Gersten v. Gersten (11/17/2009)

November 30, 2009

Arizona Court of Appeals Division One Holds That (1) Family Law Procedure Rule 88 Only Requires a Successor Judge to Review Those Portions of the Record Relevant to the Successor Judge’s Rulings, (2) Items Purchased with Funds from the Federal Employees’ Compensation Act are Community Property, and (3) Arizona’s Support Statute No Longer Requires Custody or Guardianship as a Condition of Ordering Support.

After about 30 years of marriage, Charles Gersten (“Husband”) petitioned for divorce from Ethel Gersten (“Wife”).  Judge Gregory Martin presided over a five-day trial and received written closing arguments from the parties, but resigned from the court before ruling on the petition.  Judge Susan Brnovich replaced him and subsequently entered a decree dissolving the parties’ marriage and distributing their assets.

On appeal, Husband contended that Judge Brnovich failed to comply with Arizona Rule of Family Law Procedure 88, which requires a successor judge to certify that she is familiar with the record and that the proceedings can be completed without prejudice to the parties.  This rule, however, only requires a successor judge to review the portions of the record relevant to the new judge’s rulings.  In this case, the Court concluded that the portions of the record reviewed by Judge Brnovich – video recordings of the proceedings, the trial exhibits, the parties’ written closing arguments, and Husband’s proposed findings of facts and conclusions of law – were the only portions relevant to her rulings on family support and allocation of the parties’ property and debt.  Likewise, contrary to Husband’s argument, Judge Brnovich was not required to review the pre-trial proceedings to make her single evidentiary ruling.  On the other hand, the Court agreed with Husband that Judge Brnovich erred by failing to review the pre-trial record before ruling on the propriety of awarding attorneys’ fees because the controlling statute, A.R.S. § 25-324, requires an assessment of the parties’ conduct “throughout the proceedings.”   

Husband also appealed the portion of the property division allocating to Wife a substantial portion of a firearms collection purchased during their marriage.  Husband was disabled shortly after the parties were married and thereafter received federal workers’ compensation benefits.  Husband argued that because the firearms were purchased with his workers’ compensation benefits, which compensated for loss of personal well-being, the entire firearms collection was his separate property. The Court of Appeals rejected this argument, noting that federal workers’ compensation benefits compensate for benefits that are community assets: (1) lost wages, (2) loss of earning capacity, and (3) medical expenses.  As such, the firearms purchased with those benefits were community property subject to division. 

Husband also appealed the trial court’s denial of his request that Wife pay support for the parties’ adult, disabled son who resided with Husband.  Relying on Provinzano v. Provinzano, 116 Ariz. 571, 570 P.2d 513 (App. 1977), the trial court denied Husband’s request because he was not the son’s legal custodian or guardian.  The Court of Appeals reversed this part of the trial court’s order because the support statute, which was amended in 2004, no longer requires a custody or guardianship order before support may be awarded. 

Judge Timmer authored the opinion; Judges Brown and Norris concurred.