Alger v. Backes-Alger

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
RODNEY L. ALGER, JR., Petitioner/Appellant,
v.
KAREN L. BACKES-ALGER, Respondent/Appellee.
No. 1 CA-CV 22-0433 FC
FILED 6-13-2023
Appeal from the Superior Court in Maricopa County
No. FN2021-052118
The Honorable Michael Valenzuela, Judge
AFFIRMED
COUNSEL
Collins & Collins, L.L.P., Phoenix
By Jonathan S. Collins
Counsel for Petitioner/Appellant
Schmillen Law Firm, PLLC, Scottsdale
By James R. Schmillen, Erica Leavitt
Counsel for Respondent/Appellee
ALGER, JR. v. BACKES-ALGER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.
T H U M M A, Judge:
¶1 Rodney L. Alger, Jr., (Husband) appeals from the decree of
dissolution of his marriage to Karen L. Backes-Alger (Wife), ordering the
sale of a house bought during the marriage and that the proceeds be split
evenly. Because Husband has shown no error, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Husband and Wife married in 2016 and have no children
together. In November 2021, Husband petitioned for dissolution of
marriage. The petition listed, as community property, a house the couple
bought in 2019 valued at $550,000. The petition claimed Husband “made
every payment along with utilit[ies]” for the house. In the section labeled,
“Other Orders I am Requesting,” the petition stated Husband sought “full
rights” to the house, adding he paid the $5,000 down payment. The petition
repeated the claim that Husband paid the mortgage, and for solar panels,
from his personal account funded by his military disability benefits. As to
separate property, the petition stated, “I do have property or separate
property, that I brought into the marriage.” The only property listed in this
section was personal property – tools, TVs, couches, beds, kitchen items,
pictures, bedding and an entertainment center; the house was not
mentioned. Wife’s response asserted that the house was community
property, that both parties were on the mortgage, that they had a “deal” for
sharing costs for the house and sought half of the equity in the house.
¶3 Both Husband and Wife were self-represented in superior
court. In March 2022, the court set a one-hour trial for May 2022. Neither
party sought more trial time. Although Husband’s pretrial statement listed
no contested issues of fact or law, it attached his financial affidavit, which
included the house in the listing of “all property acquired during your
marriage in which you or your spouse claims to have a community
interest.”
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ALGER, JR. v. BACKES-ALGER
Decision of the Court
¶4 At trial, the parties told the court that they would testify but
they would call no other witnesses. The court stated, without objection,
“[e]ach of you will have 25 minutes to present your case,” with Husband
going first and then Wife. Because they were self-represented, the court
stated it would ask questions, and then they could provide “any additional
information that you think is important that I haven’t asked about.” When
the court asked Husband questions, he testified about the seven exhibits he
offered. Husband also testified that he “would like sole and separate
property from the” house. He testified that he bought the house, during the
marriage, with money he received from the sale of a house he bought before
the marriage. Although not disputing that the house was listed in both their
names, he testified that was done at Wife’s request “to work on our
marriage” and that he used his disability benefits “to pay for every
mortgage payment.” In her testimony, Wife agreed that the down payment
for the house came from Husband, adding that she “gave him money every
single month that covered all the costs of the utilities and all that.” Husband
did not challenge this testimony when cross-examining Wife.
¶5 Even though Wife testified she had never seen the exhibits
Husband offered, the court admitted four of those exhibits. Although
Husband testified about the three other exhibits he offered, the court did
not admit those exhibits — a closing statement from the previous house,
mortgage statements for the current house and utility bills. A minute entry
issued a few days later showed the court admitted four of Husband’s seven
exhibits. The trial ended, without objection, 55 minutes after it began.
¶6 Three weeks later, the court issued the decree. Having
considered the evidence, witness demeanor and arguments, the court
divided the equity in the house equally. Citing Toth v. Toth, 190 Ariz. 218,
221 (1997), the court noted the case did not “present a unique set of facts or
circumstances,” meaning “an equal division of community property is
appropriate to achieve equity.” Citing Sommerfield v. Sommerfield, 121 Ariz.
575, 578 (1979), the court noted the presumption that “any property
acquired by either spouse during marriage is community property, unless
demonstrated otherwise by clear and convincing evidence.” As applied, the
court found that the house was acquired during the marriage, that
Husband’s petition listed the house as community property and that
Husband failed to trace the funds used to purchase the house back to his
separate property. Accordingly, the decree directed that the house be listed
for sale within 60 days, with the parties to split the proceeds equally.
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ALGER, JR. v. BACKES-ALGER
Decision of the Court
¶7 This court has jurisdiction over Husband’s timely appeal
under Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1) & (2) (2023).1
DISCUSSION
¶8 Husband argues the superior court: (1) denied him due
process by allocating him 25 minutes of trial time and using most of that
time asking him questions; (2) erred in failing to admit all of his exhibits; (3)
erred in classifying the house as community property and (4) failed to
divide the house equitably.
I. Husband Has Not Shown the Court Denied Him Due Process.
¶9 The superior court “has broad discretion over the
management of its docket,” Findlay v. Lewis, 172 Ariz. 343, 346 (1992), and
may impose reasonable time limits, Ariz. R. Fam. Law P. 22(a). “[W]hether
additional time is necessary remains committed to the court’s discretion.”
Backstrand v. Backstrand, 250 Ariz. 339, 347 ¶ 29 (App. 2020). The court set a
one-hour trial two months in advance. As trial began, the court explained
each side would have 25 minutes. At no time did Husband object. Odom v.
Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App. 2007).
¶10 Waiver aside, Husband testified about the exhibits he offered
and why he believed he should be awarded the house. After his testimony
and arguments about exhibits, the court asked if there was “[a]nything
else,” and Husband responded “[t]hat’s it.” Husband also elected not to
cross-examine Wife about the house. Husband was afforded “an
opportunity to be heard at a meaningful time and in a meaningful manner.”
Volk v. Brame, 235 Ariz. 462, 468 ¶ 20 (App. 2014) (citation omitted).
Furthermore, Husband has not shown what evidence or argument he was
prevented from presenting. See id. at 470 ¶ 26 (“Due process errors require
reversal only if a party is thereby prejudiced.”). The record does not show
that the trial was “unreasonable” or otherwise a denial of due process. Id.at 468 ¶ 21.
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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ALGER, JR. v. BACKES-ALGER
Decision of the Court
II. Husband Has Shown No Error in the Exclusion of Exhibits.
¶11 Husband next argues that the court erred in failing to admit
three of his exhibits. But “[u]nless justice requires otherwise, an error in
admitting or excluding evidence . . . is not grounds for . . . vacating,
modifying, or otherwise disturbing a judgment or order.” Ariz. R. Fam.
Law P. 86; see also John C. Lincoln Hosp. and Health Corp. v. Maricopa Cnty.,
208 Ariz. 532, 543 ¶ 33 (App. 2004) (party must show “clear abuse or legal
error and resulting prejudice” to overturn evidentiary ruling). Husband
testified about the substance of the exhibits. Nor has he shown that they
address tracing. Again, Husband has not shown error.
III. The Court Did Not Err in Classifying the House as Community
Property.
¶12 Husband argues the court erred in classifying the house as
community property. Husband, however, asserted in both his petition and
his pretrial statement that the house was community property. See Adams v.
Bear, 87 Ariz. 288, 294 (1960) (“[P]arties are bound by their pleadings and
evidence may not be introduced to contradict or disprove what has been
admitted or asserted as a fact in their pleadings.”); Bobrow v. Bobrow, 241
Ariz. 592, 598 ¶ 28 (App. 2017) (“The pretrial statement controls the
subsequent course of the litigation.”).
¶13 Even absent waiver, Husband has not shown the court erred
in classifying the house as community property, an issue this court reviews
de novo. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523 ¶ 4 (App. 2007).
Property acquired during marriage is presumed to be community property,
and clear and convincing evidence is required to rebut that presumption.
Sommerfield, 121 Ariz. at 577. Husband argues that he bought the house with
separate property. Husband provided a closing statement from the sale of
his prior house and mortgage statements for the house bought during the
marriage, but presented no evidence to show the funds received from the
sale of the prior house were held as separate property. See Flowers v. Flowers,
118 Ariz. 577, 580 (App. 1978) (separate funds co-mingled with community
funds are presumed to be community funds).
¶14 In addition, where title is “taken in the name of both spouses,
a presumption exists that the contributing spouse intended to make a gift
to the other spouse of a one-half interest in the property.” In re Marriage of
Flower, 223 Ariz. 531, 535 ¶ 15 (App. 2010). “The presumption may be
rebutted through clear and convincing evidence showing the lack of intent
to make an interspousal gift.” Id. Husband provided no evidence to rebut
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ALGER, JR. v. BACKES-ALGER
Decision of the Court
the presumption of spousal gift. Moreover, the trial evidence that they
agreed to purchase the house to “work on their marriage” and that they
agreed together to add solar panels to the house suggests joint ownership.
Husband has not shown this conflicting evidence required the superior
court to conclude that the house was his sole and separate property.
IV. Husband Has Not Shown the Court Failed to Divide the House
Equitably.
¶15 Husband argues the court erred by failing to equitably divide
the house. The court must “divide the community, joint tenancy and other
property held in common equitably, though not necessarily in kind.” A.R.S.
§ 25-318(A). As noted above, citing Toth, the court found no reason to
deviate from dividing the property “substantially equally.” When making
such an equitable division, the court should consider all factors “including
the length of the marriage; the contributions of each spouse to the
community, financial or otherwise; the source of funds used to acquire the
property to be divided; the allocation of debt; as well as any other factor
that may affect the outcome.” In re Marriage of Inboden, 223 Ariz. 542, 547
¶ 18 (App. 2010). Given the discretion the trial court has in determining
what allocation “is equitable under the circumstances,” this court will not
disturb that determination absent an abuse of discretion. Id. at 544 ¶ 7.
¶16 Husband argues this case is like Toth and the court should
have equitably awarded him the house. Toth, however, involved a two-
week marriage, “allowing no time for a marital relationship to develop, or
for other equities to come into play.” 190 Ariz. at 221. The superior court
here considered Toth and found that analysis did not apply. Husband
argues this court should not find Wife’s testimony credible, but this court
does not “reweigh evidence or determine the credibility of witnesses.” Clark
v. Kreamer, 243 Ariz. 272, 276 ¶ 14 (App. 2017). On this record, Husband has
not shown that the court abused its discretion in dividing the proceeds from
the house substantially equally.2
2 Husband also argues that he should have been given a lien on the house
for his contribution or separate property. However, Husband did not make
that request in superior court, meaning it is waived on appeal. See Odom,
216 Ariz. at 535 ¶ 18.
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ALGER, JR. v. BACKES-ALGER
Decision of the Court
CONCLUSION
¶17 The decree is affirmed. Each party requests attorneys’ fees on
appeal under A.R.S. § 25-324(A). In its discretion, this court denies each
party’s request. Wife is, however, awarded her taxable costs incurred on
appeal contingent upon her compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: JT
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