NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
TIFFANY MARIE SCHEIRER,
Petitioner/Appellee,
v.
JERRY SCHEIRER,
Respondent/Appellant.
No. 1 CA-CV 21-0272 FC
FILED 2-1-2022
Appeal from the Superior Court in Maricopa County
No. FN2019-095698
The Honorable Joan M. Sinclair, Judge
AFFIRMED
COUNSEL
Law Office of Julie Gunnigle, PLLC, Scottsdale
By Julie R. Gunnigle
Counsel for Petitioner/Appellee
Bautista Law Group, PLLC, Chandler
By Lindsay Bautista
Co-Counsel for Respondent/Appellant
The Murray Law Offices, PC, Scottsdale
By Stanley D. Murray
Co-Counsel for Respondent/Appellant
SCHEIRER v. SCHEIRER
Decision of the Court
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.
W E I N Z W E I G, Judge:
¶1 Jerry Scheirer (“Husband”) appeals from the family court’s
dissolution decree ending his marriage to Tiffany Marie Scheirer (“Wife”).
He contests the court’s characterization and division of debts and assets,
and denial of his request for attorney fees. We find no error and thus affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Husband and Wife married in November 2006. In December
2019, thirteen years later, Wife petitioned to dissolve the marriage and
vacated the marital home. Husband remained in the home and continued
to live there. He assured Wife he would purchase her share of the home’s
equity after he refinanced the mortgage.
¶3 Two months later, Wife moved for a temporary order
directing Husband to vacate the home so it could be sold. The family court
denied Wife’s motion, awarding Husband temporary use of the home.
¶4 The dissolution action was tried in February 2021. Husband
had still not refinanced the mortgage. The court heard testimony from
Husband, Wife and a loan officer who corresponded with Husband. A
week later, the court issued the dissolution decree, ordering the parties to
sell the marital home and share the proceeds equally. The court also
divided Husband’s retirement account, apportioned the community’s
credit card debt, and denied attorney fees to either party because no
financial disparity existed and both parties had “acted unreasonably in the
litigation.” The court denied Husband’s motion to alter or amend the
decree. Husband appeals. We have jurisdiction. See A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Division of Community Property
¶5 Husband appeals the family court’s division of community
property. We review the court’s decision for an abuse of discretion,
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SCHEIRER v. SCHEIRER
Decision of the Court
Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007), and will affirm
the decision unless it is unsupported by record evidence or the court legally
erred, Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012). We view the evidence
in the light most favorable to the court’s rulings, deferring to its factual
findings unless clearly erroneous. See Gutierrez v. Gutierrez, 193 Ariz. 343,
346, ¶ 5 (App. 1998).
The Marital Home
¶6 Husband argues the family court abused its discretion by
ordering the parties to sell the marital home and equally divide the
proceeds because he wanted to refinance and acquire the home.
¶7 A family court must divide the community property
“equitably, though not necessarily in kind.” A.R.S. § 25–318(A). To
facilitate an equitable distribution, the court can order the sale of
community property. See Lee v. Lee, 133 Ariz. 118, 121 (App. 1982) (“The
trial court’s broad discretionary powers include the power to order a sale
of community property when it will facilitate the equitable division of the
property.”).
¶8 No abuse of discretion occurred here. After hearing the
evidence and argument, the court ordered the parties to sell the marital
home and equally share the sales proceeds, which meant that Husband
needed to move out. The court heard testimony from Husband, Wife and
a loan officer who corresponded with Husband. More than a year after
Wife petitioned for dissolution, she remained a couch nomad; and because
her debt-to-income ratio was tied to the marital home, she could not buy a
new home until the marital home was sold. Wife also testified that an
immediate sale would maximize the community’s return on the marital
home. She works as a real estate loan officer. The record includes
reasonable evidence to support the court’s distribution. See Baum v. Baum,
120 Ariz. 140, 142 (App. 1978) (“[T]he distribution of marital property is left
to the sound discretion of the trial court and will not be disturbed unless
clearly erroneous.”).
¶9 Husband also argues we should reverse the order because the
court punished him in violation of A.R.S. § 25-318(A). This argument fails,
too. Section 25-318(A) only requires the family court to apportion
community property “without regard to marital misconduct,” which the
court did here. Nor was Husband punished because he possessed no right
to refinance the mortgage or acquire the home. See A.R.S. § 25-318(A); Lee,
133 Ariz. at 121 (explaining “[t]he only inherent limitation on the power of
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SCHEIRER v. SCHEIRER
Decision of the Court
the trial court to apportion community property” is that the division be
substantially equal).
Retirement Account
¶10 Husband next challenges the family court’s division of his
retirement account assets. The decree ordered an equal division of
$56,192.51 in the retirement account, which represented the total retirement
assets when the petition for dissolution was served.
¶11 Husband argues the court distributed an inflated sum,
$56,192.51, and should have “deduct[ed] the funds” he spent “for the
ongoing payment of community expenses from the retirement account
balance at the time of termination of the community.” But Husband waived
this argument when he asked the court to distribute the same amount—
$56,192.51—both in his pretrial statement and testimony.
Credit Card Debt
¶12 Husband contends the court erroneously held the community
responsible for $2,000 in credit card payments made to Wife’s attorney in
the weeks and months before she petitioned for dissolution.
¶13 Arizona law presumes that debts incurred during marriage
are community debt unless clear and convincing evidence shows one
spouse did not intend to benefit the community when he or she incurred
the debt. See Cardinal & Stachel, P.C. v. Curtiss, 225 Ariz. 381, 383-84, ¶¶ 6-7
(App. 2010).
¶14 Because Husband never rebutted the presumption, we affirm.
Husband presented no evidence, much less clear and convincing evidence,
that Wife did not intend to benefit the community when she incurred the
attorney fees. See Schlaefer v. Fin. Mgmt. Serv., Inc., 196 Ariz. 336, 339, ¶ 10
(App. 2000) (clear and convincing evidence is required to overcome
presumption pre-petition debts are intended to benefit the community and
thus community obligations). And we have recognized that a spouse’s pre-
petition expenditure of attorney fees may benefit the community by
facilitating “the orderly and lawful division of assets.” Id. at 384, ¶ 10.
“[T]he fact that attorney fees may benefit the client spouse more than the
community as a whole is not determinative; rather, there need only be some
intent to benefit the community. If such intent exists, the attorney fees can
be a community debt, despite the fact the proceeding in which they are
incurred ultimately will divide the community assets and terminate the
community.” Id.
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SCHEIRER v. SCHEIRER
Decision of the Court
II. Attorney Fees
¶15 And last, Husband appeals the family court’s denial of his
request for attorney fees, arguing he deserved fees because Wife enjoys a
substantial financial disparity and he never took unreasonable positions.
We review for an abuse of discretion. Lehn v. Al-Thanayyan, 246 Ariz. 277,
286, ¶ 29 (App. 2019). The family court has discretion to grant attorney fees
“after considering the financial resources of both parties and the
reasonableness of the positions each party has taken throughout the
proceedings.” A.R.S. § 25-324(A).
¶16 The court did not abuse its discretion. It found “no
substantial disparity of financial resources between the parties,” and
concluded that both parties “acted unreasonably in the litigation.” The
record has reasonable evidence to support both findings. See In re Marriage
of Williams, 219 Ariz. 546, 549, ¶ 14 (App. 2008) (noting the determination
of the parties’ financial resources and reasonableness is left to the sound
discretion of the family court). A “trial court may consider a party’s
settlement position in determining reasonableness under” this statute.
Gutierrez, 193 Ariz. at 351, ¶ 34.
CONCLUSION
¶17 We affirm the decree of dissolution. Both parties request an
award of attorney fees on appeal under A.R.S. § 25–324. We exercise our
discretion to deny both requests after considering the resources and
reasonableness of the parties. Wife is awarded her costs on appeal upon
compliance with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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