NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
LYNN MARIE JUENGER, Petitioner/Appellee,
v.
GERALD J. NYAHAY, Respondent/Appellant.
No. 1 CA-CV 12-0751
FILED 4-29-2014
Appeal from the Superior Court in Mohave County
No. L8015DO201107389
The Honorable Julie S. Roth, Judge Pro Tempore
AFFIRMED IN PART, REVERSED IN PART, REMANDED
COUNSEL
Gerald J. Nyahay, Lake Havasu City
Respondent/Appellant in Propria Persona
Lynn M. Juenger, Lake Havasu City
Petitioner/Appellee in Propria Persona
JUENGER v. NYAHAY
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Kent E. Cattani joined.
P O R T L E Y, Judge:
¶1 Gerald J. Nyahay (“Husband”) challenges the ruling in the
divorce decree that he was not entitled to an equitable lien for community
funds used to pay the mortgage on separate property belonging to Lynn
Juenger (“Wife”), as well as other payments. Having considered his
arguments, we reverse and remand the denial of an equitable lien because
community funds were used to pay Wife’s sole and separate mortgage,
but otherwise affirm the rulings.
FACTUAL AND PROCEDURAL HISTORY
¶2 Wife filed a petition for dissolution on November 3, 2011,
after nearly eleven years of marriage. The parties filed their resolution
statements and the matter proceeded to trial. After closing arguments, the
court granted the petition for dissolution and divided the property and
debt in an unsigned minute entry.
¶3 Wife lodged a form of order for the court’s signature and
Husband filed an unsuccessful motion for a new trial. Husband also filed
a document entitled, “response to divorce decree,” and argued that he has
an equitable interest in Wife’s separate property, the marital home, and he
hopes to prove it with additional evidence. The court filed the signed
decree on September 26, 2012. Husband filed his notice of appeal twenty-
nine days later.
DISCUSSION
I. Jurisdiction
¶4 The first issue we address is whether we have jurisdiction
over the appeal. We have an independent obligation to determine that we
have jurisdiction over an appeal. Catalina Foothills Unified Sch. Dist. No. 16
v. La Paloma Prop. Owners Ass’n, 229 Ariz. 525, 528, ¶ 6, 278 P.3d 303, 306
(App. 2012).
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Decision of the Court
¶5 Here, the court granted the dissolution and resolved the
issues in an unsigned minute entry. After denying Husband’s motion for
new trial by minute entry, the court subsequently signed and filed a final
decree. Twenty-nine days later Husband filed a notice of appeal to
contest the “order made and entered in this action on the 15th day of
October 2012.” Our review of the record does not reveal that any order
was entered on October 15. The last order entered was the signed decree
on September 26, 2012.
¶6 A notice of appeal must include the name of the parties, the
judgment being appealed and the court that issued the judgment. ARCAP
8(c). We generally construe a notice liberally so long as it is not
misleading or prejudicial. Gutierrez v. Gutierrez, 193 Ariz. 343, 350, ¶ 30,
972 P.2d 676, 683 (App. 1998) (citation omitted). A notice citing the wrong
judgment date may be treated as a technical error, which would allow us
to decide the case on the merits. Hanen v. Willis, 102 Ariz. 6, 9, 423 P.2d 95,
98 (1967).
¶7 Here, we find the notice of appeal was not misleading, nor
did it create prejudice for Wife. See id. Although Husband listed the
wrong date on the notice, he listed the correct date the judgment was
signed on the civil appeals docketing statement. Wife has not challenged
our jurisdiction, and she has addressed the substantive issues Husband
raised on appeal. Consequently, we find that the wrong date on the notice
of appeal was not misleading or prejudicial and that we have jurisdiction
to address the issues raised on appeal pursuant to Arizona Revised
Statutes (“A.R.S.”) § 12-2101(A)(1). 1
II. Standard of Review
¶8 Husband claims that the court erred by refusing to impose a
community equitable lien on Wife’s sole and separate property, the
marital home, because community funds were used to pay Wife’s
mortgage during the marriage. We review the equitable distribution of
property for an abuse of discretion. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz.
521, 523, ¶ 4, 169 P.3d 111, 113 (App. 2007). Because the principal issue on
appeal — whether Husband was entitled to an equitable lien — is a mixed
question of law and fact, we review the issue de novo. See Valento v.
Valento, 225 Ariz. 477, 481, ¶ 11, 240 P.3d 1239, 1243 (App. 2010); see also
Alta. Sec. Comm’n v. Ryckman, 200 Ariz. 540, 543, ¶ 10, 30 P.3d 121, 124
1 We cite to the current version of the statute absent material changes.
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JUENGER v. NYAHAY
Decision of the Court
(App. 2001). We will affirm the court’s factual findings unless clearly
erroneous but will draw our own legal conclusions from those facts. Id.
III. Equitable Lien Arising from Mortgage Payments
¶9 We have long recognized the existence of an equitable lien
when community funds 2 are used to pay the mortgage on separate
property. Drahos v. Rens, 149 Ariz 248, 249-50, 717 P.2d 927, 928-29 (App.
1985). In Barnet v. Jedynak, we prescribed the following formula for
valuing a community lien when the property increases in value during the
marriage: C + [C/B x A]; where A = appreciation in value during the
marriage, B = value on the date of the marriage, and C = community
contributions to the principle. 219 Ariz. 550, 555, ¶ 21, 200 P.3d 1047, 1052
(App. 2009).
¶10 The following year, we concluded in Valento that a
community lien should be recognized even if the property decreases in
value during the marriage. 225 Ariz. at 481-83, ¶¶ 12-18, 240 P.3d at
1243-45. There, wife purchased a house before her marriage, but it
became the marital home and community funds were used to pay the
mortgage. Id. at 482-83, ¶ 17, 240 P.3d at 1244-45. Although we remanded
the case after finding that the court had not properly valued the equitable
lien and property at the time of the trial, id. at 482-83, ¶¶ 17-18, 240 P.3d at
1244-45, we noted that the value of the lien formula is determined as: C -
[C/B x D]; where D = depreciation in value of the property during the
marriage, B = value on the date of marriage, and C = community
contributions to principle or market value. Id. at 482, ¶ 16, 240 P.3d at
1244.
¶11 Here, it is clear that Wife acquired the house before the
marriage and that it remains her sole and separate property even though
the couple lived there during the marriage. And, although we do not
have a transcript of the court proceedings, the record reflects that the
court admitted Husband’s resolution statement as an exhibit, which
indicated that community funds were used to pay the mortgage for the
majority of the marriage. Because there was some relevant evidence that
community funds were used to pay the mortgage of Wife’s separate
property, the court was required to impose an equitable lien on the
2There is a strong presumption that all funds acquired by spouses during
marriage are presumed to be community funds. Barr v. Petzhold, 77 Ariz.
399, 409, 273 P.2d 161, 167 (1954); see A.R.S. § 25-211.
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JUENGER v. NYAHAY
Decision of the Court
separate real property for the benefit of the community without regard to
whether the property increased in value. See id. at ¶ 17; Drahos, 149 Ariz.
at 249, 717 P.2d at 928. Accordingly, the determination that the
community did not have an equitable interest in the house because
Husband did not demonstrate an increase in the value of the house was
error. See Valento, 225 Ariz. at 482-83, ¶¶ 14-17, 240 P.3d at 1244-45.
¶12 Husband contends that the community contributed some
$58,000 to pay Wife’s mortgage during the marriage. The court on
remand, however, will have to determine the community’s equitable lien.
First, the court will have to determine the extent that community funds
were used to pay Wife’s mortgage during the marriage. See id. at 482,
¶ 16, 240 P.3d at 1244. Second, the court will have to determine the value
of the community’s equitable lien using one of the formulas set forth in
¶¶ 9 and 10, supra.
IV. Equitable Lien Arising from Home Improvements
¶13 Husband also argues that the court erred by denying his
request to impose a community equitable lien for community funds he
spent on home improvements and maintenance on Wife’s house. We
disagree.
¶14 Before one party can try to impose an equitable lien on real
property for improvements funded by community monies, the party must
show that the improvements increased the value of the property. Tester v.
Tester, 123 Ariz. 41, 44, 597 P.2d 194, 197 (App. 1979).
¶15 Here, even assuming that community funds were spent on
maintenance, utilities, and improvement, there is no evidence in the
record on appeal that any of the improvements increased the value of the
house. Any community funds spent on utilities or regular maintenance
were enjoyed by the parties during the marriage absent proof that the
funds improved the value of the separate property. Cf. id. (noting that the
claimant must show repairs increased the separate property’s value to get
reimbursed for the community’s expenditure). Although Husband sought
the opportunity after trial to meet his burden, he was required to do so
during trial. Because Husband did not meet his burden to prove that the
use of community funds for improvements increased the value of the
house at the time of trial, the court did not abuse its discretion by denying
his claim for an equitable lien.
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Decision of the Court
V. Equitable Lien for Separate Funds
¶16 Husband also contends that he contributed his separate
funds to pay for Wife’s separate obligations and is entitled to an equitable
lien. He does not, however, direct us to the record where the issue was
raised at trial or where the court resolved the issue. See ARCAP 13(a)(5)
(stating that arguments on appeal shall contain “citation to the authorities,
statutes and parts of the record relied on”); see also Baker v. Baker, 183 Ariz.
70, 73, 900 P.2d 764, 767 (App. 1995). And, to the extent that it was raised
and resolved at trial, we presume that the trial transcripts, which were not
filed, support the court’s ruling. Kohler v. Kohler, 211 Ariz. 106, 108 n.1, 118
P.3d 621, 623 n.1 (App. 2005) (citing Baker v. Baker, 183 Ariz. at 73, 900 P.2d
at 767). Consequently, Husband has not established that the court abused
its discretion by refusing to impose an equitable lien for any alleged sole
and separate funds Husband may have used to pay any of Wife’s sole and
separate debts.
VI. Bias
¶17 Husband also wants a new judge on remand. He contends
that the judge was biased because she placed a priority on rushing
through proceedings and did not allow for the fact that Husband was not
familiar with the statutes, rules, case law, and court proceedings. A party
who decides to represent himself is entitled to no more consideration than
if represented by counsel and is to be held to the same familiarity of the
procedures, statutes, and rules as would be attributed to a lawyer. Copper
State Bank v. Saggio, 139 Ariz. 438, 441, 679 P.2d 84, 87 (App. 1983). As a
result, any requirement by the court that the parties had to follow the
rules, case law, statutes, and related items does not constitute bias.
¶18 Moreover, although Husband may not agree with the court’s
rulings, there is nothing in the record on appeal that demonstrates that the
judge was personally biased against him. In the absence of evidence in
the record to the contrary, “a trial judge is presumed to be free of bias and
prejudice.” State v. Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768
(App. 2005) (quoting State v. Hurley, 197 Ariz. 400, 404, ¶ 24, 4 P.3d 455,
459 (App. 2000)) (internal quotation marks omitted). Accordingly,
Husband’s claim of judicial bias fails.
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JUENGER v. NYAHAY
Decision of the Court
CONCLUSION
¶19 Based on the foregoing, we reverse only the ruling denying
Husband an equitable lien on Wife’s separate property because
community funds were used during the marriage to pay her mortgage,
and remand for further proceedings consistent with this decision, but
otherwise affirm the property divisions in the decree.
:MJT
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