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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

In re the Matter of: 

DEREK TERRENCE MORRIS, Petitioner/Appellant,

v.

JODIE LYNN MORRIS, Respondent/Appellee.

No. 1 CA-CV 19-0028 FC

Appeal from the Superior Court in Maricopa County

No. FC2016-006248

The Honorable Ronee Korbin Steiner, Judge

AFFIRMED

COUNSEL

Cavanagh Law Firm, Phoenix

By Christina S. Hamilton

Counsel for Petitioner/Appellant

Hallier & Lawrence, PLC, Phoenix

By Angela K. Hallier

Co-Counsel for Respondent/Appellee

Jones Skelton & Hochuli, PLC, Phoenix

By Eileen Dennis GilBride

Co-Counsel for Respondent/Appellee

FILED 12-5-2019
MORRIS v. MORRIS

Decision of the Court

2

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge John C. Gemmill1 joined.

W E I N Z W E I G, Judge:

¶1 Derrick T. Morris (“Husband”) appeals the superior court’s 

decree of marital dissolution and denial of his motion for a new trial, 

arguing the court erroneously classified his separate property as 

community property. Husband further contests the court’s denial of his 

motion in limine to preclude expert testimony about the commingling of 

community and separate assets. We find no reversible error and thus 

affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Jodie L. Morris (“Wife”) married in Canada in 

August 2002 and spent several years of their marriage in Arizona. They 

have three children. Husband petitioned to dissolve the marriage in June 

2016.

¶3 The parties agreed on most issues, but the court held a bench 

trial to resolve their competing claims to real property in Canada, including 

100 acres of agricultural land (the “BDM Land”) and a commercial building 

(the “Financial Building”). Husband and Wife testified. The court also 

heard testimony from Husband’s longtime bookkeeper, Joan Thomas, and 

Wife’s expert accounting witness, Lynton Kotzin. 

¶4 The court resolved all contested issues in a September 2018 

dissolution decree. Most relevant here, the court found that the community 

held an equitable lien of $1,636,626 on the Financial Building. The court also 

determined that the community owned 93.2 percent of the BDM Land, and 

Husband owned the remaining 6.8 percent as sole and separate property. 

Husband timely appealed. We have jurisdiction pursuant to A.R.S. § 12-

2101(A)(1). 

1 The Honorable John C. Gemmill, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3 of the Arizona Constitution.
MORRIS v. MORRIS

Decision of the Court

3

DISCUSSION

¶5 Husband contends the superior court erred in finding that the 

community (1) held a $1,636,626 equitable lien on the Financial Building, 

and (2) owned 93.2 percent of the BDM Land. Husband further argues the 

court should have excluded the expert testimony of Lynton Kotzin.

A. The Financial Building

¶6 The Financial Building is Husband’s sole and separate 

property. He purchased the Building before the marriage in 2002 for 

$1,470,000, including a $725,000 mortgage. Husband’s bookkeeper also 

opened a bank account—the Morris Management account—for the 

Building’s rental income and expenses. 

¶7 The superior court found that the Morris Management 

account became commingled during marriage and that Husband pulled 

$240,584 from the commingled funds to pay the Financial Building’s

mortgage. The court thus ordered that the community held an equitable 

lien of $1,636,626 on the Financial Building “of which Wife is entitled to 

half.”

¶8 On appeal, Husband challenges both the superior court’s 

finding that the Morris Management account was commingled and the 

amount of the community’s equitable lien.

1. Commingled Assets

¶9 We review de novo whether property is separate or 

community property. In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15 

(App. 2000). The community may acquire an equitable lien against one 

spouse’s sole and separate real property when community assets are used

to pay down a mortgage on that separate property. Drahos v. Rens, 149 Ariz. 

248, 249-50 (App. 1985). And we presume that mortgage payments from 

commingled funds are made with community assets unless presented with 

“clear and satisfactory evidence” that the payments came from separate 

funds alone. Brebaugh v. Deane, 211 Ariz. 95, 97-98, ¶ 6 (App. 2005); see 

A.R.S. § 25–211(A).

¶10 The record amply supports that the Morris Management 

account was commingled, and Husband did not rebut the presumption of 

community assets. The evidence reflects that community assets were 

transferred into the Morris Management account, the couple processed 

personal transactions through the Morris Management account, the Morris 
MORRIS v. MORRIS

Decision of the Court

4

Management account was used for financial transactions related to other 

community-owned real property, and the couple transferred assets from 

the Morris Management account to different community checking 

accounts.

¶11 Husband concedes that community assets were deposited

into the Morris Management account, but insists that his bookkeeper 

treated those deposits as community “loans” owed to the community, thus 

ensuring the integrity of the community and separate funds in the account. 

¶12 We are not persuaded for three reasons. First, the deposits of 

community assets were not designated as “loans” until after this lawsuit 

was filed. Before then, Morris Management’s financial statements 

identified the deposits as “equity.” Second, the record contains no loan 

documents or repayment schedules. And third, the record includes no 

evidence that the community accrued interest on the purported loans. 

Against this backdrop, Kotzin “explain[ed] that these transactions were not 

separated and the outflows were distributions, not loans repaid,” which the 

superior court found “persuasive.” Husband offered no expert testimony 

to the contrary.

2. Lien Amount

¶13 Husband also argues that the superior court “inaccurately 

calculated” the equitable lien. The existence and value of an equitable lien 

present a mixed question of fact and law, but we uphold the superior 

court’s factual findings unless clearly erroneous or unsupported by any 

credible evidence. Valento v. Valento, 225 Ariz. 477, 481 (App. 2010).

¶14 We find no error. The superior court used the “value-atdissolution” approach, which is generally appropriate to value a 

community lien. Id. “The community property equitable lien interest is 

determined by adding the principal balance paid by the community to the 

product of the community property principal payments divided by the 

purchase price times the appreciation in value.” Drahos, 149 Ariz. at 250. 

The court recognized that the Financial Building had appreciated by 

$8,530,000 during the marriage, which meant the community’s $240,584 

contribution generated a $1,636,626 community lien on the building. 

¶15 We affirm the superior court’s decision on commingling and 

the value of the equitable lien.
MORRIS v. MORRIS

Decision of the Court

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B. The BDM Land

¶16 The BDM Land was acquired during the marriage in 

September 2005 for $901,252. The purchase price was raised from three 

sources, including $61,544 in Husband’s separate funds, $204,708 in 

community funds, and a $635,000 mortgage. A month later, in October 

2005, Husband borrowed money on a line of credit to fully repay the 

$635,000 mortgage. But that transaction only shuffled lenders. The debt 

remained intact and outstanding until January 2007. At that time, Husband 

paid $595,381 from the Morris Management account toward the line of 

credit. The Morris Management account had been funded only three weeks 

earlier with $761,035 in community assets.

¶17 After a bench trial, the court found that the community 

owned 93.2 percent of the BDM Land because it supplied $839,708 of the 

$901,252 purchase price—which reflected the community’s original 

$204,708 contribution plus the full $635,000 mortgage. 

¶18 Husband contests the superior court’s finding that the 

community owned 93.2 percent of the BDM Land while Husband 

separately owned only 6.8 percent—instead claiming that he owned 78 

percent. We review de novo the superior court’s classification of community 

and separate property, Pownall, 197 Ariz. at 581, ¶ 15, but uphold its factual 

findings unless they are clearly erroneous, Walsh v. Walsh, 230 Ariz. 486, 

490, ¶ 9 (App. 2012).

¶19 We find no error. The BDM Land is presumed to be 

community property because it was acquired during the marriage and 

Husband never rebutted the presumption of community property with 

clear and convincing evidence. Schickner v. Schickner, 237 Ariz. 194, 199, ¶ 

22 (App. 2015). The record reflects the community provided $204,708 of the 

initial purchase price in September 2005, and later funded the Morris 

Management account right before it was used in January 2007 to reduce the

line of credit.

¶20 Husband’s arguments miss the mark. He first claims the 

October 2005 shuffle of lenders, which satisfied the initial debt, rebutted the 

community presumption. As the court recognized, however, that 

transaction was “really a fiction” because “Husband merely moved one 

loan to another and did not pay that loan until the community made the 

payment.” The “important” point was “that the only significant payment 

on the ultimate loan associated with the BDM [L]and was not made until 

the community paid the $761,0[35] into the Morris Management account.”
MORRIS v. MORRIS

Decision of the Court

6

¶21 Husband then argues he only borrowed the $761,035 deposit 

from the community, which might have created a reimbursement claim, but 

not an “increased” ownership interest. But here again, Husband failed to 

provide the evidence needed to rebut the presumption of community 

property. We affirm the superior court’s apportionment of the ownership 

interests in the BDM Land.2

C. Motion in Limine

¶22 Husband claims the superior court erroneously denied his 

motion to exclude Kotzin’s testimony on grounds that Kotzin offered “legal 

conclusions.” We review for an abuse of discretion. State ex rel. Montgomery 

v. Miller, 234 Ariz. 289, 297, ¶ 15 (App. 2014). 

¶23 Kotzin did not offer a legal opinion. He examined 16 years of 

financial transactions and offered his opinion on various financial and 

accounting issues, including whether the financial evidence reflected a 

series of loans from the community to the Morris Management account. 

Kotzin has significant experience in forensic accounting and the court 

valued his assistance in navigating a “complicated and detailed” set of 

facts. Ariz. R. Evid. 703 (expert testimony should be helpful to the 

factfinder). Nor did Husband challenge Kotzin’s methods. We find no 

abuse of discretion.

CONCLUSION

¶24 We affirm the decree of dissolution. In our discretion, we 

deny Wife’s request for an award of attorney’s fees under A.R.S. § 25-324.

2 Husband contends Rueschenberg v. Rueschenberg, 219 Ariz. 249 (App. 

2008) controls this issue, but that case dealt with apportioning the earnings 

and increased value of a spouse’s separate medical hardware business.