Burton v. Burton ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
ADRIANNE JUSTINE BURTON, Petitioner/Appellee,
v.
BRIAN SCOTT BURTON, Respondent/Appellant.
No. 1 CA-CV 20-0666 FC
FILED 12-28-2021
Appeal from the Superior Court in Maricopa County
No. FC2017-096032
The Honorable Rodrick J. Coffey, Judge
AFFIRMED
COUNSEL
Berkshire Law Office, PLLC, Tempe
By Erica Leavitt, Keith Berkshire
Counsel for Petitioner/Appellee
Brian Scott Burton, Gilbert
Respondent/Appellant
BURTON v. BURTON
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.
P E R K I N S, Judge:
¶1 Brian Burton (“Husband”) appeals the superior court’s
classification of property in its decree dissolving his marriage to Adrianne
Burton (“Wife”). Husband argues the court erred by finding he had no
interest in (1) Wife’s mother’s (“Mother”) bank account and (2) the marital
residence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Husband and Wife married in November 2010. Wife and her
sister bought a home outright, before the parties’ marriage. The funds for
the home purchase came from Mother’s checking account and, although
Mother was still alive, the parties referred to this money as the sisters’
“inheritance.” Wife is an authorized signer on Mother’s account, but Wife
does not actively deposit or withdraw money from the account. The sisters
sold the home one year into the parties’ marriage, and Wife received 100%
of the proceeds, which she deposited in Mother’s account.
¶3 Wife bought another home outright in 2012 with the proceeds
from the previous home. Husband disclaimed his interest in the new home
by executing a disclaimer deed. Wife sold this home in 2016 and bought the
home subject to this appeal (“Penrose home”) in April 2016. Wife bought
the Penrose home with funds from Mother’s account because the sale of the
previous home had not yet closed. And because the proceeds from the
previous home’s sale were insufficient to purchase the Penrose home
outright, Mother loaned the difference to Wife.
¶4 On the same day as the purchase, Wife formed a trust to hold
her property, including the Penrose home. Wife testified the parties
intended to keep the Penrose home Wife’s sole and separate property. The
trust declaration named Wife as grantor and trustee, Husband as co-trustee,
and the parties’ children as the sole beneficiaries. Husband and Wife
executed the trust declaration, and the parties took title to Wife’s property
as trustees.
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BURTON v. BURTON
Decision of the Court
¶5 Wife later removed her property from the trust, without
Husband’s objection, and placed the property back in her own name.
¶6 Husband later testified in an unrelated matter the Penrose
home belonged solely to Wife, and he characterized the Penrose home as
Wife’s “inheritance” from Mother. The parties made no mortgage
payments on the Penrose home. The parties and Mother, however, agreed
to an amortization schedule for the amount Mother provided at closing and
the parties made periodic payments to Mother’s account in repayment of
this debt.
¶7 Wife petitioned for dissolution in September 2017. At trial,
Husband claimed (1) the Penrose home was community property because
the parties bought it while married, and (2) the parties commingled
community funds in Mother’s account, making the account community
property. The superior court entered the decree in October 2020, dissolving
the parties’ marriage and dividing their assets and liabilities.
¶8 The superior court found the Penrose home was Wife’s sole
and separate property because she bought it with sole and separate funds.
The court also found Husband divested any interest he may have had in
the home, and Husband presented “no persuasive evidence supporting his
claim to any portion of this property or any community lien on the
property.” The court denied Husband’s claim to Mother’s account because
Husband failed to prove the parties deposited community funds into the
account. Husband timely appeals and we have jurisdiction under A.R.S. §
12-2101(A)(1).
DISCUSSION
¶9 Husband argues the superior court erred by classifying the
Penrose home as Wife’s separate property and by not giving Husband a
share of Mother’s bank account. “We review de novo the legal question of
whether property should be classified as community or separate.” Femiano
v. Maust, 248 Ariz. 613, 615, ¶ 9 (App. 2020). “We review the record on
which the superior court based that classification in the light most favorable
to upholding its decision . . . [a]nd we will not alter the . . . community
property distribution absent an abuse of that court’s broad discretion to
apportion the community property.” Saba v. Khoury, 250 Ariz. 492, 495, ¶ 5
(App. 2021) (cleaned up). The court abuses its discretion if it commits an
error of law when exercising discretion. Id.¶10 Property acquired before marriage remains separate property
unless altered by agreement or operation of law. See A.R.S. § 25-213; see also
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BURTON v. BURTON
Decision of the Court
Drahos v. Rens, 149 Ariz. 248, 249 (App. 1985). Mere use of separate property
as a family home or payment of a mortgage with community funds does
not change the character of the property. Drahos, 149 Ariz. at 249. Property
acquired during marriage is presumed to be community property and the
spouse seeking to rebut that presumption must do so by clear and
convincing evidence. See A.R.S. § 25-211(A); see also Femiano, 248 Ariz. at
615, ¶ 10. Spouses may convey their property interests to one another
during marriage. See Bender v. Bender, 123 Ariz. 90, 93 (App. 1979). Such a
conveyance must be made by a written instrument accompanied by
contemporaneous conduct showing an intent to convey such interest. Id.¶11 The parties bought the Penrose home during marriage, and
we presume it to be community property. See A.R.S. § 25-211(A). But the
record supports the superior court’s finding that Wife successfully rebutted
the community-property presumption. Husband signed a disclaimer deed
for the earlier house, making the proceeds of that sale Wife’s sole and
separate property. Wife then used those proceeds, and Mother’s loan, to
purchase the Penrose home and Wife placed it in the trust as sole grantor.
Wife thus traced the funds used to buy the Penrose home to Mother’s initial
gift to her and demonstrated that her property maintained its sole and
separate character.
¶12 Husband failed to rebut Wife’s evidence with proof of an
agreement in which Wife conveyed her interest in the Penrose home. And
he testified in another proceeding he understood it was wife’s sole and
separate property. The superior court thus did not err by classifying the
Penrose home as Wife’s sole and separate property.
¶13 Husband also challenges the superior court’s finding that he
was not entitled to a share of Mother’s checking account. The court found
Husband failed to provide any credible evidence the account belonged to
Wife and was community property. Instead, the court found Mother’s
testimony credible that she owned the account. We defer to the superior
court’s credibility determinations and, to the extent the court based its
rulings on the weight it gave conflicting evidence, we defer to the court’s
judgment. Gutierrez v. Gutierrez, 193 Ariz. 343, 347–48, ¶ 13 (App. 1998). The
record supports the court’s findings and we see no error.
¶14 Wife requested attorneys’ fees and costs under ARCAP 21
and A.R.S. § 25-324. We have considered the financial resources of both
parties and the reasonableness of Husband’s positions on appeal, and we
decline to award attorneys’ fees. Wife is entitled to costs upon compliance
with ARCAP 21.
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BURTON v. BURTON
Decision of the Court
CONCLUSION
¶15 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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