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                  by Randall M. Howe](https://www.courtlistener.com/opinion/10803531/swenson-v-swenson/about:blank#o1)

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March 4, 2026 Get Citation Alerts Download PDF Add Note

Swenson v. Swenson

Court of Appeals of Arizona

• Citations: None known
• Docket Number: 1 CA-CV 25-0493 FC

• Precedential Status: Non-Precedential

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (26.8K)

• PDF

Combined Opinion

                        by [Randall M. Howe](https://www.courtlistener.com/person/6212/randall-m-howe/)

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD K. SWENSON, Petitioner/Appellant,

v.

NICKIE D. SWENSON, Respondent/Appellee.

No. 1 CA-CV 25-0493 FC
FILED 03-04-2026

Appeal from the Superior Court in Mohave County
No. S8015DO202201155
The Honorable Richard D. Lambert, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Rideout Law PLLC, Scottsdale
By Steven Dorr Eckhardt
Counsel for Petitioner/Appellant
SWENSON v. SWENSON
Decision of the Court

MEMORANDUM DECISION

Chief Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge Anni Hill Foster joined.

H O W E, Judge:

¶1 Richard Swenson (“Husband”) appeals the superior court’s
decree dissolving his marriage to Nickie Swenson (“Wife”). We remand for
the superior court’s additional consideration of certain issues.

FACTS AND PROCEDURAL BACKGROUND

¶2 Husband and Wife married in 1989. During the marriage,
they co-owned a plumbing business and other assets, including several
vehicles. Husband petitioned for dissolution in 2022. The parties reached a
first partial agreement regarding the division of their community real
property under Arizona Rule of Family Law Procedure (“Rule”) 69. The
parties then reached a second Rule 69 agreement awarding the “2019
Fuzion Fifth Wheel” to Husband. The court ultimately dissolved the
marriage, incorporating both Rule 69 agreements into the decree. But in the
portion of the decree dividing the parties’ assets, the court awarded the
Fuzion to Wife.

¶3 Both parties presented business valuations for the community
plumbing business. Wife’s business valuation included the business’s
purchase of a GMC Sierra Denali in 2022. However, in her closing
argument, Wife claimed that the GMC was the marital community’s
property, not the business’s. Husband testified that he purchased the GMC
in 2022 for the company with a business loan. But his exhibit included the
GMC under “personal” not “work” assets.

¶4 The court ultimately found that the evidence supported
Wife’s business valuation and valued the company as Wife’s expert
suggested. The court then divided the business, awarding Husband the
business “free of all right, title, claim or interest of wife” but awarding Wife
a $112,500 offset. Although the court made no finding about whether the
GMC was a business asset, it awarded the vehicle to Wife. The award of the
GMC was not included in the section of the decree addressing the business.

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SWENSON v. SWENSON
Decision of the Court

¶5 Also in the decree, the court addressed the shareholder
distributions and business income from the community plumbing business.
The court found that “after Husband filed for divorce . . . the payments to
Wife became sporadic for a few months and eventually she was cut off from
these shareholder distributions while he continued to receive them
himself.” The court found that, between 2022 and 2024, Husband received
$121,280.13 in shareholder distributions from the business that Wife did not
receive. And Husband “used business funds to pay for personal expenses”
totaling $16,302.11. The total difference between the shareholder
distributions awarded to Husband in contrast to Wife’s award plus the
business income Husband used for personal purposes was $137,582.24.
Although the court acknowledged Husband’s testimony “that he replaced
whatever shareholder distributions he took out of the business,” it
ultimately found that “this testimony was not corroborated or supported
by any evidence with specificity.” The court ordered Husband to pay Wife
the entire $137,582.24 amount as “equalization.”

¶6 The court certified the decree as final under Rule 78(b),
retaining jurisdiction over the sale of real property in furtherance of the
decree. Husband appealed and we have jurisdiction. A.R.S. § 12-2101(A)(1);
see also Matter of Hernandez v. Athey, 256 Ariz. 530, 533 ¶ 7 (App. 2023) (“Rule
78(b) allows the court to certify fully resolved claims for appeal when other
claims remain unresolved.”) (cleaned up).

DISCUSSION

¶7 Wife did not file an answering brief. When an opening brief
raises “debatable” issues and no good cause is shown for the appellee’s
failure to respond, “we assume the [appellee] confesses error.” Navarro v.
State, 32 Ariz. 119, 120–21 (1927); see also Nelson v. Nelson, 91 Ariz. 215, 217
(1962). Issues are debatable if the record before this Court does not clearly
resolve them. See Air E., Inc., v. Wheatley, 14 Ariz. App. 290, 294 (1971).

¶8 Husband argues that the superior court abused its discretion
in awarding (1) “the 2019 Fuzion fifth wheel to Wife after previously
awarding the asset to Husband,” (2) the GMC to Wife, and (3) shareholder
distributions and business income to Wife.

I. 2019 Fuzion Fifth Wheel

¶9 The decree, in separate places, awards the Fuzion to both
Husband and Wife. See supra ¶ 2. The record is unclear of the court’s intent
or its classification of the property. Thus, the record does not clearly resolve
the issue, making it debatable. See Air E., Inc., 14 Ariz. App. at 294. Wife’s

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SWENSON v. SWENSON
Decision of the Court

failure to file an answering brief is deemed a confession of error. See Nelson,
91 Ariz. at 217. We remand the award of the 2019 Fuzion Fifth Wheel, and
any subsequent equalization of its value, to the superior court for
reconsideration. See Navarro, 32 Ariz. at 120–21 (when an opening brief
raises debatable issues, we generally deem the appellee’s failure to answer
a confession of error and reverse and remand the matter).

II. 2020 GMC Sierra Denali

¶10 Husband argues that the court erred in awarding the GMC to
Wife because it “was an asset of the community business already awarded
to Husband.” The court awarded Wife the GMC in the section of the decree
labeled “division of all other assets to the parties,” rather than the section
addressing the community business. But the court did not clearly decide
whether the GMC was a business asset. Nor does the record resolve this
issue. See supra ¶¶ 3–4; see also Air E., Inc., 14 Ariz. App. at 294 (issues that
the record clearly resolves are not debatable). Thus, Wife’s failure to file an
answering brief is deemed a confession of error. We remand the issue to the
superior court to determine whether the GMC is a business or community
asset its ensuing proper distribution, and, based on the GMC distribution,
any necessary adjustments to the equalization award. See Navarro, 32 Ariz.
at 120–21 (allowing remand of a debatable issue where the appellee fails to
file an answering brief).

III. Shareholder distributions and business income

¶11 The parties do not dispute that the plumbing business is
community property. However, Husband contends that the court erred in
awarding Wife the entire value of the shareholder distributions and
business income. The superior court divides community property
equitably, “though not necessarily in kind.” A.R.S. § 25-318(A). The court
“has broad discretion in determining what allocation of property and debt
is equitable under the circumstances.” In re Marriage of Inboden, 223 Ariz.
542, 544 ¶ 7 (App. 2010). We will affirm the allocation absent an abuse of
discretion. Id. “In most cases, dividing jointly held property substantially
equally will be the most equitable unless there exists a sound reason to
divide the property otherwise.” Id. at 544 ¶ 6 (citing Toth v. Toth, 190 Ariz.
218, 221 (1997)).

¶12 Here, the court awarded the community business to Husband
with an offset of 50% the value of the business due to Wife. Then, apart from
the award of the business, the court awarded 100% of the business’s
shareholder distributions from 2022 through 2024 to Wife. See supra ¶ 5.

4
SWENSON v. SWENSON
Decision of the Court

And the court bundled this award with the repayment of business income
that Husband used for personal purposes. Although the court states this
award is “equalization” it fails to provide “a sound reason” to divide the
property unequally. See Inboden, 223 Ariz. at 544 ¶ 6. Nor does the record
clearly resolve the question. See Wineinger v. Wineinger, 137 Ariz. 194, 198
(App. 1983) (the court “cannot, without reason, create a gross disparity or
make its award arbitrarily. In the absence of sound reasons appearing in the
record which justify contrary results, apportionment of community estate
upon dissolution must be substantially equal”). Thus, although the award
was within the court’s discretion, the issue is “debatable” and we remand
the issue of the shareholder distributions and business income to the
superior court for reconsideration. See Navarro, 32 Ariz. at 120–21
(permitting this court to remand when an opening brief raises debatable
issues and the appellee fails to answer). We make no judgment on whether
the award was equitable.

CONCLUSION

¶13 We remand to the superior court for further consideration of
these three issues, including any changes to the equalization payments. To
that end, we vacate the equalization award for the superior court to address
the equitable distribution upon resolution of the three property issues. We
express no opinion whether the superior court should hold a new hearing
or what findings it should make on remand. In all other respects, we affirm
the decree.

¶14 Husband requests his “attorney’s fees and costs incurred on
appeal.” This Court, in its discretion, denies his request for fees. As the
prevailing party on balance, he is entitled to his costs upon compliance with
Arizona Rule of Civil Appellate Procedure 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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