Husband’s Petition to Enforce Property Division in Arizona Divorce Not Time Barred
Former spouse’s petition to enforce the property division in the divorce decree was not time-barred by statute of limitations under ARS § 12-1551 in this Arizona case summary.
Lauren M. Jensen v. Peter D.J. Beirne
Division of Community Property in Arizona Divorce
The court entered the parties’ divorce decree in June 2005. As part of the property division, two marital assets were awarded to the husband as his separate property:
- Unit 1103 in Scottsdale, Arizona (“Scottsdale Unit”); and
- Hadley Highstone in England (“Hadley Highstone”).
During the marriage, the Hadley Highstone real property was titled and mortgaged in wife’s name only.
The decree also set forth certain conditions. First, husband had 90 days from the decree entry to refinance the mortgages on both properties in his name only. In the event he did not refinance either or both properties, the real estate was to be listed for sale at which point the wife would have “first right of refusal to purchase the property for the fair market value.”
By December 2005, husband still had not refinanced either property. The court ordered the sale of both properties and, conforming to the decree, the wife could exercise her right of first refusal. Proceeds of the sale were to be the husband’s, but with reimbursement to the wife for her mortgage payments and maintenance expenses. The court’s minute entry order of January 2006 did not state which party should do the selling.
Special Real Estate Commissioner Appointed
In a March 2007 hearing, the court appointed a special real estate commissioner to sell the Scottsdale Unit. A May 2008 hearing was held on why the commissioner had not listed the Scottsdale Unit. The court ordered that the wife complete the sale of the Scottsdale Unit; that the clerk sign the papers on husband’s behalf should he refuse to cooperate in the sale; and that the wife be reimbursed for her mortgage payments until the real property sold.
Then nothing happened. That is, until July 2015 when the husband filed an enforcement petition alleging the wife had made no effort to list Hadley Highstone. He further alleged that she had refused to sign over her interest in the Scottsdale Unit and, so, he could not refinance the property.
During an October 7, 2015, hearing on the enforcement petition, the wife stated her desire to exercise right of first refusal on the Hadley Highstone property – this the court took under advisement. Regarding the Scottsdale Unit: the wife was ordered to quitclaim her interest to husband by October 14, 2015 (one week) and, subsequently, husband was ordered to refinance it by January 15, 2016, solely in his name.
On October 12, 2015, however, the court vacated the relief it had granted previously on October 7. The court reasoned that it could not enforce the divorce decree and related orders because husband’s enforcement petition was time barred by ARS § 12-1551 (2016), a statute of limitations requiring a five-year renewal for judgment liens. Husband appealed.
ARS § 12-1551 provides in part:
1. The party in whose favor a judgment is given, at any time within five years after entry of the judgment and within five years after any renewal of the judgment either by affidavit or by an action brought on it, may have a writ of execution or other process issued for its enforcement.
2. An execution or other process shall not be issued on a judgment after the expiration of five years from the date of its entry unless the judgment is renewed by affidavit or process pursuant to § 12-1612 or an action is brought on it within five years from the date of the entry of the judgment or of its renewal. …
Court Retains Jurisdiction to Accomplish Full and Complete Justice
The Court of Appeals held that ARS § 12-1551 did not apply to an “equitable dissolution decree” wherein the real property distribution and directives did not include a judgment for payment of a sum certain (a specified amount of money) and did not include a judgment lien.
The appellate court clarified that the trial court retains jurisdiction to enforce the divorce decree through its contempt power, mainly, “until justice is achieved.” The trial court retains jurisdiction to do “full and complete justice between the parties,” citing Genda v. Superior Court (Pima County), 103 Ariz. 240, 439 P2d 811 (1968).
Reversing and remanding the case for further proceedings, the Court of Appeals held the trial court’s ruling was in error. The lower court did not lack power to enforce the divorce decree. And secondly, because ARS § 12-1551 did not apply to the case, husband’s July 2015 enforcement petition was not time barred by any statute of limitations. As the party with fewer financial resources, husband was awarded his reasonable attorneys fees.
Jensen v. Beirne, 1 CA-CV 15-0802 FC (December 6, 2016)
For precise language, read the court’s original opinion. Legal citations omitted.
To learn more about dividing real estate as community property, read our discussion on dividing property in Arizona divorce law.