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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PEDRO ORTIZ, Petitioner/Appellant,

v.

JUANA DIEJUEZ, Respondent/Appellee.

No. 1 CA-CV 18-0606 FC 

Appeal from the Superior Court in Maricopa County

No. FC2017-009466

 FC2017-096002

 (Consolidated)

The Honorable Joan M. Sinclair, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Alexander R. Arpad, Phoenix

By Alexander R. Arpad

Counsel for Petitioner/Appellant

FILED 4-7-2020
2

Gillespie, Shields, Goldfarb & Taylor, Mesa

By Mark A. Shields

Co-Counsel for Respondent/Appellee

The Hogle Law Firm, PLC, Mesa

By Dana R. Hogle, Robert J. Moon

Co-Counsel for Respondent/Appellee

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, 

in which Judge Maria Elena Cruz and Judge David B. Gass joined.

W I N T H R O P, Judge:

¶1 Pedro Ortiz (“Father”) appeals several rulings in the decree 

dissolving his marriage to Juana Diejuez (“Mother”). Father argues the 

court erred in the division and characterization of real property and erred 

in calculating his income for the purposes of determining child support and 

spousal maintenance. Finding the superior court erred in both respects, we 

vacate the family court’s characterization of the real property and the other

portions of the decree at issue. We affirm the remainder of the decree and

remand for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother were married for 22 years and have six 

children together. Father filed a petition for dissolution of marriage on 

September 21, 2017. Before the dissolution hearing, the parties agreed on 

several minor financial issues, but were unable to agree on issues such as 

child support, spousal maintenance, and division of the real property.

¶3 The court held the dissolution hearing on August 1, 2018. At 

the hearing, the court heard evidence on Father’s income to determine 

proper child support1 and spousal maintenance payments. Father’s tax 

returns were received in evidence by stipulation and showed Father’s 

adjusted gross income was $29,229 in 2016; $35,949 in 2015; and $37,531 in 

1 At the time of the dissolution hearing, the parties had five minor 

children.
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3

2014. Father testified that he earns a total of approximately $2,604 per 

month—$2,200 per month from his landscaping business and an additional 

net of $404 per month from the couple’s real property after expenses such 

as the mortgage payments are deducted—which totals $31,248 annually. 

Mother disagreed with Father’s testimony and testified that Father earns

over $5,000 a month—or approximately $67,000 annually—as evidenced by

deposits made in the couple’s joint bank account from December 2016 to 

November 2017. Bank records reflecting those deposits were received in 

evidence by stipulation.

¶4 Also at issue in the dissolution were two apartment buildings 

located at 1715 East Fifth Avenue (the “1715 building”) and at 1717 East 

Fifth Avenue (the “1717 building”). In their pretrial statements, both 

parties agreed that the 1715 building is owned by Father and his father 

(“Grandfather”) as joint tenants. However, Mother’s pretrial statement 

claimed that despite Grandfather being “a title co-owner of the 1715 

property,” Grandfather had “no equitable interest in the property” because 

he never paid the mortgage or expenses on the 1715 building and never 

received any of the rental income generated by the 1715 building. Mother 

argued she was entitled to 50% of the equity in the 1715 building because 

Father treated it “as if he owned full fee title” and because the community 

paid all expenses associated with the 1715 building and received allrevenue 

generated.2 Father’s position in his pretrial statement was that Mother had 

a 25% interest in the 1715 building. The 1717 building is titled in Father’s 

name alone, but both parties’ pretrial statements agreed Mother has a 50% 

interest in the 1717 building.

¶5 The parties reiterated their positions regarding the real 

property at the dissolution hearing. Father testified that he and 

Grandfather co-own the 1715 building as joint tenants with rights of

survivorship and argued Mother’s interest in the 1715 building is 25% (half 

of Father’s half). Mother testified at trial that even though Father did not 

hold full fee title to the 1715 building, he treated it as “his own,” and so 

Mother asked the court to give her 50% of the equity in the 1715 building. 

Father testified he was the sole owner of the 1717 building. Both parties

acknowledged that the community paid all expenses associated with the

real property and deposited all revenue generated into the parties’ joint 

2 A letter from Grandfather was received in evidence by stipulation in 

which Grandfather confirmed he does not pay the mortgage or receive rent 

payments for the 1715 building.
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Decision of the Court

4

bank account. Accordingly, the parties agreed that Mother should receive 

50% of the community’s interest in the 1717 building.

¶6 The warranty deeds for both properties were received in

evidence by stipulation on the day of the hearing. The 1715 building deed 

shows Father received his interest in the building as his sole and separate 

property from Grandfather and states Father and Grandfather own the 

property as joint tenants with rights of survivorship. The 1717 building 

deed also shows Father received the 1717 building as his sole and separate 

property. Mortgage statements on both properties were also admitted,

which show the mortgage on the 1715 building is in Grandfather’s name 

and the mortgage on the 1717 building is in Father’s name.

¶7 After consideration of all evidence, the court issued the 

decree of dissolution. Father was ordered to pay $1,485.57 per month in 

child support.3 The court stated it “did not find [Father’s] testimony 

relative to his income to be credible,” and calculated Father’s monthly 

income for the purposes of child support “by averaging the deposits made 

in the bank statements” of the parties’ joint account. The annualized total 

of the attributed income would be $67,104. The decree also ordered spousal 

maintenance of $1,000 per month for thirty-six months, inexplicably finding 

Father “has historically earned an average of approximately $33,000 per 

year.”

¶8 Regarding the real property, the court found both buildings 

were community property and ordered both be placed on the market within 

ninety days of the decree, with each party to receive 50% of the proceeds 

from each sale. Specific to the 1715 building, the court found

[Father] claimed that the 1715 property was a joint tenancy 

owned by him and his father, however, the mortgage for this 

property was paid by the marital community and the rental 

income was income to the marital community. Additionally, 

[Grandfather] wrote a note supporting the evidence that the 

debts and income of that property were completely part of the 

marital community. [Father] treated the 1715 property as his

3 The court later updated Father’s monthly child support obligation to 

be $1,159 per month. This updated amount reflected Father’s spousal 

maintenance obligations and fixed a clerical error made in a previous child 

support worksheet submitted by the State. The change did not address 

Father’s arguments on appeal regarding his income.
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Decision of the Court

5

own so the Court will consider this marital community 

property.

¶9 Father filed a timely notice of appeal from the final decree. 

We have jurisdiction under Arizona Revised Statutes (“A.R.S.”) section 12-

2101(A)(1).

ANALYSIS4

I. Interest in the Apartment Buildings

¶10 On appeal, Father argues the court erred in finding the 

apartment buildings were community property because his interest in each 

building was deeded to him as sole and separate property.

5 Father 

contends the court also erred in finding the 1715 building was 100% 

community property when the property is owned by Father and 

Grandfather as joint tenants.6 Father claims the court did not have 

jurisdiction to determine Grandfather’s interest in the 1715 building 

without joining Grandfather as a party.

¶11 In response, Mother argues the court did not abuse its 

discretion because Father acknowledged in his pretrial statement that

4 Because neither Father nor Mother requested the court make 

findings of fact or conclusions of law pursuant to Arizona Rule of Family 

Law Procedure 82(a), we presume the court found every fact necessary to 

sustain its decision. See Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990).

5 Mother argues Father cannot challenge the characterization of the 

real property because he represented in his pretrial statement that the 

buildings were community property. However, Father took an inconsistent 

stance in the proceedings below, stating the buildings are community 

property while at the same time introducing evidence of the warranty 

deeds which designated the properties as Father’s “sole and separate

property.” Because Father took an inconsistent position, and because the 

characterization of property is a question of law, we believe it is appropriate 

for the court to review the characterization of the real property.

6 Mother claims any argument concerning Grandfather’s interest is 

waived because it was not asserted below. We disagree. The record reflects 

Father consistently acknowledged Grandfather’s interest in the 1715 

building, plainly stating the building was held in joint tenancy with 

Grandfather.
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6

Mother had a community interest in both buildings. Mother contends the 

court properly divided the 1715 building, “notwithstanding the joint 

tenancy deed,” because A.R.S. § 25-318 allows the court to “divide the 

community, joint tenancy and other property held in common equitably.” 

Mother also argues Grandfather’s interest only constitutes a lien in the 

property, not ownership, because Grandfather did not live at the property, 

care for it, or receive the rental income from it.7

¶12 We review the family court’s distribution of property for an 

abuse of discretion; however, the classification of property as separate or 

community is a question of law that we review de novo. Bell-Kilbourn v. BellKilbourn, 216 Ariz. 521, 523, ¶ 4 (App. 2007). We also review de novo whether 

the court has jurisdiction. Bank of N.Y. Mellon v. Dodev, 246 Ariz. 1, 6, ¶ 15 

(App. 2018).

A. Characterization of the Real Property

¶13 Property acquired during marriage is presumed to be 

community property. A.R.S. § 25-211(A). The party seeking to overcome 

that presumption has the burden of establishing by clear and convincing 

evidence the separate nature of the property. Schickner v. Schickner, 237 

Ariz. 194, 199, ¶ 22 (App. 2015). “Property takes its character as separate or 

community at the time of acquisition and retains that character throughout 

the marriage.” Bell-Kilbourn, 216 Ariz. at 523, ¶ 5 (internal quotation 

omitted). Once this character has been established, it does not change 

7 Mother also claims Grandfather’s joint tenancy was “terminated”

because joint tenancy requires presence of the “four unities” (time, title, 

possession, and interest). Mother asserts the unities were destroyed 

because Grandfather “took no part in the possession, time, and interest of 

the property” as the record shows he did not live at the property, take care 

of it, or receive income from it. While a joint tenancy does require presence 

of the four unities, Mother’s argument misunderstands this doctrine in two 

ways. First, Mother does not apply the proper legal meaning to each unity 

(e.g., unity of time requires “the joint tenants acquired the property and 

executed the contract at the same time” not that that the joint tenants both 

spent time at the property; for unity of possession, joint tenants must have 

the same right to possess the property and “there is no requirement of actual 

possession”). See Smith v. Tang, 100 Ariz. 196, 204 (1966) (emphasis added). 

Second, even if one of the unities is destroyed and the joint tenancy is 

severed, a tenant’s interest in the property is not terminated completely; 

rather, the joint tenancy is converted into a tenancy in common. Brant v. 

Hargrove, 129 Ariz. 475, 478 (App. 1981).
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7

except by agreement or operation of law. Schock v. Schock, 11 Ariz. App. 53, 

56 (1969).

¶14 The warranty deeds for the properties reflect that Father 

acquired his interest in both buildings “as his sole and separate property.” 

In addition, the case record and public records reflect that recorded 

disclaimer deeds exist for each property—both signed by Mother—

agreeing each building is the sole and separate property of Father and 

disclaiming that Mother has any interest in the buildings.8 A valid

disclaimer deed rebuts the presumption of community property and “must 

be enforced in the absence of fraud or mistake.” Bell-Kilbourn, 216 Ariz. at 

523-24, ¶¶ 7, 11. Fraud and mistake, however, are affirmative defenses that

must be proved by clear and convincing evidence. Bender v. Bender, 123 

Ariz. 90, 94 (App. 1979); see also Powers v. Guar. RV, Inc., 229 Ariz. 555, 562, 

¶ 27 (App. 2012); Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 7 (App. 1998). 

If Mother alleges these disclaimer deeds were obtained by fraud or mistake, 

she can present that evidence to the trial court on remand.

¶15 Assuming without deciding that these properties were 

received by Father as his sole and separate property, we note that, although 

the community paid the mortgages and upkeep on both buildings, as well 

as lived in one of the buildings, those actions did not change the legal 

character of the property. See Drahos v. Rens, 149 Ariz. 248, 249 (App. 1985) 

(“[A] residence which is separate property does not change its character 

because it is used as a family home and mortgage payments are made from

community funds.”). On this record, the family court erred in finding both 

the 1715 building and the 1717 building were community property without 

adequate consideration for the character of the property at the time of 

acquisition, including consideration of any related documents concerning 

the respective interests of the parties at the time of acquisition. See BellKilbourn, 216 Ariz. at 523, ¶ 5. Accordingly, we vacate the family court’s 

8 The superior court did not consider the disclaimer deeds in making 

its decision because, inexplicably, the deeds were not produced by either 

party until after the dissolution hearing. Husband filed a post-trial “Motion 

for Relief Pursuant to Rule 85(C) of Arizona Rules of Family Law 

Procedure” asking the court to consider the disclaimer deeds. The court 

denied that motion. Because we are remanding the characterization of the 

real property—among other issues—to the trial court, we presume the 

timeliness of disclosure of these deeds will no longer be an issue, and the 

trial court may, if appropriate, take judicial notice of the existence and 

content of these deeds. See Ariz. R. Evid. 201(b)(2).
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Decision of the Court

8

characterization of the buildings as community property and also vacate 

the order that the properties be placed on the market to be sold.

¶16 As previously noted, Father may on remand seek to introduce 

evidence of the disclaimer deeds. See Johnson v. Provoyer, 245 Ariz. 239, 241-

42, ¶ 8 (App. 2018) (“The superior court has broad discretion in ruling on 

disclosure and discovery matters.”). If the deeds are allowed, pursuant to 

Arizona Rule of Evidence 201(b)(2) or on any other ground, Mother may 

seek to rebut the disclosure deeds by presenting evidence of fraud or 

mistake. See Bender, 123 Ariz. at 94. If the court determines the buildings 

are Father’s separate property, the community may be entitled to an 

equitable lien against the properties based on the community’s 

contributions in the form of mortgage payments and maintenance costs. 

A.R.S. § 25-318(E)(1); Drahos, 149 Ariz. at 249-50.

B. Grandfather’s Interest in the 1715 Building

¶17 The court has the power to “divide the community, joint 

tenancy and other property held in common equitably.” A.R.S. § 25-318(A). 

Contrary to Mother’s assertion, however, this statute only gives the court 

the power to divide property held in joint tenancy between the parties to the 

dissolution; it does not give the family court jurisdiction to determine thirdparty interests in a property held in joint tenancy between one spouse and 

a third party who is not joined in the proceedings.

¶18 The court has the power to join a third party when joinder is 

“necessary for the exercise of its authority.” A.R.S. § 25-314(D); see also Ariz.

R. Civ. P. (“Rule”) 19(a) (detailing situations where a party is necessary, 

including when the individual’s interests would be impaired or impeded 

by a judgment). Alternatively, the court may divide a partial interest in 

property without joining a third party if that third party was not an 

indispensable party. Gerow v. Covill, 192 Ariz. 9, 15, ¶ 23 (App. 1998).

¶19 Here, the court adjudicated the full interest in the 1715 

building without joining Grandfather, despite the warranty deed showing

Grandfather owns the 1715 building in joint tenancy with Father.9 Without 

joinder, the court did not have jurisdiction to determine or disregard 

Grandfather’s interest in the 1715 building. See Garn v. Garn, 155 Ariz. 156, 

9 On February 11, 2020, Grandfather filed a “Motion to Intervene as 

Party in Interest.” We deny this motion without prejudice to Grandfather 

on remand filing a motion to intervene in the superior court.
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159 (App. 1987) (“Elementary principles of due process require that before 

any person may have a valid judgment entered against him, that person 

must have reasonable notice and an opportunity to appear and defend.”). 

The conclusion that the 1715 building could become community property 

simply because Father “treated the property as his own” has no legal 

basis—Grandfather does not lose his ownership interest just because he did

not pay the mortgage or receive the rent payments from the apartment 

building.

II. Father’s Income for the Purposes of Determining Child Support

¶20 Father argues the court erred in calculating his income for the 

purposes of determining child support in two ways: first, by attributing all 

rental income from the parties’ real property to Father without deducting 

mortgage payments and other necessary expenses of maintaining the 

properties10 and second, by attributing future income from the rental 

properties to Father while also ordering the properties be sold.

¶21 We review a court’s award of child support for an abuse of 

discretion. Sherman v. Sherman, 241 Ariz. 110, 112, ¶ 9 (App. 2016). “An

abuse of discretion occurs when the court commits an error of law that 

underlies its exercise of discretion.” Id. at 113, ¶ 9. We will accept the 

superior court’s factual findings unless clearly erroneous. Id. In addition, 

“[w]e will defer to the trial court’s determination of witnesses’ credibility 

and the weight to give conflicting evidence.” Gutierrez, 193 Ariz. at 347, 

¶13.

¶22 We review de novo the court’s conclusions of law and 

interpretation of the Arizona Child Support Guidelines (“Guidelines”), 

including whether a particular receipt or expense should be included in the 

10 Mother argues Father did not preserve this argument for appeal 

because “he failed to produce any documentary or testimonial evidence of 

his claimed deductions.” However, when questioned about his income, 

Father testified he collected net revenue of $404 on the properties after 

paying the mortgage, repairs, and utilities on the properties. In addition, 

mortgage statements evidencing the payments were entered into evidence 

by stipulation, and both parties have continuously asserted the community 

paid the mortgages for the properties. We find Father has preserved the 

argument that the necessary expenses related to the properties should be 

subtracted from the gross rental income.
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child support calculation. Sherman, 241 Ariz. at 113, ¶ 9; Patterson v. 

Patterson, 226 Ariz. 356, 358-59, ¶¶ 4, 7 (App. 2011).

¶23 Regarding Father’s first argument, the Guidelines make clear 

that in calculating income from rent, “gross income means gross receipts 

minus ordinary and necessary expenses required to produce income.” 

A.R.S. § 25-320 app. § 5(C). Here, the court stated it “did not find [Father’s] 

testimony relative to his income to be credible” and so calculated Father’s 

income “by averaging the deposits made in the bank statements” of the 

parties’ joint account. Although we will not reevaluate the court’s 

determination of Father’s credibility, see Gutierrez, 193 Ariz. at 347, ¶ 13, the 

court erred as a matter of law by calculating Father’s income using the bank 

deposits alone (reflecting gross rental income) without also subtracting the 

mortgage payments and other expenses necessary to continue generating 

rental income from the two properties.

11 Accordingly, we vacate the court’s 

child support award and remand for a redetermination of Father’s net 

income in accordance with this decision.

¶24 Finally, because we vacate the court’s order that the real 

property be placed on the market to be sold, Father’s argument regarding 

future rental income in light of the ordered sale of the properties is moot 

and we need not address it.

III. Spousal Maintenance

¶25 Father argues the spousal maintenance award should be 

reversed based on the court’s inconsistent findings of Father’s income and 

because the decree will be altered significantly if the court recalculates child 

support and reconsiders equitable property allocations. We agree.

¶26 We review an award of spousal maintenance for an abuse of 

discretion, which occurs when the court makes an error of law in reaching 

11 In his opening brief, Father argues the court “failed to deduct the

mortgage payments and other expenses of maintaining the apartment

buildings.” Father does not clearly identify what “other expenses” he 

believes should have been considered, although he testified to paying the

utilities and maintenance expenses of the properties. We find the record 

insufficient for this court to determine whether any “other expenses” were 

necessary to the production ofrental income from the properties. See A.R.S. 

§ 25-320 app. § 5(C). We leave such determination to the family court on 

remand.
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a discretionary conclusion. Boyle v. Boyle, 231 Ariz. 63, 65, ¶ 8 (App. 2012). 

We review factual findings for clear error. Sherman, 241 Ariz. at 113, ¶ 9.

¶27 In the spousal maintenance portion of the decree, the court 

found Father “has historically earned an average of approximately $33,000 

per year.” Yet the child support worksheet now lists Father’s income as 

$5,592 per month, which would total $67,104 per year. Further, as already 

noted, that calculation does not accurately reflect Father’s net income

considering the expenses necessary to maintain the rental properties.

¶28 These inconsistent findings regarding Father’s income 

represent clear error. See id. We vacate the court’s award of spousal 

maintenance and remand this issue to the superior court to recalculate and 

make consistent findings regarding Father’s income.

¶29 We also note it may be appropriate for the court to revisit the 

issue of spousal maintenance on remand because our decision on child 

support and property allocation substantially alters the status of the decree. 

See Muchesko v. Muchesko, 191 Ariz. 265, 273 (App. 1997) (stating that when 

an appellate decision “substantially alters the status of the decree as 

written,” the trial court may reconsider related issues on remand).

IV. Attorneys’ Fees

¶30 Mother and Father both seek attorneys’ fees on appeal under 

A.R.S. § 25-324. We do find that Mother has taken some unreasonable 

positions on appeal, particularly as it relates to the characterization of 

Father’s interest in the subject real properties and as to the court’s authority 

to resolve issues concerning the 1715 building as to Grandfather, a nonparty. This is ameliorated to some extent by the inconsistent positions taken 

by Father in his pretrial statement and throughout trial concerning his 

interest in these properties. On the other hand, per the parties’ most recent 

affidavits of financial information, Father’s financial position appears more 

favorable. Section 25-324, however, provides that fees may be awarded 

based either on disparate financial condition or the reasonableness of the 

positions taken on appeal. Accordingly, we award Father some portion of 

his reasonable attorneys’ fees on appeal and his costs on appeal, all 

contingent on his compliance with Arizona Rule of Civil Appellate 

Procedure (“ARCAP”) 21(a).

CONCLUSION

¶31 For the foregoing reasons, we vacate the portions of the 

decree pertaining to the determination of child support, spousal 
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maintenance, and division and characterization of the subject real property. 

We affirm all other portions of the decree not challenged on appeal; 

however, on remand, the court has discretion to reconsider all financial 

aspects of the decree to ensure equitable division, recognizing that our

decision substantially alters the status of the decree as written. See 

Muchesko, 191 Ariz. at 273. Finally, we award Father his taxable costs on 

appeal and a portion of his reasonable fees, subject to compliance with 

ARCAP 21(a).