Jackson v. Jackson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEBORAH JACKSON, Petitioner/Appellee,

v.

LARRY JACKSON, Respondent/Appellant.

No. 1 CA-CV 24-0091 FC
FILED 10-03-2024

Appeal from the Superior Court in Yuma County
No. S1400DO202200992
The Honorable Nathaniel T. Sorenson, Judge

AFFIRMED

COUNSEL

Law Office of Amanda J. Taylor, Yuma
By Amanda J. Taylor
Counsel for Petitioner/Appellee

Larson Law Office, PLLC, Mesa
By Robert L. Larson
Counsel for Respondent/Appellant

JACKSON v. JACKSON
Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Anni Hill Foster joined.

P A T O N, Judge:

¶1 Larry Jackson (“Husband”) appeals the superior court’s
dissolution decree ending his marriage to Deborah Jackson (“Wife”). For
the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife married in September 1973. They
purchased a home in Iowa during their marriage. But they lived separately
for the eighteen years preceding the dissolution proceeding. Husband
remained in Iowa, while Wife moved to Arizona. Wife purchased a home
in Yuma in May 2012, and the seller conveyed the house by special
warranty deed to Wife, “a married woman, as her sole and separate
property.” Husband signed a disclaimer deed, acknowledging the house
as Wife’s sole and separate property purchased with her separate funds and
renouncing any interest in the house.

¶3 Wife petitioned for dissolution in October 2022. The superior
court held a one-day trial in November 2023. Wife testified that the down
payment funds for the Yuma home came exclusively from an inheritance
from her mother, and the mortgage was not paid for with community
funds. Husband testified that he may have provided $8,000 from his
pension for the Yuma home down payment and disputed that Wife’s
inheritance of $53,000 was a sufficient amount to pay for the down payment
and mortgage payments without the use of community funds.

¶4 Following trial, the superior court entered its dissolution
decree, awarding the Yuma home to Wife as her sole and separate property.
It also awarded Wife her 401(k) and financial accounts held solely in her
name. It awarded Husband the Iowa home, his pension, and financial
accounts held solely in his name. It equally divided stocks and bank
accounts held in both parties’ names. It ordered each party to pay their
individual debts and equally divided the debts held in both parties’ names.
It awarded each party the personal property items held in their possession,

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except for a cuckoo clock it awarded to Wife which Husband did not
contest.

¶5 Husband timely appealed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) Section 12-2101(A)(1).

DISCUSSION

¶6 Husband contends the superior court erred by (1) failing to
find the Yuma home was community property, or in the alternative, that
the marital community had an equitable lien on the home, and (2) not
equally dividing community property.

I. The court properly determined the Yuma home was Wife’s
sole and separate property.

¶7 We review the record in the light most favorable to upholding
the superior court’s determination of the nature of property as community
or separate. See Cooper v. Cooper, 130 Ariz. 257, 260 (1981).

¶8 Husband first contends that the superior court erred by
failing to find that the Yuma home was community property. We review
the superior court’s characterization of property de novo. Helland v.
Helland, 236 Ariz. 197, 199, ¶ 8 (App. 2014).

¶9 In a dissolution proceeding, the superior court must assign
each spouse his or her sole and separate property and must equitably divide
the community property. A.R.S. § 25-318(A). “Property takes its character
as separate or community at the time [of acquisition] and retains [that]
character” throughout the marriage. Honnas v. Honnas, 133 Ariz. 39, 40
(1982). Property acquired during a marriage is presumed to be community
property unless an exception—neither of which the parties contend is
relevant here—applies. A.R.S. § 25-211(A); see Cockrill v. Cockrill, 124 Ariz.
50, 52 (1979). “[T]he spouse seeking to overcome the presumption has the
burden of establishing the separate character of the property by clear and
convincing evidence.” Schickner v. Schickner, 237 Ariz. 194, 199, ¶ 22 (App.
2015).

¶10 A signed disclaimer deed rebuts the community property
presumption and is a binding contract that must be enforced, absent fraud
or mistake. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523–24, ¶¶ 7, 11
(App. 2007). A party challenging a disclaimer deed must identify that
challenge as a contested issue in his pretrial statement to properly preserve
it for trial. See Ariz. R. Fam. Law P. 76.1(g)(6); Leathers v. Leathers, 216 Ariz.

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374, 378, ¶ 19 (App. 2007) (construing an identical provision in the civil
rules). And mistake or fraud must be pled affirmatively and proved by
clear and convincing evidence. Bender v. Bender, 123 Ariz. 90, 94 (App.
1979); Femiano v. Maust, 248 Ariz. 613, 616, ¶ 10 (App. 2020), disapproved of
on other grounds by Saba v. Khoury, 253 Ariz. 587, 593, ¶¶ 18–19 (2022).

¶11 Here, Wife introduced evidence of the disclaimer deed,
rebutting the presumption that the house was community property, and
the deed must be enforced absent fraud or mistake. Husband
acknowledged in the deed that the Yuma home was Wife’s separate
property and disclaimed any interest in the home, which is sufficient to
uphold the superior court’s finding that the home is Wife’s sole and
separate property. This is true whether Husband provided funds for the
down payment, see Bell-Kilbourn, 216 Ariz. at 523-24, ¶¶ 8-10 (whether the
assets used to purchase the property were separate or community property
is not relevant to whether a valid, unambiguous disclaimer deed makes the
property separate), or community funds were used to pay the mortgage.
See Potthoff v. Potthoff, 128 Ariz. 557, 561 (App. 1981) (property purchased
on credit that acquires status of separate property retains that status
regardless of whether community or separate funds are used to pay debt).

¶12 Husband argues for the first time on appeal that the
disclaimer deed was the result of mistake. But because he did not raise this
issue before the superior court, he has waived this argument on appeal. See
Nold v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013) (“we agree with the general
proposition that, when a party fails to raise an issue before the [superior]
court, the issue is waived on appeal[.]”). The superior court did not err by
finding the Yuma home was Wife’s sole and separate property.

II. The superior court properly determined that the marital
community was not entitled to an equitable lien.

¶13 Husband alternatively contends that the superior court
should have awarded the marital community an equitable lien on the Yuma
home. “The existence and the value of an equitable lien present mixed
questions of fact and law.” Valento v. Valento, 225 Ariz. 477, 481, ¶ 11 (App.
2010). “[W]e defer to the [superior] court’s factual findings but review legal
conclusions de novo[.]” Saba, 253 Ariz. at 590, ¶ 7. And “[w]e view the
evidence in the light most favorable to upholding the [superior] court’s
judgment.” Id. We defer to the superior court’s credibility determinations
and the weight it gave to any conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998).

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¶14 An equitable lien reimburses the marital community for its
contributions to a spouse’s separate property. Saba, 253 Ariz. at 590, ¶ 8. It
can attach to a spouse’s separate property despite the existence of a valid
disclaimer deed. See Bell-Kilbourn, 216 Ariz. at 524, ¶¶ 11, 12. But the
spouse asserting an interest in the other spouse’s separate property bears
the burden of proving the community is entitled to an equitable lien. See
Whitt v. Meza, 257 Ariz. 149, 158, ¶ 38 (App. 2024).

¶15 Here, Husband had the burden of proving the community’s
interest in Wife’s separate property. But he failed to offer any evidence as
to the amount of community funds expended on the mortgage. He
provided no documentation to support this argument; he only attacked the
credibility of Wife’s testimony that she paid for the home with her separate
funds. Husband admits that “[t]here is nothing in the record to prove” his
claim and, therefore, “the court only had the contradictory testimony of the
parties to rely on.” By awarding the Yuma home to Wife as her sole and
separate property, the superior court presumably found Husband less
credible than Wife on this issue, a determination we will not revisit. See
Gutierrez, 193 Ariz. at 347, ¶ 13 (“We will defer to the [superior] court’s
determination of witnesses’ credibility and the weight to give conflicting
evidence.”). The superior court did not err in rejecting Husband’s claim
that the community was entitled to an equitable lien on the Yuma home.

III. The superior court did not abuse its discretion by not
equally dividing the parties’ community property.

¶16 Husband next argues that the superior court erred by failing
to equally divide all the community property. The superior court’s
“apportionment of community property will not be disturbed on appeal
absent an abuse of discretion.” Gutierrez, 193 Ariz. at 346, ¶ 5. We view the
record in the light most favorable to sustaining the superior court and will
affirm if the court’s order is reasonably supported by the evidence. Id.

¶17 As mentioned above, the superior court must assign each
spouse his or her sole and separate property and must equitably divide the
community property in a dissolution proceeding, “though not necessarily
in kind[.]” A.R.S. § 25-318(A). “‘Equitable’ means just that—it is a concept
of fairness dependent upon the facts of particular cases.” Toth v. Toth, 190
Ariz. 218, 221 (1997). Generally, community property “should be divided
substantially equally unless sound reason exists to divide the property
otherwise.” Id. And although typically an equal distribution of community
property will be the most equitable, the superior court is not “bound by any
per se rule of equality,” and has “discretion to decide what is equitable in

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each case.” Id. In other words, the court is not required to make an
“absolutely equal” community property distribution so long as the
distribution is equitable. Nesmith v. Nesmith, 112 Ariz. 248, 252 (1975).

¶18 Here, the superior court equally divided the parties’ jointly-
held stocks and financial accounts. It awarded the Yuma home to Wife as
her separate property, so Husband was not entitled to half of it. The court
chose not to equally divide the Iowa home Husband resides in, although it
determined it was community property, and awarded it solely to Husband.
And it awarded each spouse their respective retirement accounts, meaning
Husband did not receive any portion of Wife’s retirement accounts and
Wife did not receive any portion of his.

¶19 Under the unique circumstances of this case—namely that
Husband and Wife had lived separately for the eighteen years preceding
the dissolution proceeding, residing in separate states and homes—it was
not error for the court to allocate the property in this way. Given that
Husband received the Iowa home in its entirety despite the court’s
determination that it was community property, and that each party
maintained 100% of their individual retirement accounts, Husband has not
shown that the court’s failure to equally split every community asset down
the middle was inequitable or unfair. Although the court did not equally
divide every individual community property item, it overall made a
substantially equal distribution of the community property. See Miller v.
Miller, 140 Ariz. 520, 522 (App. 1984) (the court’s distribution of community
property “need not be in kind or exactly equal, but must result in
substantial equality.”).

¶20 Husband faults the superior court for not explaining the
reasoning for its division of assets in the decree. He states it “could
potentially be argued that the court was offsetting [the] value of the 401(k)
account against other property awarded to Husband,” but it needed to
explain why it believed “the division was equal or close to equal.” But the
superior court is not required to expressly state its findings of fact or
conclusions of law unless a party asks it to, and Husband made no such
request. See Ariz. R. Fam. Law P. 82(a)(1) (requiring the court to make
express findings of fact and conclusions of law “[i]f requested before
trial”); Bender, 123 Ariz. at 92. And here, the court found that its
“distribution of assets and debt are fair and equitable to each party and are
appropriate based on the evidence and testimony presented.” We cannot
say the court abused its discretion.

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JACKSON v. JACKSON
Decision of the Court

¶21 Wife requests attorneys’ fees under Section 25-324. We
decline to award her attorneys’ fees. As the prevailing party, Wife is
entitled to her taxable costs on appeal after her compliance with Arizona
Rules of Civil Appellate Procedure 21.

CONCLUSION

¶22 We affirm.

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

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