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In re Marriage of Foster

Court of Appeals of Arizona, Second Division

June 8, 2016

In re the Marriage of Jacqueline Foster, Petitioner/Appellee, and Charles Sidney Foster, Respondent/Appellant.

         Appeal from the Superior Court in Cochise County No. DO201300543 The Honorable Karl D. Elledge, Judge

          Jacqueline Foster, McNeal In Propria

          Persona Bays Law PC, Sierra Vista By P. Randall Bays Counsel for Respondent/Appellant

          Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred.

          OPINION

          VÁSQUEZ, Presiding Judge:

         ¶1 Charles Foster appeals from the trial court's decree of dissolution of his marriage to Jacqueline Foster. He argues the court erred by awarding guns that he contends were his separate property to Jacqueline as part of the community-property disposition. The issue presented on appeal is whether the presumption that all property acquired during the marriage is community property applies to guns Charles claims he inherited, thereby requiring him to prove their separate-property character by clear and convincing evidence. For the reasons stated below, we conclude the answer is yes and affirm.

         Factual and Procedural Background

         ¶2 We view the facts in the light most favorable to upholding the trial court's decree. See Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, n.1, 169 P.3d 111, 112 n.1 (App. 2007). Charles and Jacqueline were married in December 1957. They had three children, including their now-adult daughter Missy and son Jack. Throughout their marriage, Charles bought and sold guns. Charles also inherited numerous guns from family members, including his brother John. According to Jacqueline, Charles "always" told her that they "would retire on the guns." In June 2013, Charles gave Missy thirty-eight guns to distribute to family members upon his death.

         ¶3 In July 2013, Jacqueline filed a petition for dissolution of marriage. The following year, while the dissolution was pending, the Cochise County property where the parties were residing caught fire and dozens of guns burned. At the dissolution trial, the parties disputed how many and which guns still existed. Charles maintained the only guns that had survived the fire were the thirty- eight that Missy was holding. Jacqueline requested "half of the guns, even, because the guns were held over [her] head all those years as [their] investments; [their] retirement." She also wanted all the guns that Charles had inherited from John and promised to Jack.

         ¶4 In its under-advisement ruling, the trial court found as follows:

According to [Charles], the thirty-eight guns he currently possesses or controls are his sole and separate property. . . .
Here, [Charles] did not sustain his burden that all of the thirty-eight guns in question are his sole and separate property. While there is no dispute a number of the guns were inherited, [Charles] produced no records in court (other than self-serving documents) to trace the acquisition of the guns which were not inherited. Accordingly, the guns which were not inherited are community property and subject to division by the Court.

         The court then awarded Jacqueline fourteen of the thirty-eight guns. Charles filed a motion for reconsideration, arguing he had inherited six of the guns awarded to Jacqueline from his brother and, consequently, they should be his separate property. The court denied the motion and entered a decree of dissolution of ...


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