Zirpel v. Zirpel

• Decision Date: 22 March 2017
• Docket Number: No. 2 CA-CV 2016-0089,2 CA-CV 2016-0089
• Parties: IN RE THE MARRIAGE OF HEATHER ZIRPEL, Petitioner/Appellant, and TROY L. ZIRPEL, Respondent/Appellee.
• Court: Arizona Court of Appeals

IN RE THE MARRIAGE OF HEATHER ZIRPEL, Petitioner/Appellant,

and

TROY L. ZIRPEL, Respondent/Appellee.

No. 2 CA-CV 2016-0089

ARIZONA COURT OF APPEALS DIVISION TWO

March 22, 2017

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pinal County

No. S1100DO201401810

The Honorable Steven J. Fuller, Judge

AFFIRMED

COUNSEL

Ryan Rapp & Underwood, P.L.C., Phoenix

By Terrie S. Rendler

Counsel for Petitioner/Appellant

Stewart Law Group, Chandler

By Dianne Sullivan

Counsel for Respondent/Appellee

MEMORANDUM DECISION

Presiding Judge Staring authored the decision of the Court, in which Judge Miller and Judge Espinosa concurred.

STARING, Presiding Judge:

¶1 Heather Zirpel petitioned for dissolution of her marriage to Troy Zirpel. At trial, she sought reimbursement and equal apportionment for contributions she made to Troy's separate property, equal division of a trust account established by Troy during the marriage, and sole legal decision-making authority concerning the couple's children. In the decree of dissolution, the trial court denied Heather's request for reimbursement, equal apportionment, and equal division, and awarded Troy and Heather joint legal decision-making authority and equal parenting time. Heather appealed and for the reasons that follow, we affirm.

Factual and Procedural Background

¶2 "We view the record in the light most favorable to upholding the trial court's decision." Duwyenie v. Moran, 220 Ariz. 501, ¶ 2, 207 P.3d 754, 755 (App. 2009). Troy and Heather married in June 2007 and have two children together, ages nine and seven. In 2011, Troy moved to South Dakota for employment. He anticipated Heather and the children would join him there when he obtained full-time work with benefits. In October 2014, he moved back to Arizona. That same month, Heather petitioned for dissolution of the marriage. She also moved for temporary orders granting her sole legal decision-making authority for the children.

¶3 In December 2014, the couple stipulated to vacating a scheduled temporary orders hearing, noting they were "attending counseling and attempting to reconcile their relationship." In April 2015, they advised the trial court that reconciliation efforts had ceased and they wished to proceed with dissolution. The court referred the matter to Conciliation Court for a Family Assessment. Troy also filed a response to Heather's petition for dissolution,requesting the court award each spouse joint legal decision-making authority and equal parenting time. Heather subsequently amended her motion for temporary orders, requesting the court order joint legal decision-making authority with Heather having final decision-making authority.

¶4 The trial court subsequently found Heather and Troy had "stipulate[d] that they shall share joint legal decision-making authority of the minor children," and further found it was in the children's best interest that their parents do so. The court also found "a shared parenting schedule" was in the children's best interest and ordered Troy and Heather to "continue a week on, week off parenting time schedule."

¶5 At a January 2016 bench trial, Heather and Troy presented evidence about their marital and separate property and their positions with respect to the issues of legal decision-making authority and parenting time. In her pre-trial statement, Heather asserted she was entitled to a marital lien on Troy's residence for "her half of the community's monies put into [Troy's] separate property." She listed a number of items, including: a $3,300 down payment; her half of the "mortgage pay-down"; and various home improvements—a water softener system, landscaping, a pool, appliances, and other miscellaneous items. She also asserted she was entitled to an equitable division of a trust account ("Trust") Troy established in 2014 at Securities America containing $208,868.07 as of February 2015. Heather also reasserted that she should be awarded sole legal decision-making authority and requested Troy's parenting time be limited "from Friday after school through Tuesday in alternating weeks . . . and evenings from after school to 6:30 p.m. on Tuesdays in the off weeks."

¶6 In an under advisement ruling, the trial court awarded Troy and Heather joint legal decision-making authority and equal parenting time with "a week on/week off parenting schedule." The court further found the Trust to be Troy's "sole and separate property." With regard to the mortgage reduction, the court denied Heather's request for reimbursement of a $3,300 down payment. The court also denied her request for equalization for the water softener system, appliances, and miscellaneous items she listed inher pre-trial statement as she did not provide "conclusive evidence to show how much was paid for each item."

¶7 Heather filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

Separate Property

¶8 On appeal, Heather argues Troy did not overcome the presumption that the Trust was community property. A strong legal presumption exists that all property acquired during marriage is community property. In re Marriage of Foster, 240 Ariz. 99, ¶ 9, 376 P.3d 702, 704 (App. 2016); see also A.R.S. § 25-211(A). But "real and personal property that is owned by [a] spouse before marriage and that is acquired by [a] spouse during the marriage by gift, devise or descent" is separate, non-community property. A.R.S. § 25-213(A). A spouse seeking to overcome the presumption of community property must present clear and convincing evidence the property in question is separate property. Marriage of Foster, 240 Ariz. 99, ¶ 9, 376 P.3d at 704. Evidence is clear and convincing if it demonstrates "the thing to be proved is highly probable or reasonably certain." Kent K. v. Bobby M., 210 Ariz. 279, ¶ 25, 110 P.3d 1013, 1018-19 (2005), quoting Clear and Convincing Evidence, Black's Law Dictionary (7th ed. 1999).

¶9 "The characterization of property is a question of law we review de novo." Marriage of Foster, 240 Ariz. 99, ¶ 5, 376 P.3d at 704. "However, we 'defer to the trial court's determination of witnesses' credibility and the weight to give conflicting evidence.'" Id., quoting 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) (appellate court will affirm if "substantial evidence" supports trial court's ruling); Am. Express Travel Related Servs. Co. v. Parmeter, 186 Ariz. 652, 653, 925 P.2d 1369, 1370 (App. 1996) (evidence viewed in light most favorable to supporting trial court's decision regarding characterization of property).

¶10 In this case, the trial court made the following findings:

[Troy] has a trust fund "the Troy L. Zirpel Trust" that had a value of $208,868 . . . on February 28, 2015. . . . [Troy] testified that the trust is comprised solely of money he obtained from an inheritance. On cross examination, [Heather] did not dispute [Troy's] evidence, conceding that she didn't know anything about the trust. . . . Exhibit 110 shows that paternal grandmother did in fact die, that her estate dispersed $17,597 to [Troy], and that more money would be forthcoming.

In short, [Troy] presented evidence that the trust is solely in his name and contains funds resulting from [Troy's] inheritance. This evidence is uncontradicted by any other evidence. The Court finds, by clear and convincing evidence, that the Troy L. Zirpel Trust is [Troy's] separate property.

¶11 Heather first argues the trial court erred by relying on Exhibit 110, a letter from an attorney discussing disbursements from Troy's mother's estate. Heather notes the letter only documented a distribution of $17,597.39 from the estate and argues it "failed to reference any amount near the $208,868.07 in the [Trust]." She asserts the letter "was not clear and convincing evidence that the [Trust] was established . . . with funds [Troy] inherited."

¶12 Next, Heather argues the trial court erred by relying on Troy's testimony, which she asserts was "[a]t best . . . confused and referenced supposed documents he had not produced to the [court] and were not in evidence." She asserts "there was no evidence to support [Troy's] testimony," that the Trust was established using funds he inherited from his mother's estate. Additionally, she suggests that if the Trust was separate property, Troy should have produced documentation "to substantiate that claim." She also argues the trial court ignored her testimony, asserting she disputed Troy's testimony "in her direct examination and in her PretrialStatement which she affirmed in her testimony." She concludes, "[n]either separately, nor jointly," did the letter, Troy's testimony, and her lack of disputation, "establish clear and convincing evidence" to conclude the Trust was separate property. We disagree.

¶13 Troy testified that after his mother passed away, her land was sold and the proceeds of the sale were divided between himself and his siblings. The money he received from the sale was then used to establish the Trust. Troy also testified he provided copies of the trust and the checks used to fund it to Heather's attorney.¹ His testimony was supported by Exhibit 110, a letter stating his mother had died and that final distribution of the estate was still pending. Additionally, Troy pointed to a settlement proposal from Heather's attorney, which stated:

13. Separate Property

Given that Troy can conclusive[ly] demonstrate that 100% of the monies in the [Trust] were from an inheritance, and then we agree it is his sole and separate property. However, as discussed, any taxes that the community paid on the asset must be reimbursed to Heather.

Significantly, in the settlement proposal, Heather listed several other items for which she believed she was entitled to equalization. She did not...