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We want to talk to you about a community lien against a sole and separate business in an Arizona Divorce. The Arizona Court of Appeals’ decision in the case of Rowe v. Rowe addressed the issue of a community lien in a sole and separate business in a divorce in Arizona.
The Arizona appellate court in the matter of Rowe v. Rowe was faced with an appeal concerning the characterization of a business as Husband’s sole and separate property or the parties’ community property, as well as the correct valuation methodology to use to value that business or any community lien attaching to that business.
Incorporating a Business During Marriage Does Not Turn Separate Property into Community Property
The facts are straightforward. Husband owned an unincorporated business prior to his marriage to Wife. Husband made the decision to incorporate that business shortly after the parties’ marriage.
In doing so, Husband issued all of the shares in the newly formed corporation to himself and named himself as an officer of the company. Husband also named Wife as an officer of the company. Shortly before filing for divorce, Husband removed Wife as an officer of the company.
The Arizona trial court found that the business was Husband’s sole and separate property and that the community had been fairly compensated for any increase in the equity of the home.
The trial court used the “reasonable value of community services” valuation methodology, as opposed to the “fair rate of return on the initial capital investment” approach in valuing the business.
Wife’s argument at trial was that the incorporation of the business owned prior to marriage turned it into community property in Arizona by the mere creation of the newly incorporated business. The Arizona appellate court disagreed.
Specifically, the appellate court held that the Arizona case of Bender v. Bender does provide a rebuttable presumption that property acquired during a marriage is presumed to be community property.
However, the appellate court also pointed out the ruling in Cockrill v. Cockrill providing that property acquired prior to marriage remains the separate property of the spouse who acquired that property unless and until the parties agree otherwise.
The appellate court agreed with the trial court’s reliance on the case of Porter v. Porter, which held that a simple change in the form of a company as a result of incorporation during the marriage does not change that separate property into community property.
The trial court found the value of the business had not increased and that the community was fairly compensated for the work Husband provided to his company from the earnings that flowed through to the community during the parties’ marriage.
The appellate court one step further to cite Michelson v. Michelson and Katson v. Katson in support of the proposition that a spouse should not be required from withholding his or her labors during marriage towards their sole and separate business out of fear of converting the sole and separate business into a community asset.
Business Bank Accounts May Be Handled Differently Than Personal Bank Accounts
Wife, however, argued that the day to day balances in Husband’s business accounts varied on a regular basis and that those funds were earned from Husband’s community labors and, therefore, the business accounts were commingled and, therefore, were transmuted to community accounts.
Wife relied upon existing Cooper v. Cooper, which held that the commingling of separate and community funds into accounts may transmute those accounts into community property.
The Arizona appellate court disagreed. The appellate court distinguished the Cooper v. Cooper rule by holding business accounts are treated differently than personal accounts because the commingling of sole and separate funds with community funds in a personal account may make the identity of the separate funds too difficult to determine and it appears as those spouses intended to treat such personal accounts as community property.
Such was not the case here where the business accounts remained in the sole name of the community and the trial court found that community had been adequately compensated for Husband’s labor spent in his business during the parties’ marriage.
Valuation Methodology to Value a Community Lien Against a Sole and Separate Business in Arizona
Wife then challenged the business valuation methodology adopted by the Court. Wife argued that the “fair compensation to the community” approach in the California case of Van Camp v. Van Camp emphasizes the focus upon the capital of the business, whereas the “fair rate of return on initial investment” approaches in the California case of Pereira v. Pereira case focuses on the community efforts expended on the business by a spouse during the marriage.
Wife argued the latter approach was more appropriate because the increase in the value of the business was not related to the initial premarital capital investment but, instead, the labors of Husband during the parties’ marriage.
The appellate court relied upon the Cockrill v. Cockrill decision and held that the Cockrill decision made it clear that all businesses and situations in a divorce will be uniquely different and, further, that there needed to be different valuation methodologies based upon those differences.
In a situation wherein the growth was solely the result of the capital investment or, on the other extreme, solely the result of labor then Wife’s argument may have prevailed. However, there will rarely be a situation that falls into either extreme scenario.
The appellate court then cited the language in Cockrill that provided a trial court is not bound by any single methodology and must select the business valuation methodology that will achieve substantial justice. The appellate court agreed with the trial court that the value of the business was not based solely on Husband’s initial investment but the ten years of pre-marital labor he invested in that business.
Community Lien and Fair Compensation Approach
The appellate court, therefore, confirmed the trial judge’s use of the “fair compensation to the community” approach and affirmed the trial court’s ruling.
If you have questions about community lien in an Arizona divorce case, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona community property and family law attorneys have over 100 years of combined experience successfully representing clients in community property disputes and family law cases.
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 community property or family law case around today.
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