In this lawsuit to enforce divorce property settlements, the trial court erred in denying petitioner’s third party motion to join ex-husband’s current wife; former husband’s contribution to community assets was an issue properly before the family court; findings of debtor’s contribution to community property should have been made with the current wife given opportunity to contest those findings. Vacated and remanded.
This was a divorce settlement enforcement action brought by the ex-wife (petitioner) against her former husband (debtor) who had remarried. Along with other relief, the petitioner motioned for leave to join ex-husband’s wife as a party so his contribution to community property could be litigated.
Consent Decree Incorporated Property Settlement Agreement
This was a marriage of long duration, 38 years. The spouses divorced in 2001 with a consent decree incorporating their property settlement agreement. He would pay her $2,600 a month spousal maintenance until she died or remarried. Not long after the divorce, though, he ceased making payments.
In February 2006, the former husband remarried. That September, his ex-wife petitioned to enforce their property settlement agreement, seeking spousal maintenance, arrearages, and interest.
In March 2007, the former spouses reached another property settlement agreement. The ex-wife was awarded a judgment of $122,200 with 10% interest per year. The ex-husband would also: 1) pay her $200 per month against the arrearage; 2) provide his annual tax returns; and 3) maintain a $250,000 irrevocable life insurance policy with his ex-wife as beneficiary.
Property Settlement Agreement Violated Again
The life insurance policy was allowed to lapse and the ex-husband did not provide his tax returns. The ex-wife petitioned to enforce all settlement agreements seeking a judgment, equitable relief, and attorneys fees. She also filed a Rule 33 motion to join the wife of her ex-husband as a third party pursuant to ARS § 25-215(B). This was so the family court could make a finding determining the amount of debtor’s contribution to the community property.
After the hearing, the Maricopa County Superior Court denied the motion for leave to join the current wife as a third party because debtor’s “contribution to the community was not an issue for the family court.” And the motion was “premature” until petitioner actually seeks to collect from the debtor. The ex-wife filed a timely appeal.
Joining a Third Party in Arizona Family Court
Vacating and remanding the case for proceedings consistent with its opinion, the Arizona Court of Appeals held the ex-wife’s third-party motion was authorized by ARS § 25-215(B) and Rule 33. It was properly before the family court.
Although trial judges have discretion over third party joinder under Rule 33, in its analysis the appeals court made several points:
- The current spouse’s interest in the community confers upon her a due process right to litigate the extent to which the community property is liable for her husband’s premarital obligations;
- Due process requires a finding of how much the husband (as debtor) contributed to the community property;
- The debtor’s spouse must be afforded an opportunity to contest those findings; and
- Both debtor and current spouse have a right to litigate the extent of his contribution to the community.
The trial court incorrectly stated Arizona law by taking the position that the family court could not make a finding on how much the debtor, petitioner’s ex-husband, had contributed to the community property of his current marriage. On the contrary, the issue of his contribution to the community was ripe for determination.
The appeals court discussed how Rule 33 and ARS § 25-215(B) combine in post-decree enforcement actions:
“Rule 33(A) states ‘[a] party to a family law case may file a statutory claim … against a third party arising out of or related to the subject matter of the action by the filing of … [a] third party petition[.]’ Rule 33(C) states that ‘the court may join additional parties necessary for the exercise of its authority.’ … Read together, these rules grant the superior court discretion to permit joinder of third parties by third party petition.”
ARS § 25-215(B) permits collection of premarital debts only from the debtor’s contribution to the community, as follows:
“B. The community property is liable for the premarital separate debts or other liabilities of a spouse … but only to the extent of the value of that spouse’s contribution to the community property which would have been such spouse’s separate property if single.”
No Transforming Premarital Debt into Community Debt
Third party joinder of a spouse would have allowed the issue of debtor’s contribution to the community property to be litigated. Nevertheless, such joinder does not convert ex-husband’s premarital obligation into a community debt. As a creditor, the ex-wife can only reach what her ex-husband contributed to the community of his current marriage.
The trial court erred. Additionally, denying joinder and requiring a separate civil action for the same ends would “duplicate every aspect of the proceedings, waste judicial resources, and cause unneeded expense for the parties.” Citing Flexmaster Aluminum Awnings Co. Inc. v. Hirschberg, 173 Ariz. 83 (Ariz. Ct. App. 1992).
DiPasquale v. DiPasquale, 1 CA-CV 16-0356 FC (Ariz. Ct. App. Sept. 7, 2017)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn how appeals are taken from the family law court’s ruling or judgment, read our discussion on how to go about Appealing the Trial Judge’s Decision.