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In re Jensen

Court of Appeals of Arizona, First Division

December 6, 2016

In re the Matter of: LAUREN M. JENSEN, Petitioner/Appellee,
v.
PETER DAMIEN JOSEPH BEIRNE, Respondent/Appellant.

         Appeal from the Superior Court in Maricopa County No. FC2003-010228 The Honorable Dewain D. Fox, Judge

         REVERSED AND REMANDED.

          Lauren M. Jensen, Scottsdale Petitioner/Appellee.

          The Murray Law Offices PC, Scottsdale By Stanley David Murray Counsel for Respondent/Appellant.

          Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Edward W. Bassett [1] joined.

          OPINION

          THOMPSON, Judge.

         ¶1 Peter Damien Joseph Beirne (Beirne) appeals from the family court's dismissal of his petition to enforce orders affecting real property stemming from a 2005 marriage dissolution decree.[2] For the following reasons, we reverse the court's ruling.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2 The marital union of Beirne and Lauren M. Jensen (Jensen) was dissolved by decree entered in June 2005. The decree distributed several real properties between the two parties. Two properties acquired as community property, but awarded to Beirne as his separate property, a "Unit 1103" in Scottsdale, Arizona, and the "Hadley Highstone Property"[3]in England, United Kingdom, are the subjects of this appeal. The decree ordered Beirne to refinance the mortgages on the two properties in his name only within 90 days. Beirne failed to do so.

         ¶3 Due to Beirne's failure to refinance the mortgages, in December 2005, the court ordered that Jensen "may place the Hadley Highstone and Unit . . . 1103 properties for sale, and that she has the first right of refusal to purchase them for their fair market value [, ]" in accordance with the June 2005 decree.[4] The proceeds from the sale of both properties would go to Beirne, with reimbursement to Jensen for mortgage and maintenance payments.

         ¶4 In a minute entry filed in early January 2006, without specifying who should do the selling, the court ordered that both properties be sold, with Jensen having the right of first refusal to purchase both. At a March 2007 emergency hearing related to other matters, the parties informed the court of various reasons the two properties remained unsold. The court ordered the appointment of a special real estate commissioner to sell Unit 1103.

         ¶5 The special real estate commissioner requested an evidentiary hearing in April 2008 after he was unable to list Unit 1103 for sale. At the evidentiary hearing, which took place in May 2008, the court ordered: (i) the sale of Unit 1103 be completed to Jensen; (ii) that the clerk of the court's office sign papers on Beirne's behalf if he did not cooperate in the sale of the unit to Jensen; and (iii) that Jensen shall be reimbursed to the extent she "continues to pay the mortgage on the house until its [sic] sold."

         ¶6 No other action to enforce the court's decree or any of the subsequent orders regarding the two properties occurred until Beirne filed the subject petition in July 2015. In his petition Beirne alleged that, to his knowledge, Jensen had made no effort to list the Hadley Highstone Property for sale. He requested that the court order Jensen to pay him "an amount equal to the current equity in the property" and he would, in return, deed his interest to her. He also argued that he could not refinance Unit 1103 because Jensen refused to sign over her interest. He requested that the court order Jensen to execute a quitclaim deed transferring her interest in Unit 1103 to him, proffering that he would thereafter refinance the property in his name only.

         ¶7 The court held a hearing on Beirne's petition on October 7, 2015. Both parties were present. At that hearing, the court ordered Jensen to sign a quitclaim deed for Unit 1103 and return it to the court by October 14, 2015. The court further ordered that Beirne refinance Unit 1103, removing Jensen's name from it, no later than January 15, 2016. Jensen stated she wanted to assert her right of first refusal to buy the ...


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