Logo
Call Now(480)305-8300

Judge Does Not Issue a Decision or Ruling in a Divorce in Arizona

Posted on : January 30, 2018, By:  Christopher Hildebrand
Judge Does Not Issue a Decision or Ruling in a Divorce in Arizona.

Judge Does Not Issue a Decision or Ruling in a Divorce in Arizona

The Arizona Court of Appeals in a memorandum decision in the case of Bangiyev vs. Arzumanova had to address, among other things, a divorce judge’s failure to issue a ruling or a decision on an issue after an Arizona divorce trial.

Judge Does Not Issue a Decision or Ruling in a Divorce in Arizona.

Judge Does Not Issue a Decision or Ruling in a Divorce in Arizona.

Ms. Arzumanova (“Wife”) appeals from the property and debt allocation and the lack of a contempt ruling in the superior court’s decree of dissolution. For the following reasons, we reverse and remand for further proceedings consistent with this decision regarding the property and debt allocation. We treat the appeal as a special action regarding the contempt issue, see Henderson v. Henderson, 241 Ariz. 580, 585 (App. 2017) (reviewing appeal as a special action because contempt findings are only reviewable by special action), and we remand for reconsideration and a ruling on the contempt petition.

In August 2015, Mr. Bangiyev (“Husband”) filed a petition to dissolve the parties’ marriage. Wife requested temporary orders for child support and spousal maintenance. Following a hearing, the superior court awarded Wife temporary spousal maintenance of $2,000 per month and child support of $157.18 per month effective December 1, 2015. The court also ordered Husband to pay $5,000 towards Wife’s attorneys’ fees by making $500 monthly payments beginning January 1, 2016. In March 2016, Wife filed a petition for contempt, alleging Husband failed to pay the court-ordered temporary support and attorneys’ fees. Wife claimed Husband paid only $2,329.58 of the $10,128.72 he was obligated to pay. Husband responded that he had paid some of the amounts.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Google User
Google User
14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
A Google User
17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

The Honorable John C. Gemmill, a Retired Judge of the Arizona Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution. This order was entered on February 5, 2016, so Husband was immediately in arrears for December, January, and February payments. At Husband’s request, the superior court agreed to address the petition for contempt at trial. Following a trial, the superior court ordered Wife to pay child support to Husband in the amount of $48.67 per month starting September 1, 2015, and awarded Wife $1,500 per month in spousal maintenance for two years, effective August 1, 2016. The relevant property provisions in the decree included findings that: (1) the Scottsdale house was community property which was to be sold and any equity equally divided; (2) the parties’ community debts were discharged in bankruptcy, with no mention of an outstanding community debt owed to the Internal Revenue Service (“IRS”); and (3) “the parties share a 50% equity in Desert Equity.”

There were no findings regarding Wife’s contempt petition. Wife filed a motion for new trial, making the same arguments she now raises on appeal. The superior court denied the motion without comment, and Wife filed a timely notice of appeal following entry of a signed order. We have jurisdiction over the property issues under Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1). Additionally, because Wife has no adequate remedy by appeal with regards to her claim that the court failed to address the contempt petition, we exercise our discretion to treat Wife’s appeal as a special action and address that claim pursuant to Arizona Rule of Procedure for Special Actions 1(a). See Henderson, 241 Ariz. at 585.

We review the superior court’s apportionment of community property for an abuse of discretion and its findings of fact for clear error. Hrudka v. Hrudka, 186 Ariz. 84, 91, 93 (App. 1995), superseded by statute on other grounds as recognized in Myrick v. Maloney, 235 Ariz. 491, 494 (App. 2014). The classification of property as separate or community is a question of law we review de novo. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523 (App. 2007).

Arizona Divorce Judge Does Not Rule on an Issue.

Arizona Divorce Judge Does Not Rule on an Issue.

Wife contends the superior court erred in classifying the Scottsdale residence as community property because it was purchased before the marriage and titled to Wife and has remained titled to Wife ever since. Husband concedes this but argues the parties intended the Scottsdale residence to be their marital home and community property. The parties purchased the residence four months before the marriage. Husband testified that the money for the down payment was a loan from his mother and that the parties placed the property in Wife’s name because her credit was better. The only name that has ever been listed on the deed is Wife’s. Husband signed a disclaimer deed in 2005 confirming that the residence was Wife’s separate property. “In Arizona, property owned or acquired by either spouse prior to marriage is separate property and does not change its character after the marriage except by agreement or operation of law.” Drahos v. Rens, 149 Ariz. 248, 249 (App. 1985); see A.R.S. § 25-213(A); see also Bell-Kilbourn, 216 Ariz. at 523.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

The parties’ use of the residence as the marital home and use of community funds to pay the mortgage and other expenses does not alter the character of the property. See Drahos, 149 Ariz. at 249. Similarly, the fact that the parties titled the property in Wife’s name to obtain favorable financing “does not alter the character of the property established as Wife’s separate property at the time of acquisition.” BellKilbourn, 216 Ariz. at 524. Husband signed two disclaimer deeds and does not claim he executed these deeds as a result of fraud. The deeds are valid; therefore, the Scottsdale residence is Wife’s separate property. The community is entitled to an equitable lien against the separate property for those funds expended on the separate property residence, but the character of the property remains separate. We vacate the portion of the order characterizing the Scottsdale residence as community property and remand for an order awarding the residence to Wife as her separate property and to determine the amount of the community’s equitable lien on the property.

The superior court has authority under A.R.S. § 25-318 to allocate community debts. The decree stated, “the parties discharged their community debts in their bankruptcy” and further ordered that “[a]ny community debts that were not identified at the time of trial shall be divided equally between the parties.” The decree did not mention the parties’ IRS debt even though both parties acknowledged in the pretrial statement and at trial that this was a community debt for which they were equally liable.

Husband contends the fact that the parties agreed to be equally responsible for this debt meant the court did not need to address it. “Community debts not allocated by a divorce decree remain the joint obligations of the parties.” Cmty. Guardian Bank v. Hamlin, 182 Ariz. 627, 631 (App. 1995). Based on this holding, the IRS debt should be treated as a joint obligation. This is consistent with the parties’ positions at trial. However, because we are remanding on other grounds, we instruct the superior court to enter an order equally allocating the IRS debt consistent with the positions taken by the parties below.

The parties agreed that the community owned a 50% interest in Desert Equity, LLC, which owns four rental properties. The decree ordered that “the parties share a 50% equity in Desert Equity.” The court is obligated under A.R.S. § 25-318(A) to divide the community property equitably in the decree. The parties disputed whether there was any equity in the rental properties or Desert Equity itself. There was no evidence regarding the equity in any of the properties Desert Equity owned. Given this lack of evidence as to the value of Desert Equity or its assets, the superior court could not assign a specific value to this community property.

Judge May Not Summarily Deny All Other Claims in an Arizona Divorce.

Judge May Not Summarily Deny All Other Claims in an Arizona Divorce.

Nonetheless, the order in the decree does not constitute a division of property. At trial, Wife’s undisputed testimony was that Desert Equity was owned by four partners, each holding a quarter interest. Pursuant to the decree, Appellant and Appellee, though no longer married, still own an undivided “50% interest.” Unlike community property that is not addressed in the decree, which is held by the parties as tenants in common pursuant to A.R.S. § 25-318(D), this property was specifically addressed in the decree. Thus, A.R.S. § 25-318(D) does not apply. The decree merely stated that the parties shared this community asset; this did not allocate the property as required by A.R.S. § 25-318(A). Accordingly, we vacate the order regarding Desert Equity and remand for further proceedings to allocate this community asset.

Wife contends the superior court abused its discretion by failing to address her petition for contempt in the final decree. Contempt findings are only reviewable by special action. Henderson, 241 Ariz. at 586- 87. Because Wife has no other remedy for review of this alleged error, we exercise our discretion and accept special action jurisdiction to address this issue. We review contempt findings for an abuse of discretion. The superior court specifically stated it would address Wife’s contempt petition at trial. The parties presented evidence regarding the contempt allegation. Civil contempt proceedings in family law matters are governed by Arizona Rule of Family Law Procedure (“Rule”) 92. Pursuant to Rule 92(E), the court “shall enter a written order granting or denying the petition for contempt.” If the order finds “the alleged contemnor in contempt,” additional specific findings are required. See Rule 92(E)(1), (2).

The decree did not specifically address the contempt petition. However, the court denied “any affirmative relief sought before the date of this Order that is not expressly granted above.” Although this finding does not specifically refer to the contempt petition, neither party requested findings of fact or conclusions of law pursuant to Rule 82. Where parties do not request findings of fact or conclusions of law, this Court “must presume that the superior court found every fact necessary to support the judgment[]” if supported by a reasonable construction of the evidence. Berryhill v. Moore, 180 Ariz. 77, 82 (App. 1994). Husband contends the superior court was not required to make any findings because the final decree “reallocated, modified, and/or terminated” the temporary orders such that “Wife suffered very little loss if any[.]” However, Rule 92 does not exclude temporary orders from contempt proceedings.

Husband also argues that because temporary orders become unenforceable once a decree is entered, see Rule 47(M)3, there was nothing to enforce. However, Wife filed her contempt petition in March 2016, during the pendency of the action. Therefore, the temporary orders were still valid and fully enforceable through contempt proceedings. See Rules 47(M) and 92. The relevant inquiry was Husband’s knowledge of the order. Rule 47(M) states in relevant part: Temporary orders signed by the court and filed by the clerk are enforceable as final orders during the pendency of the action. Temporary orders become ineffective and unenforceable upon termination of an action either by dismissal or following entry of a final decree, judgment, or order, unless that final decree, judgment, or order provides otherwise. Ariz. R. Fam. Law P. 47(M).

The issue is whether Husband had the ability to comply with the spousal maintenance and child support orders and willfully violated the order. See Ellison v. Mummert, 105 Ariz. 46, 46 (1969). We disagree with Husband’s reading of A.R.S. § 25-315(F)(4) (providing temporary orders terminate when the final decree is entered). A party is not relieved of contempt for violating temporary orders because the superior court did not address the contempt petition before entering a final decree. The court must consider Husband’s conduct as of the time Wife filed her petition. Wife alleged contemptuous conduct prior to the entry of the decree. The superior court was obligated to address these allegations in a separate order or in the decree.

A Judge Must Issue a Decision on Every Issue in a Divorce in Arizona.

A Judge Must Issue a Decision on Every Issue in a Divorce in Arizona.

The boilerplate denial of all prior requests for affirmative relief does not reasonably support a presumption that Husband was not in contempt in light of the evidence. Cf. Berryhill, 180 Ariz. at 82 (stating this Court “must presume the [superior] court found every fact necessary to support the judgment” when parties failed to request findings). Husband admitted he had not made all payments ordered under the temporary orders, and the court’s payment history did not reflect payment in full as of March 2016. Husband’s spousal maintenance obligation was only modified as of August 2016, one month prior to the decree. Therefore, he was still obligated to pay Wife $2,000 per month from December 2015 to July 2016 as well as $500 per month towards Wife’s attorneys’ fees from January 2016 to September 2016, the month the decree was entered.

Accordingly, we remand for reconsideration of Wife’s contempt allegations and findings pursuant to Rule 92. Both parties request an award of attorneys’ fees and costs on appeal pursuant to A.R.S. §§ 25-324, 12-331, 12-341, and 12-342. In the exercise of our discretion, we decline to award either party attorneys’ fees on appeal. However, as the successful party, Wife is entitled to an award of taxable costs on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21. See A.R.S. § 12-342 (providing for recovery of costs on appeal). For the foregoing reasons, we vacate the orders regarding the Scottsdale residence, the IRS debt, and Desert Equity, and we remand for further proceedings consistent with this decision and for reconsideration and entry of findings regarding Wife’s contempt petition. Wife is awarded her costs on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.

Call one of our experienced Arizona divorce attorneys at Hildebreand Law, PC. at (480)305-8300 to schedule your personalized consultation with one of our experienced Phoenix and Scottsdale Arizona divorce attorneys.