Opinion
1 CA-CV 11-0041
12-15-2011
In re the Marriage of: CHRISTINE CARLSTON, Petitioner/Appellee, v. KIM ROBERT CARLSTON, Respondent/Appellant.
Sullivan Law Office PLLC By Dianne Sullivan Attorney for Petitioner/Appellee Kim Robert Carlston In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FN 2010-090470
The Honorable David M. Talamante
AFFIRMED IN PART; REVERSED & REMANDED IN PART
Sullivan Law Office PLLC
By Dianne Sullivan
Attorney for Petitioner/Appellee
Tempe
Kim Robert Carlston
In Propria Persona
Mesa DOWNIE , Judge
¶1 Kim Robert Carlston ("Husband") appeals from a decree of dissolution entered by the superior court. For the reasons that follow, we affirm the terms of the decree with the exception of two accounts that the record establishes are Husband's sole and separate property.
FACTUAL AND PROCEDURAL HISTORY
¶2 The parties were married in Utah in 1978 and have lived in Arizona since 1986. Christine Carlston ("Wife") petitioned for dissolution in January 2010.
¶3 At trial, the parties stipulated that each would keep retirement accounts in their own name that had been established through employment. Both parties testified. The superior court found that it had jurisdiction and entered a decree of dissolution. The court ruled the parties' home and three Ameritrade accounts were community property. It further found that Husband did not qualify for spousal maintenance under Arizona Revised Statutes ("A.R.S.") section 25-319(A).
¶4 Husband filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Jurisdiction
¶5 Husband challenges the superior court's subject matter jurisdiction. We review jurisdictional questions de novo. Fry v. Garcia, 213 Ariz. 70, 72, ¶ 6, 138 P.3d 1197, 1199 (App. 2006).
A party may not waive a lack of subject matter jurisdiction. Lightning A Ranch Venture v. Tankersley, 161 Ariz. 497, 499, 779 P.2d 812, 814 (App. 1989) (citation omitted). However, we agree with Wife that Husband has waived the arguments relating to the "Characterization of the Marriage" by not making them below. See Dillig v. Fisher, 142 Ariz. 47, 51, 688 P.2d 693, 697 (App. 1984) (issues cannot be raised for the first time on appeal) (citation omitted) . The superior court properly recognized the parties' marriage because it was valid in Utah. See A.R.S. § 25-112(A) ("Marriages valid by the laws of the place where contracted are valid in this state . . . ."). Moreover, Husband admitted the parties were legally married in Utah, have remained married since that date, and that the marriage is valid in Arizona.
¶6 "A court's jurisdiction of the subject matter in a divorce case exists when a constitution or statute specifically confers upon the court such jurisdiction." Leon v. Numkena, 142 Ariz. 307, 309, 689 P.2d 566, 568 (App. 1984) (citation omitted). Section 25-311(A) vests the superior court with jurisdiction to hear and decide matters pertaining to the dissolution of marriages. The decree need not expressly state the findings listed in A.R.S. § 25-312 as long as the court makes the necessary findings on the record, which occurred here.
¶7 Arizona courts have jurisdiction in divorce matters when one party was domiciled in the state for at least 90 days at the time the action was commenced. A.R.S. § 25-312(1). It is undisputed that both parties here were Arizona residents for more than 90 days prior to the petition's filing. The superior court had subject matter jurisdiction to enter a dissolution decree in this case.
II. Due Process
¶8 Husband raises several alleged due process violations, which we address in turn.
A. Adequacy of Pleadings
¶9 Husband first claims the petition, summons, preliminary injunction, notice regarding creditors, and waiver of service were defective. The requirements for a dissolution petition are enumerated in A.R.S. § 25-314(A) . Arizona Rule of Family Law Procedure ("Family Law Rule") 29 also provides general pleading rules applicable to divorce proceedings. Wife's petition substantially complied with these requirements. The minor omissions raised by Husband are inconsequential and did not prejudice his procedural or substantive rights. See Ariz. R. Fam. L.P. 29(E) ("All pleadings shall be so construed as to do substantial justice.").
¶10 Husband contends the summons was defective because it cited Arizona Rules of Civil Procedure ("Civil Procedure Rule") 4 and 5, instead of Family Law Rule 40. This reference is not prejudicial, though, because a summons must contain the same information in civil cases as family law cases. Compare Ariz. R. Civ. P. 4 with Ariz. R. Fam. L.P. 40. The only difference is that a summons in a dissolution case "shall also contain a statement that either spouse, or both spouses, may file in the conciliation court a petition invoking the jurisdiction of the court for the purpose of preserving the marriage." Ariz. R. Fam. L.P. 40(B) . Wife's summons did not include this language. Husband's response noted this omission, demonstrating he was not prejudiced by the missing language. In fact, Husband's response specifically requested transfer to conciliation services. Nor does it appear that the citation to Civil Procedure Rule 10(D) rather than Family Law Rule 30 prejudiced Husband, who properly served his response.
¶11 The preliminary injunction complied with A.R.S. § 25-315(A). It was filed the same day as the petition and was properly issued by the clerk.
¶12 There is no notice regarding creditors in the record on appeal. However, Husband's response to the dissolution petition argued that specific aspects of the notice were defective. As appellant, Husband was "responsible for making certain that the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal. . . . When a party fails to do so, we assume the missing portions of the record would support the trial court's findings and conclusions." State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73 (App. 2003) (citation omitted).
¶13 Finally, Husband contends the waiver of service was defective. However, he filed a response to the petition, which constitutes an appearance and has the same effect as proper service. See Ariz. R. Fam. L.P. 40(F). Moreover, Husband's response expressly stated that he accepted service of the allegedly defective documents.
B. Alleged Deficiencies in the Judicial Process
¶14 Husband contends he was deprived of procedural due process due to judicial neglect and misconduct. Specifically, he alleges the trial court failed to read his response to the petition and failed to rule on motions contained therein.
¶15 Although Husband's response included a "petition" to transfer the case to conciliation services, it did not conform to the requirements of A.R.S. §§ 25-381.10 through -381.12. A separate petition for conciliation is required. Id. Husband's response acknowledged the need for a separate conciliation petition. He subsequently filed such a request, and the matter was transferred to conciliation services.
¶16 Husband also argues he was denied due process because the court denied his motion for default without reading it. Husband sought entry of default in the future should the court not dismiss Wife's action or should the parties fail to resolve their disputes. Husband cited Family Law Rule 71(D), which authorizes default as a sanction. Husband's response did not establish any basis for a default under that rule. The court was within its discretion to deny Husband's supplemental motion for default because the conduct he alleged also did not warrant the sanction of default.
¶17 Lastly, Husband contends the court's alleged failure to rule on the various "motions" advanced in his response denied him due process. However, only the motion challenging service was properly included in the response under Family Law Rule 32(B) and (F)(1). But there is no due process violation as to that issue because Husband's response expressly stated that he accepted service of the petition and the accompanying filings. The remaining "motions" were requests for sanctions and a default judgment and should have been made in separate motions. Moreover, Husband did not assert that there were pending motions at a time when the trial court had the opportunity to rule on them. Husband has thus waived any claim that the court failed to rule on his motions. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) ("[E]rrors not raised in the trial court cannot be raised on appeal.").
¶18 Husband also argues he was denied due process because court staff failed to instruct him how to submit exhibits for trial. His argument raises matters not in the record, which we cannot consider. See Flood Control Dist. of Maricopa County v. Conlin, 148 Ariz. 66, 68, 712 P.2d 979, 981 (App. 1985). Furthermore, the court issued a minute entry instructing the parties when and where to deliver trial exhibits.
C. Disclosure Issues
¶19 Husband contends the court erred in proceeding to trial despite Wife's failure to comply with the disclosure requirements of Family Law Rule 49. At trial, the exhibits Wife offered were documents that Husband provided to her. Husband cannot claim he was prejudiced by the admission of these exhibits. Moreover, Husband has not established what Wife failed to disclose and how he was prejudiced. A general allegation of non-compliance with Family Law Rule 49 is insufficient. See Ariz. Const. art. VI, § 27 ("No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done.").
¶20 Husband also contends the court erred by failing to enter a default judgment based on Wife's failure to comply with the preliminary injunction and for filing "documents of process that so patently fail to comply with the rules." The trial court has discretion in imposing sanctions. See Poleo v. Grandview Equities, Ltd. , 143 Ariz. 130, 133, 692 P.2d 309, 312 (App. 1984). The court did not abuse its considerable discretion by denying Husband's motion for default judgment, as the acts alleged did not warrant such a severe sanction.
III. Property Division
¶21 Husband contends the court erred in characterizing the parties' home and Ameritrade accounts as community property. We review the distribution of property for an abuse of discretion. Hrudka v. Hrudka, 186 Ariz. 84, 93, 919 P.2d 179, 188 (App. 1995). But we review the court's classification of property as separate or community de novo. In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15, 5 P.3d 911, 915 (App. 2000).
¶22 Husband contends the Carlston Family Trust ("the Trust"), as amended, provided that Husband alone would receive the house. However, the trust documents are not part of the record on appeal. Husband's motion to amend the record on appeal was denied. Husband testified at trial that the funds for the home's down payment came from an advance of his inheritance from his parents. He also testified that his mother held title to the house as trustee and that the Trust was later amended to provide that the house would be conveyed to Husband only.
¶23 Wife provided the court with a 1999 quit claim deed in which Husband's mother, as trustee, deeded the house to Husband and Wife as joint tenants with rights of survivorship ("JTWROS"). Husband argues the quit claim deed did not transfer ownership of the title. We conclude otherwise.
¶24 Husband does not dispute that a quit claim deed conveys those rights that the grantor possessed. See Lake Havasu Cmty. Hosp., Inc. v. Ariz. Title Ins. & Trust Co. , 141 Ariz. 363, 372, 687 P.2d 371, 380 (App. 1984) ("A quit claim deed conveys to the grantee no greater rights to the property conveyed than the grantor possessed.") (citations omitted) (disapproved of on other grounds in Barmat v. John & Jane Doe Partners A-D, 155 Ariz. 519, 524, 747 P.2d 1218, 1223 (1987)); Bender v. Bender, 123 Ariz. 90, 94, 597 P.2d 993, 997 (App. 1979) (a quit claim deed is "the relinquishment (or gift) of any possible interest one has in certain property"). Nor does Husband dispute that his mother, as trustee, held valid title to the house.
¶25 Husband instead argues that the quit claim deed was not a conveyance of title because it contained no language constituting a muniment of title. A "muniment of title" is "documentary evidence of title, such as a deed or judgment regarding the ownership of property." Black's Law Dictionary 1114 (9th ed. 2009). Although a quit claim deed is not a muniment of title, see Lake Havasu, 141 Ariz. at 372, 687 P.2d at 380, the deed complied with A.R.S. § 33-401, which sets forth the requirements for conveying title. Husband did not contend that the Trust lacked valid title to the property. His mother, as trustee, conveyed the Trust's ownership interest to Husband and Wife as JTWROS and did so pursuant to § 33-401 via the quit claim deed.
¶26 Husband next contends the down payment on the house came from his inheritance, which was his separate property. Wife also testified that the down payment came from Husband's parents. Husband contends this established that the house was his separate property.
¶27 There was no evidence to support Husband's claim that the Trust intended to gift the house to him as his separate property. The quit claim deed evidences a contrary intent to grant the house to Husband and Wife as JTWROS. See Valento v. Valento, 225 Ariz. 477, 483-84, ¶¶ 23-24, 240 P.3d 1239, 1245-46 (App. 2010) (holding that deed executed by husband's parents during marriage conveying house to parties as joint tenants was gift to husband and wife jointly). Additionally, property acquired during marriage is presumed to be community property. A.R.S. § 25-211(A). Husband, as the spouse seeking to overcome this presumption, had the burden of proving the separate nature of the property by clear and convincing evidence. See Brebaugh v. Deane, 211 Ariz. 95, 97-98, ¶ 6, 118 P.3d 43, 45-46 (App. 2005). He failed to do so.
¶28 Three Ameritrade accounts were discussed at trial: accounts ending in 648, 769, and 133. Husband admitted that account 648 was community property. Husband testified he opened account 133 with funds he inherited so those funds could "be maintained separate" from community assets. He also testified that he took funds from 133 to fund account 769 as an "IRA account with Ameritrade." Husband further testified that no community funds were placed in account 133 or 769. The account statements for 769 and 133 list only Husband's name as owner.
¶29 The superior court concluded, without explanation, that all three Ameritrade accounts were community property. After the notice of appeal was filed, Husband filed a motion to correct the decree. The superior court granted the motion and ordered that Ameritrade account 769 was Husband's separate property. However, the superior court lacked jurisdiction to rule on Husband's motion after the notice of appeal was filed. See Curtis v. Morris, 184 Ariz. 393, 399, 909 P.2d 460, 466 (App. 1995). Thus, its post-decree order is a nullity. Id.
¶30 Nonetheless, the uncontroverted trial evidence rebutted any presumption that accounts 769 and 133 were community property. Wife did not dispute Husband's testimony that accounts 769 and 133 were funded with his separate property inheritance. See A.R.S. § 25-211(A)(1) (property acquired by gift, devise, or descent is separate property). Wife offered no evidence that the two accounts contained community funds. Accordingly, we reverse the portion of the decree ordering the parties to equally divide Ameritrade accounts 769 and 133, and order that the decree be amended to award those two accounts to Husband as his separate property.
Based on this determination, we need not address Husband's argument that the Ameritrade accounts were retirement accounts subject to a pretrial stipulation.
IV. Spousal Maintenance
¶31 The superior court denied Husband's request for spousal maintenance, finding he is not of an age that precludes the possibility of gaining employment adequate to be self-sufficient. We review spousal maintenance decisions for an abuse of discretion and consider the evidence in the light most favorable to Wife. See Pownall, 197 Ariz. at 583-84, ¶ 31, 5 P.3d at 917-18.
¶32 To qualify for maintenance, Husband was required to prove one of the circumstances set forth in A.R.S. § 25-319(A). Id. at 584, ¶ 32, 5 P.3d at 918. Husband's age, 59, and approximately two-year unemployment were not disputed. There was also undisputed evidence that Husband previously earned $52,696 as a senior plans examiner in the facilities maintenance field. There was no evidence that Husband had physical, mental, or medical conditions precluding employment. Husband did not establish a dearth of available positions in his general field of employment.
¶33 Husband suggests that A.R.S. §§ 25-312 and -319 somehow conflict. We disagree that § 25-312(4) implies that spousal maintenance shall be approved by the court in all cases. Indeed, the court lacks authority to award maintenance unless one of the factors set forth in § 25-319(A) is proven. See Pownall, 197 Ariz. at 584, ¶ 32, 5 P.3d at 918. Finally, even if the court incorrectly found that Wife could not afford to meet her expenses and pay Husband maintenance, that factor is relevant under § 25-319(B), which is triggered only if a legal basis for maintenance exists under § 25-319(A).
V. Attorneys' Fees on Appeal
¶34 Although Husband has prevailed on one issue, we nonetheless agree with Wife that he has taken unreasonable positions on appeal that have unnecessarily expanded and prolonged the proceedings. In the exercise of our discretion, we grant Wife's request for reasonable attorneys' fees and costs incurred on appeal upon compliance with ARCAP 21.
CONCLUSION
We deny Wife's Motion to Strike Notice of Findings State Bar of Arizona re Dianne N Sullivan, Respondent.
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¶35 We reverse the portion of the decree stating that Ameritrade accounts 769 and 133 were community property. We remand with instructions to enter a modified decree awarding those accounts to Husband as his separate property. In all other respects, the dissolution decree is affirmed.
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MARGARET H. DOWNIE,
Presiding Judge
CONCURRING: ____________
PETER B. SWANN, Judge
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DONN KESSLER, Judge