Toth v. Toth

946 P.2d 900, 190 Ariz. 218, 254 Ariz. Adv. Rep. 3, 1997 Ariz. LEXIS 118
CourtArizona Supreme Court
DecidedOctober 9, 1997
DocketCV-96-0322-PR/A
StatusPublished
Cited by77 cases

This text of 946 P.2d 900 (Toth v. Toth) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toth v. Toth, 946 P.2d 900, 190 Ariz. 218, 254 Ariz. Adv. Rep. 3, 1997 Ariz. LEXIS 118 (Ark. 1997).

Opinions

OPINION

MARTONE, Justice.

We granted review to decide whether an equitable distribution of marital joint property upon dissolution under A.R.S. § 25-318(A) requires an equal distribution of the assets in this case. We conclude that it does not. We also hold that joint tenancy property and community property should be treated alike under A.R.S. § 25-318(A).

I. Introduction

Anthony Toth and Gloria Snyder Toth met at a senior citizens dance in Mesa in 1992. Anthony was 87 and Gloria was 66. They married a year later on December 13, 1993. The following day, Anthony used $140,000 of his sole and separate funds to buy a house for the couple. They took title as joint tenants with the right of survivorship. About two weeks later, Anthony moved out of the marital bedroom, and on January 10, 1994, he filed for an annulment. The court ultimately entered a final decree of dissolution on September 19, 1995. The house was the only property to be divided. The court awarded Gloria $15,000 as her share. She appealed.

The court of appeals decided that A.R.S. § 25-318(A)1 requires a substantially equal division of joint property, absent sound reason to the contrary. The court indicated that sound reason is limited to the statutory factors of fraud, excessive or abnormal expenditures, destruction, or concealment. It then held that the trial court had abused its discretion in ordering a substantially unequal division of the property and reversed. Judge Kleinschmidt dissented, believing that “equitable” had a broader meaning than the majority gave it. Believing that an important issue of law had been decided incorrectly, we granted Anthony’s petition for review. Rule 23(c)(4), Ariz. R. Civ.App. P.

II. Analysis

A. Treatment of joint tenancy property under A.R.S. § 25-318

Gloria argues that the gifted portion of the property is her sole and separate property and, therefore, the court must award her half its value under A.R.S. § 25-318(A).

Section 25-318(A) provides that “the court shall assign each spouse’s sole and separate property to such spouse.” It then provides that the court shall “divide the community, [220]*220joint tenancy and other property held in common equitably, though not necessarily in kind, without regard to marital misconduct.”

Joint tenancy property is separate, not community, property. Becchelli v. Becchelli 109 Ariz. 229, 234, 508 P.2d 59, 64 (1973); Collier v. Collier, 73 Ariz. 405, 411, 242 P.2d 537, 541 (1952). See Richard W. Effland, Arizona Community Property Law: Time for Review and Revision, 1982 Ariz. St. L.J. 1, 11-14. Although joint tenancy property is considered separate property, section 25-318(A) treats it in two ways — first by stating that separate property is assigned to the owner spouse, then by directing that joint tenancy property be divided equitably.

Before 1973, section 25-318(A) did not include joint tenancy property in the equitable (then “just and right”) division, and, as now, prohibited divesting either spouse of sepárate property upon dissolution. From that, we concluded that joint tenancy property could not be divided equitably. E.g., Becchelli 109 Ariz. at 234, 508 P.2d at 64; Collier, 73 Ariz. at 412, 242 P.2d at 542. The statute now expressly lists joint tenancy property as part of the property to be equitably divided. In Wayt v. Wayt, 123 Ariz. 444, 445, 600 P.2d 748, 749 (1979), we held that the modification of section 25-318 allowed joint tenancy property to be divided upon dissolution “in the same manner as ... property held by the community or in common.” We-did not address the potential anomaly in treating separate property as community property upon dissolution.

From the 1973 modification, one could argue that the legislature abrogated the rule that joint tenancy property is separate property. But whether property is treated as separate or community has consequences beyond dissolution, particularly with respect to tax liability and the rights of creditors. See Charles Marshall Smith, Arizona Community Property Law §§ 4:4, 4:5 (1995). The statute does not provide that marital joint tenancy property is now, in all respects, community property. It only allows it to be treated as community property upon dissolution. Joint tenancy property remains separate property, but is excepted from the requirement that separate property be assigned to each spouse separately upon dissolution. Justice Holohan observed in his dissent in Becchelli 109 Ariz. at 236, 508 P.2d at 66, that a 1962 amendment to section 25-3182 gave the court “the opportunity to make an equitable distribution of all the [joint] property even though some of the property would be in the category of separate property rather than community.” Joint tenancy property would remain separate property during marriage, and upon dissolution, “the court may not divest a person of separate property except the listed forms of joint ownership and as to these the court may divide the property in the same fashion as the community property.” Id. The 1973 amendment to the statute achieved this result.

Thus, under the statute, joint tenancy property and community property are to be treated alike only for dissolution purposes. For that purpose, the court should divide all such property equitably. We thus reject Gloria’s argument that we must treat her share of property held in joint tenancy as separate property upon dissolution.

Gloria also argues that because her share of the property is designated as a “gift” from Anthony, it should be considered irrevocable under the law of gifts. Ordinarily, when property is purchased in the name of one person with money furnished by another, a resulting trust arises in favor of the person furnishing the purchase money. Becchelli 109 Ariz. at 232, 508 P.2d at 62; Restatement (Second) of Trusts § 440 (1959). But in the marital context, the presumption changes.

When one spouse buys property with separate funds and places it in joint tenancy, there is a presumption that the spouse intended to make a gift to his spouse of onehálf of the property. Becchelli 109 Ariz. at 232-33, 508 P.2d at 62-63; Valladee v. Valladee, 149 Ariz. 304, 308, 718 P.2d 206, 210 [221]*221(App.1986). But gifts of joint tenancy property are not irrevocable inter vivos transfers. They are made in expectation of a permanent relationship, but if cut short, fully subject to equitable divestment under the statute.

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Bluebook (online)
946 P.2d 900, 190 Ariz. 218, 254 Ariz. Adv. Rep. 3, 1997 Ariz. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toth-v-toth-ariz-1997.