                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                              PHILLIP DOLE, Petitioner,

                                        v.

 THE HONORABLE MICHAEL BLAIR, Judge of the SUPERIOR COURT
  OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
                       Respondent Judge,

                  DALYNNE DOLE, Real Party in Interest.

                             No. 1 CA-SA 20-0001
                               FILED 2-11-2020


 Petition for Special Action from the Superior Court in Maricopa County
                            No. FC2018-005549
                    The Honorable Michael Blair, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                                   COUNSEL

Berkshire Law Office PLLC, Tempe
By Keith Berkshire, Kristi A. Reardon, Alexandra Sandlin
Counsel for Petitioner
Woodnick Law PLLC, Phoenix
By Markus W. Risinger
Co-Counsel for Real Party in Interest

Tyler Allen Law Firm PLLC, Phoenix
By Kelsey McKay Nordahl
Co-Counsel for Real Party in Interest



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.


C R U Z, Judge:

¶1            Phillip Dole (“Father”) seeks special action relief from the
superior court’s decree of dissolution. For the reasons that follow, we
accept jurisdiction and grant relief.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Father and Dalynne Dole (“Mother”) were married for
twenty-four years when Mother filed for divorce. The parties have six
children together, four of whom are minors. Father is an engineer, earning
a base salary of $127,000 with an annual bonus. Mother stayed at home
with the children, and Mother did not work outside the home throughout
the entirety of the marriage. The parties’ primary assets included two
parcels of real property, the marital residence and a residence used as a
rental property.

¶3            While the dissolution was pending, Mother remained in the
marital residence with the children and Father moved into the rental
property. Neither Mother nor Father had the properties appraised. Both
Father and Mother testified at trial that there is about $200,000 in equity in
the marital residence and about $100,000 in equity in the rental property.
There is about $236,810.56 owed on the marital residence, and the monthly
mortgage payment is $1,313.65. There is about $197,766.51 owed on the
rental property, and the monthly mortgage payment is $1,228.56.

¶4            Following trial, the superior court allocated parenting time
and   legal   decision-making authority, awarded Mother spousal


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                        DOLE v. HON. BLAIR/DOLE
                           Decision of the Court

maintenance and child support, and divided the parties’ property,
including the two parcels of real property. The superior court awarded the
marital residence and rental property to Father and Mother as joint tenants
with right of survivorship. Mother was granted exclusive use of the marital
residence, with sole responsibility for all mortgage, HOA, utilities, and
other expenses related to the marital residence. Similarly, Father was
granted exclusive use of the rental property, with sole responsibility for all
mortgage, HOA, utilities, and other expenses related to the rental property.
The court further ordered that, unless the parties agreed to sell the
properties sooner, Father and Mother were to sell the marital residence and
rental property no later than October 31, 2025 (a few months after the
youngest child graduates high school). All net equity at the time of each
sale would then be divided equally between the parties at the close of
escrow.

¶5            Father filed a Request to Alter/Amend Ruling on November
1, 2019, and the superior court denied his request. Father then filed the
instant special action petition.

                    SPECIAL ACTION JURISDICTION

¶6             Special action review is generally appropriate when there is
no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P.
Spec. Act. 1(a); see generally Sw. Gas Corp. v. Irwin ex rel. Cty. of Cochise, 229
Ariz. 198, 201, ¶¶ 5-7 (App. 2012). However, “jurisdiction is frequently
accepted when under no rule of law can a trial court’s actions be justified.”
King v. Superior Court (Bauer), 138 Ariz. 147, 149-50 (1983). “This court’s
decision to accept special action jurisdiction is discretionary, and the
exercise of jurisdiction is appropriate when the issue involved is one of law
and of statewide importance.” State ex rel. Montgomery v. Rogers, 237 Ariz.
419, 421, ¶ 5 (App. 2015); see Sw. Gas Corp., 229 Ariz. at 201, ¶ 7.

¶7            The superior court abused its discretion and committed an
error of law by requiring Father and Mother to own the two pieces of real
property as joint tenants with right of survivorship for six years following
the dissolution of their marriage. Under these circumstances, we agree
there is no “equally plain, speedy, and adequate remedy by appeal,” and
therefore accept jurisdiction.

                                DISCUSSION

¶8           Father argues that the superior court violated his property
rights and inheritance rights by using a “best interests of the children”
standard in dividing community property and ordering that the parties


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                       DOLE v. HON. BLAIR/DOLE
                          Decision of the Court

continue to own real estate as joint tenants with right of survivorship
beyond their date of divorce. The apportionment of community property
in a dissolution proceeding rests within the discretion of the superior court,
and we will not disturb it absent an abuse of discretion. Hatch v. Hatch, 113
Ariz. 130, 133 (1976); Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005). A
court abuses its discretion when it commits an error of law in exercising its
discretion. Kohler, 211 Ariz. at 107, ¶ 2.

¶9            Arizona Revised Statute (“A.R.S.”) section 25-318 directs the
court to divide community and jointly held property equitably upon
dissolution of the marriage; a substantially equal division is not required if
“sound reason exists to divide the property otherwise.” Toth v. Toth, 190
Ariz. 218, 221 (1997). Our supreme court has found “equitable” to be “a
concept of fairness dependent upon the facts of particular cases.” Id. In
arriving at an equitable distribution of property, the court may consider the
enumerated factors under A.R.S. § 25-318, which include debts or
obligations relating to the property, excessive or abnormal expenditures,
destruction, concealment or fraudulent disposition. A.R.S. § 25-318(B)-(C).
Additionally, the court may consider non-enumerated factors, including
the source of funds and “other equitable factors as they may bear on the
outcome” of equitable allocation. Toth, 190 Ariz. at 222. Regardless, the
court must divide any community property at dissolution. A.R.S. § 25-
318(A).

¶10            Here, the superior court did not immediately divide the real
property between the parties. Instead, the court ordered the parties
continue to jointly own the two properties for the next six years and that, in
the event of either party’s death, the other shall inherit the deceased’s
interest in both properties. In other words, if Father were to die during the
six years of co-ownership, Mother would inherit both properties outright.
The court arrived at this resolution out of consideration for the children’s
best interests and Mother’s request that she not be made to move them out
of the only home they have ever known.

¶11           Though divorce brings about changes that can be stressful for
the children of the marriage and Mother’s concern is real, A.R.S. § 25-318 is
clear in its mandate that community property must be divided on
dissolution of the marriage. Moreover, the best interests of the children are
not factors the superior court may use to deprive either party of their right
to control and dispose of their separate property. The Arizona Supreme
Court was clear when, in Koelsch v. Koelsch, 148 Ariz. 176, 181 (1986), it
reasoned that “[w]hen the community property is divided at dissolution
pursuant to the mandate of A.R.S. § 25-318, each spouse receives an


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                       DOLE v. HON. BLAIR/DOLE
                          Decision of the Court

immediate, present, and vested separate property interest in the property
awarded to him or her by the trial court.”

¶12           Mother relies on In re Marriage of Berger for the proposition
that the children’s interests may be expressly considered when dividing
property in divorce. 140 Ariz. 156, 168 (App. 1983). However, in In re
Marriage of Berger, this court held that any unequal award of household
furnishings to the wife was proper because “[s]he paid for the property
with her separate funds and the furniture and furnishings were necessary
to maintain the house in a suitable condition as a home for the children
whose custody she was awarded.” Id. Additionally, the Berger court held
the wife’s “separate funds were the major source for the support of the
family, including the husband, during the marriage.” 140 Ariz. at 168.

¶13           It is not improper for a court to consider the parties’ children
in the overall decision of which party should be awarded a given piece of
property; however, in doing so, the court may not impinge on either party’s
property interests. Pursuant to A.R.S. § 25-318, the community property is
divided at dissolution, each party is awarded that disposition as their
separate property, and “a former spouse loses any interest in and control
over that separate property.” Koelsch, 148 Ariz. at 181. Here, the court
expressly found that “selling the properties now and dividing the equity in
them may be best for the parents,” but “forcing the children to move is not
what is best for them.” The court’s decision in distributing the marital
residence and rental property rested primarily on what the court believed
to be the children’s best interests, but it deprived both parties of their
interests in their separate property for six years after the divorce was
finalized. Following dissolution of Mother and Father’s marriage, Father’s
interest in the marital residence and rental property became his separate
property, and Mother should have lost any interest and control over that
separate property.

¶14           It was improper for the superior court to use the “best
interests of the children” as the deciding factor in the distribution of
Mother’s and Father’s property. Although a court has broad discretion in
allocating property following the dissolution of a marriage, it “has no
authority to compel either party to divest himself or herself of [t]itle to
separate property.” Proffit v. Proffit, 105 Ariz. 222, 224 (1969). The court
committed reversible error when it trumped the children’s interests over
Father’s property rights.

¶15          We recognize the superior court enjoys discretion to divide
property equitably, such as by ordering it be sold, even if the sale may occur


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                       DOLE v. HON. BLAIR/DOLE
                          Decision of the Court

some reasonable time after the superior court signs the dissolution decree.
That situation often arises by necessity, since usually it is impossible to
complete the sale of real estate immediately after the signing of a divorce
decree. The flaw here in the instant case is two-fold, however. The division
of the interest of the community property denies both parties control over
their sole and separate property after the dissolution, denying them their
statutory right to seek partition, and it does so for the next six years, unless
Mother agrees to sell the properties sooner. See A.R.S. § 12-1211. Also, by
ordering a right of survivorship provision, the superior court denies both
parents control over the disposition of their sole and separate property
upon their death.

¶16            Father requests we reverse the superior court’s orders
requiring that the parties own the two real estate properties as joint tenants
with right of survivorship, and that we order the sale of said real estate and
equal division of the proceeds. Mother contends that such an order risks
inequity because it will disturb the complex machinery of the decree.
However, in its ruling, the superior court found that “this case does not
present a unique set of facts or circumstances. Therefore, an equal division
of community property is appropriate to achieve equity.” The court also
found that the “allocation of the real and personal property, when
considered with the division of debt, is fair and equitable under the
circumstances” bearing some equalization adjustments where Father was
ordered to pay Mother a total of $13,675 in offsets and reimbursements.
Based on these findings, and the court’s effort to divide the property
equally, the only legally permissible outcome is that the properties be sold,
and the proceeds divided equally between the parties.

¶17           Accordingly, we grant relief by reversing the superior court’s
order requiring that the parties own the two real estate properties as joint
tenants with right of survivorship. We remand to the superior court for
further orders requiring that the two properties common to the parties be
sold and the net proceeds be divided equally. The court shall direct that
the parties hold title as tenants in common during the pendency of the sale.

                               CONCLUSION

¶18           We accept jurisdiction and grant relief. Father requests his
reasonable attorneys’ fees pursuant to A.R.S. § 25-324, and costs on appeal.
More specifically, Father argues Mother took an unreasonable position at
trial and that Mother’s appellate arguments were not made in good faith.
Having considered the financial positions of the parties and given Mother’s
unsupported position on the law regarding disposition of community


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                      DOLE v. HON. BLAIR/DOLE
                         Decision of the Court

property, in the exercise of our discretion and under A.R.S. § 25-324(B)(2),
we grant Father a partial award of his reasonable attorneys’ fees. As the
prevailing party, Father is entitled to recover his costs on appeal upon
compliance with ARCAP 21.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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