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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHERRI LYNN SMITH, Petitioner/Appellee,

v.

STEVEN JOHN SMITH, Respondent/Appellant.

No. 1 CA-CV 22-0585 FC

Appeal from the Superior Court in Yavapai County

No. P1300DO202100089

The Honorable Cele Hancock, Judge

AFFIRMED

COUNSEL

Mull & Brown PLLC, Prescott

By John G. Mull

Counsel for Petitioner/Appellee

Hoffman Legal, LLC, Phoenix

By Amy W. Hoffman 

Counsel for Respondent/Appellant

FILED 11-7-2023
SMITH v. SMITH

Decision of the Court

2

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which

Presiding Judge Michael J. Brown and Chief Judge David B. Gass joined.

J A C O B S, Judge:

¶1 Appellee Sherri Lynn Smith (“Mother”) exclusively occupied 

the parties’ marital residence for more than two years before entry of the 

final dissolution decree in this case. Appellant Steven John Smith 

(“Father”) challenges the portion of the dissolution decree denying him rent 

for that time period. For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mother petitioned to dissolve the parties’ marriage in 

February 2021. The parties have one minor child. When Mother filed the 

petition, she lived with the child at the marital residence, and Father lived 

in Wisconsin. Father has not lived at the marital residence since a 2019

domestic violence incident after which Mother obtained an order of 

protection. He later pleaded no contest to disorderly conduct. 

¶3 In the dissolution proceedings, Mother wanted to buy out 

Father’s interest in the marital residence so she could continue to live there

with the child. Father preferred that the marital residence be sold with the 

proceeds split equally. Father also asked the court to award him 25 months 

of pre-decree rent because Mother had “lived in the marital home . . . ‘rentfree’” since the 2019 incident. He initially claimed he was entitled to $1,150 

per month based on a Zillow estimate of $2,300 per month but later testified 

at trial that the fair market rental value was $2,600 per month.

¶4 The superior court entered a decree directing the parties to 

sell the marital residence and divide the proceeds equally. The court denied 

Father’s rent claim, finding that he was not entitled to rent “in an equitable 

division of the property” and that he did not present sufficient evidence to 

establish the marital residence’s fair market rental value. Father appeals

that ruling. We have jurisdiction under A.R.S. § 12-2101(A)(1).
SMITH v. SMITH

Decision of the Court

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DISCUSSION

¶5 Father contends “[i]t was inequitable for the . . . court to allow 

Mother the exclusive use of community property without reimbursing the 

community.” Upon dissolution of a marriage, the court must divide 

community property “equitably, though not necessarily in kind.” A.R.S. § 

25-318(A). Section 25-318(A) does not require an equal and like division, 

and the court has broad discretion to determine what is equitable under the 

circumstances of each case. In re Marriage of Flower, 223 Ariz. 531, 538 ¶ 28 

(App. 2010). We review the division of community property for abuse of

discretion. Ertl v. Ertl, 252 Ariz. 308, 314 ¶ 20 (App. 2021). We view the 

evidence in the light most favorable to affirming the decree and will affirm 

if the evidence reasonably supports it. Lehn v. Al-Thanayyan, 246 Ariz. 277, 

283 ¶ 14 (App. 2019).

I. The Superior Court Did Not Abuse Its Discretion by Denying 

Father’s Rent Claim.

¶6 Father bases his claim for rent in substantial part on Ferrill v. 

Ferrill. 253 Ariz. 393 (App. 2022). There, husband left the marital residence

a few months before wife petitioned to dissolve the marriage. Id. at 395 ¶ 3. 

After serving the petition, wife continued to make mortgage payments 

using her separate funds. Id. She requested reimbursement for those 

payments, but husband contended “it was within the superior court’s 

discretion to offset any reimbursement . . . by the value of the benefit [w]ife 

received by having exclusive possession of the marital home.” Id. at 396

¶ 9. We concluded the superior court could order an offset for wife’s postservice possession if husband was ousted from the marital residence and 

remanded for findings as to whether ouster had occurred. Id. at 396, 398

¶¶ 9, 11, 19. We also held that reimbursement, if warranted, could be 

“valued at up to one-half the reasonable rental value of the marital home.” 

Id. at 398 ¶ 21.

¶7 Father contends he was ousted in December 2019. Mother 

responds that she did not “wrongfully oust” him and that his “intentional 

criminal behavior was the reason he was required to vacate” the marital 

residence. She cites no authority suggesting that an ouster must be 

wrongful or that a spouse who has been accused of crimes cannot be ousted. 

Indeed, we said in Ferrill that “[t]he court may base its finding of exclusion 

on any evidence that one party possessed the property with the intent to 

occupy the premises in a way that excludes or denies the rights of the 

other.” Id. at 398 ¶ 18. 
SMITH v. SMITH

Decision of the Court

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¶8 As in Ferrill, the superior court here did not determine 

whether Father was ousted. For purposes of this appeal, we assume he was. 

That assumption, however, does not divest the superior court of its

“’discretion to decide what is equitable in each case’” in dividing 

community property. Meister v. Meister, 252 Ariz. 391, 396 ¶ 13 (App. 2021) 

(quoting Toth v. Toth, 190 Ariz. 218, 221 (1997)). Section 25-318(C) allows 

the court to consider “excessive or abnormal expenditures, destruction, 

concealment or fraudulent disposition,” and the court also may consider 

“any other factors that bear on the equities of a case.” In re Marriage of 

Inboden, 223 Ariz. 542, 546 ¶ 14 (App. 2010). 

¶9 Father also cites McIlwain v. McIlwain, which the superior 

court relied on in the decree, to support his rent claim. 666 S.E.2d 538 (Va. 

Ct. App. 2008). There, husband excluded wife from the marital residence, 

which the parties owned outright, and lived there for six years “at virtually 

no cost” after they separated. Id. at 540. But the Virginia court found

several other considerations supported awarding rent to wife, as husband 

had:

• “unnecessarily increased the family’s debt by refusing 

to pay the taxes in a timely manner,” 

• “made very few nonmonetary contributions to the 

marriage,” 

• “loaned huge sums of money to his companies without 

wife's knowledge,” and 

• “made de minim[i]s payments toward this marital 

debt, even though he lived in the marital home and did 

not have to pay rent or a mortgage.”

Id. at 542. The court concluded that while Virginia law did not require a 

rent award, it was not an abuse of discretion to grant wife’s request because 

“the fact that [she] had to address this problem, a problem of husband’s 

creation, for years after their separation . . . created additional equity 

concerns.” Id. at 544.

¶10 Even assuming Virginia law might help our analysis,

McIlwain does not aid Father because its facts are not analogous to those in 

this case, and Father cites no evidence to suggest Mother caused any such

problems for the marital community, financial or otherwise. He also fails 

to support his contention that Mother “received favorable and [i]nequitable 

treatment at [his] expense.” Indeed, his main evidence that he was treated 
SMITH v. SMITH

Decision of the Court

5

unfairly—that he “was required to make monthly . . . ‘temporary family 

support’ payments” greater than his child support obligation later 

established in the decree—was part of a set of temporary orders he agreed 

to in March 2021. Father also conceded he made no financial contributions 

to support Mother or the child before the court entered those temporary 

orders. He thus does not show that the denial of his rent claim was 

inequitable under the circumstances. See In re Marriage of Flower, 223 Ariz. 

at 535 ¶ 14 (“In determining an equitable division, the family court has 

broad discretion in the specific allocation of individual assets and 

liabilities.”); Neely v. Neely, 115 Ariz. 47, 49 (App. 1977) (“The discretionary

power [to divide community property] is very broad and will not be 

disturbed unless it clearly appears that it has been abused.”).

¶11 We also reject Father’s contention that he was entitled to rent 

simply because the superior court “otherwise equally divided the 

community’s property.” The court is not “‘bound by any per se rule of 

equality.’” Meister, 252 Ariz. at 396 ¶ 13 (quoting Toth, 190 Ariz. at 221). As 

such, while a division of property typically should be substantially equal, 

it need not be exactly equal. Kelly v. Kelly, 198 Ariz. 307, 309 ¶ 7 (2000); Wick

v. Wick, 107 Ariz. 382, 385 (1971). The court therefore did not abuse its 

discretion by denying Father’s rent claim. See Cockrill v. Cockrill, 139 Ariz. 

72, 75 (App. 1983) (“[N]o abuse of discretion will be found as long as the 

court acts equitably.”).

II. Attorneys’ Fees and Taxable Costs on Appeal

¶12 Both parties request their attorney fees incurred in this appeal 

under A.R.S. § 25-324(A). Before awarding fees, we must consider the 

parties’ financial resources and the reasonableness of their positions 

throughout the proceedings. Keefer v. Keefer, 225 Ariz. 437, 441 ¶ 16 (App. 

2010). Having considered these matters, we decline to award fees. Mother 

may recover her taxable costs incurred in this appeal upon compliance with 

Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶13 We affirm the denial of Father’s pre-decree rent claim.