In Re the Marriage of Thorn

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE THE MARRIAGE OF
STUART E. THORN,
Petitioner/Appellant,
and
SUSAN THORN,
Respondent/Appellee.
No. 2 CA-CV 2014-0022
Filed July 17, 2014
Appeal from the Superior Court in Yavapai County
No. P1300DO201100031
The Honorable Kenton D. Jones, Judge
AFFIRMED
COUNSEL
The Murray Law Offices, P.C., Scottsdale
By Stanley D. Murray
Counsel for Petitioner/Appellant
Slaton & Sannes, P.C., Scottsdale
By Sandra Slaton
Counsel for Respondent/Appellee
IN RE THE MARRIAGE OF THORN
Opinion of the Court
OPINION
Judge Miller authored the decision of the Court, in which
Judge Vásquez and Judge Espinosa concurred.
M I L L E R, Judge:
¶1 Stuart Thorn appeals from the decree dissolving his
marriage to Susan Thorn, arguing the family court erred in dividing
real and personal property, ordering him to return Susan’s stocks
and bonds, and ordering him to repay a loan that had already been
paid. For the reasons that follow, we determine we do not have
jurisdiction to review the personal property arguments, and
otherwise affirm the judgment as to the remaining items.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to
upholding the decree. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 5,
972 P.2d 676, 679 (App. 1998). The parties were married in
January 1992 after entering into a prenuptial agreement. Although
that agreement does not direct the issues on appeal, it documents a
variety of separate properties brought to the marriage, many of
which maintained their separate character or affected the allocation
and distribution of jointly held property. In January 2011, Stuart
filed a petition for dissolution of marriage without children. The
family court entered a decree of dissolution in April 2013, dividing
the parties’ property. We have jurisdiction, except as discussed
below, pursuant to A.R.S. § 12-2101(A)(1).
I. Appellate Jurisdiction over Community Property Distribution
¶3 Stuart argues the family court failed to “make a fair and
equitable distribution of community property” because Susan “was
awarded all of the community personal property without an
equalization payment.” This issue was not raised under Stuart’s
original notice of appeal; therefore, we first must examine whether
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
we have jurisdiction to consider the court’s community property
distribution. See Baker v. Bradley, 231 Ariz. 475, ¶ 8, 296 P.3d 1011,
1014-15 (App. 2013) (court has independent duty to determine
jurisdiction).
¶4 Following the entry of the decree of dissolution on
April 25, 2013, Stuart filed a timely notice of appeal on May 10, 2013.
Stuart identified five specific orders and rulings in the decree to be
appealed. Thirty-five days after the decree, Stuart filed an amended
notice of appeal adding a sixth item to the list of orders and rulings
contained in the decree, specifically “[t]he order distributing
personal property.” On our own motion, we ordered simultaneous
briefing, requesting the parties address whether this court has
jurisdiction related to item six.
¶5 Rule 9(a), Ariz. R. Civ. App. P., requires a notice of
appeal be filed “not later than 30 days after the entry of the
judgment from which the appeal is taken.” The failure to file a
notice within thirty days deprives the appellate court of jurisdiction
except to dismiss the attempted appeal. James v. State, 215 Ariz. 182,
¶ 11, 158 P.3d 905, 908 (App. 2007). In other words, the timely filing
of a notice of appeal is “a prerequisite to appellate jurisdiction.”
Wilkinson v. Fabry, 177 Ariz. 506, 507, 869 P.2d 182, 183 (App. 1992).
Accordingly, this court only acquires jurisdiction over those matters
identified in a timely filed notice of appeal. Lee v. Lee, 133 Ariz. 118,
124, 649 P.2d 997, 1003 (App. 1982).
¶6 Stuart concedes his amended notice of appeal was filed
more than thirty days after entry of the decree of dissolution, but
argues “that an amended notice of appeal relates back to the filing
date of the original notice of appeal.” Stuart relies on Rule 34(A),
Ariz. R. Fam. Law P., and several out-of-state cases to support this
contention and characterizes his notice of appeal as a “pleading”
under Rule 34(A). Stuart offers no authority for the proposition that
Rule 34 either trumps or extends Rule 9(a). To the contrary, where
two rules deal with the same subject, the more specific rule controls.
See Pima Cnty. v. Heinfeld, 134 Ariz. 133, 134-35, 654 P.2d 281, 282-83
(1982) (“where two statutes deal with the same subject, the more
specific statute controls”); Sierra Tucson, Inc. v. Lee ex rel. Cnty. of
Pima, 230 Ariz. 255, ¶ 16, 282 P.3d 1275, 1279 (App. 2012) (“We
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
interpret procedural rules according to the same principles we apply
to the interpretation of statutes.”). Rule 9(a) is more specific and
applies directly to notices of appeal, whether original or amended.
¶7 We also find unpersuasive the out-of-state cases cited
by Stuart. None of them stands for the proposition that an untimely
amended notice of appeal confers jurisdiction upon the reviewing
court. See Chan v. Chan, 748 P.2d 807, 811-12 (Haw. Ct. App. 1987)
(husband timely filed five amended notices of appeal, each
appealing from orders entered after previous notice of appeal was
filed); In re Marriage of Betts, 558 N.E.2d 404, 415 (Ill. App. Ct. 1990)
(appellant’s failure to list orders appealed by original notice of
appeal in subsequent amended notice of appeal did not bar appeal
of those orders); Herman v. Hamblet, 401 N.E.2d 973, 977 (Ill. App. Ct.
1980) (“While an appellant may amend a notice of appeal . . . such an
amendment may not be used to avoid the requirement that a
subsequent order be timely appealed.”).
¶8 Stuart further contends that “amended notices of appeal
have been recognized and indeed encouraged in a number of
published appellate cases.” We agree that amended notices of
appeal have been recognized and at times implicitly encouraged,
particularly when the initial notice of appeal was premature,
rendering it a nullity. See generally Craig v. Craig, 227 Ariz. 105, ¶ 13,
253 P.3d 624, 626 (2011); In re Marriage of Kassa, 231 Ariz. 592, ¶¶ 5-6,
299 P.3d 1290, 1292 (App. 2013). The case law cited by Stuart,
however, does not stand for the proposition that this court has
jurisdiction to review rulings identified in an untimely amended
notice of appeal. For instance, in Engel v. Landman, 221 Ariz. 504,
¶ 14, 212 P.3d 842, 847 (App. 2009), the initial appeal was premature
because the notice of appeal had been filed while a motion for new
trial was pending, but a timely supplemental notice of appeal
conferred jurisdiction. There was no timely supplemental notice
here.
¶9 Stuart’s reliance on Craig also is unavailing. We agree
that the court ostensibly suggested that a supplemental notice might
have cured the problem caused by the parties’ failure to wait for the
family court to rule on a time-extending motion before filing their
original notices. Craig, 227 Ariz. 105, ¶¶ 2, 6-8, 253 P.3d at 624, 625.
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
More telling, the court approved the parties’ post-appeal decision to
file a stipulated motion pursuant to Rule 85(C)(1)(f), Ariz. R. Fam.
Law P., to reinstate the final judgment, which would permit the
parties to file “fresh notices of appeal.” Id. ¶ 16. There is no
indication in this record that Susan would stipulate to a new
judgment that would allow Stuart to file a timely notice.
¶10 We conclude that because the amended notice of appeal
was untimely filed, we lack jurisdiction to consider Stuart’s claims of
error pertaining to personal property. See James, 215 Ariz. 182, ¶ 11,
158 P.3d at 908 (“[W]here the appeal is not timely filed, the appellate
court acquires no jurisdiction other than to dismiss the attempted
appeal.”).
II. Order Directing Return of $940,000 in Stocks and Bonds
¶11 Stuart contends the family court erred in ordering the
return of certain securities to Susan because: (1) Susan’s transfer of
securities to him should have been classified as a gift; (2) the court
lacked jurisdiction to order return of Susan’s securities; and,
(3) Stuart should not be required to reimburse the full value of
Susan’s securities.
¶12 In February 2010, Susan transferred approximately
$940,000 in stocks and bonds to Stuart. The parties presented
conflicting testimony as to her motivation for the transfer, with
Stuart contending it was a gift and Susan asserting it was made
under duress. Whatever the motivation, Stuart prepared and Susan
signed a document transferring $940,000 in securities from Susan to
Stuart. Stuart also prepared an additional document, which he
described as “like a proxy,” that allowed Susan to repossess her
transferred securities in case she had “buyer’s remorse.” Shortly
after the initial securities transfer, Susan requested Stuart transfer
back some dividend-bearing bonds and Stuart complied. Upon
leaving the marital residence, Susan requested Stuart return the
remaining stocks and bonds. The family court found that Susan’s
transfer of the securities to Stuart was not a gift and ordered Stuart
to return the stocks and bonds to Susan, “less those sums or the
value of such stock already returned to [Susan].”
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
A. Gift Determination
¶13 We first address Stuart’s contention that the family
court abused its discretion in finding that Susan’s transfer of the
stocks and bonds was not a gift because resolution of this issue
informs our treatment of Stuart’s subsequent arguments pertaining
to Susan’s securities. Stuart contends, “[Susan] admitted that when
she made the transfer she did so voluntarily and was not expecting
repayment or anything in return for her . . . transfer of stock.” The
determination of whether a gift was made is a question of fact.
Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App. 1995).
“We review a trial court’s findings of fact for abuse of discretion and
reverse only when clearly erroneous.” In re Marriage of Gibbs, 227
Ariz. 403, ¶ 6, 258 P.3d 221, 224 (App. 2011); see also Engel, 221 Ariz.
504, ¶ 21, 212 P.3d at 848.
¶14 The necessary elements of a gift are “donative intent,
delivery and a vesting of irrevocable title upon such delivery.”
Neely v. Neely, 115 Ariz. 47, 51, 563 P.2d 302, 306 (App. 1977); see also
Hrudka, 186 Ariz. at 93, 919 P.2d at 188. In the instant case, the
family court found the essential elements of a gift were not met. The
court concluded that even if it were to accept the existence of a
donative intent, as alleged by Stuart, “irrevocable title clearly did
not transfer as [was] apparent from [Stuart’s] own preparation and
provision of the authorization for [Susan] to demand the return of
the $940,000 in stock had she wished to do so.” Thus, the court
reasoned, “[t]here could not have been a vesting of irrevocable title
where reserved to [Susan] was the authority and ability to negate
the transfer.”
¶15 Stuart concedes he “provided [Susan] with a proxy to
obtain the return of her stocks and bonds” but contends the proxy
only existed “in case she had buyer’s remorse and wanted her
property back soon after the transfer.” By Stuart’s own admission,
Susan had the ability to repossess the stocks and bonds through
execution of the authorization prepared by Stuart. Accordingly,
irrevocable title could not have vested upon delivery and thus the
family court did not err in concluding the transfer was not a gift.
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
B. Family Court Authority
¶16 We next address Stuart’s argument that the family court
lacked subject matter jurisdiction to order return of Susan’s stocks
and bonds. Whether a family court has jurisdiction is a question of
law we review de novo. Thomas v. Thomas, 220 Ariz. 290, ¶ 8, 205
P.3d 1137, 1139 (App. 2009); Weaver v. Weaver, 131 Ariz. 586, 587, 643
P.2d 499, 500 (1982) (“Title 25 defines the boundaries of a dissolution
court’s jurisdiction, and the court may not exceed its jurisdiction
even when exercising its equitable powers.”).
¶17 Stuart’s argument depends, in part, on the assumption
that the family court’s subject matter jurisdiction is coterminous
with its authority to act pursuant to A.R.S. §§ 25-311 and 25-318(A).1
“In current usage, the phrase ‘subject matter jurisdiction’ refers to a
court’s statutory or constitutional power to hear and determine a
particular type of case.” State v. Maldonado, 223 Ariz. 309, ¶ 14, 223
P.3d 653, 655 (2010); see also United States v. Cotton, 535 U.S. 625, 630
(2002). We recognize that in Weaver our supreme court found a
family court’s “jurisdiction with respect to separate property is
limited to assigning to each spouse his or her separate property
under § 25-318(A) and impressing a lien pursuant to § 25-318(C).”
131 Ariz. at 587, 643 P.2d at 500. But the court used the term
“jurisdiction” in a broader, now antiquated, sense actually referring
to courts’ authority under the specific controlling statute rather than
subject-matter jurisdiction. See Weaver, 131 Ariz. at 588, 643 P.2d at
501 (Gordon, J., concurring) (spouse possessing separate property
must sue at law under tort theory for physical damage to property);
cf. Sierra Tucson, Inc. v. Lee ex rel. Cnty. of Pima, 230 Ariz. 255, n.2, 282
P.3d 1275, 1279 n.2 (App. 2012) (noting distinction between subject-
matter jurisdiction and courts’ authority to act, as acknowledged by
supreme court), citing Maldonado, 223 Ariz. 309, ¶¶ 14-18, 223 P.3d at
655-56. Because the family court had subject-matter jurisdiction to
divide Stuart and Susan’s marital property in a dissolution
proceeding, we limit consideration of Stuart’s argument to whether
1Section 25-318(A), A.R.S., states “the court shall assign each
spouse’s sole and separate property to such spouse.”
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
it had the authority to order return of the securities pursuant to
A.R.S. §§ 25-311 and 25-318(A).
¶18 Stuart correctly observes that our supreme court
concluded in Weaver that a trial court lacks authority “to grant a
money judgment against one spouse for damage to the separate
property of the other spouse in a dissolution proceeding.” 131 Ariz.
at 587, 643 P.2d at 500. His reliance on Weaver, however, is
misplaced because the trial court did not grant a money judgment
against Stuart for damage to Susan’s separate property. Rather, the
court ordered “the return of the stock to Susan or, should the stock
no longer be in the form and number of shares transferred, Stuart
shall pay to Susan the sum of $940,000.00, less those sums or the
value of such stock already returned to Susan.”
¶19 This case is more like Proffit v. Proffit, 105 Ariz. 222, 462
P.2d 391 (1969). There, at the time of the parties’ separation, wife
had possession of husband’s sole and separate property—United
States savings bonds—and, without his permission, redeemed the
bonds, and received $6,300. 105 Ariz. at 223, 462 P.2d at 392. In the
decree of dissolution, the trial court “ordered and directed [wife] to
deliver said sum to [husband].” Id. On appeal, wife argued the
court “had no power to order [her] to pay a sum of money to
[husband].” Id. at 224, 462 P.2d at 393. Our supreme court agreed
that a dissolution court has “no authority to compel either party to
divest himself or herself of Title to separate property” but
concluded:
[I]n the present case, the court’s order did
not concern Title, but Possession. [Wife]
was in possession of a sum of money,
obtained from the redemption of savings
bonds, title to which had been adjudged in
[husband]. The divorce court, as a court of
equity, certainly has the inherent power to
direct one party to relinquish possession of
separate property belonging to the other,
just as it has the power to order a division
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
and disposition of the community property
of two parties.
Id.¶20 Stuart concedes “the trial court can award a sum of
money to the other spouse if that sole and separate property
wrongfully taken has been converted into cash.” But he appears to
contend that reductions in stock prices rendered Susan’s securities
“destr[oyed],” and that the court therefore did not have the
authority to “award a sum of money as damages.” We disagree
with Stuart’s contention that a decrease in market value can
effectively destroy sole and separate property and thereby deprive
the court of authority to order its return.
¶21 Here, as in Proffit, one spouse possessed the other
spouse’s separate property. Id. at 223, 462 P.2d at 392. As a court of
equity, the family court had the power to direct Stuart to return
Susan’s sole and separate property, regardless of whether that
property had declined in market value or changed forms. See id. at
224, 462 P.2d at 393; § 25-318(A) (“court shall assign each spouse’s
sole and separate property to such spouse”). Thus, the court had
statutory authority to order the return of Susan’s securities.
¶22 To the extent Stuart also suggests the court erred in
awarding a money judgment to Susan, we conclude the issue is not
ripe for review. During oral argument, the parties informed this
court that the disputed securities portfolio is held in escrow and
valued at more than $1,000,000. Stuart has failed to demonstrate an
inability to comply with the court’s order to return Susan’s
securities. Accordingly, we need not address his argument that the
court improperly granted a money judgment to Susan.
C. Return of the Value of the Securities
¶23 Stuart argues that even if the transfer of securities was
not a gift and the family court did not exceed its authority in
ordering their return, the court erred in “requiring him to return the
full amount of $940,000.” He notes that shortly after the initial
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
transfer of securities he returned certain bonds “worth about
$45,000” and contends the court failed to deduct that amount.
¶24 Stuart mischaracterizes the family court’s order. As
noted above, the court ordered Stuart to return the securities to
Susan, “less those sums or the value of such stock already returned to
[Susan].” (Emphasis added.) It is clear that the court is referring to
Stuart’s return of certain dividend-bearing bonds. Thus, contrary to
Stuart’s argument, the court accounted for the bond transfers and
did not err in ordering him to return Susan’s securities.
III. Real Property Distribution
¶25 Stuart argues the family court did not correctly allocate
his contributions to the marital home, which was held in joint
tenancy. Susan responds that Stuart is judicially estopped from
contesting the marital property orders because the court adopted his
proposed allocation framework; alternatively, she argues the court
made an equitable distribution.
¶26 Stuart acknowledges that in the family court he
advocated for a totaling of the monies each party had spent on the
home, calculating the percentage contribution based on the totals,
and allocating each party’s interest based on the percentages. He
contends on appeal that he should not be held to his family court
position because he erred in aggregating his contributions and, in
any event, the court did not accept his precise percentages. We
conclude the doctrine of judicial estoppel bars Stuart from now
asserting a different classification of his contributions to the marital
home.
¶27 Judicial estoppel prevents “‘a party who has assumed a
particular position in a judicial proceeding . . . [from assuming] an
inconsistent position in a subsequent proceeding involving the same
parties and questions.’” State v. Towery, 186 Ariz. 168, 182, 920 P.2d
290, 304 (1996), quoting Martin v. Wood, 71 Ariz. 457, 459, 229 P.2d
710, 711-12 (1951). The purpose of the doctrine is to protect the
integrity of the judicial process by preventing a litigant from using
contrary positions in the courts to gain an unfair advantage over an
opponent. See Martin, 71 Ariz. at 460, 229 P.2d at 712. Three
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
elements are required before the doctrine may be applied: “(1) the
parties must be the same, (2) the question involved must be the
same, and (3) the party asserting the inconsistent position must have
been successful in the prior judicial proceeding.” Towery, 186 Ariz.
at 182, 920 P.2d at 304; see also Standage Ventures, Inc. v. State, 114
Ariz. 480, 483-84, 562 P.2d 360, 363-64 (1977) (essential element of
judicial estoppel “is that the position first asserted must have been
successfully maintained”). Although it usually applies in the
context of separate actions, there is no restriction on its application
involving differing positions at trial versus on appeal. See Towery,
186 Ariz. at 182, 920 P.2d at 304; see also Pegram v. Herdich, 530 U.S.
211, 228 n.8 (2000) (judicial estoppel “generally prevents a party
from prevailing in one phase of a case on an argument and then
relying on a contradictory argument to prevail in another phase”);
Dunn v. N.D. Dep’t of Transp., 779 N.W.2d 628, 632 (N.D. 2010)
(plaintiff judicially estopped from asserting legal position on appeal
contrary to legal position resulting in earlier equitable relief); BTA
Oil Producers v. MDU Res. Group, Inc., 642 N.W.2d 873, 879 (N.D.
2002); 28 Am. Jur. 2d Estoppel and Waiver, § 67 (2014) (“Judicial
estoppel is a judge-made doctrine that seeks to prevent a litigant
from asserting a position inconsistent with, conflicting with, or is
contrary to one that he or she has previously asserted in the same or
in a previous proceeding.”). Acknowledging that the first two
elements have been met, Stuart argues he was not successful in the
family court. Resolving this issue requires us to review how the
parties characterized their separate contributions to the marital
home before the family court.
¶28 Stuart and Susan purchased land in Prescott using a
$140,000 gift from Susan’s mother to them. Although a small brick
building was on the land, Stuart contributed separate funds to begin
construction of the marital house. Susan contributed separate funds
for a barn. Stuart exhausted his separate funds before the house was
completed, which required the parties to take out a mortgage.
Stuart used his sole and separate funds to pay a portion of the
mortgage and Susan used her sole and separate funds to pay the
remaining balance of the mortgage. Stuart and Susan also used
separate funds to pay property taxes on the marital residence.
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IN RE THE MARRIAGE OF THORN
Opinion of the Court
¶29 The parties stipulated to the present value of the former
marital residence, but the amount was less than the total amount
contributed toward the property. In his closing brief before the
family court, Stuart proposed that since “the real estate is not
valuable enough to repay [him], . . . he should receive as
reimbursement that proportion of the total value of the property
which is [commensurate] with the portion of the total value for
which his separate funds paid.” He calculated his and Susan’s
respective contributions as $805,000 and $290,000, or approximately
74 percent and 26 percent.2
¶30 The family court agreed with Stuart’s proposed
framework for reimbursement. It found his contribution totaled
73.2 percent of the total monies invested in the marital residence and
that Susan’s contribution totaled 26.8 percent. The one percent
difference was attributable to minor contributions regarding wells
and a brick outbuilding that Stuart did not address, but which the
court included.
¶31 On appeal, Stuart argues the family court erred by:
(1) including the mortgage payments “as part of the improvements
paid calculation”; (2) applying “[Susan]’s percentage of the total
improvements to the present value of the property, instead of to the
increase in value of the property”; and, (3) failing to categorize
Susan’s mortgage payments as a gift to him. Stuart does not present
precise numbers or percentages that his position on appeal would
require, but it appears he seeks to limit Susan’s contributions to
$98,000.
¶32 The family court also accepted Stuart’s position with
respect to allocation of the property taxes. In his closing trial brief,
2 Stuart’s percentages asserted in his closing trial brief were
81.11 percent and 18.89 percent. These did not match his asserted
capital contributions—presumably as a result of mathematical error.
We also note that Stuart’s calculations in his closing trial brief,
opening brief, and reply brief were not internally consistent and, at
least in one instance, he acknowledged “an obvious math error” of
$72,500.
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Stuart stated that “[t]he Court may credit [the property taxes] to the
‘capital account’ for the joint house property or . . . make those
amounts a lien on the property.” The court ordered that “[t]he
percentage of real property taxes shall mirror the percentage of
[capital] contribution” toward the marital residence, and granted
Stuart “a lien against those monies owed by [Susan].” On appeal, he
contends each party should have reimbursed the other so that each
would ultimately contribute equally to the property tax obligation.
Because Stuart paid $61,885 and Susan paid $8,000, this re-
formulation would require Susan to pay approximately $27,000
versus the $11,000 she was ordered to pay.
¶33 Susan’s proposed allocation in the family court differed
substantially from Stuart’s but the court accepted Stuart’s allocation
framework. To now accept Stuart’s contention that the facts are not
in dispute and this court may make calculations using the “proper
rule of law” does not comport with how jointly held property is
divided generally and it ignores the prejudice to Susan to make a
new division on appeal. First, we note that property held in joint
tenancy is to be divided substantially equally unless equitable
considerations support an unequal distribution. § 25-318; In re
Marriage of Flower, 223 Ariz. 531, ¶ 14, 225 P.3d 588, 592 (App. 2010).
Here, at Stuart’s urging, the court ordered an unequal division based
on the parties’ intent to maintain the “separate property character”
of the contributions to the marital home, which originated in their
prenuptial agreement. Nonetheless, the court concluded the
agreement provided “no direction to the Parties or the Court” in
regard to how the division should be made. Thus, the court was
required to apply equitable considerations to determine the precise
numbers. In this circumstance, there is no single rule of law based
on undisputed facts; rather, the family court must take into account
all of the facts relevant to an unequal division. See Toth v. Toth, 190
Ariz. 218, 221, 946 P.2d 900, 903 (1997) (where equal is not equitable,
court considers facts and circumstances to achieve fairness for both
parties). This court cannot and will not substitute its judgment for a
decision properly made in the family court. See Kohler v. Kohler, 211
Ariz. 106, ¶ 2, 118 P.3d 621, 622 (App. 2005) (division of marital
property reviewed in light most favorable to upholding family
court’s ruling, which is not disturbed absent abuse of discretion).
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Opinion of the Court
¶34 Furthermore, although Stuart does not urge us to
remand this matter to the family court if we find reversible error, we
conclude it would unfairly prejudice Susan to permit Stuart to argue
an inconsistent position on appeal when he successfully persuaded
the court to adopt his position below. This would give him an
unfair advantage the doctrine of judicial estoppel is designed to
prevent. See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (“‘The
doctrine of judicial estoppel . . . is invoked to prevent a party from
changing its position over the course of judicial proceedings when
such positional changes have an adverse impact on the judicial
process.’”), quoting Religious Tech. Ctr. v. Scott, 869 F.2d 1306, 1311
(9th Cir. 1989) (Hall, J. dissenting).
¶35 We also observe that Stuart’s claim of error is vitiated
by the doctrine of invited error. See Schlecht v. Schiel, 76 Ariz. 214,
220, 262 P.2d 252, 256 (1953) (“By the rule of invited error, one who
deliberately leads the court to take certain action may not upon
appeal assign that action as error.”), abrogated in part on other grounds
as recognized in A Tumbling-T Ranches v. Paloma Inv. Ltd. P’ship, 197
Ariz. 545, ¶ 23, 5 P.3d 259, 266 (App. 2000). As outlined above,
Stuart proposed the method by which the family court determined
the reimbursement calculation. He proposed that Stuart and Susan
be credited for their respective contributions to the mortgage and
allocated the property tax obligations as a percentage of each party’s
total capital contribution. Having successfully persuaded the court
to follow this approach, he cannot now argue it was erroneous.
Wilkinson v. Phoenix Ry. Co. of Arizona, 28 Ariz. 216, 222, 236 P. 704,
706 (1925) (“One who misconceives the law governing his rights in a
trial, and succeeds in convicting the court thereof, ought to be
estopped to take any advantage of it upon appeal.”); see also Sholes v.
Fernando, 228 Ariz. 455, ¶ 21, 268 P.3d 1112, 1119 (App. 2011).
IV. $60,000 Loan from Susan to Stuart
¶36 Stuart lastly argues the family court erred when it
determined that a loan of $60,000 from Susan to Stuart remained
unpaid. As noted above, we will defer to the court’s factual findings
unless they are clearly erroneous. Gibbs, 227 Ariz. 403, ¶ 6, 258 P.3d
at 224.
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Opinion of the Court
¶37 It is undisputed that Susan loaned Stuart $60,000 so that
he could settle any future claims Stuart’s former wife may have had
against him. Stuart and Susan subsequently filed a joint tax return,
sharing in the tax deduction that resulted from Stuart’s $60,000 pre-
payment in spousal maintenance.
¶38 Stuart contends that he had satisfied the $60,000 loan
obligation to Susan through his return of $40,000 in securities and
“the tax benefit in excess of $24,000.” At trial, however, Stuart
testified there was no agreement with Susan that his return of
certain bonds was payment toward the loan. Nor was there an
agreement that any alleged tax benefit from the $60,000 spousal
maintenance payment was part of a loan repayment. There was
sufficient evidence in the record to support the family court’s
finding that the $60,000 loan remained unpaid. To the extent Stuart
asks us to reweigh the evidence or determine credibility of
witnesses, we decline to do so. See Brown v. U.S. Fidelity and Guar.
Co., 194 Ariz. 85, ¶ 36, 977 P.2d 807, 814 (App. 1998).
Disposition
¶39 For the foregoing reasons, the decree of dissolution is
affirmed. Both parties have requested attorney fees and costs on
appeal pursuant to A.R.S. § 25-324. In our discretion, we decline the
requests for attorney fees and award Susan her costs on appeal.
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