Refusal to Sell a House After a Divorce in Arizona.

We want to talk to you and what happens when there is a refusal to sell a house after a divorce in Arizona.

The Arizona Court of Appeals in an unpublished decision in the case of Alvares v. Munguia addressed the very issue and we are going to share our thoughts on that case.

In that case, the wife filed for divorce in 2013. The parties owned a house, as well as a parcel of land. After the final divorce trial, the court awarded the house to the husband subject to the husband paying the wife 50% of the equity in the home, if any. The court also ordered the parcel of land to be sold with each party receiving 50% of the sale of the land.

The wife filed a Petition to Enforce the Divorce Decree five years later in 2018 based upon her claim the husband failed to pay her for her 50% interest in the home and the husband’s alleged failure to sell the parcel of land.

After conducting a hearing on Wife’s petition to enforce, the trial judge appointed a Special Real Estate Commissioner to sell the house and the land and to equally divide the net proceeds of both properties between the parties.

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Remedies for a Refusal to Sell a House After a Divorce in Arizona

On appeal, Husband argued the judge modified the terms of the final property orders in the divorce decree as that decree did not contain any orders requiring the house to be sold. The husband also argued the wife should only receive one half of the equity that existed when the divorce was finalized in 2013 and not half the equity, including the increase in that equity, that existed in 2018.

The Arizona Court of Appeals cited a prior Court of Appeals decision in the case of Jenson v. Beirne wherein the court held as follows:

“[T]he court . . . may either grant relief in accordance with the original decree, or if such relief will no longer achieve full and complete justice between the parties, it may alternatively make new orders, consistent with the parties’ property interests, to accomplish that end.” A superior court’s authority to make new orders related to divorce decrees is limited, however, by A.R.S. § 25- 327(A), which requires the court find “the existence of conditions that justify the reopening of [a property disposition judgment] under the laws of this state.”

The Court of Appeals noted the court awarded the home to the husband conditioned on the husband, among other things, paying Wife her 50% equity in the home, if any. The court continued to state the divorce decree did not contemplate the husband’s refusal to comply with the court orders relating to the house and the land. The decree also did not state how the property would be held or divided between the parties until the court’s conditions on the award of the properties was met.

Since the conditions of decree were not met, the husband and wife, by operation of law, currently owned the properties as tenants in common pursuant to Arizona Revised Statute Section 25-318(D). That statute provides as follows:

“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.”

The Arizona Court of Appeals also cited to an earlier decision in the case of Dressler v. Morrison in which the Court of Appeals ruled that spouses will hold property as tenants in common when the divorce decree fails to dispose of all community property. It appears the Court of Appeals treated the husband’s failure to sell the land and failure to pay the wife 50% of the equity in the home in this case as a failure to dispose of those properties.

Wife’s Entitlement to the Increased Equity in the Home for Husband’s Refusal to Sell a House After a Divorce in Arizona

The husband’s next argument is that the wife received a “windfall” by giving her 50% of the increase in the equity in the properties that occurred between the time of their divorce in 2013 and the time the court enforced the divorce decree in 2018.

The Arizona Court of Appeals rejected the husband’s argument and held that the wife was entitled to the increase in equity because she owned a one-half interest in the properties as tenants in common. As a result, she was entitled to 50% of the increase in equity in the properties.

Modification of Final Property Orders

Failing to Sell a House in a Divorce in Arizona.

The court of appeals also rejected the husband’s argument that the trial court’s orders constitute an impermissible modification of the final property distribution orders in the divorce decree. The court of appeals agreed the 2018 orders to sell the properties was a modification of a final property order, but disagreed the trial court lacked the authority to modify the final property orders in this case.

The court of appeals explained in the case of Lee v. Lee the court of appeals held a divorce court judge has broad discretion to facilitate the equitable division of property in a divorce in Arizona. The court of appeals, again, cited to the case of Jenson v. Beirne for the proposition that the court has the authority to “make new orders” to accomplish “full and complete justice between the parties”.

Since the husband deprived the wife of her interest in the properties, the trial court had the authority to make new orders requiring the properties to be sold even though the divorce decree had no provisions requiring the homes to be sold if the husband did not pay wife her equity interest in the properties.

House Must Be Sold in a Reasonable Amount of Time

The Court of Appeals also addressed the fact that, although the decree ordered the land to be sold in the divorce decree, that divorce decree did not specify when the husband had to sell the home. The court of appeals ruled that anytime a person is ordered to do something but a deadline for doing so is not included in the order the person must comply with that order within “a reasonable time” pursuant to an earlier court of appeals decision in the case of Dutch Inns of Am., Inc. v. Horizon Corp. that held a reasonable time is implied if no time for performance is specified.

The court of appeals presumed the trial judge followed applicable statutes in equitably dividing and distributing the parties’ property by ordering the properties sold instead of simply declaring that the parties continue to own the properties as tenants in common.

If you need help regarding your former spouse’s refusal to sell a house after a divorce in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona divorce attorneys have over 100 years of combined experience successfully representing clients in divorce cases in Arizona.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona divorce case around today.

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