In Re the Marriage of Thorn

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

IN RE THE MARRIAGE OF

STUART E. THORN,

Petitioner/Appellant,

and

SUSAN THORN,

Respondent/Appellee.

No. 2 CA-CV 2014-0022

Filed July 17, 2014

Appeal from the Superior Court in Yavapai County

No. P1300DO201100031

The Honorable Kenton D. Jones, Judge

AFFIRMED

COUNSEL

The Murray Law Offices, P.C., Scottsdale

By Stanley D. Murray

Counsel for Petitioner/Appellant

Slaton & Sannes, P.C., Scottsdale

By Sandra Slaton

Counsel for Respondent/Appellee

IN RE THE MARRIAGE OF THORN

Opinion of the Court

OPINION

Judge Miller authored the decision of the Court, in which

Judge Vásquez and Judge Espinosa concurred.

M I L L E R, Judge:

¶1 Stuart Thorn appeals from the decree dissolving his

marriage to Susan Thorn, arguing the family court erred in dividing

real and personal property, ordering him to return Susan’s stocks

and bonds, and ordering him to repay a loan that had already been

paid. For the reasons that follow, we determine we do not have

jurisdiction to review the personal property arguments, and

otherwise affirm the judgment as to the remaining items.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to

upholding the decree. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 5,

972 P.2d 676, 679 (App. 1998). The parties were married in

January 1992 after entering into a prenuptial agreement. Although

that agreement does not direct the issues on appeal, it documents a

variety of separate properties brought to the marriage, many of

which maintained their separate character or affected the allocation

and distribution of jointly held property. In January 2011, Stuart

filed a petition for dissolution of marriage without children. The

family court entered a decree of dissolution in April 2013, dividing

the parties’ property. We have jurisdiction, except as discussed

below, pursuant to A.R.S. § 12-2101(A)(1).

I. Appellate Jurisdiction over Community Property Distribution

¶3 Stuart argues the family court failed to “make a fair and

equitable distribution of community property” because Susan “was

awarded all of the community personal property without an

equalization payment.” This issue was not raised under Stuart’s

original notice of appeal; therefore, we first must examine whether

2

IN RE THE MARRIAGE OF THORN

Opinion of the Court

we have jurisdiction to consider the court’s community property

distribution. See Baker v. Bradley, 231 Ariz. 475, ¶ 8, 296 P.3d 1011,

1014-15 (App. 2013) (court has independent duty to determine

jurisdiction).

¶4 Following the entry of the decree of dissolution on

April 25, 2013, Stuart filed a timely notice of appeal on May 10, 2013.

Stuart identified five specific orders and rulings in the decree to be

appealed. Thirty-five days after the decree, Stuart filed an amended

notice of appeal adding a sixth item to the list of orders and rulings

contained in the decree, specifically “[t]he order distributing

personal property.” On our own motion, we ordered simultaneous

briefing, requesting the parties address whether this court has

jurisdiction related to item six.

¶5 Rule 9(a), Ariz. R. Civ. App. P., requires a notice of

appeal be filed “not later than 30 days after the entry of the

judgment from which the appeal is taken.” The failure to file a

notice within thirty days deprives the appellate court of jurisdiction

except to dismiss the attempted appeal. James v. State, 215 Ariz. 182,

¶ 11, 158 P.3d 905, 908 (App. 2007). In other words, the timely filing

of a notice of appeal is “a prerequisite to appellate jurisdiction.”

Wilkinson v. Fabry, 177 Ariz. 506, 507, 869 P.2d 182, 183 (App. 1992).

Accordingly, this court only acquires jurisdiction over those matters

identified in a timely filed notice of appeal. Lee v. Lee, 133 Ariz. 118,

124, 649 P.2d 997, 1003 (App. 1982).

¶6 Stuart concedes his amended notice of appeal was filed

more than thirty days after entry of the decree of dissolution, but

argues “that an amended notice of appeal relates back to the filing

date of the original notice of appeal.” Stuart relies on Rule 34(A),

Ariz. R. Fam. Law P., and several out-of-state cases to support this

contention and characterizes his notice of appeal as a “pleading”

under Rule 34(A). Stuart offers no authority for the proposition that

Rule 34 either trumps or extends Rule 9(a). To the contrary, where

two rules deal with the same subject, the more specific rule controls.

See Pima Cnty. v. Heinfeld, 134 Ariz. 133, 134-35, 654 P.2d 281, 282-83

(1982) (“where two statutes deal with the same subject, the more

specific statute controls”); Sierra Tucson, Inc. v. Lee ex rel. Cnty. of

Pima, 230 Ariz. 255, ¶ 16, 282 P.3d 1275, 1279 (App. 2012) (“We

3

IN RE THE MARRIAGE OF THORN

Opinion of the Court

interpret procedural rules according to the same principles we apply

to the interpretation of statutes.”). Rule 9(a) is more specific and

applies directly to notices of appeal, whether original or amended.

¶7 We also find unpersuasive the out-of-state cases cited

by Stuart. None of them stands for the proposition that an untimely

amended notice of appeal confers jurisdiction upon the reviewing

court. See Chan v. Chan, 748 P.2d 807, 811-12 (Haw. Ct. App. 1987)

(husband timely filed five amended notices of appeal, each

appealing from orders entered after previous notice of appeal was

filed); In re Marriage of Betts, 558 N.E.2d 404, 415 (Ill. App. Ct. 1990)

(appellant’s failure to list orders appealed by original notice of

appeal in subsequent amended notice of appeal did not bar appeal

of those orders); Herman v. Hamblet, 401 N.E.2d 973, 977 (Ill. App. Ct.

1980) (“While an appellant may amend a notice of appeal . . . such an

amendment may not be used to avoid the requirement that a

subsequent order be timely appealed.”).

¶8 Stuart further contends that “amended notices of appeal

have been recognized and indeed encouraged in a number of

published appellate cases.” We agree that amended notices of

appeal have been recognized and at times implicitly encouraged,

particularly when the initial notice of appeal was premature,

rendering it a nullity. See generally Craig v. Craig, 227 Ariz. 105, ¶ 13,

253 P.3d 624, 626 (2011); In re Marriage of Kassa, 231 Ariz. 592, ¶¶ 5-6,

299 P.3d 1290, 1292 (App. 2013). The case law cited by Stuart,

however, does not stand for the proposition that this court has

jurisdiction to review rulings identified in an untimely amended

notice of appeal. For instance, in Engel v. Landman, 221 Ariz. 504,

¶ 14, 212 P.3d 842, 847 (App. 2009), the initial appeal was premature

because the notice of appeal had been filed while a motion for new

trial was pending, but a timely supplemental notice of appeal

conferred jurisdiction. There was no timely supplemental notice

here.

¶9 Stuart’s reliance on Craig also is unavailing. We agree

that the court ostensibly suggested that a supplemental notice might

have cured the problem caused by the parties’ failure to wait for the

family court to rule on a time-extending motion before filing their

original notices. Craig, 227 Ariz. 105, ¶¶ 2, 6-8, 253 P.3d at 624, 625.

4

IN RE THE MARRIAGE OF THORN

Opinion of the Court

More telling, the court approved the parties’ post-appeal decision to

file a stipulated motion pursuant to Rule 85(C)(1)(f), Ariz. R. Fam.

Law P., to reinstate the final judgment, which would permit the

parties to file “fresh notices of appeal.” Id. ¶ 16. There is no

indication in this record that Susan would stipulate to a new

judgment that would allow Stuart to file a timely notice.

¶10 We conclude that because the amended notice of appeal

was untimely filed, we lack jurisdiction to consider Stuart’s claims of

error pertaining to personal property. See James, 215 Ariz. 182, ¶ 11,

158 P.3d at 908 (“[W]here the appeal is not timely filed, the appellate

court acquires no jurisdiction other than to dismiss the attempted

appeal.”).

II. Order Directing Return of $940,000 in Stocks and Bonds

¶11 Stuart contends the family court erred in ordering the

return of certain securities to Susan because: (1) Susan’s transfer of

securities to him should have been classified as a gift; (2) the court

lacked jurisdiction to order return of Susan’s securities; and,

(3) Stuart should not be required to reimburse the full value of

Susan’s securities.

¶12 In February 2010, Susan transferred approximately

$940,000 in stocks and bonds to Stuart. The parties presented

conflicting testimony as to her motivation for the transfer, with

Stuart contending it was a gift and Susan asserting it was made

under duress. Whatever the motivation, Stuart prepared and Susan

signed a document transferring $940,000 in securities from Susan to

Stuart. Stuart also prepared an additional document, which he

described as “like a proxy,” that allowed Susan to repossess her

transferred securities in case she had “buyer’s remorse.” Shortly

after the initial securities transfer, Susan requested Stuart transfer

back some dividend-bearing bonds and Stuart complied. Upon

leaving the marital residence, Susan requested Stuart return the

remaining stocks and bonds. The family court found that Susan’s

transfer of the securities to Stuart was not a gift and ordered Stuart

to return the stocks and bonds to Susan, “less those sums or the

value of such stock already returned to [Susan].”

5

IN RE THE MARRIAGE OF THORN

Opinion of the Court

A. Gift Determination

¶13 We first address Stuart’s contention that the family

court abused its discretion in finding that Susan’s transfer of the

stocks and bonds was not a gift because resolution of this issue

informs our treatment of Stuart’s subsequent arguments pertaining

to Susan’s securities. Stuart contends, “[Susan] admitted that when

she made the transfer she did so voluntarily and was not expecting

repayment or anything in return for her . . . transfer of stock.” The

determination of whether a gift was made is a question of fact.

Hrudka v. Hrudka, 186 Ariz. 84, 92, 919 P.2d 179, 187 (App. 1995).

“We review a trial court’s findings of fact for abuse of discretion and

reverse only when clearly erroneous.” In re Marriage of Gibbs, 227

Ariz. 403, ¶ 6, 258 P.3d 221, 224 (App. 2011); see also Engel, 221 Ariz.

504, ¶ 21, 212 P.3d at 848.

¶14 The necessary elements of a gift are “donative intent,

delivery and a vesting of irrevocable title upon such delivery.”

Neely v. Neely, 115 Ariz. 47, 51, 563 P.2d 302, 306 (App. 1977); see also

Hrudka, 186 Ariz. at 93, 919 P.2d at 188. In the instant case, the

family court found the essential elements of a gift were not met. The

court concluded that even if it were to accept the existence of a

donative intent, as alleged by Stuart, “irrevocable title clearly did

not transfer as [was] apparent from [Stuart’s] own preparation and

provision of the authorization for [Susan] to demand the return of

the $940,000 in stock had she wished to do so.” Thus, the court

reasoned, “[t]here could not have been a vesting of irrevocable title

where reserved to [Susan] was the authority and ability to negate

the transfer.”

¶15 Stuart concedes he “provided [Susan] with a proxy to

obtain the return of her stocks and bonds” but contends the proxy

only existed “in case she had buyer’s remorse and wanted her

property back soon after the transfer.” By Stuart’s own admission,

Susan had the ability to repossess the stocks and bonds through

execution of the authorization prepared by Stuart. Accordingly,

irrevocable title could not have vested upon delivery and thus the

family court did not err in concluding the transfer was not a gift.

6

IN RE THE MARRIAGE OF THORN

Opinion of the Court

B. Family Court Authority

¶16 We next address Stuart’s argument that the family court

lacked subject matter jurisdiction to order return of Susan’s stocks

and bonds. Whether a family court has jurisdiction is a question of

law we review de novo. Thomas v. Thomas, 220 Ariz. 290, ¶ 8, 205

P.3d 1137, 1139 (App. 2009); Weaver v. Weaver, 131 Ariz. 586, 587, 643

P.2d 499, 500 (1982) (“Title 25 defines the boundaries of a dissolution

court’s jurisdiction, and the court may not exceed its jurisdiction

even when exercising its equitable powers.”).

¶17 Stuart’s argument depends, in part, on the assumption

that the family court’s subject matter jurisdiction is coterminous

with its authority to act pursuant to A.R.S. §§ 25-311 and 25-318(A).1

“In current usage, the phrase ‘subject matter jurisdiction’ refers to a

court’s statutory or constitutional power to hear and determine a

particular type of case.” State v. Maldonado, 223 Ariz. 309, ¶ 14, 223

P.3d 653, 655 (2010); see also United States v. Cotton, 535 U.S. 625, 630

(2002). We recognize that in Weaver our supreme court found a

family court’s “jurisdiction with respect to separate property is

limited to assigning to each spouse his or her separate property

under § 25-318(A) and impressing a lien pursuant to § 25-318(C).”

131 Ariz. at 587, 643 P.2d at 500. But the court used the term

“jurisdiction” in a broader, now antiquated, sense actually referring

to courts’ authority under the specific controlling statute rather than

subject-matter jurisdiction. See Weaver, 131 Ariz. at 588, 643 P.2d at

501 (Gordon, J., concurring) (spouse possessing separate property

must sue at law under tort theory for physical damage to property);

cf. Sierra Tucson, Inc. v. Lee ex rel. Cnty. of Pima, 230 Ariz. 255, n.2, 282

P.3d 1275, 1279 n.2 (App. 2012) (noting distinction between subject-

matter jurisdiction and courts’ authority to act, as acknowledged by

supreme court), citing Maldonado, 223 Ariz. 309, ¶¶ 14-18, 223 P.3d at

655-56. Because the family court had subject-matter jurisdiction to

divide Stuart and Susan’s marital property in a dissolution

proceeding, we limit consideration of Stuart’s argument to whether

1Section 25-318(A), A.R.S., states “the court shall assign each

spouse’s sole and separate property to such spouse.”

7

IN RE THE MARRIAGE OF THORN

Opinion of the Court

it had the authority to order return of the securities pursuant to

A.R.S. §§ 25-311 and 25-318(A).

¶18 Stuart correctly observes that our supreme court

concluded in Weaver that a trial court lacks authority “to grant a

money judgment against one spouse for damage to the separate

property of the other spouse in a dissolution proceeding.” 131 Ariz.

at 587, 643 P.2d at 500. His reliance on Weaver, however, is

misplaced because the trial court did not grant a money judgment

against Stuart for damage to Susan’s separate property. Rather, the

court ordered “the return of the stock to Susan or, should the stock

no longer be in the form and number of shares transferred, Stuart

shall pay to Susan the sum of $940,000.00, less those sums or the

value of such stock already returned to Susan.”

¶19 This case is more like Proffit v. Proffit, 105 Ariz. 222, 462

P.2d 391 (1969). There, at the time of the parties’ separation, wife

had possession of husband’s sole and separate property—United

States savings bonds—and, without his permission, redeemed the

bonds, and received $6,300. 105 Ariz. at 223, 462 P.2d at 392. In the

decree of dissolution, the trial court “ordered and directed [wife] to

deliver said sum to [husband].” Id. On appeal, wife argued the

court “had no power to order [her] to pay a sum of money to

[husband].” Id. at 224, 462 P.2d at 393. Our supreme court agreed

that a dissolution court has “no authority to compel either party to

divest himself or herself of Title to separate property” but

concluded:

[I]n the present case, the court’s order did

not concern Title, but Possession. [Wife]

was in possession of a sum of money,

obtained from the redemption of savings

bonds, title to which had been adjudged in

[husband]. The divorce court, as a court of

equity, certainly has the inherent power to

direct one party to relinquish possession of

separate property belonging to the other,

just as it has the power to order a division

8

IN RE THE MARRIAGE OF THORN

Opinion of the Court

and disposition of the community property

of two parties.

Id.

¶20 Stuart concedes “the trial court can award a sum of

money to the other spouse if that sole and separate property

wrongfully taken has been converted into cash.” But he appears to

contend that reductions in stock prices rendered Susan’s securities

“destr[oyed],” and that the court therefore did not have the

authority to “award a sum of money as damages.” We disagree

with Stuart’s contention that a decrease in market value can

effectively destroy sole and separate property and thereby deprive

the court of authority to order its return.

¶21 Here, as in Proffit, one spouse possessed the other

spouse’s separate property. Id. at 223, 462 P.2d at 392. As a court of

equity, the family court had the power to direct Stuart to return

Susan’s sole and separate property, regardless of whether that

property had declined in market value or changed forms. See id. at

224, 462 P.2d at 393; § 25-318(A) (“court shall assign each spouse’s

sole and separate property to such spouse”). Thus, the court had

statutory authority to order the return of Susan’s securities.

¶22 To the extent Stuart also suggests the court erred in

awarding a money judgment to Susan, we conclude the issue is not

ripe for review. During oral argument, the parties informed this

court that the disputed securities portfolio is held in escrow and

valued at more than $1,000,000. Stuart has failed to demonstrate an

inability to comply with the court’s order to return Susan’s

securities. Accordingly, we need not address his argument that the

court improperly granted a money judgment to Susan.

C. Return of the Value of the Securities

¶23 Stuart argues that even if the transfer of securities was

not a gift and the family court did not exceed its authority in

ordering their return, the court erred in “requiring him to return the

full amount of $940,000.” He notes that shortly after the initial

9

IN RE THE MARRIAGE OF THORN

Opinion of the Court

transfer of securities he returned certain bonds “worth about

$45,000” and contends the court failed to deduct that amount.

¶24 Stuart mischaracterizes the family court’s order. As

noted above, the court ordered Stuart to return the securities to

Susan, “less those sums or the value of such stock already returned to

[Susan].” (Emphasis added.) It is clear that the court is referring to

Stuart’s return of certain dividend-bearing bonds. Thus, contrary to

Stuart’s argument, the court accounted for the bond transfers and

did not err in ordering him to return Susan’s securities.

III. Real Property Distribution

¶25 Stuart argues the family court did not correctly allocate

his contributions to the marital home, which was held in joint

tenancy. Susan responds that Stuart is judicially estopped from

contesting the marital property orders because the court adopted his

proposed allocation framework; alternatively, she argues the court

made an equitable distribution.

¶26 Stuart acknowledges that in the family court he

advocated for a totaling of the monies each party had spent on the

home, calculating the percentage contribution based on the totals,

and allocating each party’s interest based on the percentages. He

contends on appeal that he should not be held to his family court

position because he erred in aggregating his contributions and, in

any event, the court did not accept his precise percentages. We

conclude the doctrine of judicial estoppel bars Stuart from now

asserting a different classification of his contributions to the marital

home.

¶27 Judicial estoppel prevents “‘a party who has assumed a

particular position in a judicial proceeding . . . [from assuming] an

inconsistent position in a subsequent proceeding involving the same

parties and questions.’” State v. Towery, 186 Ariz. 168, 182, 920 P.2d

290, 304 (1996), quoting Martin v. Wood, 71 Ariz. 457, 459, 229 P.2d

710, 711-12 (1951). The purpose of the doctrine is to protect the

integrity of the judicial process by preventing a litigant from using

contrary positions in the courts to gain an unfair advantage over an

opponent. See Martin, 71 Ariz. at 460, 229 P.2d at 712. Three

10

IN RE THE MARRIAGE OF THORN

Opinion of the Court

elements are required before the doctrine may be applied: “(1) the

parties must be the same, (2) the question involved must be the

same, and (3) the party asserting the inconsistent position must have

been successful in the prior judicial proceeding.” Towery, 186 Ariz.

at 182, 920 P.2d at 304; see also Standage Ventures, Inc. v. State, 114

Ariz. 480, 483-84, 562 P.2d 360, 363-64 (1977) (essential element of

judicial estoppel “is that the position first asserted must have been

successfully maintained”). Although it usually applies in the

context of separate actions, there is no restriction on its application

involving differing positions at trial versus on appeal. See Towery,

186 Ariz. at 182, 920 P.2d at 304; see also Pegram v. Herdich, 530 U.S.

211, 228 n.8 (2000) (judicial estoppel “generally prevents a party

from prevailing in one phase of a case on an argument and then

relying on a contradictory argument to prevail in another phase”);

Dunn v. N.D. Dep’t of Transp., 779 N.W.2d 628, 632 (N.D. 2010)

(plaintiff judicially estopped from asserting legal position on appeal

contrary to legal position resulting in earlier equitable relief); BTA

Oil Producers v. MDU Res. Group, Inc., 642 N.W.2d 873, 879 (N.D.

2002); 28 Am. Jur. 2d Estoppel and Waiver, § 67 (2014) (“Judicial

estoppel is a judge-made doctrine that seeks to prevent a litigant

from asserting a position inconsistent with, conflicting with, or is

contrary to one that he or she has previously asserted in the same or

in a previous proceeding.”). Acknowledging that the first two

elements have been met, Stuart argues he was not successful in the

family court. Resolving this issue requires us to review how the

parties characterized their separate contributions to the marital

home before the family court.

¶28 Stuart and Susan purchased land in Prescott using a

$140,000 gift from Susan’s mother to them. Although a small brick

building was on the land, Stuart contributed separate funds to begin

construction of the marital house. Susan contributed separate funds

for a barn. Stuart exhausted his separate funds before the house was

completed, which required the parties to take out a mortgage.

Stuart used his sole and separate funds to pay a portion of the

mortgage and Susan used her sole and separate funds to pay the

remaining balance of the mortgage. Stuart and Susan also used

separate funds to pay property taxes on the marital residence.

11

IN RE THE MARRIAGE OF THORN

Opinion of the Court

¶29 The parties stipulated to the present value of the former

marital residence, but the amount was less than the total amount

contributed toward the property. In his closing brief before the

family court, Stuart proposed that since “the real estate is not

valuable enough to repay [him], . . . he should receive as

reimbursement that proportion of the total value of the property

which is [commensurate] with the portion of the total value for

which his separate funds paid.” He calculated his and Susan’s

respective contributions as $805,000 and $290,000, or approximately

74 percent and 26 percent.2

¶30 The family court agreed with Stuart’s proposed

framework for reimbursement. It found his contribution totaled

73.2 percent of the total monies invested in the marital residence and

that Susan’s contribution totaled 26.8 percent. The one percent

difference was attributable to minor contributions regarding wells

and a brick outbuilding that Stuart did not address, but which the

court included.

¶31 On appeal, Stuart argues the family court erred by:

(1) including the mortgage payments “as part of the improvements

paid calculation”; (2) applying “[Susan]’s percentage of the total

improvements to the present value of the property, instead of to the

increase in value of the property”; and, (3) failing to categorize

Susan’s mortgage payments as a gift to him. Stuart does not present

precise numbers or percentages that his position on appeal would

require, but it appears he seeks to limit Susan’s contributions to

$98,000.

¶32 The family court also accepted Stuart’s position with

respect to allocation of the property taxes. In his closing trial brief,

2 Stuart’s percentages asserted in his closing trial brief were

81.11 percent and 18.89 percent. These did not match his asserted

capital contributions—presumably as a result of mathematical error.

We also note that Stuart’s calculations in his closing trial brief,

opening brief, and reply brief were not internally consistent and, at

least in one instance, he acknowledged “an obvious math error” of

$72,500.

12

IN RE THE MARRIAGE OF THORN

Opinion of the Court

Stuart stated that “[t]he Court may credit [the property taxes] to the

‘capital account’ for the joint house property or . . . make those

amounts a lien on the property.” The court ordered that “[t]he

percentage of real property taxes shall mirror the percentage of

[capital] contribution” toward the marital residence, and granted

Stuart “a lien against those monies owed by [Susan].” On appeal, he

contends each party should have reimbursed the other so that each

would ultimately contribute equally to the property tax obligation.

Because Stuart paid $61,885 and Susan paid $8,000, this re-

formulation would require Susan to pay approximately $27,000

versus the $11,000 she was ordered to pay.

¶33 Susan’s proposed allocation in the family court differed

substantially from Stuart’s but the court accepted Stuart’s allocation

framework. To now accept Stuart’s contention that the facts are not

in dispute and this court may make calculations using the “proper

rule of law” does not comport with how jointly held property is

divided generally and it ignores the prejudice to Susan to make a

new division on appeal. First, we note that property held in joint

tenancy is to be divided substantially equally unless equitable

considerations support an unequal distribution. § 25-318; In re

Marriage of Flower, 223 Ariz. 531, ¶ 14, 225 P.3d 588, 592 (App. 2010).

Here, at Stuart’s urging, the court ordered an unequal division based

on the parties’ intent to maintain the “separate property character”

of the contributions to the marital home, which originated in their

prenuptial agreement. Nonetheless, the court concluded the

agreement provided “no direction to the Parties or the Court” in

regard to how the division should be made. Thus, the court was

required to apply equitable considerations to determine the precise

numbers. In this circumstance, there is no single rule of law based

on undisputed facts; rather, the family court must take into account

all of the facts relevant to an unequal division. See Toth v. Toth, 190

Ariz. 218, 221, 946 P.2d 900, 903 (1997) (where equal is not equitable,

court considers facts and circumstances to achieve fairness for both

parties). This court cannot and will not substitute its judgment for a

decision properly made in the family court. See Kohler v. Kohler, 211

Ariz. 106, ¶ 2, 118 P.3d 621, 622 (App. 2005) (division of marital

property reviewed in light most favorable to upholding family

court’s ruling, which is not disturbed absent abuse of discretion).

13

IN RE THE MARRIAGE OF THORN

Opinion of the Court

¶34 Furthermore, although Stuart does not urge us to

remand this matter to the family court if we find reversible error, we

conclude it would unfairly prejudice Susan to permit Stuart to argue

an inconsistent position on appeal when he successfully persuaded

the court to adopt his position below. This would give him an

unfair advantage the doctrine of judicial estoppel is designed to

prevent. See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (“‘The

doctrine of judicial estoppel . . . is invoked to prevent a party from

changing its position over the course of judicial proceedings when

such positional changes have an adverse impact on the judicial

process.’”), quoting Religious Tech. Ctr. v. Scott, 869 F.2d 1306, 1311

(9th Cir. 1989) (Hall, J. dissenting).

¶35 We also observe that Stuart’s claim of error is vitiated

by the doctrine of invited error. See Schlecht v. Schiel, 76 Ariz. 214,

220, 262 P.2d 252, 256 (1953) (“By the rule of invited error, one who

deliberately leads the court to take certain action may not upon

appeal assign that action as error.”), abrogated in part on other grounds

as recognized in A Tumbling-T Ranches v. Paloma Inv. Ltd. P’ship, 197

Ariz. 545, ¶ 23, 5 P.3d 259, 266 (App. 2000). As outlined above,

Stuart proposed the method by which the family court determined

the reimbursement calculation. He proposed that Stuart and Susan

be credited for their respective contributions to the mortgage and

allocated the property tax obligations as a percentage of each party’s

total capital contribution. Having successfully persuaded the court

to follow this approach, he cannot now argue it was erroneous.

Wilkinson v. Phoenix Ry. Co. of Arizona, 28 Ariz. 216, 222, 236 P. 704,

706 (1925) (“One who misconceives the law governing his rights in a

trial, and succeeds in convicting the court thereof, ought to be

estopped to take any advantage of it upon appeal.”); see also Sholes v.

Fernando, 228 Ariz. 455, ¶ 21, 268 P.3d 1112, 1119 (App. 2011).

IV. $60,000 Loan from Susan to Stuart

¶36 Stuart lastly argues the family court erred when it

determined that a loan of $60,000 from Susan to Stuart remained

unpaid. As noted above, we will defer to the court’s factual findings

unless they are clearly erroneous. Gibbs, 227 Ariz. 403, ¶ 6, 258 P.3d

at 224.

14

IN RE THE MARRIAGE OF THORN

Opinion of the Court

¶37 It is undisputed that Susan loaned Stuart $60,000 so that

he could settle any future claims Stuart’s former wife may have had

against him. Stuart and Susan subsequently filed a joint tax return,

sharing in the tax deduction that resulted from Stuart’s $60,000 pre-

payment in spousal maintenance.

¶38 Stuart contends that he had satisfied the $60,000 loan

obligation to Susan through his return of $40,000 in securities and

“the tax benefit in excess of $24,000.” At trial, however, Stuart

testified there was no agreement with Susan that his return of

certain bonds was payment toward the loan. Nor was there an

agreement that any alleged tax benefit from the $60,000 spousal

maintenance payment was part of a loan repayment. There was

sufficient evidence in the record to support the family court’s

finding that the $60,000 loan remained unpaid. To the extent Stuart

asks us to reweigh the evidence or determine credibility of

witnesses, we decline to do so. See Brown v. U.S. Fidelity and Guar.

Co., 194 Ariz. 85, ¶ 36, 977 P.2d 807, 814 (App. 1998).

Disposition

¶39 For the foregoing reasons, the decree of dissolution is

affirmed. Both parties have requested attorney fees and costs on

appeal pursuant to A.R.S. § 25-324. In our discretion, we decline the

requests for attorney fees and award Susan her costs on appeal.

15