NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

WILLIAM CUNNINGTON, Petitioner,

v.

THE HONORABLE RONDA FISK, Judge of the SUPERIOR COURT OF 

THE STATE OF ARIZONA, in and for the County of MARICOPA,

Respondent Judge,

DANA CUNNINGTON, Real Party in Interest.

No. 1 CA-SA 22-0033 

Appeal from the Superior Court in Maricopa County

No. FN2021-004487

The Honorable Ronda R. Fisk, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Curry Pearson & Wooten PLC, Phoenix

By Daniel Seth Riley

Counsel for Petitioner

Pittman Law Offices PLLC, Mesa

By Samuel Pittman

Counsel for Real Party in Interest

FILED 5-12-2022
CUNNINGTON v. HON FISK/CUNNINGTON

Decision of the Court

2

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which 

Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 William Cunnington (“Husband”) petitions for special action 

in an annulment proceeding against Dana Cunnington (“Wife”) after the

superior court granted Wife exclusive use and possession of his sole and 

separate property in temporary orders. For the following reasons, we accept 

special action jurisdiction and grant the relief requested.

FACTS AND PROCEDURAL HISTORY

¶2 Husband and Wife were married in September or October of 

2020. Husband filed a petition to annul the marriage in October 2021. The 

parties filed cross-motions for temporary orders asking, in part, for 

immediate possession of a 2014 Range Rover. Both parties acknowledged 

in their prehearing statements that the vehicle is Husband’s sole and 

separate property. 

¶3 At the temporary orders hearing, Husband testified he had 

purchased the vehicle and paid off the associated auto loan prior to 

marriage. Wife acknowledged that the vehicle is Husband’s sole and 

separate property but testified that she had driven the vehicle before and 

during marriage. In its temporary orders, the superior court granted Wife’s 

request for exclusive use and possession of the vehicle. Husband petitioned 

for special action. 

¶4 Husband raises an issue with no “equally plain, speedy, and 

adequate remedy by appeal.” Ariz. R. P. Spec. Act. 1(a). Further, the petition 

presents a purely legal question of statewide importance that is likely to 

arise again. Jordan v. Rea, 221 Ariz. 581, 586, ¶ 8 (App. 2009). Therefore, in 

our discretion we accept special action jurisdiction and grant the relief 

requested. 

DISCUSSION

¶5 We note Wife failed to file an answering brief in response to 

Husband’s petition. “When an appellant raises debatable issues, the failure 

to file an answering brief generally constitutes a confession of reversible 
CUNNINGTON v. HON FISK/CUNNINGTON

Decision of the Court

3

error in civil cases.” State v. Greenlee County Justice Court, Precinct 2, 157 Ariz. 

270, 271 (App. 1988). However, this may be waived in our discretion. Id.

Because the resolution of this case involves a purely legal question, we opt 

to address its merits. 

¶6 Husband argues the superior court erred in granting Wife use

and possession of his sole and separate property through temporary orders.

Husband relies on the language of A.R.S. § 25-318(A) to support this 

argument, which states in relevant part that “the court shall assign each 

spouse’s sole and separate property to such spouse.” We review matters 

involving statutory interpretation de novo. Beatie v. Beatie, 235 Ariz. 427, 

430, ¶ 14 (App. 2014). When interpreting a statute, we look first to its 

language, which if clear and unambiguous, we apply without employing 

other principles of statutory interpretation. Id. at 431, ¶ 19. 

¶7 The temporary orders statute authorizes the court to issue 

orders with respect to the parties’ property, but such orders must be made 

in conformity with A.R.S. § 25-318. A.R.S. § 25-315(E). There is no claim, 

argument, or evidence in our record that Wife has any interest in the 

vehicle. To the contrary, Husband and Wife agree the vehicle is Husband’s 

sole and separate property. Therefore, because A.R.S. § 25-318(A)

unambiguously directs the court to assign each spouse’s sole and separate 

property to such spouse, the superior court was limited in its temporary 

orders to assigning the vehicle to Husband as its owner. 

¶8 Husband further argues the court’s temporary orders 

endanger his interest in the vehicle because the family court cannot award

him judgment for any damages Wife might inflict upon the vehicle while it 

is in her care. Weaver v. Weaver, 131 Ariz. 586, 587 (1982) (holding that the 

court lacks jurisdiction to grant a money judgment against one spouse for 

damage to the separate property of the other spouse in a dissolution 

proceeding). We agree, but note that our decision remedies this concern.

¶9 In sum, although Wife argued at the temporary orders 

hearing that the 2014 Range Rover was her only means of transportation, 

the express language of A.R.S. § 25-318(A) makes clear that the superior 

court did not have authority to assign her use of Husband’s sole and 

separate property. We note, however, that A.R.S. § 25-315 authorizes the 

court to award temporary spousal maintenance “in amounts and on terms 

just and proper in the circumstances.” A.R.S. § 25-315(E). It may well be 

worthwhile for the parties and the court to consider such options upon 

remand, though we express no opinion as to their justification.
CUNNINGTON v. HON FISK/CUNNINGTON

Decision of the Court

4

CONCLUSION

¶10 For the foregoing reasons, we grant relief and reverse the

superior court’s temporary orders with respect to the 2014 Range Rover. 

We further direct the superior court to amend its temporary orders to assign 

this vehicle to Husband as his sole and separate property.