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In McClellon v. McClennon 464 P.2d 982 (1970) the Arizona Court of Appeals considered various property division issues, including effect of a failure to provide evidence of the value of property in an Arizona divorce.
Facts of the Case
Mrs. McClellon and Mr. McClellon married in Arizona. After 25 years of marriage, they divorced. The trial court granted the divorce and divided the community property.
It awarded Dorothy child support of $200 a month and alimony of $1,250 a month. It also ordered $200 to be withheld from her alimony every month by her husband to be paid by him to cover her share of the community debt.
From the property division, Mrs. McClellon appealed.
Comparing Husband and Wife’s Awards of Community Property
On appeal, the wife claimed that the court gave the husband three times as much community property as it gave her. She claimed that the valuation of several items was wrong. However, she did not dispute the values of that property at the time of trial. Therefore, she cannot argue about the valuation of the automobiles and jewelry in an appeal.
Mrs. McClellon did timely question the negative value given to the Stanford Drive property (“home”) in the sum of $1,534.00 and the valuation of husband’s law firm’s capital account at $11,428.00. Specifically, the trial court found the home was worth less than what was owed on it, awarded the home to the husband, then deducted the negative equity from the value assets awarded to the husband.
Regarding the husband’s law firm’s capital account figure, the wife claims the court did not take into consideration his accounts receivable. However, she did not offer any evidence of the amount in the accounts receivable to the trial court. Had she done so, the trial court could have awarded her half of the accounts receivable owed to the husband.
If Mrs. McClellon believed that the $11,428 did not represent her half of that capital account because it allegedly did not include his account receivables for his law firm, she had to present evidence at trial. She did not do so.
Stanford Drive Property: Motion for New Trial
The lower court did not divide the Stanford Drive property as community property. It found that the couple held this property in joint tenancy with the right of survivorship.
The wife moved for a new trial. She based the motion on newly discovered evidence: the proprietary lease on the Stanford Drive apartment.
She now claims that this lease shows that the property was community property, not joint tenancy property.
Arizona law allows for a new trial based on newly discovered evidence. However, “new” evidence can only be evidence that could not have been discovered with reasonable diligence before the trial.
The Court said that the wife, herself, had introduced the stock certificate to the cooperative apartments as trial evidence. Normally, the certificate should have contained language that the parties knew their rights to hold the stock as community property. It did not have that language.
This should have been enough to raise a question in Mrs. McClellon’s mind about the property status. She could have discovered before trial the lease showing that the property was not held in joint tenancy with the right of survivorship. Moreover, the Court said, the wife argued at trial that the property was held in joint tenancy with the right of survivorship. A party may not take a new position on a motion for a new trial which is inconsistent with one she took at trial.
The Court of Appeals affirmed the decision of the trial court. The ruling, in this case, was subsequently distinguished by the Arizona Court of Appeals in the Czarnecki v. Czarnecki case.
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About the Author: Chris Hildebrand has over 26 years of Arizona family law experience and received awards from US News and World Report, Phoenix Magazine, Arizona Foothills Magazine and others. Visit https://www.hildebrandlaw.com.