (App. 2020). We review the
superior court’s characterization of property de novo. Hefner v. Hefner, 248
Ariz. 54, 57, ¶ 6 (App. 2019). We review the superior court’s division of
property and factual determinations for an abuse of discretion. Id. We view
the evidence in the light most favorable to upholding the decree and defer
to the superior court’s witness credibility assessments. See Bell-Kilbourn v.
Bell-Kilbourn, 216 Ariz. 521, 522, ¶ 1, n.1 (App. 2007); Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998).

3
 BELLAMY v. BELLAMY
Decision of the Court

¶10 Generally, property acquired during a marriage is
community property, and property acquired before marriage is separate
property. Potthoff v. Potthoff, 128 Ariz. 557, 561 (App. 1981); see also A.R.S.
§§ 25-211(A), 25-213(A). “An asset that is separate property before marriage
remains separate property after marriage until changed by agreement or
operation of law.” Rowe v. Rowe, 154 Ariz. 616, 619 (App. 1987), superseded
by statute on other grounds, A.R.S. § 25-324, as recognized in Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8 (App. 2014).

¶11 If a spouse acquires property during the marriage, a
presumption attaches that the property belongs to the community. Bender
v. Bender, 123 Ariz. 90, 92-93 (App. 1979). A spouse asserting that property
acquired during the marriage is separate must rebut the community
property presumption with clear and convincing evidence. See id.; Carroll v.
Lee, 148 Ariz. 10, 16 (1986). But the community property presumption
attaches only to property acquired during the marriage. See Rowe, 154 Ariz.
at 619. And the requirement that a spouse prove property is separate by
clear and convincing evidence applies only after a finding that the property
was acquired during the marriage. See id. at 618-19; Bowser, 249 Ariz. at 456,
¶¶ 9-10 (Husband bore the burden to establish his severance package was
his separate property by clear and convincing evidence because
“Husband’s performance under the employment contract occurred during
the marriage and only during the marriage.”); Davis v. Davis, 9 Ariz. App.
49, 52 (1969) (Husband bore the burden to establish by clear and convincing
evidence that property acquired during the marriage was bought with
separate property.).

¶12 Whether the property was acquired before or during the
marriage is a fact question, and we will defer to the superior court’s
findings so long as substantial evidence supports them. See Saba v. Khoury, 253 Ariz. 587, 590, ¶ 7 (2022); Valento v. Valento, 225 Ariz. 477, 481, ¶ 11
(App. 2010).

¶13 Husband is correct that Wife did not offer account statements
or pay stubs to prove she created the accounts before marriage and stopped
contributing to the accounts when she married Husband. But on the other
hand, other than Husband’s testimony, there is no record showing that
Wife created or contributed to the accounts during the marriage. Wife
testified that she created and contributed to the accounts before marriage
and stopped contributing to the accounts when she married Husband. The
superior court was within its discretion to adopt Wife’s testimony and give
less weight to Husband’s conflicting testimony. See Gutierrez, 193 Ariz. at
347, ¶ 13. Thus, the superior court did not abuse its discretion by finding

4
 BELLAMY v. BELLAMY
Decision of the Court

the “accounts were earned prior to marriage.” With no contributions during
the marriage, the increase in value reflected in the account statements
Husband offered was from the accounts’ inherent value, not community
efforts. See Cockrill v. Cockrill, 124 Ariz. 50, 52 (1979). Thus, the court did not
err by classifying the accounts as separate property and awarding them to
Wife.

CONCLUSION

¶14 We affirm.

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

5