Logo
Call Now(480)305-8300

Judgment for Separate Property Stolen During Marriage in Arizona | Voted “Best of the Valley”

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

Judgment for Separate Property Stolen During Marriage in Arizona

Judgment for Separate Property Stolen During Marriage in Arizona.

Judgment for Separate Property Stolen During Marriage in Arizona.

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  Well, the Arizona Court of Appeals in the unpublished decision in Guislan v. Helmus had to address that specific issue. In the unpublished decision in the Guislan v. Helmus case, the wife claimed she owned sole and separate property that was acquired prior to marriage and which she claims her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. 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 divorce 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 divorce 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.

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

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 fees.

Authority of Divorce Court Over Sole and Separate Property

No Damages for Separate Property in a Divorce.

No Damages for Separate Property in a Divorce.

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). The 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 deferred 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 a 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.

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

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

Court Cannot Award Damages to Separate Property in a Divorce

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.

Call (480)305-8300 to schedule your personalized consultation with one of our experienced divorce attorneys if you believe you may have a claim for a spouse’s fraudulent conveyance of marital property in your Arizona divorce case.



Related Blogs – What’s Hot