Arizona Supreme Court Allows Former Spouse to Bring a Separate Civil Action Claiming Rights to Alleged Community Property Not Disposed of By Dissolution Decree.

A man claimed that his former wife had fraudulently induced him to transfer property to her separate property trust during their marriage. Neither the trust nor the property were mentioned in the dissolution decree obtained by the former wife in 2000. The man brought a civil action in 2003 alleging fraud and other claims to the property. The trial court granted the former wife’s Rule 12(b) Motion to Dismiss and stated that the former husband’s claims should be addressed in a Rule 60(c) motion for relief from the dissolution judgment. The court of appeals affirmed in a memorandum decision.

The Supreme Court granted review and held that the ex-husband could bring a separate action to determine ownership of what he claimed to be community property not disposed of in the dissolution decree, at least when the separate action did not attack the finality of the decree. Pursuant to A.R.S. § 25-318(B), community property for which no provision is made in a dissolution decree shall be held by the former spouses as tenants in common, each possessed of an undivided one-half interest from the date of the decree. A number of Arizona cases have relied on that statutory provision and allowed a party to bring a civil action to determine ownership rights in real property alleged to belong to a former marital community but not awarded in the dissolution decree. Since the subsequent civil action did not challenge the finality of the dissolution decree, claim preclusion did not bar the action. The court, therefore, vacated that portion of the court of appeals’ decision requiring the ex-husband to bring his co-tenancy claim as a Rule 60(c) motion, reversed in part the judgment of the superior court, and remanded to that court for further proceedings.

Chief Justice McGregor wrote the opinion for the unanimous court.