In re Foste

• Decision Date: 08 June 2016
• Docket Number: No. 2 CA–CV 2015–0192,2 CA–CV 2015–0192
• Citation: 240 Ariz. 99,376 P.3d 702
• Parties: In re the Marriage of Jacqueline Foster, Petitioner/Appellee, and Charles Sidney Foster, Respondent/Appellant.
• Court: Arizona Court of Appeals

240 Ariz. 99

376 P.3d 702

In re the Marriage of Jacqueline Foster, Petitioner/Appellee and Charles Sidney Foster, Respondent/Appellant.

No. 2 CA–CV 2015–0192

Court of Appeals of Arizona, Division 2.

Filed June 8, 2016

Jacqueline Foster, McNeal, In Propria Persona

Bays Law PC, Sierra Vista, By P. Randall Bays, Counsel for Respondent/Appellant

Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred.

OPINION

VÁSQUEZ, Presiding Judge:

¶ 1 Charles Foster appeals from the trial court's decree of dissolution of his marriage to Jacqueline Foster. He argues the court erred by awarding guns that he contends were his separate property to Jacqueline as part of the community-property disposition. The issue presented on appeal is whether the presumption that all property acquired during the marriage is community property applies to guns Charles claims he inherited, thereby requiring him to prove their separate-property character by clear and convincing evidence. For the reasons stated below, we conclude the answer is yes and affirm.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding the trial court's decree. See Bell–Kilbourn v. Bell–Kilbourn , 216 Ariz. 521, n. 1, 169 P.3d 111, 112 n.1 (App.2007). Charles and Jacqueline were married in December 1957. They had three children, including their now-adult daughter Missy and son Jack. Throughout their marriage, Charles bought and sold guns. Charles also inherited numerous guns from family members, including his brother John. According to Jacqueline, Charles “always” told her that they “would retire on the guns.” In June 2013, Charles gave Missy thirty-eight guns to distribute to family members upon his death.

¶ 3 In July 2013, Jacqueline filed a petition for dissolution of marriage. The following year, while the dissolution was pending, the Cochise County property where the parties were residing caught fire and dozens of guns burned. At the dissolution trial, the parties disputed how many and which guns still existed. Charles maintained the only guns that had survived the fire were the thirty-eight that Missy was holding. Jacqueline requested “half of the guns, even, because the guns were held over [her] head all those years as [their] investments; [their] retirement.” She also wanted all the guns that Charles had inherited from John and promised to Jack.

¶ 4 In its under-advisement ruling, the trial court found as follows:

According to [Charles], the thirty-eight guns he currently possesses or controls are his sole and separate property....

Here, [Charles] did not sustain his burden that all of the thirty-eight guns in question are his sole and separate property. While there is no dispute a number of the guns were inherited, [Charles] produced no records in court (other than self-serving documents) to trace the acquisition of the guns which were not inherited. Accordingly, the guns which were not inherited are community property and subject to division by the Court.

The court then awarded Jacqueline fourteen of the thirty-eight guns. Charles filed a motion for reconsideration, arguing he had inherited six of the guns awarded to Jacqueline from his brother and, consequently, they should be his separate property. The court denied the motion and entered a decree of dissolution of marriage. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12–2101(A)(1).

Discussion

¶ 5 Charles argues the trial court erred by characterizing as community property the fourteen guns he allegedly inherited from his brother, six of which were awarded to Jacqueline. The characterization of property is a question of law we review de novo. Helland v. Helland , 236 Ariz. 197, ¶ 8, 337 P.3d 562, 564 (App.2014) ; In re Marriage of Pownall , 197 Ariz. 577, ¶ 15, 5 P.3d 911, 915 (App.2000). However, we “defer to the trial court's determination of witnesses' credibility and the weight to give conflicting evidence.” Gutierrez v. Gutierrez , 193 Ariz. 343, ¶ 13, 972 P.2d 676, 680 (App.1998) ; see also Hurd v. Hurd , 223 Ariz. 48, ¶ 16, 219 P.3d 258, 262 (App.2009) (“Even though conflicting evidence may exist, we affirm the trial court's ruling if substantial evidence supports it.”).

¶ 6 Community property includes “[a]ll property acquired by either husband or wife during the marriage ... except for property that is ... [a]cquired by gift, devise or descent.” A.R.S. § 25–211(A)(1). By contrast, separate property consists of “[a] spouse's real and personal property that is owned by that spouse before marriage and that is acquired by that spouse during the marriage by gift, devise or descent, and the increase, rents, issues and profits of that property.” A.R.S. § 25–213(A). There is a legal presumption that all property acquired during marriage is community property. Sommerfield v. Sommerfield , 121 Ariz. 575, 577, 592 P.2d 771, 773 (1979) ; Porter v. Porter , 67 Ariz. 273, 279, 195 P.2d 132, 136 (1948) ; see also Ariz. Cent. Credit Union v. Holden , 6 Ariz.App. 310, 313, 432 P.2d 276, 279 (1967) (describing § 25–211(A) as creating presumption).

¶ 7 But Charles argues the presumption under § 25–211(A) applies to “all property acquired by either husband or wife during the marriage ... except for property that is ... acquired by gift, devise or descent.” He thus maintains the trial court erred by concluding he had to “clearly trace[ ]” inherited property “to prove that it fits within the exception to ... § 25–211,” citing Hatcher v. Hatcher , 188 Ariz. 154, 933 P.2d 1222 (App.1996). In that case, this court stated: “In Arizona, the presumption is that all property acquired by either spouse during marriage is community property, except that which is acquired by gift, devise or descent.” Hatcher , 188 Ariz. at 157, 933 P.2d at 1225. We also recognize that in Evans v. Evans , 79 Ariz. 284, 286, 288 P.2d 775, 776 (1955), our supreme court noted that “[p]roperty acquired subsequent to marriage, except through gift, devise or descent, is presumed to be community property.”

¶ 8 But Hatcher did not involve a dispute over property claimed to have been acquired by gift, devise, or descent. See Town of Chino Valley v. City of Prescott , 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981) (because dicta is court's statement on question not necessarily involved in case, it is not controlling as precedent). And neither Hatcher nor Evans explains how the character of the property is determined to be separate property if not initially presumed to be community property. Instead, these cases appear to recognize the proposition that property shown to have been acquired “during the marriage by gift, devise or descent” is the separate property of the spouse claiming the exception. § 25–213(A) ; see Evans , 79 Ariz. at 286, 288 P.2d at 776 ; Hatcher , 188 Ariz. at 157, 933 P.2d at 1225.

¶ 9 The presumption that all property acquired during the marriage is community property is “strong.” Carroll v. Lee , 148 Ariz. 10, 16, 712 P.2d 923, 929 (1986). To overcome that presumption, the spouse maintaining the property was acquired by that spouse as a “gift, devise or descent,” § 25–211(A)(1), and is, thus, separate property, “has the burden of establishing the separate character of the property by clear and convincing evidence.” Cockrill v. Cockrill , 124 Ariz. 50, 52, 601 P.2d 1334, 1336 (1979) ; see also Davis v. Davis , 149 Ariz. 100, 102, 716 P.2d 1037, 1039 (App.1985) (applying community-property presumption to gift of stock to husband from his mother during marriage). However, “where there is any doubt in the court's mind, the property will be treated as community property.” Ariz. Cent. Credit , 6 Ariz.App. at 313, 432 P.2d at 279 ; see also Porter , 67 Ariz. at 279, 195 P.2d at 136.

¶ 10 At trial, Charles offered evidence that he had inherited the fourteen guns from his brother.¹ Specifically, the trial court admitted Charles's Exhibit Z, which is a handwritten list prepared by Missy showing the thirty-eight guns she is holding. The list is organized by where each gun came from—the fourteen allegedly inherited from Charles's brother are listed under the header “John Foster.” Exhibit Z also identifies the guns' serial numbers. Missy explained she had prepared the list based on information from Charles and a ledger he had prepared that no longer exists.

¶ 11 However, the trial court rejected this evidence, and we cannot say it erred in doing so. See Hurd , 223 Ariz. 48, ¶ 16, 219 P.3d at 262. Charles's testimony as to Exhibit Z was minimal, and he never confirmed that the list of guns prepared by Missy was accurate. Moreover, there was conflicting testimony that only the trial court could resolve based on consideration of all the evidence. For instance, during his testimony, Charles identified John Foster as both his brother and his uncle. And Exhibit Z contains two separate lists of guns purportedly inherited from Charles's brother—fourteen are listed under “John Foster” and four are listed under “John Foster Estate.” The court found the latter four to be Charles's separate property and awarded those to him.² Given the court's determination that Charles failed to establish the fourteen guns were inherited, we cannot say the court erred in characterizing the guns as community property. See Helland , 236 Ariz. 197, ¶ 8, 337 P.3d at 564.

¶ 12 Charles nevertheless maintains the trial court relied only on Exhibit Z and failed to consider the testimony of Charles, Missy, and Jacqueline, as well as Jacqueline's Exhibit 6.³ He asserts that, if the court “properly considered all of that evidence,” it would have concluded “all the guns in Exhibit Z were Charles'[s] sole and separate property.” But the court's under-advisement ruling indicates it considered “the evidence introduced at trial.” Charles has not identified the portions of the trial testimony that the court failed to consider and would have established these guns are his separate property. W...