In re the Marriage of Jacqueline Foster, Petitioner/Appellee, and Charles Sidney Foster, Respondent/Appellant.
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
Presiding Judge Vásquez authored the opinion of the
Court, in which Chief Judge Eckerstrom and Judge Miller
VÁSQUEZ, Presiding Judge:
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 Procedural Background
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.
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.
In its under-advisement ruling, the trial court found as
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.
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 ...