Cunnington v. Fisk
| Decision Date | 12 May 2022 |
| Docket Number | 1 CA-SA 22-0033 |
| Parties | WILLIAM CUNNINGTON, Petitioner, v. THE HONORABLE RONDA FISK, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, DANA CUNNINGTON, Real Party in Interest. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FN2021-004487 The Honorable Ronda R. Fisk, Judge
Curry Pearson & Wooten PLC, Phoenix By Daniel Seth Riley Counsel for Petitioner
Pittman Law Offices PLLC, Mesa By Samuel Pittman Counsel for Real Party in Interest
Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M Perkins joined.
¶1 William Cunnington ("Husband") petitions for special action in an annulment proceeding against Dana Cunnington ("Wife") after the superior court granted Wife exclusive use and possession of his sole and separate property in temporary orders. For the following reasons, we accept special action jurisdiction and grant the relief requested.
¶2 Husband and Wife were married in September or October of 2020. Husband filed a petition to annul the marriage in October 2021. The parties filed cross-motions for temporary orders asking, in part, for immediate possession of a 2014 Range Rover. Both parties acknowledged in their prehearing statements that the vehicle is Husband's sole and separate property.
¶3 At the temporary orders hearing, Husband testified he had purchased the vehicle and paid off the associated auto loan prior to marriage. Wife acknowledged that the vehicle is Husband's sole and separate property but testified that she had driven the vehicle before and during marriage. In its temporary orders, the superior court granted Wife's request for exclusive use and possession of the vehicle. Husband petitioned for special action.
¶4 Husband raises an issue with no "equally plain, speedy and adequate remedy by appeal." Ariz. R. P. Spec. Act. 1(a). Further, the petition presents a purely legal question of statewide importance that is likely to arise again. Jordan v. Rea, 221 Ariz. 581, 586, ¶ 8 (App. 2009). Therefore, in our discretion we accept special action jurisdiction and grant the relief requested.
¶5 We note Wife failed to file an answering brief in response to Husband's petition. "When an appellant raises debatable issues, the failure to file an answering brief generally constitutes a confession of reversible error in civil cases." State v. Greenlee County Justice Court, Precinct 2, 157 Ariz. 270, 271 (App. 1988). However, this may be waived in our discretion. Id. Because the resolution of this case involves a purely legal question, we opt to address its merits.
¶6 Husband argues the superior court erred in granting Wife use and possession of his sole and separate property through temporary orders. Husband relies on the language of A.R.S. § 25-318(A) to support this argument, which states in relevant part that "the court shall assign each spouse's sole and separate property to such spouse." We review matters involving statutory interpretation de novo. Beatie v. Beatie, 235 Ariz. 427, 430, ¶ 14 (App. 2014). When interpreting a statute, we look first to its language, which if clear and unambiguous, we apply without employing other principles of statutory interpretation. Id. at 431, ¶ 19.
¶7 The temporary orders statute authorizes the court to issue orders with respect to the parties' property, but such orders must be made in conformity with A.R.S. § 25-318. A.R.S. § 25-315(E). There is no claim, argument, or evidence in our record that Wife has any interest in the vehicle. To the contrary, Husband and Wife agree the vehicle is Husband's sole and separate property. Therefore, because A.R.S. § 25-318(A) unambiguously directs the court to assign each spouse's sole and separate property to such spouse, the superior court was limited in its temporary orders to assigning the vehicle to Husband as its owner.
¶8 Husband further argues the court's temporary orders endanger his interest in the vehicle because the family court cannot award him judgment for any damages Wife might inflict upon the vehicle while it is in her care. Weaver v....
To continue reading
Request your trial