Lee v. Lee
| Decision Date | 10 August 1982 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 649 P.2d 997,133 Ariz. 118 |
| Parties | In re the Marriage of Bertha O. LEE, Petitioner-Appellee, v. C. Loran LEE, Respondent-Appellant. 4737. |
| Court | Arizona Court of Appeals |
This appeal is brought by respondent-appellant C. Loran Lee from a judgment and decree in dissolution of marriage granted to petitioner-appellee Bertha O. Lee. Appellant's counsel on appeal (different than trial counsel) contests several aspects of the trial court's division of community property, certain attorney's fee awards, and the disposition of one alleged community debt. In reviewing the evidence, we are constrained to resolve all doubts and inconsistencies in favor of supporting the trial court's actions. Wayt v. Wayt, 123 Ariz. 444, 600 P.2d 748 (1979); Nelson v. Nelson, 114 Ariz. 369, 560 P.2d 1276 (1977).
Viewed in this manner, the facts material to a resolution of this case are as follows. The parties were married in 1960, at which time appellant owned certain property located on Southern Avenue in Mesa, Arizona. In 1966 appellant deeded an undivided one-half interest in that tract to his wife. In 1968 the parties borrowed $10,000.00 from appellee's mother, Mrs. Craig, giving in return a note, mortgage and deed covering the Southern Avenue property. Although Mrs. Craig executed a satisfaction of the mortgage and returned the deed in 1974, both she and appellee assert that the debt itself was never forgiven. On the other hand, appellant testified the satisfaction was evidence that the obligation had been excused. In 1974 the parties purchased the assets and name of then bankrupt Blair College, relocating the medical/dental assistant training school to the Southern Avenue property in Mesa. During 1978, the parties acquired, as joint tenants, another parcel of land along Baseline Road in Mesa.
After extended proceedings, the trial court rendered a comprehensive judgment of dissolution which, among other things, made complete disposition of the community assets and liabilities. The Southern Avenue property was ordered sold for not less than $400,000.00, the net proceeds to be divided equally between the parties. Blair College was assigned a valuation of $60,000.00 and was awarded to the appellant, while the Baseline Road property, valued at.$46,500.00, was awarded to appellee. The court also ordered that Mrs. Craig be paid $7,186.00 directly from the proceeds of the Southern Avenue property sale in satisfaction of the disputed debt to her. After denial of appellant's motion for a new trial, he appealed.
To resolve one of the issues presented in this appeal, it is necessary to describe certain proceedings which occurred after the trial court's ruling on the community property. The record shows that appellant attempted, in several ways, to cloud title to the Southern Avenue property so that it could not be sold as had been ordered. Appellee was forced to request the trial court to hold appellant in contempt of its order to sell the property. As part of his efforts to frustrate the court's order, appellant also brought a separate action claiming that appellee had agreed, several years before, to convey the Southern Avenue property to him in the event the parties divorced or separated. This claim by appellant was a new one and was completely contrary to his position throughout the dissolution proceedings. Upon appellee's motion, the trial court found Mr. Lee's actions to be in violation of the court's order to sell the property, quashed the lis pendens filed by him, ordered him to dismiss the separate action within forty-eight hours, and awarded appellee $1,000.00 in attorney's fees resulting from his actions. Appellant did not comply with the order to dismiss the separate action at that time. Instead, he brought a special action in the Arizona Supreme Court, requesting a stay of the trial court's order. When the special action failed, he dismissed the separate action. The trial court again found appellant in contempt of court and awarded appellee an additional $3,000.00 in attorney's fees incurred by her as a result of appellant's actions. Both awards of attorney's fees occurred after appellant filed his notice of appeal from the dissolution decree which is now before us. Although the issue of these orders for attorney's fees therefore could not have been
and was not raised in his notice of appeal, appellant has presented arguments contesting the awards in his brief and in oral argument.
Appellant initially argues that the trial court lacked "jurisdiction" to order a sale of the Southern Avenue property because the land was capable of partition in kind. This issue was never litigated below and is raised for the first time on appeal. Indeed, appellant's argument on appeal is somewhat inconsistent with his position at trial, when he himself urged the trial court to order the sale of the property and division of the proceeds in the event the court declined his primary request to partition the property.
However, it is not inappropriate for this court to consider jurisdictional questions not raised at trial. See Gage v. Gage, 11 Ariz.App. 76, 462 P.2d 93 (1969). Appellant contends that a trial court is duty bound to order community property partitioned in kind if at all possible, with the sale of such property and division of proceeds being a second alternative available only where partition is impossible. In support of this theory he cites Davis v. Davis, 82 Idaho 351, 353 P.2d 1079 (1960), and Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960). In both of these cases, the trial courts were statutorily bound to divide the community property only as they saw "just" or "right." Each case does appear to suggest, under such a standard, that the first appropriate course of action is partition in kind where possible. However, due to the express language of the governing Arizona statute, we feel the rule is otherwise in Arizona.
The operative portion of our statute provides that the trial court "shall also divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct." A.R.S. § 25-318(A) (emphasis added). Unlike the statutes involved in Davis and Hailey, our statute specifically provides that the distribution does not have to be "in kind." In Arizona, the apportionment of community property in a dissolution proceeding rests within the sound discretion of the trial court. Neal v. Neal, 116 Ariz. 590, 570 P.2d 758 (1977); Hatch v. Hatch, 113 Ariz. 130, 547 P.2d 1044 (1976). The trial court's broad discretionary powers include the power to order a sale of community property when it will facilitate the equitable division of the property. Even under an earlier version of our present § 25-318, which authorized the court to divide community property as "seems just and right", the power to order a sale of community property was employed. See Hanner v. Hanner, 95 Ariz. 191, 388 P.2d 239 (1964); Hayne v. Hayne, 9 Ariz.App. 99, 449 P.2d 633 (1969). The only inherent limitation on the power of the trial court to apportion community property is that the division, in the final analysis, must result in a substantially equal distribution which neither rewards nor punishes either party. Hatch v. Hatch, supra.
It being clear that the trial court had authority to order a sale of the Southern Avenue property, we now turn to appellant's alternative contention that, in this particular case, the order constituted an abuse of discretion. As noted, trial courts have very broad discretion in allocating and dividing community assets. R. Veldon Naylor, an appraiser called by appellee, testified that the Southern Avenue property could be partitioned equally in kind. He also testified, however, that should the property be sold it would be most profitable to sell it as a single parcel. Conversely, Robert Temple, another appraiser called by appellee, testified that the property would be most profitably disposed of by selling it in five or six lots. In light of the conflicting testimony as to the possible dispositions of the Southern Avenue property, we see no abuse of discretion by the trial court in deciding to order its sale as a single parcel for not less than $400,000.00, with the net proceeds to be divided equally.
Appellant's alternative contention that the order for sale of the Southern We first note that the record does not necessarily support appellant's assumption that a sale of the Southern Avenue property necessarily compelled a relocation of Blair College. As appellee points out, appellant could have purchased the property at the court-ordered sale, thus negating any relocation of the school. If, as appellant claims, he lacked the funds necessary to make this purchase, he still might have negotiated a lease for Blair College from a new buyer of the property. Appellant's present argument that any new purchaser would want to develop the property commercially, rather than receive rent from Blair College, is sheer speculation unsupported by the record. Thus, it does not necessarily follow that a sale of the Southern Avenue property automatically compelled a relocation of Blair College.
Avenue property resulted in an inequitable distribution of community assets is similarly unpersuasive. The inequity which springs from the sale, appellant claims, is the forced relocation of Blair College and a concomitant drastic diminution in its value, as opposed to the valuation actually given Blair College by the trial court. In short, because the college must be moved, appellant claims it is not worth nearly the value assigned to it when...
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