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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             ROBERT BALDWIN,
                              Petitioner/Appellee,

                                        v.

                              LYNN BALDWIN,
                             Respondent/Appellant.

                           No. 1 CA-CV 16-0186 FC
                                FILED 4-20-2017


           Appeal from the Superior Court in Maricopa County
                          No. FN2015-002466
              The Honorable Ronee Korbin Steiner, Judge

                                  AFFIRMED


                                   COUNSEL

Robert Baldwin, Friday Harbor, WA
Petitioner/Appellee

Law Offices of David W. Dow, Phoenix
By David W. Dow
Counsel for Respondent/Appellant
                          BALDWIN v. BALDWIN
                           Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1           Lynn Baldwin ("Wife") appeals the superior court's decree
dissolving her marriage to Robert Baldwin ("Husband"). For the following
reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The parties were married in August 2012; Husband filed a
petition for dissolution in March 2015. The superior court held a one-day
trial to resolve the parties' competing claims to certain bank accounts, real
property and personal property. Following entry of the decree, Wife filed
a motion for new trial, or alternatively, for judgment notwithstanding the
verdict. The superior court denied Wife's motion.

¶3            We have jurisdiction of Wife's timely appeal pursuant to
Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2017) and -2101(A)(1) (2017).1

                               DISCUSSION

¶4            Wife contends the superior court erred in characterizing as
community property certain bank accounts, an apartment complex, and a
parcel of vacant land, and in distributing some construction tools to
Husband. The rule is that "[a] spouse's real and personal property that is
owned by that spouse before marriage and that is acquired by that spouse
during the marriage by gift, devise or descent, and the increase, rents, issues
and profits of that property, is the separate property of that spouse." A.R.S.
§ 25-213(A) (2017). Of equal importance is the principle that "[a]ll property
acquired by either husband or wife during the marriage is the community
property of the husband and wife except for property that is . . . [a]cquired
by gift, devise or descent." A.R.S. § 25-211(A)(1) (2017). "We will not
disturb the court's distribution of community property absent an abuse of

1     Absent material revision after the relevant date, we cite a statute's
current version.



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                          Decision of the Court

its discretion." Hetherington v. Hetherington, 220 Ariz. 16, 21, ¶ 18 (App.
2008).2

A.    The Bank Accounts.

¶5           The parties presented evidence concerning three bank
accounts: The "Harvard" account, a Chase Bank account and the "Yarn
Place" account. Husband did not contest Wife's assertion that the Yarn
Place account was her sole and separate property; the superior court found
the Harvard and Chase accounts were community property.

¶6             Taking up the Harvard account first, Wife does not dispute
that she and Husband opened the Harvard account during the marriage as
a construction account to pay for improvements to the apartment complex,
that the owner of the Harvard account was Harvard Courtyard, L.L.C., and
that the sole members of Harvard Courtyard, L.L.C. are Husband and Wife.

¶7             Wife, however, argues the bulk of the monies in the Harvard
account came from deposits or transfers from her sole and separate funds.
At trial, she testified she deposited into the Harvard account the proceeds
of her sales of jewelry, stock and life insurance, but she did not point to
specific bank records showing such transfers from her sole and separate
account to the Harvard account. She also conceded that earnings Husband
received from working for her sister during the marriage went into the
Harvard account, and that funds from the Harvard account went to pay for
community expenses during the marriage. At trial, Husband offered
canceled checks he wrote on his personal account to Harvard Courtyard,
L.L.C.

¶8            As for the Chase account, Wife testified that account
originally had been her sole account, but that at the suggestion of
Husband's accountant, she added Husband's name to the account so that
their tax refunds could be automatically transferred into the account. 3 She
testified Husband had said he would agree to have his name removed from


2      On review, we view the evidence in the light most favorable to
upholding the decision of the superior court regarding the characterization
of the property as community or separate. Sommerfield v. Sommerfield, 121
Ariz. 575, 577 (1979).

3      Notwithstanding Wife's concession that the account was held in both
parties' names, bank statements offered in evidence reflected only Wife's
name.


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                           Decision of the Court

the Chase account after the tax refunds were received, but later declined to
do so. As with the Harvard account, the source of the funds in the Chase
account was unclear from the evidence the parties offered at trial. Wife
offered little evidence to support her contention that the account should be
characterized as her sole and separate property; Husband offered little
evidence to support his contention that the account was community
property.

¶9            The superior court found that both the Harvard and Chase
accounts were community property. It found that the parties paid
community expenses from the Chase account, that Husband's earnings
were placed into the two accounts, and that "[m]onies were moved between
these accounts freely." In addition, the court found that Wife was unable to
trace deposits of her separate funds into the accounts, and further found
that, contrary to Wife's assertion, the amount of community funds
deposited into the accounts was not negligible.

¶10            The record does not demonstrate an abuse of discretion by the
superior court. "Where community property and separate property are
commingled, the entire fund is presumed to be community property unless
the separate property can be explicitly traced." Porter v. Porter, 67 Ariz. 273,
281 (1948); accord Guthrie v. Guthrie, 73 Ariz. 423, 426 (1952); Bourne v. Lord,
19 Ariz. App. 228, 231 (1973).

¶11          It is true, as Wife asserts, that if the amount of community
funds deposited into a previously separate account is negligible compared
to deposits of separate funds, the account may retain its character as
separate property. Noble v. Noble, 26 Ariz. App. 89, 95-96 (1976). As the
party seeking to rebut the presumption that arises from commingling such
as occurred here, Wife bore the burden of proof by clear and satisfactory
evidence. Cooper v. Cooper, 130 Ariz. 257, 259-60 (1981).

¶12          The record supports the superior court's conclusion that Wife
did not meet her burden to rebut the presumption that the accounts were
community property. Although Wife argues that she funded those
accounts exclusively or substantially with her sole and separate funds, we
have searched the record but are unable to discern evidence that would
support her attempt to trace the funds or even to compare the respective
sources of deposits into the funds.

¶13          Wife also argues that although the Chase account was in both
parties' names, the account was hers before the marriage and she placed
Husband's name on the account solely for tax purposes. Nevertheless, the



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                            Decision of the Court

record supports the superior court's finding that funds in the Chase account
were commingled beyond the point at which the monies could be traced.

B.     The Apartment Complex.

¶14          Wife purchased an apartment complex on 36th Street in
Phoenix before the marriage. The superior court found the community
contributed $426,000 in improvements to the complex during the marriage.
At trial, Husband did not dispute that the property was Wife's sole and
separate property, but argued that the community was entitled to a lien
arising from the community's contribution to the improvements. The
superior court ruled the community was entitled to a lien of $339,184, based
on the community's contributions of Husband's labor and community
funds to purchase materials and equipment for the improvements.

¶15           Wife testified she funded the entire $426,000 in improvements
using her sole and separate property and that Husband did not contribute
significant labor, if any, to the improvements. The superior court heard
evidence that Husband bought some (perhaps most) of the materials and
equipment used for the improvements; Wife testified she paid those
expenses directly or reimbursed Husband for expenses when he wrote
checks. Husband testified he worked as a contractor on the improvements,
and further testified that materials and equipment were paid for with
community funds, mostly from the Harvard account.

¶16            When the community contributes capital to a sole and
separate property, it may acquire an equitable lien against that property.
Tester v. Tester, 123 Ariz. 41, 43 (App. 1979); see also Drahos v. Rens, 149 Ariz.
248, 249-50 (App. 1985). On the other hand, if a party contesting such a lien
can trace the funds and prove by clear and convincing evidence that the
capital came solely from separate funds, no lien arises. Cf. Cooper, 130 Ariz.
at 259-60; Noble, 26 Ariz. App. at 95-96.

¶17           Wife argued that monies paid from the Harvard and Chase
accounts toward the improvements originally came from her sole and
separate Yarn Place account, but, as noted above, she offered insufficient
evidence to allow the superior court to trace those funds. The superior
court also found that Wife offered insufficient evidence to show that she
made payments directly from her Yarn Place account toward the
improvements. As the court found, the Harvard and Chase accounts were
community property, and in the absence of sufficient evidence of tracing,
the court did not err in concluding that the community funded the
improvements to the apartment complex. As noted, the court further found



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that Husband contributed "sweat equity" to the property by acting as a
contractor on the improvements.

¶18           In calculating the amount of the lien to which the community
was entitled because of the improvements, the superior court correctly
applied the formula set out in Drahos, 149 Ariz. at 250. Wife does not
dispute the court's application of the formula in general, but argues the
court erred because it did not consider the fact that she paid $76,000 to
improve the property before the marriage. The court heard expert appraisal
evidence of the value of the property at the time of the marriage and at the
time of the petition. The court's findings as to the value of the property at
the time of the marriage and the amount by which the property increased
in value over the life of the marriage necessarily took into account the
amount by which Wife's pre-marriage contribution of $76,000 in
improvements actually enhanced the property.

C.     The Vacant Land.

¶19           The parties purchased a parcel of vacant land during their
marriage and took title in the name of their joint company, Harvard
Courtyard, L.L.C. Wife testified that the money to pay for the property
came from the sale of another parcel that she owned as sole and separate
property. The superior court found it was unable to trace the funds through
the accounts from the sale of Wife's separate property to the purchase of the
vacant land at issue.

¶20          "All property acquired by either husband or wife during the
marriage is the community property of the husband and wife except for
property that is . . . [a]cquired by gift, devise or descent." A.R.S. § 25-
211(A)(1). Moreover, even when separate funds are used to purchase real
property during the marriage, when title is taken in the names of both
husband and wife, the presumption is that the property is owned by the
community. Sommerfield v. Sommerfield, 121 Ariz. 575, 578-79 (1979). The
record supports the superior court's conclusion that Wife failed to rebut the
presumption that the vacant land is community property.

D.     Wife's Withdrawals from the Accounts.

¶21            It was undisputed that, at about the time the parties separated
(and just before Husband filed the petition for dissolution), Wife withdrew
a total of $47,786.49 from the Harvard and Chase accounts and placed the
money in her Yarn Place account. The superior court found that Wife
improperly withdrew those funds from the community accounts and



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                          Decision of the Court

ordered her to reimburse Husband $23,893.25 for his share of the
withdrawals.

¶22           At trial, Wife argued the monies she withdrew were in
repayment of a prior loan she had made to the community. But she offered
no evidence of such a loan or other evidence to support her contention that
the withdrawals were intended to repay such loan. Having affirmed the
court's finding that the accounts from which Wife withdrew the money
were community property, we also affirm the court's order requiring Wife
to pay Husband for his share of the community funds she withdrew.

E.    The Tools.

¶23           Wife testified she purchased certain unspecified tools with
her sole and separate funds. Husband testified some of the tools were his
but did not specify which ones. Neither party provided an inventory or
appraisal of the tools or any evidence clearly demonstrating when they
were acquired or the source of the funds to acquire them. The superior
court awarded two storage containers used for the Yarn Place business to
Wife and all the tools to Husband as a fair and equitable distribution. We
cannot conclude the court abused its discretion in those rulings.

F.    The Denial of the Motion for a New Trial.

¶24           In her post-trial motion, Wife reiterated the arguments she
made during trial. She argued the superior court disregarded evidence
offered to prove that her sole and separate funds paid for the improvements
to the apartment complex. She also argued the court erred in characterizing
the Harvard and Chase accounts as community property. Contrary to
Wife's contention, we do not see any indication in the record that the court
did not consider all the exhibits Wife presented. Therefore, the court did
not err by denying Wife's motion.




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                        BALDWIN v. BALDWIN
                         Decision of the Court

                             CONCLUSION

¶25          For the foregoing reasons, we affirm the decree and the denial
of Wife's motion for a new trial.




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




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