In Re the Marriage of Foster

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

IN RE THE MARRIAGE OF

JACQUELINE FOSTER,
Petitioner/Appellee,

and

CHARLES SIDNEY FOSTER,
Respondent/Appellant.

No. 2 CA-CV 2015-0192
Filed June 8, 2016

Appeal from the Superior Court in Cochise County
No. DO201300543
The Honorable Karl D. Elledge, Judge

AFFIRMED

COUNSEL

Jacqueline Foster, McNeal
In Propria Persona

Bays Law PC, Sierra Vista
By P. Randall Bays
Counsel for Respondent/Appellant
 IN RE MARRIAGE OF FOSTER
Opinion of the Court

OPINION

Presiding Judge Vásquez authored the opinion of the Court, in
which Chief Judge Eckerstrom and Judge Miller concurred.

V Á S Q U E Z, Presiding Judge:

¶1 Charles Foster appeals from the trial court’s decree of
dissolution of his marriage to Jacqueline Foster. He argues the court
erred by awarding guns that he contends were his separate property
to Jacqueline as part of the community-property disposition. The
issue presented on appeal is whether the presumption that all
property acquired during the marriage is community property
applies to guns Charles claims he inherited, thereby requiring him to
prove their separate-property character by clear and convincing
evidence. For the reasons stated below, we conclude the answer is
yes and affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to
upholding the trial court’s decree. See Bell-Kilbourn v. Bell-Kilbourn,
216 Ariz. 521, n.1, 169 P.3d 111, 112 n.1 (App. 2007). Charles and
Jacqueline were married in December 1957. They had three
children, including their now-adult daughter Missy and son Jack.
Throughout their marriage, Charles bought and sold guns. Charles
also inherited numerous guns from family members, including his
brother John. According to Jacqueline, Charles “always” told her
that they “would retire on the guns.” In June 2013, Charles gave
Missy thirty-eight guns to distribute to family members upon his
death.

¶3 In July 2013, Jacqueline filed a petition for dissolution of
marriage. The following year, while the dissolution was pending,
the Cochise County property where the parties were residing caught
fire and dozens of guns burned. At the dissolution trial, the parties
disputed how many and which guns still existed. Charles
maintained the only guns that had survived the fire were the thirty-

2
 IN RE MARRIAGE OF FOSTER
Opinion of the Court

eight that Missy was holding. Jacqueline requested “half of the
guns, even, because the guns were held over [her] head all those
years as [their] investments; [their] retirement.” She also wanted all
the guns that Charles had inherited from John and promised to Jack.

¶4 In its under-advisement ruling, the trial court found as
follows:

According to [Charles], the thirty-
eight guns he currently possesses or
controls are his sole and separate
property. . . .

Here, [Charles] did not sustain his
burden that all of the thirty-eight guns in
question are his sole and separate property.
While there is no dispute a number of the
guns were inherited, [Charles] produced no
records in court (other than self-serving
documents) to trace the acquisition of the
guns which were not inherited.
Accordingly, the guns which were not
inherited are community property and
subject to division by the Court.

The court then awarded Jacqueline fourteen of the thirty-eight guns.
Charles filed a motion for reconsideration, arguing he had inherited
six of the guns awarded to Jacqueline from his brother and,
consequently, they should be his separate property. The court
denied the motion and entered a decree of dissolution of marriage.
This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-
2101(A)(1).

Discussion

¶5 Charles argues the trial court erred by characterizing as
community property the fourteen guns he allegedly inherited from
his brother, six of which were awarded to Jacqueline. The
characterization of property is a question of law we review de novo.
Helland v. Helland, 236 Ariz. 197, ¶ 8, 337 P.3d 562, 564 (App. 2014);

3
 IN RE MARRIAGE OF FOSTER
Opinion of the Court

In re Marriage of Pownall, 197 Ariz. 577, ¶ 15, 5 P.3d 911, 915 (App.
2000). However, we “defer to the trial court’s determination of
witnesses’ credibility and the weight to give conflicting evidence.”
Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13, 972 P.2d 676, 680 (App.
1998); see also Hurd v. Hurd, 223 Ariz. 48, ¶ 16, 219 P.3d 258, 262
(App. 2009) (“Even though conflicting evidence may exist, we affirm
the trial court’s ruling if substantial evidence supports it.”).

¶6 Community property includes “[a]ll property acquired
by either husband or wife during the marriage . . . except for
property that is . . . [a]cquired by gift, devise or descent.” A.R.S.
§ 25-211(A)(1). By contrast, separate property consists of “[a]
spouse’s real and personal property that is owned by that spouse
before marriage and that is acquired by that spouse during the
marriage by gift, devise or descent, and the increase, rents, issues
and profits of that property.” A.R.S. § 25-213(A). There is a legal
presumption that all property acquired during marriage is
community property. Sommerfield v. Sommerfield, 121 Ariz. 575, 577,
592 P.2d 771, 773 (1979); Porter v. Porter, 67 Ariz. 273, 279, 195 P.2d
132, 136 (1948); see also Ariz. Cent. Credit Union v. Holden, 6 Ariz.
App. 310, 313, 432 P.2d 276, 279 (1967) (describing § 25-211(A) as
creating presumption).

¶7 But Charles argues the presumption under § 25-211(A)
applies to “all property acquired by either husband or wife during
the marriage . . . except for property that is . . . acquired by gift,
devise or descent.” He thus maintains the trial court erred by
concluding he had to “clearly trace[]” inherited property “to prove
that it fits within the exception to . . . § 25-211,” citing Hatcher v.
Hatcher, 188 Ariz. 154, 933 P.2d 1222 (App. 1996). In that case, this
court stated: “In Arizona, the presumption is that all property
acquired by either spouse during marriage is community property,
except that which is acquired by gift, devise or descent.” Hatcher,
188 Ariz. at 157, 933 P.2d at 1225. We also recognize that in Evans v.
Evans, 79 Ariz. 284, 286, 288 P.2d 775, 776 (1955), our supreme court
noted that “[p]roperty acquired subsequent to marriage, except
through gift, devise or descent, is presumed to be community
property.”

4
 IN RE MARRIAGE OF FOSTER
Opinion of the Court

¶8 But Hatcher did not involve a dispute over property
claimed to have been acquired by gift, devise, or descent. See Town
of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327
(1981) (because dicta is court’s statement on question not necessarily
involved in case, it is not controlling as precedent). And neither
Hatcher nor Evans explains how the character of the property is
determined to be separate property if not initially presumed to be
community property. Instead, these cases appear to recognize the
proposition that property shown to have been acquired “during the
marriage by gift, devise or descent” is the separate property of the
spouse claiming the exception. § 25-213(A); see Evans, 79 Ariz. at
286, 288 P.2d at 776; Hatcher, 188 Ariz. at 157, 933 P.2d at 1225.

¶9 The presumption that all property acquired during the
marriage is community property is “strong.” Carroll v. Lee, 148 Ariz.
10, 16, 712 P.2d 923, 929 (1986). To overcome that presumption, the
spouse maintaining the property was acquired by that spouse as a
“gift, devise or descent,” § 25-211(A)(1), and is, thus, separate
property, “has the burden of establishing the separate character of
the property by clear and convincing evidence.” Cockrill v. Cockrill, 124 Ariz. 50, 52, 601 P.2d 1334, 1336 (1979); see also Davis v. Davis, 149
Ariz. 100, 102, 716 P.2d 1037, 1039 (App. 1985) (applying
community-property presumption to gift of stock to husband from
his mother during marriage). However, “where there is any doubt
in the court’s mind, the property will be treated as community
property.” Ariz. Cent. Credit, 6 Ariz. App. at 313, 432 P.2d at 279; see
also Porter, 67 Ariz. at 279, 195 P.2d at 136.

¶10 At trial, Charles offered evidence that he had inherited
the fourteen guns from his brother. 1 Specifically, the trial court
admitted Charles’s Exhibit Z, which is a handwritten list prepared
by Missy showing the thirty-eight guns she is holding. The list is
organized by where each gun came from—the fourteen allegedly
inherited from Charles’s brother are listed under the header “John

1Neitherparty presented evidence showing when John died
and Charles inherited the guns. However, given the nature of
Charles’s argument, we assume Charles inherited the guns during
the marriage.

5
 IN RE MARRIAGE OF FOSTER
Opinion of the Court

Foster.” Exhibit Z also identifies the guns’ serial numbers. Missy
explained she had prepared the list based on information from
Charles and a ledger he had prepared that no longer exists.

¶11 However, the trial court rejected this evidence, and we
cannot say it erred in doing so. See Hurd, 223 Ariz. 48, ¶ 16, 219 P.3d
at 262. Charles’s testimony as to Exhibit Z was minimal, and he
never confirmed that the list of guns prepared by Missy was
accurate. Moreover, there was conflicting testimony that only the
trial court could resolve based on consideration of all the evidence.
For instance, during his testimony, Charles identified John Foster as
both his brother and his uncle. And Exhibit Z contains two separate
lists of guns purportedly inherited from Charles’s brother—fourteen
are listed under “John Foster” and four are listed under “John Foster
Estate.” The court found the latter four to be Charles’s separate
property and awarded those to him. 2 Given the court’s
determination that Charles failed to establish the fourteen guns were
inherited, we cannot say the court erred in characterizing the guns
as community property. See Helland, 236 Ariz. 197, ¶ 8, 337 P.3d at
564.

¶12 Charles nevertheless maintains the trial court relied
only on Exhibit Z and failed to consider the testimony of Charles,
Missy, and Jacqueline, as well as Jacqueline’s Exhibit 6.3 He asserts

2The trial court also found that the guns Charles had inherited
from his grandfather and great aunt, as identified in Exhibit Z, were
Charles’s separate property. Accordingly, we disagree with Charles
that the court “failed to identify (characterize) those guns that it
determined to be inherited from those guns it determined to be
community.”
3Charles also asserts the trial court failed to consider Exhibits
A and B to the decree, which he submitted as part of his post-trial
memorandum. However, Exhibit B is the same as Jacqueline’s
Exhibit 6, only with checkmarks indicating what Charles thought
Jacqueline should be awarded. And Exhibit A is another list of
personal property including ten guns, none of which clearly match
the description and serial numbers in Exhibit Z for the fourteen guns
at issue here.

6
 IN RE MARRIAGE OF FOSTER
Opinion of the Court

that, if the court “properly considered all of that evidence,” it would
have concluded “all the guns in Exhibit Z were Charles’[s] sole and
separate property.” But the court’s under-advisement ruling
indicates it considered “the evidence introduced at trial.” Charles
has not identified the portions of the trial testimony that the court
failed to consider and would have established these guns are his
separate property. We recognize that Missy relied on Exhibit Z to
suggest that Charles had inherited the fourteen guns, but neither
Charles nor Jacqueline testified with any specificity that Charles had
inherited these particular guns.

¶13 As for Exhibit 6, in which Jacqueline identified all the
personal property she wanted to be awarded, Jacqueline did request
all of John’s guns that Charles had promised to Jack. We
acknowledge that property acquired by a spouse “during the
marriage by gift, devise or descent” is that spouse’s separate
property and that awarding Charles’s separate property to
Jacqueline would have been improper. § 25-213(A). But the trial
court appears to have disregarded Jacqueline’s request. See Hart v.
Hart, 220 Ariz. 183, ¶ 18, 204 P.3d 441, 446 (App. 2009) (we presume
trial court knows and follows law). Indeed, the court determined
what was community property and then divided that property
pursuant to A.R.S. § 25-318(A).

¶14 Lastly, Charles argues the trial court erred in awarding
the eight guns to Jacqueline “despite the fact that the guns had been
transferred out of Charles’[s] possession prior to the commencement
of divorce with the knowledge of Jacqueline.” He points out that
Missy, who is holding the guns, thinks they belong to her and that
the court should have ordered a monetary award rather than
awarding Jacqueline the guns. Because Charles never raised this
argument below, we could deem it waived. See Airfreight Express
Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 17, 158 P.3d 232, 238-
39 (App. 2007) (party must timely present arguments to trial court so
it has opportunity to rule; if party fails to do so, we may deem
argument waived on appeal).

¶15 Even assuming the argument is not waived, we cannot
say the trial court erred. Charles seems to suggest that the guns
were disposed of and are no longer owned by or within his or

7
 IN RE MARRIAGE OF FOSTER
Opinion of the Court

Jacqueline’s control. Although Missy testified that “the guns are
mine,” both Charles and Missy explained that they “are with Missy”
so she can “distribute [them] around [the] family” after Charles dies.
Missy also testified the guns are to be distributed upon her “father’s
recommendation” but “[h]e has made no recommendations . . . yet.”
Thus, based on this testimony, Missy appears to be holding the guns
in the capacity of an executor. See Executor, Black’s Law Dictionary
(10th ed. 2014) (“A person named by a testator to carry out the
provisions in the testator’s will.”). It does not appear that Charles
has relinquished control and management. See Mortensen v. Knight, 81 Ariz. 325, 334, 305 P.2d 463, 469 (1956) (“dispose” in dissolution
context means relinquish control and management).

Disposition

¶16 For the reasons stated above, we affirm.

8