In re the Matter of: Michael E. HAMMETT Sr., Petitioner/Appellee,
v.
Ann Pearl Joy Cuizon HAMMETT, Respondent/Appellant.
Page 1146
Appeal
from the Superior Court in Maricopa County, No.
FN2015-071793, No. FN2017-002640, (Consolidated), The
Honorable Lori Horn Bustamante, Judge, The Honorable Frank W.
Moskowitz, Judge, VACATED IN PART AND REMANDED WITH
INSTRUCTIONS
Lincoln & Wenk PLLC, Goodyear, By Michael Lincoln, Counsel
for Petitioner/Appellee
DeRoon
& Seyffer, Phoenix, By Charles R. Seyffer, Counsel for
Respondent/Appellant
Presiding
Judge Paul J. McMurdie delivered the opinion of the Court, in
which Chief Judge Peter B. Swann and Judge Diane M. Johnsen
joined.
OPINION
McMURDIE,
Judge
[¶1]
Ann Hammett ("Wife") appeals from the property
distribution in the decree annulling her marriage to Michael
Hammett ("Husband") and the superior courts
subsequent orders. We hold parties acquire community property
and debt even during a marriage that results in an annulment;
and, when terminating the marriage, the court must dispose of
such assets and debt under Arizona Revised Statutes
("A.R.S.") section 25-318, to the extent
applicable. Because the superior court and the parties
assumed the couple had acquired no community property, we
vacate the decrees property disposition and remand for
further proceedings consistent with this opinion.
FACTS AND PROCEDURAL BACKGROUND
[¶2]
Husband met Wife while she lived in the Philippines. The
couple married in Nevada in November 2009, after Wife
obtained a fiancévisa. See 8 U.S. C. §
1101(a)(15)(K)(i) (2006). In November 2015, Husband, as the
sole signatory, obtained a loan for $78,600, secured by a
house that was his separate property (the "Loan").
That same month, Husband purchased a condominium for $58,000,
titled in both spouses names as community property with the
right of survivorship. Less than two weeks later, Husband
petitioned for the dissolution of the parties six-year
marriage.
[¶3]
In August 2016, Wife moved for a temporary order for spousal
maintenance. She claimed that she was unable to work because
of a car accident, Husband had been supporting the couple for
the duration of their marriage, and he had ended all
financial support earlier in the year. The court discussed
Wifes motion during a resolution management conference and
ordered the parties to exchange financial affidavits. At the
conference, Husband asserted— for the first time—
that Wife was married to another man when the couple married.
[¶4]
After Wife submitted her financial affidavit, over Wifes
objection Husband moved to dismiss his petition for
dissolution. He argued that the court must dismiss the
dissolution action because of the "mutual fraud
committed by both parties" and asserted that Wife was
still married to her first husband. He alleged that before
their marriage in 2009, the parties conspired to have a fake
death certificate produced to allow Wife to enter the United
States with a fiancévisa. Husband submitted emails
between him and a third party from 2008 in which he expressed
his frustration with the time and cost of an annulment in the
Philippines, and solicited the help of the third party to
either "find[ ] a judge and pay[ ] him off" or
create a fake death certificate.
Page 1147
[¶5]
The court held an oral argument on Husbands motion in
February 2017— more than a year after Husband
petitioned for dissolution. Because the parties presented
evidence outside of the pleadings, the court treated the
motion to dismiss as a summary judgment motion. See
Ariz. R. Fam. Law P. 32(B) (2006) (repealed effective January
1, 2019, see now Ariz. R. Fam. Law P. 29 (2019)). Husband
argued that because Wifes marriage to her first husband had
never been dissolved, their subsequent marriage was invalid.
Husband asserted that even though Wife had unsuccessfully
tried to locate her first husband for 19 years before she
married Husband, she had failed to comply with the law in the
Philippines to have her first husband presumed dead and the
marriage dissolved. Accordingly, Husband argued Wifes first
husband "must be presumed to be alive."
[¶6]
The court dismissed the dissolution petition based on Wifes
admission that she failed to have her first husband presumed
dead, and her previous marriage annulled. The court held Wife
did not correctly dissolve her first marriage under
Philippine law, which rendered her subsequent marriage to
Husband invalid.[1]
[¶7]
In March 2017, Husband petitioned for annulment. Before the
resulting trial, the parties agreed that Husbands house
would remain his separate property and that each spouse would
"keep their retirement accounts and bank accounts in
their own names" and "the debts in their own
names." The court found that the parties knowingly,
intelligently, and voluntarily entered into a binding
agreement that was fair and equitable under Arizona Rule of
Family Law Procedure ("Rule") 69.
[¶8]
The parties then presented evidence on the remaining
unresolved claims— mainly, their interest in the
condominium, the Loan, and Wifes allegation that she
contributed over $30,000 in repairs and improvements to the
condominium after service of the dissolution petition. After
the trial, the court ruled that "all community property
rights and obligations acquired by marriage are void ab
initio with respect to both parties as to all property,
income, and liabilities received or incurred from the date of
the annulled marriage." The court then ordered that the
parties owned the condominium as tenants in common and
directed Wife to buy out Husbands one-half interest in the
condominium by refinancing the loan in her name before August
19, 2018, or place the condominium on the market on or before
September 1, 2018. The court further ordered Wife to pay any
mortgage payments, HOA fees, and taxes so long as she
continued to live in the condominium. The court declined to
grant either party any additional funds from the proceeds of
the condominium for improvements to it.
[¶9]
Husband moved the court to clarify its ruling concerning the
condominium sale proceeds and the Loan. The court did not
explain its decision until after the 90-day deadline passed
for Wife to refinance the Loan. The court clarified that the
condominium "sale proceeds shall first be applied to the
[Loan]" and "any remaining proceeds shall be
equally divided." The court again ordered Wife to
"refinance the mortgage in her name alone" if she
wanted to retain possession of the condominium. The balance
...