Division of gun collection as separate and community property upon divorce affirmed in Arizona case summary.
Husband Collected Guns During the Marriage
Married in 1957, the spouses raised three children, including a daughter named Missy. Husband was a gun collector who bought and sold guns, and who also inherited guns from family members. As personal property of value, investment in his gun collection was to provide, at least in part, for their retirement. The wife testified that husband stated this many times.
In June of 2013, the husband gave his adult daughter Missy (as custodian) 38 of the guns from his collection. She was instructed to distribute them among family members after his death.
In July of 2013, the wife filed her petition for dissolution of marriage. In 2014, while divorce was pending, the marital home caught fire and “dozens of guns burned.” Division of the remaining 38 firearms in Missy’s custody became a contentious issue.
Some of the guns held by Missy were inherited from husband’s deceased brother, but which guns? Husband did not sufficiently trace acquisition of the guns which were not inherited and, so, failed to overcome the presumption that the untraced guns were not marital property.
The court identified Missy’s 38 guns as community property and divided them unequally between the parties. Wife received 14 guns (six arguably husband’s inheritance). Husband received the remaining 24 guns (eight arguably inherited).
Objecting to the characterization of inherited guns as community property, husband filed a motion for reconsideration which was denied. He appealed, arguing the court erred by characterizing 14 guns as community property when evidence showed they were Husband’s separate assets by inheritance.
What is the difference between community property, which must be divided, and separate property which belongs to one spouse? All property acquired during the marriage by either spouse is considered to be community property. ARS § 25-211(A)(1). Separate property is that which was owned by one spouse before the marriage or was acquired during the marriage “by gift, devise or descent, and the increase, rents, issues and profits of that property.” ARS § 25-213(A).
Strong Legal Presumption of Community Property Acquisition During Marriage
There is a strong legal presumption in Arizona law that all property acquired during marriage is community property. This presumption applied to the 14 allegedly inherited guns. Arizona law also provides that “where there is any doubt in the court’s mind, the property will be treated as community property.” Citing Ariz. Cent. Credit Union v. Holden, 432 P2d 276 (1967).
To overcome this presumption, husband needed to prove the separate property character of the 14 guns with clear and convincing evidence. He did not. The inventory list of firearms prepared by Missy (based on husband’s recollection) was not confirmed by husband as accurate and there was conflicting testimony at trial.
Having taken the matter under advisement, the trial court considered the evidence introduced at trial. It rejected husband’s evidence and determined he failed to carry the burden of proving the 14 guns in Missy’s custody were, in fact, inherited ones.
Upon review, the trial court did not err in characterizing the 14 guns at issue as community assets. The trial court did find some other guns were indeed traceable as inherited property and awarded those guns to husband as his separate property. But the trial court did not err in first determining what guns were community property and, second, dividing them between the spouses according to ARS § 25-318(A). The trial court’s ruling on the division of property was affirmed.
COMMENT: This case illustrates the importance of providing evidence sufficient to trace inherited assets when challenged with destroyed records which, in this instance, followed an accidental, destructive fire at the marital home.
Foster v. Foster, 2 CA-CV 2015-0192 (June 8, 2016)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more about property division in Arizona law, read Dividing Property in Divorce.