Opinion
1 CA-CV 12-0354
03-12-2013
CHARLES GERSTEN, Plaintiff/Appellant, v. ETHEL JOYCE GERSTEN, Defendant/Appellee.
Law Office of James J. Syme, Jr. By James J. Syme, Jr. Attorney for Appellant The Murray Law Offices, P.C. By Stanley David Murray Attorney for Appellee
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(Not for Publication -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 111, Rules of
Arizona Supreme Court)
Appeal from the Superior Court of Maricopa County
Cause No. CV2011-053555
The Honorable Linda H. Miles, Judge
AFFIRMED
Law Office of James J. Syme, Jr.
By James J. Syme, Jr.
Attorney for Appellant
Goodyear The Murray Law Offices, P.C.
By Stanley David Murray
Attorney for Appellee
Scottsdale THOMPSON, Judge ¶1 Charles Gersten (husband) appeals from the trial court's dismissal of his amended complaint against his former wife Ethel Gersten for an equitable lien against the condominium awarded to wife in their divorce proceedings. Finding no abuse of discretion by the trial court, we affirm.
BACKGROUND
¶2 The background of husband and wife's marriage and their dissolution proceedings is contained in our opinion Gersten v. Gersten, 223 Ariz. 99, 219 P.3d 309 (App. 2009) (review denied) and the accompanying memorandum decision Gersten v. Gersten, 1 CA-CV 08-0392, 2009 WL 3854335 (Ariz. App. November 17, 2009). In summary, the parties separated in 2002, husband filed a petition for dissolution in 2005, and a trial was held in 2007. In January 2008, the trial court entered a judgment determining the parties' separate property and dividing the community property and debts. Appeals were undertaken by both husband and wife and this court addressed a myriad of issues, including at least three issues dealing with division of property. ¶3 In September 2011, husband initiated the instant action seeking an equitable lien on the condominium the trial court determined to be wife's separate property. Husband asserts that the trial court was aware that the community made payments on the wife's separate property home during the marriage but failed to give him credit for it. Therefore, he argues, the community contribution was omitted from the judgment, and he is entitled to an equitable lien pursuant to Arizona Revised Statutes (A.R.S.) § 25-318(D) (2008). Wife filed a motion to dismiss for failure to state a claim based on res judicata, which the trial court granted. Husband's motion for reconsideration was denied and he timely appealed.
This court also recently had before it Gersten v. Gersten, 1 CA-CV 11-0714, (Ariz. App. Jan. 24, 2013) which addressed additional issues related to the dissolution and to the support of their disabled adult son.
DISCUSSION
¶4 Husband asserts on appeal that the trial court erred in dismissing his civil complaint to establish a lien on his former wife's residence pursuant to A.R.S. § 25-318 because their 2008 dissolution decree omitted any mention of the community's right to reimbursement. Wife asserts husband waived this issue by failing to raise it in his dissolution action or appeal, that a potential equitable lien is not omitted "property" subject to the terms of A.R.S. § 25-318(D), and that the whole claim is, regardless, barred by res judicata. ¶5 We review questions of law de novo. Phoenix Newspapers, Inc. v. Dep't of Corrections, 188 Ariz. 237, 244, 934 P.2d 801, 808 (App. 1997). We review de novo a superior court's dismissal of a complaint. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). When we review whether the trial court correctly dismissed husband's complaint, we will uphold it where it is certain no set of facts entitles him to relief. See Toy v. Katz, 192 Ariz. 73, 83, 961 P.2d 1021, 1031 (App. 1997); Wallace v. Casa Grande Union High Sch. Dist. No. 82, 184 Ariz. 419, 424, 909 P.2d 486, 491 (App. 1995). This is such a case. ¶6 The trial court in the parties' dissolution considered the distribution of two pieces of real property. Husband was awarded their community property single family home and was ordered to make an equalization payment to wife of $102,500. Wife was awarded the condominium as her sole and separate property; the trial court found that the condominium was purchased after their separation, funded in part with community funds including her wages after separation, and that husband knowingly quit-claimed it several years prior to trial., The trial court's ten page order resolved all issues related to the two pieces of real property. Specifically, it determined the condominium was wife's sole and separate property and ordered no equalization payment. ¶7 Therefore, there are no omitted community property issues to be asserted under A.R.S. § 25-318(D) and this matter is res judicata.
Under the doctrine of res judicata, an existing final judgment rendered upon the merits without fraud or collusion by a court of competent jurisdiction is conclusive as to every point decided and as to every point which could have been raised . . . and decided with respect to the parties thereto.Di Orio v. City of Scottsdale, 2 Ariz. App. 329, 330, 408 P.2d 849, 850 (1965) (citation omitted). ¶8 Husband cites Dressler v. Morrison, 212 Ariz. 279, 130 P.3d 978 (2006) for the proposition that his claim is not estopped because "claim preclusion or res judicata principles do not apply in proceedings under A.R.S. § 25-318(D)." In Dressler, our supreme court held that "a former spouse may bring a separate civil action to obtain relief when a dissolution decree fails to mention or does not dispose of real property" and it noted that the legislature specifically contemplated that dissolution decrees might not provide for the disposition of all property. Id. at 280, 282, ¶¶ 1, 16, 130 P.3d at 979, 981. The instant case is factually, and therefore legally, distinguishable from Dressler. Unlike Dressler, the real property here was not omitted from the decree and the husband's execution of the quitclaim deed here was not fraudulently induced. In fact, the trial court specifically found "The Court believes that Husband voluntarily signed the deed at the time [September 30, 2002], but had a change of heart after filing his Petition for Divorce." The trial court was aware of payments made by the community and merely asserting the applicability of A.R.S. § 25-318(D) will not protect husband from res judicata when the facts show otherwise. The dismissal of the complaint is affirmed. ¶9 Both husband and wife request attorneys' fees and costs on appeal solely pursuant to A.R.S. § 25-324, the statute providing for an award of fees in matters involving a dissolution of marriage. Section 25-324 requires us to examine both the financial resources and the reasonableness of the positions of each party. The financial resources of the parties are not a part of this record and there being no other requested basis for fees, we find that the parties should bear their own fees on appeal. Mother is awarded her costs on appeal.
Section 25-318 reads, in pertinent part,
A. In a proceeding for dissolution of the marriage, or for legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which previously lacked personal jurisdiction over the absent spouse or previously lacked jurisdiction to dispose of the property, the court shall assign each spouse's sole and separate property to such spouse. It shall also divide the community, joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct.Section 25-318(D), formerly A.R.S. § 25-318(B), is commonly used to divide retirement or pension benefits not distributed in the dissolution. See e.g. Cooper v. Cooper, 167 Ariz. 482, 808 P.2d 1234 (App. 1990); Beltran v. Razo, 163 Ariz. 505, 788 P.2d 1256 (App. 1990).
D. The community, joint tenancy and other property held in common for which no provision is made in the decree shall be from the date of the decree held by the parties as tenants in common, each possessed of an undivided one-half interest.
Our review of the superior court's record of the dissolution matter shows that while husband disputed whether he knowingly executed the quit-claim deed to the condominium, he never sought an offset or lien, statutory or equitable, for community funds expended to purchase the condominium. Generally, issues not first raised in the trial court are waived. See Banales v. Smith, 200 Ariz. 419, 420, ¶ 6, 26 P.3d 1190, 1191 (App. 2001).
A quitclaim deed conveys all of one's interest in the property. See Lake Havasu Cmty Hosp., Inc. v. Arizona Title Ins. and Trust Co., 141 Ariz. 363, 687 P.2d 371 (App. 1984) (distinguished on other grounds); A.R.S. § 33-402(1) (2012).
We note that in a dissolution action, after the determination of separate property, the community property and joint tenancy property must be awarded "equitably, but not necessarily in kind." A.R.S. § 25-318(A); see Toth v. Toth, 190 Ariz. 218, 221, 946 P.2d 900, 903 (1997). An unequal division of property could be legally justified under certain facts and still be equitable. Id.
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CONCLUSION
¶10 For the foregoing reasons, we affirm.
________________________
JON W. THOMPSON, Judge
CONCURRING: ________________________
JOHN C. GEMMILL, Presiding Judge
________________________
DONN KESSLER, Judge