2020 in Appellate Family Law (Arizona)

2020 in Appellate Family Law (Arizona)

Here’s my view and summaries of the reported Arizona appellate (and AZ Supreme Court) family law decisions in 2020.  Some are more important than others; some are fairly straightforward, and some are just plain confusing (Backstrand).    Some reflect a gradual evolution of the law (Gonzalez-Gunter) and some advance more complicated principles of community and separate property (Femiano).    As always, my opinion of what these cases mean (a) is just my opinion; and (b) will likely change the more I read them.  

Torres (1/23/2020)   This is one of only two Arizona Supreme Court cases reported here.    This is the frozen embryo case, originally decided by the trial court in 2018 and then reversed by the COA in 2019.  The divorcing couple had frozen, fertilized embryos, and the couple’s contract with the embryo preservation company stated that in the event of a divorce, the disposition of the embryos would be subject to a court order to either award the embryos to one or the other for implantation, OR  the embryos would be donated for implantation.  The couple specifically declined the contractual choice of destruction of the embryos in the event of their separation.   At the time of divorce, Mother wanted the embryos so she could give birth, and Father wanted the embryos destroyed and did not want to become a father.  Mother’s circumstances in requesting the embryos were compelling — she likely would not be able to have children without these embryos.    In light of the parties’ disagreement for disposition and the fact they had not chosen the option of destruction, the trial court ruled that the embryos would be donated, following the contractual choice the couple had made. The COA later overturned that ruling, finding that the embryos should be awarded to Mother for implantation, based on the COA’s balancing of the parties’ circumstances.    While the trial court had also balanced the parties’ interests, the COA substituted its own balancing over the trial court’s.   In this January 2020 opinion, the Arizona Supreme Court vacated the COA’s ruling and reinstated the trial court’s ruling that the embryos would be donated, based on the parties’ explicit contractual choice.   

DeLintt (3/5/2020) If news of a new potentially disruptive worldwide virus distracted you in early March, you might have missed this return to Koelsch regarding retirement benefits, this time involving FERS (federal) retirement benefits.   This case once again emphasizes how important the specific language for dividing retirement benefits is; merely stating “Wife gets half” is never enough.  Where this court explicitly retained jurisdiction to rule on Wife’s future benefit, Wife was permitted to request her payments as soon as Husband is eligible for retirement, even if Husband does not actually retire.

Femiano (4/23/2020)    This case is a return to and clarification of Drahos calculations – and in December, the Arizona Supreme Court declined to review Femiano, so this Femiano COA opinion remains good law.   Where a home was purchased during the marriage but established as the separate property of one spouse (by disclaimer deed), the community’s interest in that home needed to be calculated.  The Drahos formula was an incorrect application, as Drahos involved a property acquired prior to marriage.  If the community pays all costs associated with purchasing and improving a property acquired during the marriage, with no separate property contributions, and the property appreciates in value, the community is entitled to 100% of the increase in value, not just a portion.  

A signed disclaimer deed, absent fraud or mistake, conclusively establishes the separate nature of property acquired during marriage.  (Bell-Kilbourne)     But the community lien on this disclaimed separate property consisted of (a) the community contributions to/ reduction in mortgage principle, PLUS (b) 100% of the increase in value of the property.

McQuillen (4/30/2020)  This is a paternity acknowledgement case. When Father A (along with Mother) filed a voluntary acknowledgement of paternity, Mother’s later filing to attempt to establish paternity with Father B will be dismissed, even where genetic testing shows Father B was the biological Father.  

Garlan   (6/18/2020)   Here’s a case that made us all rush to look at our spousal maintenance language to see if the obligation could possibly survive the payor’s death.  In this case, where the court ordered that certain payments to Wife would continue “from Husband’s estate”, the court’s intent for post-death payments was clear, and the estate was liable for payments even after the payor died.

Bowser (7/16/2020)    Yes, there’s a way to have a post-filing severance package divided as community property, despite the fact that the severance was negotiated and paid after termination of the community.   It’s hard not to compare Bowser with DeFrancesco (2019), where Husband kept 100% of his post-filing bonus paid by the Houston Astros, despite the fact that the bonus arguably was based on services rendered during the community.

Gonzalez-Gunter (7/23/2020)  Just when you thought Arizona was making it clear that equal parenting time was the way to go, along comes Gonzalez-Gunter to make our lives interesting and guarantee more litigation.    ARS 403.02 does NOT mandate equal parenting time (absent parental unfitness), and the court is still required to make the determination based on best interests.  Woyton is not overruled:  Woyton said that as a general rule, equal or near-equal parenting time is presumed to be in a child’s best interests, but that doesn’t absolve the court’s best interests requirement.   ARS 103(B)(1) regarding public policy also does not require equal parenting time or change the best interests findings.

Eans-Snoderly (8/18/2020)   This case involved a long delay in an attempt to collect on a Decree-ordered equalization payment.   ARS 25-317E provides that any portion of a Decree may be enforced by all available remedies, including contempt.  (Obviously child support, spousal maintenance, and sometimes attorneys’ fees can be enforced by incarceration.)  Despite previous Arizona cases (Profitt, Masta) which state that court-ordered payments cannot be enforced by contempt/ incarceration, the COA noted that Profitt preceded the 317E language, and Masta prohibited only incarceration, not other potential contempt sanctions.    The 317E remedy of contempt for nonpayment of debts/ obligations is limited by the narrow exception that incarceration cannot be the remedy for nonpayment of debt, pursuant to the Arizona Constitution, Article 2, Section 18.   The judgment renewal statute did not apply to this order for an equalization payment, because no specific time for payment was specified in the Decree and it was thus not a judgment on which execution may be sought. 

McLaughlin (10/5/2020)  Arizona Supreme Court.  This is the only Division Two case of the bunch, and  this is the same McLaughlin you’ve previously heard so much about.  In this McLaughlin redux, it is established that the marital presumption of paternity/ maternity does apply in same-gender marriages, and a birth mother is equitably estopped from denying parentage of her spouse at the time of the child’s birth. 

Ball (12/10/2020)    It’s just not a good idea for the Superior Court to make determinations about whether a religion is legitimate or not, for purposes of interpreting a parenting plan.

Moreno (12/10/2020)  Orders of Protection are appealable as “injunctions” [ARS 12-2101(A)(5)] and under ARPOP Rule 42 even if not technically “final judgment” under Civil and Family Law rules.

Backstrand (12/23/2020)   And again, just to make lawyer’s lives more interesting (and profitable?), this case will now make it virtually impossible to figure out, before the court rules, whether a modification of parenting time is warranted.  This opinion has only been out for a week, so I’ll be amending this, but for right now, it looks like the holding is that a 2-stage inquiry must be held:   first, whether a change of circumstances affecting the child’s welfare has occurred; and, if so, second, whether the change is material.  Only if the change in circumstances is material should the court proceed to determine whether a change in custody is in the child’s best interests.   But even while noting this two-stage approach, Footnote 1 of the opinion states that the first requirement (whether a change of circumstances has occurred) is NOT required by ARS 25-411J which states “J. The court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child, but the court shall not restrict a parent’s parenting time rights unless it finds that the parenting time would endanger seriously the child’s physical, mental, moral or emotional health.” (emphasis added)

So what does Backstrand mean?    Is it a change in what we’re currently doing with modifications?   I’m still reviewing this and trying to figure it out.  The Backstrand facts are complicated as they also involve a relocation, and Mother relocated before getting a court order permitting the relocation, and Footnote 2 of the opinion notes that a different situation would have occurred if Mother had asked the court’s permission before moving to Las Vegas, because a proposed relocation (as opposed to an actual) would NOT automatically be a change in circumstances, if the other parent was willing to remain in Arizona.

Solorzano (12/29/2020). A party’s agreement to submit disputed matters (including disputed facts) by briefs in lieu of in-person testimony does not waive due process when the credibility of a party is at issue.  Volk v. Brame established that the court may not proceed by avowal if credibility is an issue or if affidavits are contradictory on any crucial fact.  While Pearson approved the use of trial by affidavit (briefs or avowals), that case noted that avowals do not allow the court to evaluate demeanor and credibility.  Because assessment of credibility was crucial in this child support modification case which centered on the parties’ incomes, an evidentiary hearing with live testimony was required.

Stock  (12/29/2020). Where the community purchased additional retirement benefits during the marriage which were for Husband’s pre-marriage service, the community is entitled to reimbursement for the purchase amount, plus interest, but the community is not entitled to share in the pre-marital portion of the retirement benefit.  As the pre-marital portion was Husband’s separate property, the community’s purchase of same did not change the pre-marital benefit to a community benefit, but simply required reimbursement to the community.

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