SUPREME COURT OF ARIZONA 

En Banc 

 

WALTER A. DRESSLER, ) Arizona Supreme Court 

 ) No. CV-05-0119-PR 

 Plaintiff-Appellant, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-CV 03-0785 

DONA MORRISON fka DONA M. ) 

DRESSLER, a single woman, ) Maricopa County 

individually and as trustee, ) Superior Court 

DONA DRESSLER REAL ESTATE TRUST, ) No. CV 03-012110 

 ) 

 Defendant-Appellee. ) 

 ) O P I N I O N 

__________________________________) 

Appeal from the Superior Court of Maricopa County 

The Honorable Peter C. Reinstein 

REVERSED IN PART AND REMANDED 

_______________________________________________________________ 

Memorandum Decision of the Court of Appeals, Division One 

Filed March 8, 2005 

VACATED IN PART 

________________________________________________________________ 

GILBERT B. WEINER, P.C. Phoenix 

 By Gilbert B. Weiner 

Attorney for Walter A. Dressler 

CATES, HANSON, SARGEANT & RAKESTRAW, P.L.C. Phoenix 

By Leslie Rakestraw 

 Dwane M. Cates 

 Michael R. Karber 

Attorneys for Dona Morrison 

________________________________________________________________ 

M c G R E G O R, Chief Justice 

¶1 Walter A. Dressler brought this action against Dona 

Morrison, his former wife, to recover his share of community 
property that he alleged she fraudulently induced him to 

transfer to her separate property trust. The trial court 

dismissed Dressler’s action pursuant to Arizona Rule of Civil 

Procedure 12(b),1 holding that Dressler should have filed a Rule 

60(c)2 motion in the dissolution proceedings. The court of 

appeals affirmed, concluding that the domestic relations court 

provided the proper forum for resolving Dressler’s claim. We 

hold that a party who claims to be a tenant in common with a 

former spouse may bring a separate civil action to obtain relief 

when a dissolution decree fails to mention or does not dispose 

of real property. 

I. 

¶2 Because the trial court dismissed Dressler’s action 

pursuant to a Rule 12(b) motion, we assume the facts alleged in 

the complaint are true. Mohave Disposal, Inc. v. City of 

Kingman, 186 Ariz. 343, 346, 922 P.2d 308, 311 (1996). 

¶3 According to the complaint, Dressler and Morrison were 

married on January 20, 1980, in Jamaica. Dressler is originally 

from Germany and has an eight-year grammar school education and 

 

1

 Unless otherwise indicated, citations in this opinion to 

“Rule ___” refer to the Arizona Rules of Civil Procedure. 

2

 Rule 60(c) allows a court to relieve a party from final 

judgment for the following reasons: (1) mistake, (2) newly 

discovered evidence, (3) fraud or misrepresentation, (4) void 

judgment, (5) satisfied, released, or discharged judgment, or 

2
a three-year trade school education. Morrison was born in the 

United States and has an undergraduate and a graduate degree. 

¶4 Throughout the course of the marriage, Morrison 

managed and controlled the marital finances and business 

interests. In 1993, Dressler and Morrison, as husband and wife, 

purchased real property in Westerville, Ohio, located at 892 

Tradewind Drive. Two years later, the couple purchased real 

property at 1034 Crosshaven Court in Westerville. The two 

Westerville properties (the Properties) constituted a 

considerable portion of the parties’ net worth. 

¶5 At Morrison’s suggestion, the couple employed attorney 

Scott A. Smith to prepare estate planning trusts for them. In 

December 1998, Smith prepared two trusts, known as the Walter A. 

Dressler Living Trust and the Dona M. Dressler Living Trust. 

The Properties were conveyed to these trusts through four 

recorded deeds. In April 1999, Morrison moved to Fountain 

Hills, Arizona, and Dressler followed in August. They continued 

to maintain title in the Properties through the trusts while 

residing in Arizona. 

¶6 Some time later, Morrison informed Dressler that, 

because of insurance coverage issues, he needed to sign two 

deeds involving the Properties. Dressler, noting that his 

____________________ 

(6) any other reason justifying relief from the operation of the 

judgment. 

3
estate planning lawyer had prepared the deeds, signed them. 

These two deeds conveyed the Properties to a new entity, the 

Dona Morrison Real Estate Trust, a revocable trust in which 

Morrison is the sole beneficiary and trustee and her nephew, 

Duncan Pelly, is the sole remainder beneficiary. 

¶7 Morrison recorded the deeds in Franklin County, Ohio 

on June 22, 2000. Two months later, she filed for dissolution 

of marriage in Arizona. Dressler accepted service of process 

but took no further action. Morrison filed a notice of default 

against Dressler on October 23, 2000, and the court entered a 

decree of dissolution on December 7, 2000. 

¶8 Under the terms of the decree, the court awarded 

Morrison and Dressler their sole and separate property and 

awarded the marital residence to Morrison. Because the 

residence was community property, the court awarded Dressler 

half the total equity of the residence in a lump sum payment of 

$76,813.00. As both parties recognize, although the decree 

specifically referred to the Walter A. Dressler Living Trust and 

to the Dona M. Dressler Living Trust, it made no mention of the 

Dona Morrison Real Estate Trust, to which Morrison allegedly 

transferred the Properties.3 The decree also failed to mention 

 

3

 The decree did award Morrison, as her sole and separate 

property, retirement accounts held in her name, an automobile, 

and gifts from her grandmother, including a dining room suite, 

silver, china, sofa, and chairs. The decree awarded Dressler, 

4
or describe the Properties, as required by Arizona Revised 

Statutes (A.R.S.) § 25-318.D (Supp. 2005) (stating that “[t]he 

decree or judgment shall specifically describe by legal 

description any real property affected and shall specifically 

describe any other property affected”).4 

¶9 In June 2003, Dressler filed this civil action against 

Morrison, the Dona Morrison Real Estate Trust, and Duncan Pelly 

alleging fraud, constructive fraud, unjust enrichment, 

constructive trust, negligent misrepresentation, and fraudulent 

transfer. Dressler later amended his complaint to add counts 

for breach of fiduciary duty, quiet title, and sale in lieu of 

partition. In response, Morrison moved to dismiss the complaint 

pursuant to Rule 12(b). The trial court granted the motion to 

dismiss, stating that Dressler’s claims regarding the Properties 

“would have been appropriate for a Rule 60(c) . . . Motion filed 

in the dissolution proceedings” and that “[i]f [Dressler] wishes 

to modify or overturn the above decree, [he] should file the 

appropriate motion pursuant to Rule 60(c).” 

____________________ 

as his sole and separate property, retirement accounts held in 

his name and an automobile. 

4

 The decree did provide a legal description for the 

community residence. 

5
¶10 Dressler appealed the trial court’s decision.5 The 

court of appeals affirmed the trial court’s dismissal of 

Dressler’s complaint in a memorandum decision. We granted 

review to determine whether a party may bring a separate civil 

action for relief, rather than file a Rule 60(c) motion, when 

the party alleges ownership in real property not disposed of in 

a dissolution decree.6 We exercise jurisdiction pursuant to 

Article 6, Section 5.3 of the Arizona Constitution. 

II.

¶11 We review an order granting a motion to dismiss for 

abuse of discretion, Franzi v. Superior Court, 139 Ariz. 556, 

561, 679 P.2d 1043, 1048 (1984), and review issues of law, 

including issues of statutory interpretation, de novo, State ex 

rel. Dep’t of Econ. Sec. v. Hayden, 210 Ariz. 522, 523 ¶ 7, 115 

P.3d 116, 117 (2005). We will “uphold dismissal only if the 

plaintiff[] would not be entitled to relief under any facts 

susceptible of proof in the statement of the claim.” Mohave 

Disposal, Inc., 186 Ariz. at 346, 922 P.2d at 311.

 

5

 Dressler later filed a Rule 60(c) motion in the dissolution 

proceedings, DR2000-095386. That action has been stayed pending 

resolution of this appeal. 

6

 Although the trial court judgment and the court of appeals’ 

decision affirming that judgment applied to all of Dressler’s 

claims, his petition for review in this Court challenged only 

the holding that his claim pertaining to community property not 

addressed in the decree must be brought through a Rule 60(c) 

motion. Accordingly, we resolve only that issue. 

6
A.

¶12 Section 25-318.B (2000 & Supp. 2005) states that 

“[t]he community, joint tenancy and other property held in 

common for which no provision is made in the decree shall be 

from the date of the decree held by the parties as tenants in 

common, each possessed of an undivided one-half interest.” 

Dressler argues that because the dissolution decree did not 

address the Properties, he and Morrison became tenants in common 

in the property under the terms of section 25-318.B. 

Accordingly, he asserts that he should be permitted to bring a 

separate civil action, not to reopen or alter the terms of the 

dissolution decree, but rather to establish his rights as a cotenant in property he alleges belonged to the marital community. 

¶13 Arizona case law supports Dressler’s position. 

Earlier decisions from Arizona’s appellate courts have applied 

section 25-318.B or its statutory predecessor 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 action. For example, in 

Dawson v. McNaney, this Court allowed a divorced wife to proceed 

in a separate action against her former husband to recover a 

one-half interest in certain real and personal property that was 

not disposed of in a prior divorce decree. 71 Ariz. 79, 83, 223 

P.2d 907, 909 (1950). Applying Arizona Code § 27-805 (1939), 

7
the statutory predecessor to A.R.S. § 25-318.B, we held that 

because “no property or property rights were mentioned in the 

divorce proceedings and judgment,” the former spouses held the 

property as tenants in common. Id. Consequently, we allowed 

the plaintiff to bring a separate civil action against her 

former husband. Id. 

¶14 Similarly, in Bates v. Bates, the plaintiff filed a 

lawsuit against her former husband, claiming that he had 

concealed community property at the time of the couple’s divorce 

and that she was entitled to a one-half interest in the property 

as a tenant in common. 1 Ariz. App. 165, 166-67, 400 P.2d 593, 

594-95 (1965). The trial court dismissed the case as “a 

collateral attack on the original judgment.” Id. at 167, 400 

P.2d at 595. Although the court of appeals did not decide the 

tenancy in common issue, the court cited section 25-318.D 

(corresponding to current subsection B) as a basis for 

permitting the plaintiff to impeach a valid divorce decree for 

extrinsic fraud and to establish her share in undistributed 

community property. Id. at 169-70, 400 P.2d at 597-98. The 

court also held that the action was not barred by the doctrine 

of claim preclusion. Id. at 170, 400 P.2d at 598. Importantly, 

as the court noted, the plaintiff’s action did not attack the 

finality of the dissolution decree itself. Id. at 168, 400 P.2d 

at 596; see also Carpenter v. Carpenter, 150 Ariz. 62, 65, 722 

8
P.2d 230, 233 (1986) (reviewing action brought by former wife 

for her community property interest in retirement benefits not 

disposed of by divorce decree or separate property settlement);

Rothman v. Rumbeck, 54 Ariz. 443, 444-46, 96 P.2d 755, 755-56 

(1939) (plaintiff proceeded in a separate civil action against 

her former husband’s estate for premiums paid by the community 

during coverture on a life insurance policy) (applying Arizona 

Revised Code § 2182 (1928)); Fischer v. Sommer, 160 Ariz. 530, 

532-33, 774 P.2d 834, 836-37 (App. 1989) (noting that this Court 

has never “state[d] or impl[ied] that Rule 60(c) is the sole

method by which a spouse can seek post-decree contribution for 

an unallocated community debt” and permitting a separate action 

to require contribution to payment of a community debt 

discovered after entry of decree). Applying these decisions, 

then, a party can bring a separate action to determine ownership 

in what he characterizes as community property not disposed of 

in the decree, at least when the separate action does not attack 

the finality of the decree. 

B. 

¶15 Morrison suggests that, regardless of our prior 

decisions, the doctrine of claim preclusion, or res judicata, 

should prohibit Dressler from bringing this action because his 

claims should have been resolved in the dissolution proceeding. 

Under the doctrine of claim preclusion, a final judgment on the 

9
merits in a prior suit involving the same parties or their 

privies bars a second suit based on the same claim. Chaney 

Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 

(1986). We conclude that prior decisions of this Court and the 

court of appeals correctly held that the doctrine of claim 

preclusion does not apply to bar actions such as Dressler’s. 

¶16 TThe purpose of section 25-318 is “to provide a 

standard for the [equitable] disposition of community and common 

property in [] dissolution proceeding[s].” Martin v. Martin, 

156 Ariz. 452, 457, 752 P.2d 1038, 1043 (1988). Consistent with 

this intent, the legislature enacted section 25-318.B to ensure 

the equitable division of community property “for which no 

provision [was] made in the [dissolution] decree.” The 

legislature thus specifically contemplated that, contrary to 

general principles of claim preclusion, dissolution decrees 

might not provide for the disposition of all community property. 

The legislature also specified a remedy for that circumstance: 

Former spouses will hold the property as tenants in common. The 

remedy provided by statute would have little force if a party 

were foreclosed from bringing an action based on claim 

preclusion. Moreover, bringing a separate action to enforce 

section 25-318.B does not impair the finality of the dissolution 

decree: All the terms of that decree remain valid and 

enforceable. If Dressler prevails in his action based on co10
tenancy, that result will be entirely consistent with the 

decree. 

¶17 Other jurisdictions similarly have concluded that the 

doctrine of claim preclusion does not bar a subsequent claim 

that involves property rights not adjudicated in a dissolution 

decree. See, e.g., Tarien v. Katz, 15 P.2d 493, 495 (Cal. 1932) 

(holding that when a final divorce decree failed to dispose of 

community property, a former spouse’s right to that property can 

be determined in a subsequent action, not barred by claim 

preclusion); Yeo v. Yeo, 581 S.W.2d 734, 736 (Tex. Civ. App. 

1979) (holding that a “partition of community property not 

disposed of in the prior divorce decree is not barred by the 

doctrine of res judicata”). In accord with these and prior 

Arizona decisions, we hold that the doctrine of claim preclusion 

does not bar Dressler’s co-tenancy action.7

C. 

¶18 Because the trial court dismissed Dressler’s action 

pursuant to Rule 12(b), Dressler has yet to establish the facts 

necessary to prevail on his claim that the Properties, which the 

dissolution decree did not address, were, indeed, community 

 

7

 In his petition for review, Dressler also asked us to 

consider and define the circumstances under which the provisions 

of Rule 60(c) prohibit an independent post-decree action between 

former spouses and mandate a reopening of the dissolution 

proceeding. Given our resolution of the first issue presented, 

we need not address this issue. 

11
property and that he and Morrison hold them as tenants in 

common. See A.R.S. § 25-318.B. The trial court also has not 

yet considered the various defenses asserted by Morrison. We 

therefore remand this matter to permit the trial court to 

resolve those issues related to Dressler’s co-tenancy claim. 

III. 

¶19 For the foregoing reasons, we vacate that portion of 

the court of appeals’ memorandum decision that required Dressler 

to bring his co-tenancy claim as a Rule 60(c) motion, reverse in 

part the judgment of the superior court, and remand to the 

superior court for further proceedings consistent with this 

opinion. 

_____________________________ 

 Ruth V. McGregor 

Chief Justice 

CONCURRING: 

_______________________________________ 

Rebecca White Berch, Vice Chief Justice 

_______________________________________ 

Michael D. Ryan, Justice 

_______________________________________ 

Andrew D. Hurwitz, Justice 

_______________________________________ 

W. Scott Bales, Justice 

12