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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
BERTHA ALICIA GUTIERREZ, Petitioner/Appellant,
v.
RAMOS EUFEMIO LOPEZ MARTINEZ, Respondent/Appellee.
No. 1 CA-CV 22-0028 FC
FILED 5-4-2023
Appeal from the Superior Court in Maricopa County
No. FN2020-004318
The Honorable Glenn A. Allen, Judge
AFFIRMED
COUNSEL
The Sobampo Law Firm PLLC, Phoenix
By F. Javier Sobampo
Counsel for Petitioner/Appellant
Pena Law Firm, PLLC, Phoenix
By Jorge A. Pena
Counsel for Respondent/Appellee
GUTIERREZ v. MARTINEZ
Decision of the Court
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Vice Chief Judge David B. Gass
joined.
P A T O N, Judge:
¶1 Bertha Alicia Gutierrez (“Wife”) appeals from a decree of
dissolution of marriage between her and Ramos Eufemio Lopez Martinez
(“Husband”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Husband and Wife met in 2011 and began living together
sometime between late 2011 and early 2012. In 2013, three years before they
married, Husband and Wife signed a contract to purchase a house on 5th
Street in Phoenix (“the House”). The deed conveying the House listed only
Husband as grantee. Husband and Wife lived together in the House for a
few months before moving into another home they purchased together;
they then rented out the House. The couple married in 2016, and Wife
petitioned for divorce in 2020.
¶3 Wife conceded the House was not community property but
claimed she had an interest in it based on an alleged agreement with
Husband to combine financial resources and jointly purchase properties.
She relied on Cook v. Cook, 142 Ariz. 573 (1984) (holding in part that
unmarried cohabiting couples could enter enforceable agreements to pool
their income and divide assets), and Carroll v. Lee, 148 Ariz. 10 (1986)
(holding in part that service to a shared household can be sufficient
consideration to support an implied agreement between unmarried
cohabitants to jointly acquire and own property) to support her contract
theory and argued the cases were relevant to her claim both in her
pleadings and at trial. Husband argued that the House was his sole and
separate property.
¶4 Wife claimed she and Husband each paid approximately half
of the $22,000 purchase price of the House, including a $10,000 down
payment, using funds from joint bank accounts. Wife testified in support
of her claims and introduced as evidence the purchase contract, a bank
2
GUTIERREZ v. MARTINEZ
Decision of the Court
statement showing a $10,000 withdrawal from a joint account shared by the
parties, and “money receipts” signed by the seller of the House stating he
received payments totaling $19,000 from the parties. In 2021, before the
dissolution trial was set, Wife filed a separate civil lawsuit against Husband
asserting an interest in the House.
¶5 The superior court assigned the House to Husband as his sole
and separate property in the dissolution decree. Wife appeals. We have
jurisdiction under Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) Sections 12-120.21(A)(1)
and -2101(A)(1).
DISCUSSION
¶6 Wife argues that the superior court erred by “failing or
refusing to apply” the legal analysis of Cook and Carroll to resolve her
contract claim. Husband responds that the court did not err because the
parties had no contract to jointly own the House.
¶7 Specifically, Wife claims the following sentence in the
dissolution decree supports her contention that the court failed to resolve
her contractual claim: “Even at trial, counsel for Wife noted [disposition of
the House] was a contract issue, and not a family court issue, which was
why there was a civil case between the parties at the time of the dissolution
trial.” We disagree.
¶8 As Arizona’s “single unified trial court of general
jurisdiction,” Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102 (1995), the
superior court has original jurisdiction over both divorces and cases
involving title to real property, Ariz. Const. art. 6, § 14(2) (real property)
and (9) (divorce). Thus, a “domestic relations court” may decide “a contract
action [requiring] the adjudication of separate property interests,” and it
must do so when the outcome of that adjudication is intertwined with the
equitable distribution of a divorcing couple’s property. Roden v. Roden, 190
Ariz. 407, 409–10 (App. 1997) superseded in part by statute, 1996 Ariz. Sess.
Laws, ch. 145, § 9. (adding the reasonableness of parties’ positions as a
factor to consider in awarding attorneys’ fees in a dissolution action). A
dissolution court must equitably distribute not only community property
but also any separate property “held in common” between the spouses
during a dissolution proceeding. A.R.S. § 25-318(A); see also Toth v. Toth, 190
Ariz. 218, 219–20 (1997) (holding that separate joint-tenancy property
should be equitably distributed in the same manner as community property
under Section 25-318(A)).
3
GUTIERREZ v. MARTINEZ
Decision of the Court
¶9 Accordingly, the superior court’s failure or refusal to consider
Wife’s contract claim here would be an abuse of discretion. See Roden, 190
Ariz. at 409–10. But we must presume that the superior court knew and
correctly applied the law. See State v. Trostle, 191 Ariz. 4, 22 (1997).
¶10 Wife had the burden to prove the existence of the contract she
alleged. Cf. Tabler v. Indus. Comm’n of Ariz., 202 Ariz. 518, 521, ¶ 12 (App.
2002) (noting the party asserting the existence of an oral contract has the
burden of proof); Thomas v. Montelucia Villas, LLC, 232 Ariz. 92, 96, ¶ 16
(2013) (noting plaintiff in contract action has burden to prove contract’s
existence). The superior court assigned the House to Husband as his sole
and separate property, which necessarily implies that the court determined
Wife did not carry her burden. Because neither party requested that the
superior court make specific findings of fact or conclusions of law, we
assume the court found the alleged contract did not exist. See Ariz. R. Fam.
Law. P. 82(a)(1) (requiring the court to make express findings of fact and
conclusions of law “[i]f requested before trial”); Bender v. Bender, 123 Ariz.
90, 92 (App. 1979) (articulating standard of appellate review in absence of
request pursuant to Rule 82(a)(1)). We will affirm the resulting decree if
reasonable evidence supports that implicit finding. See Bender, 123 Ariz. at
92.
¶11 Husband denied any agreement to jointly own the House
with Wife. He testified that he used only his funds to purchase the House.
Husband denied that the receipts Wife introduced accurately reflected
payments made for the House, alleging inconsistencies in them. He also
provided the title to the House, which listed only him as grantee, as
evidence in support of his position. Although the parties provided
conflicting evidence as to the House’s ownership and the existence of the
alleged agreement, we defer to the superior court’s determination of
witness credibility and its weighing of the evidence. See Gutierrez v.
Gutierrez, 193 Ariz. 343, 347–48, ¶ 13 (App. 1998). Reasonable evidence
supported the court’s finding that no contract existed and assignment of the
House to Husband as his sole and separate property.
¶12 Both parties request attorneys’ fees under Section 25-324. In
the exercise of our discretion, we decline to award attorneys’ fees to either
party. As the prevailing party, Husband is entitled to his taxable costs on
appeal after his compliance with Arizona Rules of Civil Appellate
Procedure 21.
4
GUTIERREZ v. MARTINEZ
Decision of the Court
CONCLUSION
¶13 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
5