Cunnington v. Hon fisk/cunnington

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WILLIAM CUNNINGTON, Petitioner,

v.

THE HONORABLE RONDA FISK, Judge of the SUPERIOR COURT OF
THE STATE OF ARIZONA, in and for the County of MARICOPA,
Respondent Judge,

DANA CUNNINGTON, Real Party in Interest.

No. 1 CA-SA 22-0033
FILED 5-12-2022

Appeal from the Superior Court in Maricopa County
No. FN2021-004487
The Honorable Ronda R. Fisk, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Curry Pearson & Wooten PLC, Phoenix
By Daniel Seth Riley
Counsel for Petitioner

Pittman Law Offices PLLC, Mesa
By Samuel Pittman
Counsel for Real Party in Interest
 CUNNINGTON v. HON FISK/CUNNINGTON
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 William Cunnington (“Husband”) petitions for special action
in an annulment proceeding against Dana Cunnington (“Wife”) after the
superior court granted Wife exclusive use and possession of his sole and
separate property in temporary orders. For the following reasons, we accept
special action jurisdiction and grant the relief requested.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife were married in September or October of
2020. Husband filed a petition to annul the marriage in October 2021. The
parties filed cross-motions for temporary orders asking, in part, for
immediate possession of a 2014 Range Rover. Both parties acknowledged
in their prehearing statements that the vehicle is Husband’s sole and
separate property.

¶3 At the temporary orders hearing, Husband testified he had
purchased the vehicle and paid off the associated auto loan prior to
marriage. Wife acknowledged that the vehicle is Husband’s sole and
separate property but testified that she had driven the vehicle before and
during marriage. In its temporary orders, the superior court granted Wife’s
request for exclusive use and possession of the vehicle. Husband petitioned
for special action.

¶4 Husband raises an issue with no “equally plain, speedy, and
adequate remedy by appeal.” Ariz. R. P. Spec. Act. 1(a). Further, the petition
presents a purely legal question of statewide importance that is likely to
arise again. Jordan v. Rea, 221 Ariz. 581, 586, ¶ 8 (App. 2009). Therefore, in
our discretion we accept special action jurisdiction and grant the relief
requested.

DISCUSSION

¶5 We note Wife failed to file an answering brief in response to
Husband’s petition. “When an appellant raises debatable issues, the failure
to file an answering brief generally constitutes a confession of reversible

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 CUNNINGTON v. HON FISK/CUNNINGTON
Decision of the Court

error in civil cases.” State v. Greenlee County Justice Court, Precinct 2, 157 Ariz.
270, 271 (App. 1988). However, this may be waived in our discretion. Id.
Because the resolution of this case involves a purely legal question, we opt
to address its merits.

¶6 Husband argues the superior court erred in granting Wife use
and possession of his sole and separate property through temporary orders.
Husband relies on the language of A.R.S. § 25-318(A) to support this
argument, which states in relevant part that “the court shall assign each
spouse’s sole and separate property to such spouse.” We review matters
involving statutory interpretation de novo. Beatie v. Beatie, 235 Ariz. 427,
430, ¶ 14 (App. 2014). When interpreting a statute, we look first to its
language, which if clear and unambiguous, we apply without employing
other principles of statutory interpretation. Id. at 431, ¶ 19.

¶7 The temporary orders statute authorizes the court to issue
orders with respect to the parties’ property, but such orders must be made
in conformity with A.R.S. § 25-318. A.R.S. § 25-315(E). There is no claim,
argument, or evidence in our record that Wife has any interest in the
vehicle. To the contrary, Husband and Wife agree the vehicle is Husband’s
sole and separate property. Therefore, because A.R.S. § 25-318(A)
unambiguously directs the court to assign each spouse’s sole and separate
property to such spouse, the superior court was limited in its temporary
orders to assigning the vehicle to Husband as its owner.

¶8 Husband further argues the court’s temporary orders
endanger his interest in the vehicle because the family court cannot award
him judgment for any damages Wife might inflict upon the vehicle while it
is in her care. Weaver v. Weaver, 131 Ariz. 586, 587 (1982) (holding that the
court lacks jurisdiction to grant a money judgment against one spouse for
damage to the separate property of the other spouse in a dissolution
proceeding). We agree, but note that our decision remedies this concern.

¶9 In sum, although Wife argued at the temporary orders
hearing that the 2014 Range Rover was her only means of transportation,
the express language of A.R.S. § 25-318(A) makes clear that the superior
court did not have authority to assign her use of Husband’s sole and
separate property. We note, however, that A.R.S. § 25-315 authorizes the
court to award temporary spousal maintenance “in amounts and on terms
just and proper in the circumstances.” A.R.S. § 25-315(E). It may well be
worthwhile for the parties and the court to consider such options upon
remand, though we express no opinion as to their justification.

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 CUNNINGTON v. HON FISK/CUNNINGTON
Decision of the Court

CONCLUSION

¶10 For the foregoing reasons, we grant relief and reverse the
superior court’s temporary orders with respect to the 2014 Range Rover.
We further direct the superior court to amend its temporary orders to assign
this vehicle to Husband as his sole and separate property.

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

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