McCreary v. Silver ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
KARYN MCCREARY, Petitioner/Appellant/Cross-Appellee,
v.
ROBIN D. SILVER, Respondent/Appellee/Cross-Appellant.
No. 1 CA-CV 16-0203 FC
FILED 11-9-2017
Appeal from the Superior Court in Coconino County
No. S0300DO201400462
The Honorable Elaine Fridlund-Horne, Judge
AFFIRMED
COUNSEL
Warner Angle Hallam Jackson & Formanek PLC, Phoenix
By Erik C. Bergstrom
Counsel for Petitioner/Appellant/Cross-Appellee
Aspey, Watkins & Diesel, PLLC, Flagstaff
By Zachary J. Markham, Edward J. Walneck, John W. Carlson
Counsel for Respondent/Appellee/Cross-Appellant
MCCREARY v. SILVER
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge Kent E. Cattani joined.
H O W E, Judge:
¶1 Karyn McCreary (“Wife”) appeals from the decree of
dissolution ending her marriage to Robin D. Silver (“Husband”). Husband
cross-appeals. Both parties challenge the property division in the decree.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Husband and Wife were married in 2001 and have two
children. In 2014, Wife filed for divorce. Six months later, the parties entered
into an agreement regarding legal decision-making and parenting time
pursuant to Arizona Rule of Family Law Procedure (“Rule”) 69, which the
family court adopted. Thereafter, the family court held a trial to address the
contested issues, including property division. The following is a description
of each asset at issue in this appeal.
1. Real Property
¶3 The real property division dispute revolves around two
separate homes. In 1983, Husband purchased the first home in Phoenix (the
“Phoenix Home”) with his own funds as his sole property. After the parties
married in 2001, they began living together in the Phoenix Home in June
2001. In November 2002, Husband titled the Phoenix Home as community
property with right of survivorship. During the marriage, the parties used
funds from a joint checking account to pay the Phoenix Home’s mortgage.
In 2008, Husband and Wife purchased a second home in Flagstaff, Arizona
(the “Flagstaff Home”), which they also titled as community property with
right of survivorship. A significant portion of the funds used to purchase
the Flagstaff Home came from Husband’s sole and separate inheritance and
investment accounts.
¶4 At trial, Husband testified that he never intended to gift the
Phoenix Home to Wife. Conversely, Wife testified that both parties had
“lengthy discussions about making [the Phoenix Home] our home.” As for
the Flagstaff Home, Husband testified that he intended the community to
reimburse him for the separate funds used to purchase the house. Wife
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testified that the parties “bought the house together as a home” and that
Husband never communicated to her an expectation of repayment.
2. Wells Fargo Account
¶5 A Wells Fargo account ending in 4660 (the “Wells Fargo
Account”) was a brokerage account that contained Husband’s pre-marriage
sole and separate savings. After they married, Husband added Wife’s name
to the account as a joint tenant with right of survivorship. Wife testified at
trial that the parties agreed that the account “was going to be our savings
account.” Husband testified that he added Wife’s name upon the advice of
his financial advisor only to create a survivorship right and that he did not
intend to make a gift of the property to Wife.
3. Airline Miles
¶6 During the marriage, the parties maintained an Alaskan
Airlines joint credit card that accumulated airline miles. In her pretrial
statement, Wife requested that the court award her all of the airline miles,
but Husband did not discuss the miles in his pretrial statement. At trial,
Wife again requested that she receive the airline miles and that Husband
receive the rewards from their other credit cards.
4. Family Court Distribution of Property
¶7 Before dividing the assets, the court discussed “equitable
division” and cited to In re Marriage of Flower, 223 Ariz. 531 (App. 2010). The
family court awarded both homes to Husband and directed Husband to
make an equalization payment of $295,223 to Wife. The court also awarded
Husband (1) all airline miles as part of his share of the community property
and (2) the Wells Fargo Account as his sole and separate property. The court
found that Husband did not rebut the presumption of a gift of the homes
with clear and convincing evidence. After finding that the homes were
community assets, the court divided the value in the homes equally. In
addition to the real property’s value, the court took into consideration other
factors to arrive at a $295,223 equalization amount. First, the court found
that $25,000 had been deposited into the Wells Fargo Account and that
those funds were community property. Next, the court found that the
$25,000 placed into the account offset any separate interest Husband had in
the Toyota Highlander valued at $29,177; thus, Husband was not entitled
to any reimbursement for the purchase of the Highlander. Thereafter, the
court awarded Wife the Highlander.
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¶8 Wife timely appealed from the decree, and Husband timely
cross-appealed. Husband moved to dismiss Wife’s appeal for lack of
jurisdiction arguing that Wife did not timely appeal. This Court considered
and denied Husband’s motion to dismiss.1
DISCUSSION
¶9 In a dissolution proceeding, the family court has broad
discretion to divide the community property equitably. See Boncoskey v.
Boncoskey, 216 Ariz. 448, 451 ¶ 13 (App. 2007). We will not disturb the
court’s allocation absent an abuse of discretion. See id. We view the facts “in
the light most favorable to supporting” the decree. Stevenson v. Stevenson,
132 Ariz. 44, 45 (1982). Here, neither party requested findings of fact and
conclusions of law under Rule 82. See Ariz. R. Fam. Law P. 82. Accordingly,
we assume the court “found every fact necessary to support its judgment
and must affirm if any reasonable construction of the evidence justifies the
decision.” Stevenson, 132 Ariz. at 46.
1. Real Property
¶10 Husband argues that the family court failed to recognize the
two homes as his sole and separate property. “[A] presumed gift occurs”
when one spouse places his or her separate real property in joint tenancy or
titles it as community property with right of survivorship. Valladee v.
Valladee, 149 Ariz. 304, 307 (App. 1986); see also Flower, 223 Ariz. at 535 ¶ 15
(“[A] presumption exists that the contributing spouse intended to make a
gift to the other spouse of a one-half interest in the property.”). This
presumption can be overcome only “by clear and convincing evidence to
the contrary” and not simply by one spouse’s “after-the-fact testimony that
the property was placed in joint tenancy only as a means of avoiding
probate.” Valladee, 149 Ariz. at 307. Similarly, the gift presumption will not
be overcome by “testimony of the hidden intentions of one of the parties,”
but only by evidence of a “common understanding or an agreement that
the character of the property was to be other than joint tenancy.” Id.
1 Husband reiterates his argument from his motion to dismiss that this
Court does not have jurisdiction because Wife did not timely file her notice
of appeal. This Court, however, previously considered and denied
Husband’s motion to dismiss Wife’s appeal for lack of jurisdiction and will
not revisit the issue.
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¶11 Under A.R.S. § 25–318(A), the family court must make an
equitable distribution of all “community, joint tenancy and other property
held in common.” Accordingly, all community property, whether gifted or
otherwise, must be divided equitably. See Toth v. Toth, 190 Ariz. 218, 221
(1997). The family court may not make a substantially unequal division
“solely for the purpose of reimbursing one of the parties for expending his
or her separate funds to initially acquire the property.” Whitmore v. Mitchell,
152 Ariz. 425, 427 (App. 1987).
¶12 Here, because both homes were titled as community
property, the family court properly presumed that Husband gifted Wife a
one-half interest in the properties. See Flower, 223 Ariz. at 535 ¶ 15. In its
ruling, the court acknowledged the applicable Arizona law and concluded
that Husband failed to rebut the gift presumption with clear and convincing
evidence. After determining that both homes were community assets, the
court properly divided the value in the homes equitably. Thus, the family
court did not abuse its discretion either by determining that the homes were
community property or by its division of those properties.
¶13 Alternatively, Husband argues that even if the homes were
community property, the family court erred by dividing them equally
because “the particular facts in this case warranted an unequal division of
the properties in Husband’s favor.” Husband relies on Flower, in which this
Court held that “[a] determination of what constitutes an equitable division
of marital property must include consideration of contributions made by
each spouse to the community, in whatever form.” Id. at 537 ¶ 22. In Flower,
the parties were married for one year, and during that time the husband
retitled his home as community property with right of survivorship. Id. at
533 ¶¶ 2, 4. Thereafter, the parties took out a home equity loan and used
the funds to improve a second home owned by wife as her sole and separate
property. Id. ¶ 3. At dissolution, the trial court recognized that “equal was
not equitable” and awarded the husband a disproportionate share of the
jointly-titled home. Id. at 536 ¶ 20. This Court affirmed concluding that the
trial court had acted within its discretion. Id. at 537 ¶ 21. The ruling here
acknowledged the Flower holding and reflected consideration of Husband’s
contribution to the Phoenix and Flagstaff Homes. No more is required.
Accordingly,the family court did not abuse its discretion.
2. Wells Fargo Account
¶14 Wife argues that the family court erred by awarding the Wells
Fargo Account to Husband as his sole and separate property because “[t]he
account was indisputably joint tenancy property, and thus was required to
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be divided equally.” Unlike the transfer of real property, the transfer of
separate funds into a joint bank account does not create the presumption of
a gift. See Stevenson, 132 Ariz. at 46; Neely v. Neely, 115 Ariz. 47, 51 (App.
1977) (“[T]he form of a bank account is not regarded as sufficient to
establish the intent of the depositor to give another a joint interest in or
ownership of the deposit.”).
¶15 Here, the Wells Fargo Account contained Husband’s pre-
marriage sole and separate savings, and he later added Wife’s name to the
account as a joint tenant with right of survivorship after their marriage.
Because this transfer did not involve real property, no presumption of a gift
existed. At trial, the parties gave conflicting testimony concerning whether
Husband intended to make a gift of the property to Wife. “Our duty on
review does not include re-weighing conflicting evidence.” Hurd v. Hurd,
223 Ariz. 48, 52 ¶ 16 (App. 2009). Viewing the evidence in the light most
favorable to upholding the family court’s determination, the family court
acted well within its discretion by determining that the Wells Fargo
Account was Husband’s sole and separate property. Accordingly, we
affirm the court’s ruling.
3. Airline Miles
¶16 Wife contends that the family court erred by awarding
Husband all of the airline miles accrued during the marriage through a joint
credit card. She argues that Husband waived his claim to the miles by not
requesting them in his pretrial statement. Additionally, she argues that the
court failed to explain “how such a division was fair and equitable.”
Because Wife failed to request findings of fact and conclusions of law, she
has waived the latter argument on appeal. See Nia v. Nia, 242 Ariz. 419, 425
¶ 26 (App. 2017). The family court is obligated to divide all identified
community property “equitably, though not necessarily in kind.” A.R.S. §
25–318(A). The court cannot ignore its obligation “simply because one
spouse failed to list the property as a contested issue” in his or her pretrial
statement. Nold v. Nold, 232 Ariz. 270, 274 ¶ 20 (App. 2013).
¶17 Here, Wife addressed the airline miles both in her pretrial
statement and her testimony at trial. Accordingly, the family court properly
considered the airline miles in dividing the community property. Thus, the
family court did not abuse its discretion by awarding the airline miles to
Husband.
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4. Equalization Payment
¶18 Wife next argues that the family court erred by calculating the
equalization payment incorrectly. Specifically, she contends that the court
“intended to offset the $29,177.00 value of the Toyota Highlander awarded
to [her] against $25,000.00 in community funds that Husband deposited”
into the Wells Fargo Account, but that the equalization calculation does not
reflect that intent. Because neither party requested findings of fact, we
presume that the court found all facts necessary to support the property
division “if the evidence on any reasonable construction justified it.” Neal
v. Neal, 116 Ariz. 590, 592 (1977).
¶19 The family court found that $25,000 was deposited into the
Wells Fargo Account and that the money was later used to purchase the
Highlander. As such, the $25,000 that was originally in the Wells Fargo
Account was transferred into the value of the Highlander. Because Wife
was awarded the Highlander, a community asset, the family court properly
included the Highlander in Wife’s column of the equalization payment
calculation. Husband’s $25,000 was not included in his column of the
equalization payment calculation because he no longer possessed that
money. Additionally, the record reflects that the community withdrew
significantly more money from the Wells Fargo Account during the
marriage than it deposited into that account. Accordingly, the family court
did not abuse its discretion with its calculation of the equalization payment
owed to Wife.
CONCLUSION
¶20 For the foregoing reasons, we affirm the property division set
forth in the decree. Both parties requested attorneys’ fees on appeal
pursuant to A.R.S. § 25–324. In our discretion, we deny their requests and
order each party to bear his or her own fees on appeal. Because neither
party prevailed on the issues he or she raised on appeal, we decline to
award costs to either party.
AMY M. WOOD • Clerk of the Court
FILED: AA
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