IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of: 

MICHAEL E. HAMMETT SR., Petitioner/Appellee, 

v.

ANN PEARL JOY CUIZON HAMMETT, Respondent/Appellant. 

No. 1 CA-CV 18-0632 FC 

Appeal from the Superior Court in Maricopa County

No. FN2015-071793 

No. FN2017-002640 

(Consolidated)

The Honorable Lori Horn Bustamante, Judge

The Honorable Frank W. Moskowitz, Judge

VACATED IN PART AND REMANDED WITH INSTRUCTIONS 

COUNSEL

Lincoln & Wenk PLLC, Goodyear

By Michael Lincoln

Counsel for Petitioner/Appellee

DeRoon & Seyffer, Phoenix

By Charles R. Seyffer 

Counsel for Respondent/Appellant

FILED 10-29-2019
Hammett v. Hammett

Opinion of the Court

2 

OPINION

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in 

which Chief Judge Peter B. Swann and Judge Diane M. Johnsen joined.

M c M U R D I E, Judge:

¶1 Ann Hammett (“Wife”) appeals from the property 

distribution in the decree annulling her marriage to Michael Hammett

(“Husband”) and the superior court’s subsequent orders. We hold parties 

acquire community property and debt even during a marriage that results 

in an annulment; and, when terminating the marriage, the court must 

dispose of such assets and debt under Arizona Revised Statutes (“A.R.S.”) 

section 25-318, to the extent applicable. Because the superior court and the 

parties assumed the couple had acquired no community property, we 

vacate the decree’s property disposition and remand for further 

proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband met Wife while she lived in the Philippines. The 

couple married in Nevada in November 2009, after Wife obtained a fiancé 

visa. See 8 U.S.C. § 1101(a)(15)(K)(i) (2006). In November 2015, Husband, as 

the sole signatory, obtained a loan for $78,600, secured by a house that was 

his separate property (the “Loan”). That same month, Husband purchased 

a condominium for $58,000, titled in both spouse’s names as community 

property with the right of survivorship. Less than two weeks later, 

Husband petitioned for the dissolution of the parties’ six-year marriage. 

¶3 In August 2016, Wife moved for a temporary order for 

spousal maintenance. She claimed that she was unable to work because of 

a car accident, Husband had been supporting the couple for the duration of 

their marriage, and he had ended all financial support earlier in the year. 

The court discussed Wife’s motion during a resolution management 

conference and ordered the parties to exchange financial affidavits. At the 

conference, Husband asserted—for the first time—that Wife was married 

to another man when the couple married.

¶4 After Wife submitted her financial affidavit, over Wife’s 

objection Husband moved to dismiss his petition for dissolution. He argued 
Hammett v. Hammett

Opinion of the Court

3 

that the court must dismiss the dissolution action because of the “mutual 

fraud committed by both parties” and asserted that Wife was still married 

to her first husband. He alleged that before their marriage in 2009, the 

parties conspired to have a fake death certificate produced to allow Wife to 

enter the United States with a fiancé visa. Husband submitted emails

between him and a third party from 2008 in which he expressed his 

frustration with the time and cost of an annulment in the Philippines, and 

solicited the help of the third party to either “find[] a judge and pay[] him

off” or create a fake death certificate. 

¶5 The court held an oral argument on Husband’s motion in 

February 2017—more than a year after Husband petitioned for dissolution.

Because the parties presented evidence outside of the pleadings, the court 

treated the motion to dismiss as a summary judgment motion. See Ariz. R. 

Fam. Law P. 32(B) (2006) (repealed effective January 1, 2019, see now Ariz. 

R. Fam. Law P. 29 (2019)). Husband argued that because Wife’s marriage to 

her first husband had never been dissolved, their subsequent marriage was 

invalid. Husband asserted that even though Wife had unsuccessfully tried 

to locate her first husband for 19 years before she married Husband, she 

had failed to comply with the law in the Philippines to have her first 

husband presumed dead and the marriage dissolved. Accordingly, 

Husband argued Wife’s first husband “must be presumed to be alive.”

¶6 The court dismissed the dissolution petition based on Wife’s 

admission that she failed to have her first husband presumed dead, and her 

previous marriage annulled. The court held Wife did not correctly dissolve 
Hammett v. Hammett

Opinion of the Court

4 

her first marriage under Philippine law, which rendered her subsequent 

marriage to Husband invalid.1

¶7 In March 2017, Husband petitioned for annulment. Before the

resulting trial, the parties agreed that Husband’s house would remain his 

separate property and that each spouse would “keep their retirement 

accounts and bank accounts in their own names” and “the debts in their 

own names.” The court found that the parties knowingly, intelligently, and 

voluntarily entered into a binding agreement that was fair and equitable

under Arizona Rule of Family Law Procedure (“Rule”) 69. 

¶8 The parties then presented evidence on the remaining

unresolved claims—mainly, their interest in the condominium, the Loan, 

and Wife’s allegation that she contributed over $30,000 in repairs and 

improvements to the condominium after service of the dissolution petition. 

After the trial, the court ruled that “all community property rights and 

obligations acquired by marriage are void ab initio with respect to both 

parties as to all property, income, and liabilities received or incurred from 

the date of the annulled marriage.” The court then ordered that the parties 

owned the condominium as tenants in common and directed Wife to buy 

out Husband’s one-half interest in the condominium by refinancing the 

loan in her name before August 19, 2018, or place the condominium on the 

market on or before September 1, 2018. The court further ordered Wife to 

pay any mortgage payments, HOA fees, and taxes so long as she continued 

to live in the condominium. The court declined to grant either party any 

additional funds from the proceeds of the condominium for improvements 

to it. 

 

1 The Arizona Constitution prohibits “[p]olygamous or plural 

marriages, or polygamous cohabitation,” Ariz. Const. art. 20, par. 2. Under 

A.R.S. § 25-301, a court may dissolve a marriage and issue an annulment 

decree when the marriage is “void.” The legislature has defined what 

constitutes a “void and prohibited” marriage. A.R.S. § 25-101. Different 

types of marriages are prohibited in Arizona, see, e.g., A.R.S. § 25-102(B) 

(“Persons who are under sixteen years of age shall not marry.”), but only a 

few are codified under A.R.S. § 25-101 as “void.” The legislature has not 

defined a polygamous marriage as one that is void, but the conduct is 

punishable under A.R.S. § 13-3606. The parties have not raised the issue of 

whether the court correctly issued an annulment decree rather than a 

dissolution decree. Therefore, we will assume without deciding that an 

annulment decree was the proper vehicle to dissolve the parties’ marriage.
Hammett v. Hammett

Opinion of the Court

5 

¶9 Husband moved the court to clarify its ruling concerning the

condominium sale proceeds and the Loan. The court did not explain its 

decision until after the 90-day deadline passed for Wife to refinance the 

Loan. The court clarified that the condominium “sale proceeds shall first be 

applied to the [Loan]” and “any remaining proceeds shall be equally 

divided.” The court again ordered Wife to “refinance the mortgage in her 

name alone” if she wanted to retain possession of the condominium. The 

balance of the Loan was $75,350.94, which exceeded the amount necessary 

to buy out Husband’s interest in the condominium. 

¶10 Wife—unclear of the amount she was to refinance and the 

deadline to do so because of the court’s amended ruling—had not 

refinanced the home by the time set by the court, so eventually, Husband 

moved to sell it. Ultimately, the court ordered the condominium to be sold

and ruled that from Wife’s share of the proceeds, she must pay Husband 

$3980 in attorney’s fees and costs and reimburse him for the taxes, 

mortgage, and HOA fees he had paid since service of the petition. The 

condominium sold in February 2019, yielding net proceeds of $33,793.81, 

all of which went to Husband after Wife made the required reimbursements 

to him out of her share. The sale proceeds were distributed according to the 

court’s order. 

¶11 Wife filed a timely notice of appeal from the decree of 

annulment, and we have jurisdiction under A.R.S. § 12-2101(A)(2), 

Rule 78(c) (2019), and Arizona Rule of Civil Appellate Procedure 9(c).

DISCUSSION

¶12 The parties disagree whether the superior court had the 

power to order them to pay off the Loan from the proceeds of the 

condominium sale before splitting the remaining proceeds. Wife reiterates 

the superior court’s conclusion that the annulment voided the community 

and argues that Husband gifted her the interest in the condominium. She 

contends, however, that in an annulment proceeding, the court is only 

permitted to distribute property and may not divide debt. 

¶13 The superior court’s characterization of property is a question 

of law that we review de novo. In re Marriage of Pownall, 197 Ariz. 577, 581, 

¶ 15 (App. 2000). We review the superior court’s division of assets and 

liabilities for an abuse of discretion. In re Marriage of Flower, 223 Ariz. 531, 

535, ¶ 14 (App. 2010). “A trial court abuses its discretion when it misapplies 

the law or predicates its decision on incorrect legal principles.” State v. 

Jackson, 208 Ariz. 56, 59, ¶ 12 (App. 2004). 
Hammett v. Hammett

Opinion of the Court

6 

¶14 Property acquired by either spouse during a marriage is 

community property. We hold that an annulment does not change the 

status of the community property, and, in such a case, the court must 

allocate the community property and debt just as it would in a dissolution 

proceeding. Because the superior court here based its decision on incorrect 

legal principles, we vacate the decree dividing the couple’s assets and 

liabilities and its orders for Wife to reimburse Husband for his separate 

expenses, attorney’s fees, and community expenses. We remand for the 

court to make a distribution considering the entirety of the community.

A. A Marriage that Results in an Annulment Still Creates a 

Community, and the Superior Court Must Equitably Divide the 

Community Assets and Debts When Dissolving the Marriage. 

An Annulled Marriage Nonetheless Creates a Community. 

¶15 “Superior courts may dissolve a marriage, and may adjudge 

a marriage to be null and void when the cause alleged constitutes an 

impediment rendering the marriage void.” A.R.S. § 25-301. “If grounds for 

annulment exist, the court to the extent that it has jurisdiction to do so, shall 

divide the property of the parties . . . .” A.R.S. § 25-302(B). The issue we 

have to resolve is whether an annulment alters the community status of the 

property or debt created while the parties were married. We hold that it 

does not.

¶16 Distributing property and debt after marriage is a “statutory 

action, and the [superior] court has only such jurisdiction as is granted by 

statute.” Weaver v. Weaver, 131 Ariz. 586, 587 (1982). The community 

property statute, A.R.S. § 25-211, does not distinguish between community 

property acquired during a marriage that is subsequently dissolved and

community property acquired during a marriage that is subsequently 

annulled. The statute states:

A. All property acquired by either husband or wife 

during the marriage is the community property of the 

husband and wife except for property that is:

1. Acquired by gift, devise or descent.

2. Acquired after service of a petition for 

dissolution of marriage, legal separation or annulment

if the petition results in a decree of dissolution of 

marriage, legal separation or annulment. 
Hammett v. Hammett

Opinion of the Court

7 

B. Notwithstanding subsection A, paragraph 2, service of 

a petition for dissolution of marriage, legal separation or 

annulment does not:

1. Alter the status of preexisting community 

property.

2. Change the status of community property used 

to acquire new property or the status of that new

property as community property.

3. Alter the duties and rights of either spouse with 

respect to the management of community property 

except as prescribed pursuant to [A.R.S. 

§ 25-315(A)(1)(a)].

(Emphases added.)

¶17 As applied here, under A.R.S. § 25-211(A)(2), all property 

acquired “during the marriage is . . . community property . . . except for 

property that is . . . [a]cquired after service of a petition for 

dissolution . . . or annulment” that results in a dissolution or annulment. 

The statute thus presupposes that an annulment does not invalidate the 

community status of property acquired during the marriage, any more than 

a dissolution might invalidate the community status of property acquired 

during a marriage. Indeed, the relevant judicial proceeding—dissolution or 

annulment—is irrelevant for purposes of the statute. Subpart (B) of the 

statute makes the same point when it states that “service of a petition 

for . . . annulment does not . . . [a]lter the status of preexisting community

property.” 

¶18 The corresponding statute concerning separate property 

supports the same conclusion. Under A.R.S. § 25-213(B), property acquired 

by a spouse “after service of a petition for dissolution . . . or annulment 

is . . . the separate property of that spouse” if the petition results in a 

dissolution or annulment. If, as the superior court concluded here, 

community property principles do not apply to property acquired during a 

marriage that is annulled, the distinction the statute draws between 

property obtained before and after service of an annulment petition would 

be immaterial.

¶19 As for debt incurred during a marriage, A.R.S. § 25-214(C)(3)

likewise allows either spouse to unilaterally bind the community to debt 

except, as relevant here, “after service of a petition for dissolution . . . or 
Hammett v. Hammett

Opinion of the Court

8 

annulment” that results in a dissolution or annulment. As in A.R.S. 

§ 25-211, the legislature has mandated that the service of a petition for 

annulment has the same consequence as the service of a petition for 

dissolution. Just as A.R.S. § 25-211 presupposes that property acquired 

during a marriage that is annulled remains community property, A.R.S. 

§ 25-213(C) presupposes that debt acquired by one spouse during a 

marriage binds both spouses even after the marriage is annulled. It would 

be unnecessary to discontinue the accrual of community property and 

community debt after service of the petition if the annulment itself resulted

in the nullification of the community. See City of Mesa v. Killingsworth, 96 

Ariz. 290, 294–95 (1964) (“The presumption is that the legislature did not 

intend to do a futile thing by including [language that] is not operative.“).

¶20 We acknowledge that our supreme court once held that 

“where there was no valid marriage of appellant to appellee, there can be 

no acquisition of property rights based on their marital status.” Cross v. 

Cross, 94 Ariz. 28, 31 (1963). The statutes cited above, however, were 

enacted or amended after the Cross decision, and render it inapplicable 

here. To the extent Cross conflicts with the current marital property statutes, 

A.R.S. §§ 25-211 to -215, it has been superseded. 

In an Annulment Action, the Superior Court is to Allocate

the Community’s Assets and Debts under A.R.S. § 25-318. 

¶21 Citing A.R.S. § 25-302(B), Wife argues that the only authority 

for the superior court to divide jointly held property in a family proceeding 

is A.R.S. § 25-318(A), which requires an equitable distribution. She asserts 

that the court erred by considering Husband’s Loan under A.R.S. 

§ 25-318(B) because there is no authority in Title 25 for the allocation of 

marital or separate debts in an annulment proceeding. 

¶22 We disagree. As discussed above, the court has the authority 

to divide property in an annulment proceeding. The court has that power 

under A.R.S. § 25-302(B), applying the principles in A.R.S. §§ 25-211 

through -215, and the division of community property includes the 

allocation of community debts. Cadwell v. Cadwell, 126 Ariz. 460, 462 (App. 

1980) (although the dissolution statutes do not expressly grant authority to 

allocate debts between the parties, “[a]ssets and obligations are reciprocally 

related and there can be no complete and equitable disposition of property 

without a corresponding consideration and disposition of obligations”). 

¶23 “If grounds for annulment exist, the court to the extent that it 

has jurisdiction to do so, shall divide the property of the parties . . . .” 
Hammett v. Hammett

Opinion of the Court

9 

A.R.S. § 25-302(B). This provision grants the court authority to divide the 

community unless the court otherwise lacks jurisdiction to do so. Therefore, 

in an annulment action, the court has the same authority to allocate debts 

as in a dissolution or separation action. See A.R.S § 25-318(B)–(G). 

B. The Court Must Divide the Couple’s Property Following

Community Property Principles. 

¶24 Husband urges this court to affirm the superior court’s 

property division arguing that the court adequately considered the Loan 

according to A.R.S. § 25-318(B). However, when dividing the community, 

the court is to consider all community assets and debts in making an 

equitable property distribution. A.R.S. § 25-318(A). 

¶25 Before the annulment trial, the court accepted the parties’ 

agreement for Husband’s house to remain his separate property and for 

each spouse to “keep their retirement accounts and bank accounts in their 

own names” and “the debts in their own names” as a binding agreement, 

pursuant to Rule 69, and found that the agreement was entered into 

“knowingly, intelligently and voluntarily,” and was “fair and equitable.”

The court’s acceptance of the parties’ agreement, however, was predicated 

on the incorrect legal principle that the annulment voided the creation of 

the community. Therefore, the court could not correctly find that the parties

acted with full knowledge of their property rights when they entered the 

agreement; nor could it determine whether the agreement was “fair and 

equitable.” See Buckholtz v. Buckholtz, 246 Ariz. 126, 132–33, ¶ 24 (App. 2019) 

(the court must determine whether a party acted with full knowledge of his 

separate property rights when he entered into an “unfair” agreement).

When the court accepts a Rule 69 agreement based on an erroneous view of 

the law governing the marital estate, the agreement cannot be enforced 

absent novation. Accordingly, we vacate that portion of the decree 

concerning the disposition of property and debt.

¶26 Wife also requests that we vacate “all orders entered in 

connection with proceedings by Appellee for the enforcement of the Decree 

of Annulment after Appellant’s Notice of Appeal.” Pursuant to the court’s 

order, the condominium has been sold. We cannot unwind the sale, but we 

vacate the disposition of the parties’ property and debt, including

reimbursement, contribution, outstanding fees related to the condominium, 

and the awarded attorney’s fees. On remand, the court may consider the 

amounts that Husband or Wife paid to maintain community assets as it 

would in any other proceeding dividing community property. See Bobrow 

v. Bobrow, 241 Ariz. 592, 596, ¶ 19 (App. 2017) (post-petition maintenance of 
Hammett v. Hammett

Opinion of the Court

10 

community assets from separate funds to be accounted for in “equitable 

property distribution”).

C. Husband’s Loan is Not a Separate Debt and Must be Considered 

in the Community Property Distribution.

¶27 Concluding that the couple established a community does not 

resolve the parties’ dispute regarding the allocation of the Loan. The court 

did not expressly characterize the nature of the Loan, but effectively found 

Wife responsible for half of the obligation by ordering that the parties first 

apply the condominium sale proceeds to pay off the Loan.

¶28 Husband maintains that because he obtained the Loan during 

the marriage for the benefit of the community, it is a community debt. See

A.R.S. § 25-214(C). Wife argues that because A.R.S. § 25-214(C)(1) requires 

joinder of both spouses to bind the community in any transaction for the 

acquisition, disposition, or encumbrance of an interest in real property, the 

Loan should be viewed as Husband’s separate debt. Wife maintains that 

because Husband obtained the Loan as the sole signatory and using his 

separate real property as security, the Loan is Husband’s separate debt 

under the statute. We disagree with Wife. 

¶29 Generally, all liability incurred by either spouse during a 

marriage is presumed to be a community obligation. Flower, 223 Ariz. at 

535, ¶ 12. This presumption applies to debt secured by separate property, 

Johnson v. Johnson, 131 Ariz. 38, 45 (1981) (“[W]e [do not] see any reason why 

the [community obligation] presumption should be negated by the fact that 

the husband used his separate property to secure the community loans.”), 

unless there is a statutory exception, Vance-Koepnick v. Koepnick, 197 Ariz. 

162, 163, ¶ 6 (App. 1999) (guaranty exception applicable). 

Section 25-214(C)(1) provides that “[e]ither spouse separately may acquire, 

manage, control or dispose of community property or bind the community, 

except that joinder of both spouses is required” for “any transaction for the 

acquisition, disposition or encumbrance of an interest in real property.” 

(Emphasis added.) The Loan was not a purchase money loan on the 

condominium, nor did it encumber a community asset; therefore, the 

statutory exception under A.R.S. § 25-214(C)(1) does not apply. On remand, 

the court shall consider the loan as a community debt to be considered 

when equitably dividing the community. 

CONCLUSION

¶30 We vacate the property and debt orders in the annulment 

decree and remand for further proceedings consistent with this opinion.
Hammett v. Hammett

Opinion of the Court

11 

Wife did not request attorney’s fees, but as the successful party, she is 

entitled to costs upon compliance with ARCAP 21.