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Judgment for Separate Property Stolen During Marriage

Posted on : February 29, 2016, By:  Christopher Hildebrand
Theft of Separate Property in a Divorce in Arizona

Judgment for Separate Property Stolen During Marriage

A judge in Arizona is required to fairly divide all of the parties’ community property and to assign to each party any sole and separate property owned by each spouse.  What happens when one spouse claims the other spouse stole his or her separate property?  Well, the Arizona Court of Appeals in the unpublished decision in Guislan v. Helmus had to address that specific issue.

In the Guislan v. Helmus case, the wife claimed she owned sole and separate property that was acquired prior to marriage and which she claims her husband stole shortly prior to the commencement of the divorce case.  In such cases, the court may be left with nothing more than judging the credibility of the spouses.

A Brief History of the Case: Guislan v. Helmus

In this case, the husband and wife lived together in the marital home until February 2012. One month later, in March 2012, Edith Guislan (Wife) filed for a dissolution of the parties’ marriage. Within the petition for dissolution of marriage, Wife sought to recover a safety deposit box and its contents as her separate property. She stated that it contained $90,000.00 in cash, gold coins, and jewelry. She also stated that it was stored in the marital home and that it was removed during the month between her departure date and when she filed for the dissolution of the parties’ marriage. Wife claimed Irwin A. Helmus (Husband) took the safety box after her departure from the home.

The husband denied any knowledge of the safety box or its contents. During the course of the proceedings, both parties agreed that if the safety deposit box existed it was Wife’s separate property, but husband continued to deny it even existed. During the trial, Husband sought to present testimony from a witness whom he said would testify that the wife paid her to provide false testimony about the existence of the safety deposit box in question. When the witness did not appear on the scheduled trial date, the Court granted a continuance so the husband could secure her attendance. He was unable to secure the witness’ attendance at the next trial date and the Court denied him a second continuance.

When the trial was complete, the Family Court had heard testimony from Husband and Wife on the existence, or lack thereof, of the missing deposit box and its contents. The Court issued findings indicating the husband had taken the safety deposit box and its contents. The Court entered a judgment of $100,000 in the divorce decree representing the value of the contents of the box. The court also awarded $5,000 to Wife for her attorney’s fees.

When Considering Guislan v. Helmus on Appeal

The Arizona Court of Appeals first addressed a matter of statutory authority that was not brought up on appeal, but that still seemed to be significant to the resolution of the case. Per state law, the Court’s authority over sole and separate property is limited to assigning each spouse their own sole and separate property (A.R.S. Section 25-318). Child Custody Jurisdiction ArizonaThe question to be addressed is whether or not the Court’s actions constituted an abuse of discretion when they included an award of $100,000 in the divorce decree to compensate the wife for her missing sole and separate property.

To resolve the question, the Arizona Court of Appeals discussed the prior appellate costs in Arizona, such as the Proffit v. Proffit case, the Weaver v. Weaver case, and the Thomas v. Thomas case.  The Court of Appeals concluded that A.R.S. Section 25-318 authorizes the court to grant a money judgment in accordance with the value of the separate property with the distinguishing factor that the defendant had actual possession of the other spouse’s separate property and that it was in the form of money.

On appeal, the Husband argued that the Court was not provided with testimony proving the box existed. The Arizona Court of Appeals, upon review of the trial transcripts, found the trial court did hear testimony regarding the existence of the box from during the wife’s testimony and pointed out it is well established that an owner of property has the right to testify as to the existence of their property, as well as their opinion regarding the value of that property. Police reports were also submitted that documented the disappearance of the box from the home.  The Arizona Court of Appeals concluded that family court trial judge was in the best position to evaluate the credibility of the evidence presented by the parties at trial.

Husband also claimed that testimony offered by the wife included contradictory statements. He argued that it was possible that she had returned to the home to remove the box herself and pointed towards cash withdrawals in March 2012 from the bank as an indication that the cash in the safety deposit box did not exist. The Arizona Court of Appeals defered to the judgment of the family court on these matters, as the trial judge was best suited to evaluate the credibility of the witnesses who provide testimony.

Husband also argued the Court erred when denying him a second continuance to produce his witness to offer testimony to the court. Before denying the second request for continuance, the Court considered both the materiality of the alleged testimony of that witness, as well the husband’s due diligence in securing her attendance at trial. The Arizona Court of Appeals found no abuse of discretion by the trial court in reaching its decision.

The Arizona Court of Appeals did conclude the family court judge abused his discretion in awarding $5,000 to the wife for her attorney’s fees. The reason stated for the award by the trial court was the “length of the trial”.  The court cannot award fees without considering the mandatory statutory factors, which the trial court failed to do in this case. The Arizona Court of Appeals affirmed the judgment of the family court judge with the exception of the award of attorney’s fees to Wife which issue was remanded back to the trial court to consider the statutory factors to make an award of attorney fees in a divorce case.


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