Bangiyev v. Arzumanova ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
RAPHAEL BANGIYEV, Petitioner/Appellee,
v.
INNA ARZUMANOVA, Respondent/Appellant.
No. 1 CA-CV 16-0769 FC
FILED 1-23-2018
Appeal from the Superior Court in Maricopa County
No. FC2015-052900
The Honorable Chuck Whitehead, Judge
REVERSED AND REMANDED
COUNSEL
Burt Feldman & Grenier, PLC, Scottsdale
By Mary Kay Grenier
Counsel for Petitioner/Appellee
Fromm Smith & Gadow, P.C., Phoenix
By Stephen R. Smith
Counsel for Respondent/Appellant
BANGIYEV v. ARZUMANOVA
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge John C. Gemmill1 joined.
C R U Z, Judge:
¶1 Inna Arzumanova (“Wife”) appeals from the property and
debt allocation and the lack of a contempt ruling in the superior court’s
decree of dissolution. For the following reasons, we reverse and remand
for further proceedings consistent with this decision regarding the property
and debt allocation. We treat the appeal as a special action regarding the
contempt issue, see Henderson v. Henderson, 241 Ariz. 580, 585, ¶ 7 (App.
2017) (reviewing appeal as a special action because contempt findings are
only reviewable by special action), and we remand for reconsideration and
a ruling on the contempt petition.
FACTUAL AND PROCEDURAL HISTORY
¶2 In August 2015, Raphael Bangiyev (“Husband”) filed a
petition to dissolve the parties’ marriage. Wife requested temporary orders
for child support and spousal maintenance. Following a hearing, the
superior court awarded Wife temporary spousal maintenance of $2,000 per
month and child support of $157.18 per month effective December 1, 2015.2
The court also ordered Husband to pay $5,000 towards Wife’s attorneys’
fees by making $500 monthly payments beginning January 1, 2016.
¶3 In March 2016, Wife filed a petition for contempt, alleging
Husband failed to pay the court-ordered temporary support and attorneys’
fees. Wife claimed Husband paid only $2,329.58 of the $10,128.72 he was
obligated to pay. Husband responded that he had paid some of the
1 The Honorable John C. Gemmill, Retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
2 This order was entered on February 5, 2016, so Husband was
immediately in arrears for December, January, and February payments.
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Decision of the Court
temporary support, and, at Husband’s request, the superior court agreed to
address the petition for contempt at trial.
¶4 Following a trial, the superior court ordered Wife to pay child
support to Husband in the amount of $48.67 per month starting September
1, 2015, and awarded Wife $1,500 per month in spousal maintenance for
two years, effective August 1, 2016. The relevant property provisions in the
decree included findings that: (1) the Scottsdale house was community
property which was to be sold and any equity equally divided; (2) the
parties’ community debts were discharged in bankruptcy, with no mention
of an outstanding community debt owed to the Internal Revenue Service
(“IRS”); and (3) “the parties share a 50% equity in Desert Equity.” There
were no findings regarding Wife’s contempt petition.
¶5 Wife filed a motion for new trial, making the same arguments
she now raises on appeal. The superior court denied the motion without
comment, and Wife filed a timely notice of appeal following entry of a
signed order. We have jurisdiction over the property issues under Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(1). Additionally, because
Wife has no adequate remedy by appeal with regards to her claim that the
court failed to address the contempt petition, we exercise our discretion to
treat Wife’s appeal as a special action and address that claim pursuant to
Arizona Rule of Procedure for Special Actions 1(a). See Henderson, 241 Ariz.
at 585, ¶ 7.
DISCUSSION
I. Property and Debt Allocation
¶6 We review the superior court’s apportionment of community
property for an abuse of discretion and its findings of fact for clear error.
Hrudka v. Hrudka, 186 Ariz. 84, 91, 93 (App. 1995), superseded by statute on
other grounds as recognized in Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8 (App.
2014). The classification of property as separate or community is a question
of law we review de novo. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523,
¶ 4 (App. 2007).
A. Scottsdale Residence
¶7 Wife contends the superior court erred in classifying the
Scottsdale residence as community property because it was purchased
before the marriage and titled to Wife and has remained titled to Wife ever
since. Husband concedes this but argues the parties intended the Scottsdale
residence to be their marital home and community property.
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BANGIYEV v. ARZUMANOVA
Decision of the Court
¶8 The parties purchased the residence four months before the
marriage. Husband testified that the money for the down payment was a
loan from his mother and that the parties placed the property in Wife’s
name because her credit was better. The only name that has ever been listed
on the deed is Wife’s. Husband signed a disclaimer deed in 2005
confirming that the residence was Wife’s separate property.
¶9 “In Arizona, property owned or acquired by either spouse
prior to marriage is separate property and does not change its character
after the marriage except by agreement or operation of law.” Drahos v. Rens,
149 Ariz. 248, 249 (App. 1985); see A.R.S. § 25-213(A); see also Bell-Kilbourn,
216 Ariz. at 523, ¶ 5. The parties’ use of the residence as the marital home
and use of community funds to pay the mortgage and other expenses does
not alter the character of the property. See Drahos, 149 Ariz. at 249.
Similarly, the fact that the parties titled the property in Wife’s name to
obtain favorable financing “does not alter the character of the property
established as Wife’s separate property at the time of acquisition.” Bell-
Kilbourn, 216 Ariz. at 524, ¶ 10.
¶10 Husband signed two disclaimer deeds and does not claim he
executed these deeds as a result of fraud or mistake. The deeds are valid;
therefore, the Scottsdale residence is Wife’s separate property. The
community is entitled to an equitable lien against the separate property for
those funds expended on the separate property residence, but the character
of the property remains separate. Id.
¶11 We vacate the portion of the order characterizing the
Scottsdale residence as community property and remand for an order
awarding the residence to Wife as her separate property and to determine
the amount of the community’s equitable lien on the property.
B. IRS Debt
¶12 The superior court has authority under A.R.S. § 25-318 to
allocate community debts. The decree stated, “the parties discharged their
community debts in their bankruptcy[]” and further ordered that “[a]ny
community debts that were not identified at the time of trial shall be
divided equally between the parties.” The decree did not mention the
parties’ IRS debt even though both parties acknowledged in the pretrial
statement and at trial that this was a community debt for which they were
equally liable. Husband contends the fact that the parties agreed to be
equally responsible for this debt meant the court did not need to address it.
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Decision of the Court
¶13 “Community debts not allocated by a divorce decree remain
the joint obligations of the parties.” Cmty. Guardian Bank v. Hamlin, 182
Ariz. 627, 631 (App. 1995). Based on this holding, the IRS debt should be
treated as a joint obligation. This is consistent with the parties’ positions at
trial. However, because we are remanding on other grounds, we instruct
the superior court to enter an order equally allocating the IRS debt
consistent with the positions taken by the parties below.
C. Desert Equity, LLC
¶14 The parties agreed that the community owned a 50% interest
in Desert Equity, LLC, which owns four rental properties. The decree
ordered that “the parties share a 50% equity in Desert Equity.” The court
is obligated under A.R.S. § 25-318(A) to divide the community property
equitably in the decree.
¶15 The parties disputed whether there was any equity in the
rental properties or Desert Equity itself. There was no evidence regarding
the equity in any of the properties Desert Equity owned. Given this lack of
evidence as to the value of Desert Equity or its assets, the superior court
could not assign a specific value to this community property.
¶16 Nonetheless, the order in the decree does not constitute a
division of property. At trial, Wife’s undisputed testimony was that Desert
Equity was owned by four partners, each holding a quarter interest.
Pursuant to the decree, Appellant and Appellee, though no longer married,
still own an undivided “50% interest.” Unlike community property that is
not addressed in the decree, which is held by the parties as tenants in
common pursuant to A.R.S. § 25-318(D), this property was specifically
addressed in the decree. Thus, A.R.S. § 25-318(D) does not apply. The
decree merely stated that the parties shared this community asset; this did
not allocate the property as required by A.R.S. § 25-318(A). Accordingly,
we vacate the order regarding Desert Equity and remand for further
proceedings to allocate this community asset.
II. Contempt Order
¶17 Wife contends the superior court abused its discretion by
failing to address her petition for contempt in the final decree. Contempt
findings are only reviewable by special action. Henderson, 241 Ariz. at 586-
87, ¶ 16. Because Wife has no other remedy for review of this alleged error,
we exercise our discretion and accept special action jurisdiction to address
this issue. Id.
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BANGIYEV v. ARZUMANOVA
Decision of the Court
¶18 We review contempt findings for an abuse of discretion. Id.
The superior court specifically stated it would address Wife’s contempt
petition at trial. The parties presented evidence regarding the contempt
allegation. Civil contempt proceedings in family law matters are governed
by Arizona Rule of Family Law Procedure (“Rule”) 92. Pursuant to Rule
92(E), the court “shall enter a written order granting or denying the petition
for contempt.” If the order finds “the alleged contemnor in contempt,”
additional specific findings are required. See Rule 92(E)(1), (2). The decree
did not specifically address the contempt petition. However, the court
denied “any affirmative relief sought before the date of this Order that is
not expressly granted above.” Although this finding does not specifically
refer to the contempt petition, neither party requested findings of fact or
conclusions of law pursuant to Rule 82. Where parties do not request
findings of fact or conclusions of law, this Court “must presume that the
[superior] court found every fact necessary to support the judgment[]” if
supported by a reasonable construction of the evidence. Berryhill v. Moore,
180 Ariz. 77, 82 (App. 1994).
¶19 Husband contends the superior court was not required to
make any findings because the final decree “reallocated, modified, and/or
terminated” the temporary orders such that “Wife suffered very little loss,
if any[.]” However, Rule 92 does not exclude temporary orders from
contempt proceedings. Husband also argues that because temporary
orders become unenforceable once a decree is entered, see Rule 47(M)3, there
was nothing to enforce.
¶20 However, Wife filed her contempt petition in March 2016,
during the pendency of the action. Therefore, the temporary orders were
still valid and fully enforceable through contempt proceedings. See Rules
47(M) and 92. The relevant inquiry was Husband’s knowledge of the order,
3 Rule 47(M) states in relevant part:
Temporary orders signed by the court and filed by the
clerk are enforceable as final orders during the
pendency of the action. Temporary orders become
ineffective and unenforceable upon termination of an
action either by dismissal or following entry of a final
decree, judgment, or order, unless that final decree,
judgment, or order provides otherwise.
Ariz. R. Fam. Law P. 47(M).
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ability to comply with it, and willful violation of the order. See Ellison v.
Mummert, 105 Ariz. 46, 46 (1969). We disagree with Husband’s reading of
A.R.S. § 25-315(F)(4) (providing temporary orders terminate when final
decree is entered). A party is not relieved of contempt for violating
temporary orders because the superior court did not address the contempt
petition before entering a final decree. The court must consider Husband’s
conduct as of the time Wife filed her petition.
¶21 Wife alleged contemptuous conduct prior to the entry of the
decree. The superior court was obligated to address these allegations in a
separate order or in the decree. The boilerplate denial of all prior requests
for affirmative relief does not reasonably support a presumption that
Husband was not in contempt in light of the evidence. Cf. Berryhill, 180
Ariz. at 82 (stating this Court “must presume the [superior] court found
every fact necessary to support the judgment” when parties failed to
request findings). Husband admitted he had not made all payments
ordered under the temporary orders, and the court’s payment history did
not reflect payment in full as of March 2016. Husband’s spousal
maintenance obligation was only modified as of August 2016, one month
prior to the decree. Therefore, he was still obligated to pay Wife $2,000 per
month from December 2015 to July 2016 as well as $500 per month towards
Wife’s attorneys’ fees from January 2016 to September 2016, the month the
decree was entered.4 Accordingly, we remand for reconsideration of Wife’s
contempt allegations and findings pursuant to Rule 92.
III. Attorneys’ Fees and Costs on Appeal
¶22 Both parties request an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. §§ 25-324, 12-331, 12-341, and 12-342. In the
exercise of our discretion, we decline to award either party attorneys’ fees
on appeal. However, as the successful party, Wife is entitled to an award
of taxable costs on appeal upon compliance with Arizona Rule of Civil
Appellate Procedure 21. See A.R.S. § 12-342 (providing for recovery of costs
on appeal).
4 The decree did not expressly modify the temporary order that
Husband pay $5,000 toward Wife’s attorneys’ fees. Absent such language,
we cannot presume the decree modified this obligation.
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Decision of the Court
CONCLUSION
¶23 For the foregoing reasons, we vacate the orders regarding the
Scottsdale residence, the IRS debt, and Desert Equity, and we remand for
further proceedings consistent with this decision and for reconsideration
and entry of findings regarding Wife’s contempt petition. Wife is awarded
her costs on appeal upon compliance with Arizona Rule of Civil Appellate
Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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