2021 Family Law Appellate Year in Review: Part 3

2021 Family Law Appellate Year in Review: Part 3

Here’s my 3rd and final post about 2021 family law appellate decisions in Arizona.  See Part 2 for most of the opinions, and Part 1 for the Saba and Femiano saga.

Yee v. Yee involves when post-decree decisions can be appealed, and a discussion of Rule 85 and Rule 78, ARFLP.  The opinion itself is wonderful in that it clarifies its rulings and significance right up front, so I won’t try to improve on the opinion itself:  “This opinion clarifies that  (1) the family court’s resolution of a post-decree motion is a “special order made after final judgment,” ARS 12-2101(A)(2), and is appealable without certification under ARFLP 78 but only after the court resolves all relief sought in the motion; and (2) a ruling on a Rule 85 motion for relief from judgment or order that does not result in a Rule 78(b) or (c) final judgment may not be challenged by a Rule 83 motion to alter or amend judgment.”  (Emphasis in original)

Wisniewski v. Dolecka covers the burden of proof to obtain an annulment, and that burden is “clear and convincing evidence” for an allegation of fraud which would nullify the marriage.

Olesen v. Daniel/ Burge is a case about DV findings and LDM.   A.R.S. § 25-403.03(E) requires the superior court to make findings whether a parent who has committed an act of domestic violence failed to rebut the presumption against granting that parent legal decision-making authority. It’s clear that 403.03(D) establishes that this presumption is rebuttable, and it cannot be inferred from a court’s ruling that a party failed to rebut.  This case is the “other side of the DeLuna coin”  In DeLuna, we held that a court may not award legal decision-making to a parent who has committed domestic violence without first making specific findings regarding that parent’s rebuttal of the presumption.  In this case, we resolve the other side of the coin: Must the court make specific findings regarding the offending parent’s attempt to rebut the statutory presumption if it denies that parent’s request for legal decision-making? We hold it must.

Sebestyen v. Sebestyen  is interesting and shows us not to automatically assume that a disability payment is separate property.  Where the Husband’s disability retirement pay was based solely on his years of service for UPS, that retirement, even though initiated by a disability (which we usually think of as separate property based on military retirements) was community property.  The UPS retirement was distinguished from workman’s compensation and from military disability retirement, both of which might be considered separate property.  There’s a discussion of whether property was acquired by “onerous title”, thereby making it property of the community, or by “lucrative title” which is not acquired by community efforts or labor.  Compensation for personal injuries, for example, is lucrative title as that compensation is paid for a violation of one’s personal security.   (Jurek)    The UPS retirement, based solely on his years of service, was held to be entirely community for division and Husband’s claim that the payments were future lost wages was rejected.

Stock v. Stock    Where community funds were used to purchase pre-marriage retirement benefits, the community is entitled to reimbursement but not to a portion of the benefits actually purchased, which remain separate property based on the time those benefits were established.    “Wife should not have been awarded half of the credit for Husband’s pre-marital service time purchased using community funds but, instead, should be awarded her share of the community funds used to purchase that credit plus interest from the time of purchase.”

A few honorable mentions of unreported decisions from 2021 include:

Morrison – when the court makes an upward deviation of child support, the court is required to consider certain factors but need not make specific findings about all those factors. 

I already reported on the Cooper memo decision and its Rule 69 effects in a post here; and I wrote about Jorgensen and a court ordering post-trial therapy for a parent here.

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