Opinion
No. 1 CA-CV 19-0628 FC
06-30-2020
In re the Marriage of: SAWAKO MOMII LESLIE, Petitioner/Appellant, v. JOHN MARVIN LESLIE, Respondent/Appellee.
COUNSEL M. Wayne Lewis, Attorney at Law, Chandler By M. Wayne Lewis Counsel for Petitioner/Appellant Scott L. Patterson PLLC, Tempe By Scott L. Patterson Counsel for Respondent/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
FN 2017-092934
The Honorable Joshua D. Rogers, Judge
AFFIRMED
COUNSEL M. Wayne Lewis, Attorney at Law, Chandler
By M. Wayne Lewis
Counsel for Petitioner/Appellant Scott L. Patterson PLLC, Tempe
By Scott L. Patterson
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined. CAMPBELL, Judge:
¶1 Sawako Momii Leslie ("Wife"), appeals the superior court's determination that a condominium titled in her name was community property and the court awarding attorney's fees to John Marvin Leslie ("Husband") pursuant to A.R.S. § 25-324. Wife also asserts the superior court violated her due process rights by denying her request to continue the trial. For the following reasons, we affirm.
BACKGROUND
¶2 The parties were married in 1978. They purchased a condominium ("the condo") together in 2010 using community funds. Husband executed a disclaimer deed renouncing his interest in the condo and acknowledging it would be Wife's separate property.
¶3 Wife petitioned for divorce in June 2017. At a status conference in November 2018, Wife indicated that she had hired David Cantor to complete a business valuation of Husband's accounting business and had paid him $40,000. Mr. Cantor told her it would cost an additional $15,000 "to take this to trial." At that time, Mr. Cantor had not completed a business evaluation. Husband's counsel told the court that the parties had met with Mr. Cantor and that he told them he had everything he needed from Husband to complete his evaluation. At the end of the hearing, the court asked the parties whether April 1, 2019, worked as a trial date, and Wife indicated that date was acceptable. The superior court set trial for April 1, 2019. In February 2019, Wife filed a motion to continue the trial, and Husband objected. The superior court denied the motion to continue.
¶4 At trial, Husband testified that he signed the disclaimer deed, but that the parties agreed the condo would be a jointly owned asset. The superior court agreed and deemed the condo community property, ordering it to be sold. Subsequently, Wife filed a motion to alter, amend, or set aside the decree, for relief from the final decree and for a new trial. See Arizona Rules of Family Law Procedure 83 and 85. The superior court denied the motion but clarified that it found Husband to be more credible regarding the circumstances surrounding the execution of the disclaimer deed. Further, the court found Husband had met his burden to prove by clear and convincing evidence that the deed was procured by fraud or mistake. The court stated, "[Husband] provided credible evidence that he signed the disclaimer deed based solely upon [Wife]'s assurances that the parties would have equal rights to ownership in the residence. The court further notes that the Court found credible [Husband]'s testimony that all of the funds used to purchase, repair, maintain, and improve were community funds. [Wife] did not submit any credible evidence to the contrary."
¶5 After finding no substantial disparity of financial resources between the parties, the superior court granted Husband's request for attorney's fees and costs pursuant to A.R.S. § 25-324(A), finding that Wife acted unreasonably by failing to disclose financial documents and by making Husband respond to numerous unnecessary motions. The court awarded Husband $10,000 for "a portion" of his reasonable attorney's fees. Wife timely appealed.
DISCUSSION
¶6 We review a denial of a motion to continue for an abuse of discretion. Nordale v. Fisher, 93 Ariz. 342, 345 (1963). The superior court abuses its discretion if its "decision is manifestly unreasonable or is based on untenable grounds or if its discretion is exercised for untenable reasons." Schwartz v. Superior Court (Schafer), 186 Ariz. 617, 619 (App. 1996). We view the evidence in the light most favorable to upholding the decree. In re Marriage of Foster, 240 Ariz. 99, 100, ¶ 2 (App. 2016). We defer to the superior court's determination of witness credibility and the weight to give conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998). We review de novo the court's classification of property as separate or community. In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15 (App. 2000).
I. Denial of Wife's Motion to Continue
¶7 Wife, representing herself, filed a motion to continue in February of 2019, asserting that discovery was incomplete, and she needed to be in Japan in February and March 2019 to attend to "family legal issues." Wife also cited a need for more time to obtain funds to pay her expert witness. Husband opposed the motion to continue, and the superior court denied Wife's request.
¶8 Subsequently, Wife traveled to Japan from late February until March 20, 2019. The trial commenced on April 1, 2019. On appeal, Wife argues that she was unable to prepare properly for the trial, and that the trip to Japan had tired her so much that she missed her flight from her home in Los Angeles to Arizona on the morning of trial. She argues that because she provided the court with proof that she was required to attend a legal meeting in Japan and because she needed more time to complete an evaluation of Husband's business and further discovery, there was good cause for a continuance. She asserts that the superior court abused its discretion and violated her due process rights by denying her request.
The superior court proceeded to trial on the morning of April 1 without Wife, who appeared in court in the afternoon.
Although Wife states in the introduction to her opening brief and in an argument heading that the superior court erred by denying her motion to continue because she needed to complete further discovery, she provides no actual argument concerning the missing discovery. See ARCAP 13(7)(a) ("An 'argument' . . . must contain . . . [a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies."). We therefore do not address that contention.
¶9 Arizona Rule of Family Law Procedure (ARFLP) 34 states that a party seeking to continue trial based on the unavailability of the party or witness must show: 1) why the testimony of the party or witness is material; 2) when the party learned of the party or witness's unavailability; 3) the party's diligence and efforts in attempting to obtain the testimony; and 4) the postponement is for good cause and not for delay. The superior court's November 2018 minute entry setting the trial date stated, "[c]ontinuances, postponements, and schedule changes will not ordinarily be granted. Any postponement or change will be granted only in accordance with appropriate rules, based on a showing of good cause . . . ."
¶10 Wife's legal matter in Japan occurred prior to the trial in this case. Wife returned to the United States approximately two weeks before the trial on April 1, a trial date she had been aware of since November. Furthermore, Wife retained her expert business appraiser in 2017, and by June 2018, the appraiser had everything he needed from Husband to complete a business evaluation, and the appraiser had completed at least one calculation of the value of Husband's business by the time of the status conference in November 2018. Wife asserted she needed more time to raise funds to pay Mr. Cantor. That in and of itself does not constitute good cause for a continuance. We find no abuse of discretion or violation of Wife's due process rights.
II. Characterization of the Condo as Community Property
¶11 Wife argues that the superior court erred by determining that the condo was a community asset even though Husband signed a disclaimer deed. She asserts that Husband's evidence was insufficient to rebut the presumption created by the disclaimer deed—that the condo was Wife's separate property.
¶12 Property that is acquired during a marriage is presumed to be community property. A.R.S. § 25-211(A); Thomas v. Thomas, 142 Ariz. 386, 392 (App. 1984). A spouse seeking to overcome the presumption has the burden of establishing the separate character of the property by clear and convincing evidence. Thomas, 142 Ariz. at 392. A valid disclaimer deed rebuts the presumption that property acquired during a marriage is community property and is a binding contract that must be enforced in the absence of fraud or mistake. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523-24, ¶¶ 7, 10, 11 (App. 2007). A spouse attempting to nullify a disclaimer deed must prove the deed was the result of fraud or mistake by clear and convincing evidence. Femiano v. Maust, 1 CA-CV 18-0582 FC, 2020 WL 1950879, at *2, ¶ 10 (Ariz. App. April 23, 2020).
¶13 Here, the condo was purchased with community funds during the marriage and was therefore presumed to be community property. See A.R.S. § 25-211(A). Wife rebutted the presumption by establishing that Husband signed a disclaimer deed to the condo. The superior court found, however, that based on the evidence presented at trial, Husband met his burden of proving by clear and convincing evidence that the deed was procured by fraud or mistake. The court found Husband's testimony, that he signed the disclaimer deed based solely on Wife's assurances that he would have an equal ownership interest in the condo, to be more credible.
¶14 Sufficient evidence supported the superior court's determination that the condo was a community property asset. Husband testified that he signed the disclaimer deed to protect the condo from potential claims from his clients and that Wife agreed the condo would still be a jointly owned residence that the parties would have an equal interest in it. In addition, Husband submitted a letter into evidence from the parties' realtor, Chase Caldwell, which stated:
I recall a discussion between [Husband and Wife] regarding the best way to take title [of the condo] at closing and it was agreed that it would be taken as sole and separate property by [Wife] because there was some concern regarding the credit issues with [Husband] and concern that it would be best protected in the event of litigation.Wife did not present any evidence to dispute Husband's evidence about joint ownership of the condo. Further, when the court asked Wife what she believed the issues for trial were, Wife stated, "I have no problem giving [Husband] half of my assets . . . ." Accordingly, we affirm the superior court's determination that the condo was community property.
III. Attorney's Fees
¶15 Finally, Wife argues that the superior court erred by awarding attorney's fees to Husband pursuant to A.R.S. § 25-324. Section 25-324 requires the court to consider both parties' financial resources and the reasonableness of their positions in determining whether to make an award of attorney's fees, and further provides:
On request of a party . . . the court shall make specific findings concerning the portions of any award of fees and expenses that are based on consideration of financial resources and that are based on consideration of reasonableness of positions. The court may make these findings before, during or after the issuance of a fee award.(Emphasis added). We review attorney's fees awards for an abuse of discretion. Magee v. Magee, 206 Ariz. 589, 590, ¶ 6 (App. 2004).
¶16 The superior court awarded Husband $10,000 of his requested $40,256.93 in attorney's fees. Wife argues that the superior court failed to make specific findings as requested in her response to Husband's application for attorney's fees, and that the record does not support a finding that she acted unreasonably. We disagree. Here, the superior court found there was no substantial disparity of resources between the parties, but that Wife took unreasonable positions in the proceedings. The court further found: "[s]pecifically, [Wife] acted unreasonably by doing the following: . . . fail[ing] to disclose financial documents and by making Husband respond to numerous unnecessary motions." In addition, the court further found that the provisions of A.R.S. § 25-324(B) and A.R.S. § 25-415 did not apply. Thus, 100% of the attorney's fees the superior court awarded Husband were based on the unreasonableness of Wife's positions. The court's findings were sufficient under A.R.S. § 25-324 and supported by the record. We find no abuse of discretion.
Section 25-324 (B) provides that the court shall award attorney's fees to a party if the other party files a petition without good faith, not grounded in fact or based on law, or for an improper purpose such as harassment, to cause unnecessary delay or to increase the cost of litigation.
The court found "neither [Wife] nor [Husband] knowingly presented a false claim, knowingly accused the other [party] of making a false claim, or violated a court order compelling disclosure or discovery." --------
¶17 Husband requests attorney's fees on appeal pursuant to A.R.S. § 25-324 on the basis that Wife has taken unreasonable and unsupported positions, including on appeal. Because Wife has not taken an unreasonable position in this appeal, we decline to award Husband attorney's fees. As the prevailing party on appeal, Husband is entitled to reimbursement of his costs upon compliance with ARCAP 21(a).
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court.