Opinion
2 CA-CV 2012-0121 2 CA-CV 2012-0124
03-22-2013
In re the Marriage of: NINA JANI, Petitioner/Appellee, and MICHAEL MEHRDAD JANI, Respondent/Appellant.
Law Office of Sandra Tedlock By Sandra Tedlock Tucson Attorney for Petitioner/Appellee Michael Mehrdad Jani Dunwoody, Georgia 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Not for Publication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, Rules of Civil
Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. D20112140
Honorable Margaret L. Maxwell, Judge Pro Tempore
AFFIRMED
Law Office of Sandra Tedlock
By Sandra Tedlock
Tucson
Attorney for Petitioner/Appellee
Michael Mehrdad Jani Dunwoody, Georgia
In Propria Persona
VÁSQUEZ, Presiding Judge. ¶1 Michael Jani appeals from the trial court's decree of dissolution of his marriage to Nina Jani. He argues the court erred in classifying, valuing, and dividing their property. For the reasons stated below, we affirm.
Factual Background and Procedural History
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. See Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, n.1, 169 P.3d 111, 112 n.1 (App. 2007). Michael and Nina were married in May 2006 and have one minor child. During the first few years of their marriage, they lived in Atlanta, where Michael owned a residential painting company with his brother. In late 2009, the family moved to Tucson and lived with Nina's mother. In March 2011, Michael returned to Atlanta, and, in June, Nina filed a petition for dissolution of their marriage. ¶3 After a three-day trial, the court issued its under-advisement ruling establishing a custody and parenting plan, ordering Michael to pay child support, and denying his request for spousal maintenance. The court also divided the parties' property, including real property, five vehicles, and various investment and retirement accounts. Although the parties previously had agreed on the disposition of their vehicles and some of their accounts, as part of its ruling, the court determined the values and offsets for those assets and also ordered Michael to pay Nina "$97,567.50 to equalize the division of property." The court incorporated its ruling into a decree of dissolution of marriage that was entered in July 2012. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
Pursuant to their agreement, Michael was awarded the 1991 Mercedes, the 1997 Plymouth, and the 2001 Toyota, and Nina was awarded the 2006 Lexus and the 1999 Mercedes.
Discussion
¶4 As a preliminary matter, we note that Michael has failed to comply with Rule 13(a), Ariz. R. Civ. App. P. The arguments raised in his brief are not supported by any case law, and he refers only to one statute, but it is not included in a table of citations. See Ariz. R. Civ. App. P. 13(a)(2), (6) ("The brief of the appellant shall concisely and clearly set forth . . . [a] table of citations . . . [and a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on."); see also Sholes v. Fernando, 228 Ariz. 455, ¶ 16, 268 P.3d 1112, 1118 (App. 2011). Michael also generally has failed to include citations to the record on appeal to support the facts asserted in his brief. See Ariz. R. Civ. App. P. 13(a)(4), (6). Despite Michael's pro se status, he is held to the same standards as a qualified attorney, see In re Marriage of Williams, 219 Ariz. 546, ¶ 13, 200 P.3d 1043, 1046 (App. 2008), and his failure to comply with Rule 13(a) could constitute a waiver of the issues on appeal, see Sholes, 228 Ariz. 455, ¶ 16, 268 P.3d at 1118. Nonetheless, because we prefer to resolve cases on their merits, Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984), we will address Michael's arguments based on the record before us. ¶5 Michael maintains the trial court erred by improperly classifying his separate property as community property and in valuing and dividing the parties' community property, thereby "skewing the property division in a manner that was inequitable under all of the circumstances." We review the court's 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 characterization of property de novo, In re Marriage of Pownall, 197 Ariz. 577, ¶ 15, 5 P.3d 911, 915 (App. 2000). Our review of this case, however, is severely limited because the trial transcripts have not been made part of the record on appeal. As the appellant, Michael was obligated to "mak[e] certain the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised." Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); see also Ariz. R. Civ. App. P. 11(b). In the absence of the transcripts, we will presume they support the trial court's factual findings and rulings. See Kohler v. Kohler, 211 Ariz. 106, n.1, 118 P.3d 621, 623 n.1 (App. 2005); see also Boltz & Odegaard v. Hohn, 148 Ariz. 361, 366, 714 P.2d 854, 859 (App. 1985) ("Where no transcript of evidence is made part of the record on appeal, a reviewing court will not question the sufficiency of evidence to sustain the ruling."). ¶6 Property acquired by a spouse prior to marriage is that spouse's separate property. A.R.S. § 25-213(A). In contrast, "[t]here is a strong legal presumption that all property acquired during marriage is community property." Carroll v. Lee, 148 Ariz. 10, 16, 712 P.2d 923, 929 (1986); see also A.R.S. § 25-211(A)(1) (excepting from presumption property acquired by gift, devise, or descent). When "community property and separate property are commingled, the entire fund is presumed to be community property unless the separate property can be explicitly traced." Cooper v. Cooper, 130 Ariz. 257, 259, 635 P.2d 850, 852 (1981) (internal citation omitted). A spouse challenging the community property presumptions must prove the separate nature of the property by clear and convincing evidence. See Carroll, 148 Ariz. at 16, 712 P.2d at 929; Cooper, 130 Ariz. at 259-60, 635 P.2d at 852-53. In a marital-dissolution proceeding, the trial court must assign each spouse his or her separate property and divide the community property "equitably, though not necessarily in kind." A.R.S. § 25-318(A). ¶7 Michael first contends the trial court erroneously found that Charles Schwab account #xxx1882 and ING account #xxx2736 were community assets. The court determined the community had contributed to both of these accounts and awarded the parties one-half the balance of each. According to Michael, however, although account #xxx1882 was opened during the marriage, it was funded with his separate funds from Charles Schwab account #xxx1974 "for the purpose of improving [the] parties' chances of the loan qualification for the parties' second home in Arizona." He contends the community had no interest in account #xxx1882 because "at no time did the community contribute any funds" to that account or account #xxx1974 and the transfer was not intended as a gift. In response, Nina suggests the community had contributed to account #xxx1974 prior to the transfer to account #xxx1882, there was a commingling of funds in both accounts, and Michael failed to trace his separate assets. On the record before us, we agree that a commingling of separate and community property occurred in account #xxx1882. The account statements admitted as trial exhibits reflect numerous transfers between the parties' joint checking account and account #xxx1882 during the marriage. And contrary to Michael's argument, nothing in the record suggests the funds retained their character as separate property. See Cooper, 130 Ariz. at 259-60, 635 P.2d at 852-53. ¶8 Similarly, Michael argues the trial court erred in awarding the community an interest in account #xxx2736 because it was opened prior to the marriage and contained only his separate assets. But even assuming the account was opened prior to the marriage and initially contained only Michael's separate property, Michael admitted during his deposition that the account also included "[d]istributions from [his] business." Such distributions during the marriage would have been community property, see Koelsch v. Koelsch, 148 Ariz. 176, 181, 713 P.2d 1234, 1239 (1986), and depositing those distributions into the account resulted in a commingling of separate and community property. Because a commingling of community and separate funds occurred in both account #xxx1882 and account #xxx2736, Michael bore the burden of explicitly tracing his separate property. See Cooper, 130 Ariz. at 259-60, 635 P.2d at 852-53. Again, on the record before us, we cannot say that Michael met this burden, and, in the absence of the trial transcripts, we presume the evidence supports the court's ruling. See Kohler, 211 Ariz. 106, n.1, 118 P.3d at 623 n.1. ¶9 Michael next argues the trial court erred by failing to award him one-half of a $10,000 withdrawal from their joint checking account and Nina's 2010 annual bonus, both of which Nina had "dispersed without [his] prior knowledge and consent." In response, Nina contends these community funds were used to pay community expenses, including "the room, board and child care that [her mother] was providing to the parties while they lived in Tucson." She also maintains "[t]he testimony was disputed as to the agreements" to pay her mother. The record on appeal confirms copies of checks were admitted as proof of the $10,000 withdrawal. But, to the extent the parties testified inconsistently about an agreement to pay Nina's mother, we give great deference to the trial court's determination of witness credibility and its resolution of conflicting evidence because it is in the best position to make that determination. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13, 972 P.2d 676, 680-81 (App. 1998). And because Michael's argument apparently is predicated on testimonial evidence presented at the trial, we presume the record supports the court's ruling in the absence of the transcripts. See Kohler, 211 Ariz. 106, n.1, 118 P.3d at 623 n.1. ¶10 Michael contends the trial court erred by accepting the valuations proposed by Nina for the 2006 Lexus and the 1999 Mercedes awarded to her because they "reflect[] an inaccurate category, mileage, [and] condition . . . without consideration of the added value of optional equipment." He suggests the court should have adopted his proposed valuations instead because they were "more accurate." The parties submitted as trial exhibits significantly different valuations for both vehicles, and Nina maintains that "[b]oth parties testified as to the mileage, equipment, and condition." Generally, when the evidence presented by each party as to the value of community property is different, a court does not abuse its discretion by adopting one party's valuations over the other's. See Lee v. Lee, 133 Ariz. 118, 123, 649 P.2d 997, 1002 (App. 1982) (credibility determinations and resolution of conflicting evidence within discretion of trial court). Moreover, once again, the merit of Michael's argument largely hinges on testimonial evidence presented at trial, and without the transcripts we presume the record supports the court's ruling. See Kohler, 211 Ariz. 106, n.1, 118 P.3d at 623 n.1. ¶11 Michael next challenges the trial court's classification of the 1991 Mercedes as community property. In response, Nina contends the court did not err because the vehicle "was used during the marriage and community funds were expended for its repairs and maintenance." Although the court did not classify the 1991 Mercedes as community property, it implicitly treated it as such. The court included the vehicle—and the full value attributed to it—in its chart used to calculate an equitable division of the community property. The parties apparently agree that Michael purchased the 1991 Mercedes prior to the marriage, thus giving rise to the presumption that it was his separate property. See § 25-213(A). But the character of a spouse's separate property acquired prior to marriage nevertheless can be altered by agreement or operation of law. Drahos v. Rens, 149 Ariz. 248, 249, 717 P.2d 927, 928 (App. 1985). And, without the transcripts, we presume the record supports the court's ruling. See Kohler, 211 Ariz. 106, n.1, 118 P.3d at 623 n.1. ¶12 Michael's last assertion is that the trial court erred in attributing as a community asset the entire value of the 2001 Toyota. He contends the vehicle "was purchased with funds from [his] business partnership with his brother," suggesting they were co-owners and if the marital community had any interest, it was only a one-half interest. In response, Nina maintains the vehicle was wholly community property even if purchased by the business because it was compensation for Michael's services. The record supports Nina's position. The 2001 Toyota was purchased during the marriage, and the certificate of title shows only Michael—not the business or Michael's brother— as the owner. This evidence gives rise to the presumption that the vehicle is community property, shifting the burden to Michael to prove otherwise by clear and convincing evidence. See Carroll, 148 Ariz. at 16, 712 P.2d at 929. On the record before us, we cannot say that Michael met this burden, and, in the absence of the trial transcripts, we presume they support the trial court's ruling. See Kohler, 211 Ariz. 106, n.1, 118 P.3d at 623 n.1.
Michael also suggests the trial court erroneously treated account #xxx1974 as community property. But he admits that in June 2011, just prior to being served with the dissolution petition, he transferred the balance of account #xxx1882 back to account #xxx1974. The court thus properly treated the transferred balance as community property.
Moreover, as Michael admits, this account included a $15,000 deposit from Dr. Ario Kiarash. Although Michael contends the $15,000 was a gift, the trial court apparently concluded it was compensation for "managing a construction project" during the marriage. As such, the income would have been community property, which constituted further evidence of commingling funds in the account.
The decree does not address the withdrawal or the bonus. But the trial court implicitly agreed with Nina that the funds were used for community expenses by declining to award an offset for the withdrawal from the joint checking account.
Disposition
¶13 For the reasons stated above, we affirm the decree of dissolution. Nina has requested her attorney fees and costs on appeal pursuant to A.R.S. § 25-324. In our discretion, we deny her request for attorney fees. However, as the prevailing party, Nina is entitled to her costs, see A.R.S. § 12-341, and we grant them contingent upon her compliance with Rule 21, Ariz. R. Civ. App. P.
____________________________
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING: ____________________________
PHILIP G. ESPINOSA, Judge
____________________________
J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed December 12, 2012.
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