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Wasserman v. Moya

Court of Appeals of Arizona, First Division, Department B

July 25, 2013

JEFF WASSERMAN, Petitioner/Appellee,
v.
CRYSTAL MOYA, Respondent/Appellant.

(Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County Cause No. FN2011-092048 The Honorable James P. Beene, Judge

Owens & Perkins, P.C. Scottsdale by Max Nicholas Hanson Attorneys for Petitioner/Appellee.

Law Offices of Stone & Davis, P.C. Scottsdale by Kiilu Davis Attorneys for Respondent/Appellant.

MEMORANDUM DECISION

SAMUEL A. THUMMA, Judge

¶1 Crystal Moya (Wife) appeals from the superior court's decree of dissolution of her marriage to Jeff Wasserman (Husband). Finding no error, the decree is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Wife and Husband married on October 17, 2008. Husband filed for divorce in May 2011, serving Wife on June 8, 2011. They have no children and the sole issues raised on appeal are financial.

¶3 Wife was in a car accident in 2006, which resulted in allegations of numerous health issues, including nerve damage, neurological disorders, diabetes and hypothyroidism. Wife has an extensive pre-accident work history as a dental assistant and office manager, but has not worked since November 2008 and contends she has not been cleared to work by her treating physicians. Wife applied for disability insurance benefits with the Social Security Administration, and in a mid-2011 decision issued following an evidentiary hearing, the Administrative Law Judge (ALJ) found "the functional limitations resulting from [Wife's] impairments are less serious than she has alleged" and "do not prevent her from engaging in all work related activities."

¶4 Husband is an account manager earning, on average, $76, 000 per year.

¶5 Wife sought temporary orders that she be awarded exclusive possession of the marital home and that Husband pay all community obligations for the home as well as Wife's living expenses, $2, 500 in monthly spousal maintenance and Wife's attorneys' fees. After a hearing, the superior court issued temporary orders providing Wife exclusive possession of the home and ordering Husband to pay all community obligations for the home and $500 in monthly spousal maintenance to Wife.

¶6 After a March 2012 trial, the superior court entered a detailed, 10-page dissolution decree that includes the orders Wife challenges on appeal. This court has jurisdiction of Wife's timely appeal pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (West 2013).[1]

DISCUSSION

A. Disposition of Community Assets.

1. Sports memorabilia.

¶7 Husband possessed sports memorabilia, most of which he acquired prior to the marriage. At trial, the superior court received an exhibit inventorying items Husband claimed were sole and separate property. Husband testified that only three of the items on the five-page list were purchased during the marriage: a wrestling ring toy, a wrestling hat and a bubble hockey table. The total value of those three items was $135. The superior court awarded Husband all of the items listed, including the three purchased during the marriage.

¶8 Pursuant to A.R.S. § 25-211(A), "[a]ll property acquired by either husband or wife during the marriage is the community property of the husband and wife, " except property acquired by gift, devise or descent or after service of a petition for dissolution. Clear and convincing evidence is required to rebut this presumption of community property. Sommerfield v. Sommerfield, 121 Ariz. 575, 577, 592 P.2d 771, 773 (1979) . Wife argues the court erred in distributing the sports memorabilia collection to Husband.

¶9 To the extent Wife argues the superior court erred in finding any of the items of sports memorabilia were Husband's sole and separate property, the record amply supports the court's finding. As to the three items Husband testified were purchased during the marriage and valued at $135, the superior "court is accorded great discretion in the apportionment of community assets." Standage v. Standage, 147 Ariz. 473, 476, 711 P.2d 612, 615 (App. 1985). The "court is not required to make an absolutely equal distribution of the community property as long as it does not appear that the [] court's disposition of the community estate is inequitable or unfair." Nesmith v. Nesmith, 112 Ariz. 248, 252, 540 P.2d 1229, 1233 (1975) (quotation omitted); see also A.R.S. § 25-318(A) (court shall divide community property equitably). This discretionary power will not be disturbed on appeal unless it clearly has been abused. Neely v. Neely, 115 Ariz. 47, 49, 563 P.2d 302, 304 (App. 1977).

¶10 Here, Wife has not shown how the superior court abused its discretion in awarding Husband the entire collection of memorabilia. Wife did not contest the values attributed to various items by Husband (which, as relevant to this aspect of the sports memorabilia, were comparatively insignificant) but, instead, testified to a belief that there were more memorabilia items that were community property. Given the other community assets Wife received, including an equalization payment of more than $20, 000, distributing the whole collection to Husband (including three items valued at $135 that were purchased during the marriage) did not render the division of community property inequitable or unfair.

¶11 Viewed in context, even if the superior court erred in finding that the three sports memorabilia items Husband purchased during the marriage were his sole and separate property, the court is accorded great discretion in distributing community assets. Not awarding Wife a one-half community interest in $135 worth of collectibles fails to render the division of assets ...


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