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Only minutes from downtown Saint George it is possible to lose yourself in a vast expanse of land referred to as “The Arizona Strip.” Although this vast area north of the Grand Canyon and east of the Virgin River is part of Arizona, it is historically more culturally connected to Utah. Considering the difficulty of getting down into the Canyon, across the River, and back out the other side; this is not surprising. The overwhelming majority of the land north of the Canyon is either federal land or owned by the Arizona State Land Trust.
What is the Arizona State Land Trust?
To answer that question, one must go back to 1863 when the Arizona Territory was established. In the legislation that established the Territory, Congress set aside land to benefit the “common schools.” Half a century later, Arizona would become a state and Congress would set aside more land to fund education. Arizona created the State Land Commission in 1912 to manage this resource. The Commission interpreted the Enabling Act of 1910 which granted the land and Article 10 of the Arizona Constitution to direct that the lands be administered for their “highest and best use.” The Arizona State Land Department was established in 1915 with the mission of ensuring Trust lands are used according to this direction from the Commission.
Trust lands administered by the Land Department primarily benefit kindergarten through twelfth grade education (K-12) but other recipients include the state-run universities, schools for the deaf and blind, the state hospital, the Department of Corrections, maintenance of state buildings, and the Pioneers’ Home. The Trust still holds title to 9.2 million of the nearly 11 million acres originally granted by Congress. Over the years, the Trust has sold some land at auction. The Land Department placed the proceeds from these sales in a permanent fund which pays dividends to the beneficiaries. In 2019, K-12 education in Arizona received $505 million from the permanent fund. The fund now holds nearly $6 BILLION with $5.6 billion belonging to K-12. The state’s penitentiaries, building maintenance, and Pioneers’ Home received many millions of dollars from their part of the permanent fund in 2019.
The close proximity and wide-open spaces of the Arizona Strip beckon to residents of southwest Utah. While Utah has an abundance of outdoor recreational opportunities, none are as close and easily accessible as the Grand Canyon – Parashant National Monument and surrounding BLM just south of Saint George. Few visitors to the area may notice the small, inconspicuous white signs on the roadside where the road passes through Arizona State Trust Land as explorers cross the state line headed south on River Road toward Mount Trumbull. There is a large area of State Trust land in the area and smaller holdings scattered throughout the area between Saint George and the Grand Canyon – Parashant. If you look at the map below, all the areas in light blue are State Trust lands.
Recreation on BLM land or within the Grand Canyon – Parashant does not require any special pass or permit. Recreation on State Trust land, however, absolutely requires a permit. What is recreation? According to the State Land Department, literally ANYTHING except actively driving across Trust lands is recreation. I had one consultation where police cited a gentleman for sitting in his truck eating an apple. Photography? Recreation. Star gazing? Recreation. Enjoying wildlife or flowers? Recreation. Stop your vehicle on State Trust land and you become a trespasser. More on trespassing in a bit.
Hunting is allowed on Trust lands for those who have a valid hunting permit. No recreation permit required. The hunting permit includes access to Trust lands while harvesting game. Those who do anything else while hunting, however, need a permit. Going to camp while hunting? If you intend to camp on Trust lands, you will need a recreation permit. Camping without a recreational permit – even while hunting – makes you a trespasser.
You would think if you can fire a gun to harvest a deer you could fire a gun for target practice, right? Well, you would be wrong. Recreation permit holders may not discharge a firearm on Trust lands. If you have a permit and discharge a firearm on Trust lands, you have violated the terms of your agreement with the Land Department and you are now trespassing.
There are other ways for permit holders to become trespassers as well. The Land Department leases some areas of Trust lands to private parties and these areas become off-limits. If an area is posted by signs other than the Trust signs saying a permit is required, the area is not for public use. Prospecting and rock hunting require a lease agreement separate from a recreational permit. Visitors are also prohibited from visiting archaeological sites.
Consequences of Trespassing
So I’m trespassing. What’s the big deal? Well, Arizona is an extremely tough on crime state. A crime for which you would get probation north of the Southern Parkway could make you a guest of the Arizona Department of Corrections for ten years. Most sentencing is mandatory and non-negotiable. You cannot plead guilty to an infraction to avoid a misdemeanor trespassing charge. Arizona does not have a trespassing infraction and the judge in Colorado City believes it is perfectly reasonable to expect you to read the signs before venturing onto Trust lands. The charge is a class 3 misdemeanor with the potential for a $500 fine and 30 days in jail. No one is likely to get jail time, but you will pay a fine and you will have a criminal record. Arizona does not allow record sealing or expungement. Arizona convictions stay with you for life.
So should you just stay on this side of the Southern Parkway? No, you should get a permit! Individual permits are $15 annually and families can get a permit for $20. If you have extended family coming into town, group permits are also available for groups of 20 or less for no more than five days. Just go to Land.AZ.gov and you can pay and print. If you are headed to the Arizona Strip to sight in that new rifle, get a GPS mapping program for your smartphone so you know whether you are on one of the randomly scattered patches of Trust land or not. Stay on BLM and practice gun safety and you should have no trouble with the Sheriff’s Deputy who loves to write citations along the Strip. OnX Maps and Avenza Maps are two of the alternatives that seem to get good reviews. I am sure there are other apps which would work as well. Just make sure the map shows who owns the property under your feet.
If you are reading this a little too late, give the office a call. We can likely negotiate a deal where your charge gets dismissed if you stay out of trouble. The arrest record, however, will be yours to keep.
CLASSIFICATION OF SEPARATE PROPERTY AND MARITAL PROPERTY IN A UTAH DIVORCE—Segment #1: Inextricably Commingled Separate Property
By: Zachary C. Lindley, Esq.
Gallian Welker & Beckstrom, L.C., St. George, Utah
As discussed in the Introduction to this blog post series, one of the exceptions to the presumption that separate property retains its character is when such property has been “inextricably commingled”—a costly classification for the spouse to whom the separate property would otherwise belong.
Courts are given broad discretion in making the determination as to whether separate property has been commingled with marital property so as to lose its character.[i] The analysis is highly fact intensive and there is no common rule upon which to rely in every case.
The following list represents some of what a court may consider in determining whether to classify otherwise separate property as marital property:[ii]
- Whether there was expenditure of marital funds on the proposed separate property.
- Whether co-mingled funds were subsequently transferred into an account that would otherwise be classified as separate property.
- Whether, despite being put in the name of a third-party, marital funds were used to open a separate account.
- Whether an account that would otherwise be deemed separate property is funded with a party’s day-to-day income and expenses, including marital earnings.
- Whether marital funds have been expended toward separate property in the form of loan payments, taxes, etc.
- Whether a party’s marital income, along with that party’s separate earnings, have been deposited into an account, and then said account is used to pay both business and personal expenses.
- Whether an account consisting of both marital and separate property is used to make payments toward the purchase or improvement of otherwise separate real property.
- Whether the property has been maintained in segregated accounts and portfolios.
- Whether the only change to the property is a result of conversion from one investment medium to another, g. stocks, bonds, real estate, etc.
- Whether a party uses proceeds from the sale of an asset owned prior to marriage to purchase another asset during marriage, and then that party uses marital income to make installment payments or effectuate other upkeep on the asset purchased.
- Whether, despite premarital and marital funds being deposited together, it is still possible to trace and separately identify the funds, therefore maintaining the character of the property rather than losing its “identity.”
- Whether the property is only temporarily placed in a joint account.
- Whether, regardless of the change of the property through certain transitions, the separate property remains traceable and identifiable.
- Whether the property becomes so commingled that it is impossible to distinguish or apportion it.
- Whether there are sufficient records or evidence from which a determination can be made as to which portion of the combined fund is separate and which is community property.
- Whether, despite being commingled for only a short period of time, there is other evidence that the co-mingled property was intended to be a gift to the community or that its status would thereafter be altered.
- Whether the separate funds are far in excess of community funds deposited in the same account, resulting in more easily effectuated tracing.
Takeaways for Family Law practitioners:
When advising clients, ensure that you acquire all supporting documentation of the transactions surrounding any claimed separate property that has potentially been commingled with marital property. If such property can still be identified and traced, in a manner that is understandable to the parties and the court, there is a chance it will retain its character and not be converted to marital property.
Look for Segment #2 of this blog post series regarding the other spouse’s augmentation, maintenance, or protection of separate property.
[i] See Clarke v. Clarke, 2012 UT App 328, 292 P.3d 76; Elman v. Elman, 2002 UT App 83, 45 P.3d 176.
[ii] The list provided herein is supported by the following authority: Sandusky v. Sandusky, 2018 UT App 34, ¶12, 417 P.3d 634; Liston v. Liston, 2011 Utah App 433, 269 P.3d 169; Keiter v. Keiter, 2010 UT App 169, 235 P.3d 782; Oliekan v. Oliekan, 2006 UT App 405, ¶23, 147 P.3d 464; Schaumberg v. Schaumberg, 875 P.2d 598, 603 (Utah Ct.App.1994); Dunn v. Dunn, 802 P.2d 1314, 1321 (Utah Ct.App 1990); Burt v. Burt, 799 P.2d 1166, 1169 (Utah Ct.App 1990); Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988); 37 Am. Jur. Proof of Facts 2d 379 § 8. Mode of transmutation—By commingling; In re Marriage of Shui and Rose, 132 Wash.App. 568, 125 P.3d 180 (2005); Myrland v. Myrland, 19 Ariz.App. 498, 508 P.2d 757 (1973); In re Marriage of Jafeman, 29 Cal.App.3d 244, 105 Cal.Rptr. 483 (1972).
CLASSIFICATION OF SEPARATE PROPERTY AND MARITAL PROPERTY IN A UTAH DIVORCE—Introduction: Three Circumstances Under Which Presumption of Retention of Separate Property Can Be Overcome
By: Zachary C. Lindley, Esq.
Gallian Welker & Beckstrom, L.C., St. George, Utah
Undoubtedly, property division is at the crux of all drawn-out and contentious divorces. The classification of separate and marital property raises both traditional and nuanced issues, while never arriving at a hard-and-fast rule on how to make a determination as to when otherwise separate property becomes marital property. This blog post, followed by its three corresponding segments, is intended to provide the reader with a foundation as to how courts in Utah have classified separate and marital property under a diverse set of facts.
During a property division in Utah at the dissolution of a marriage, there is an “overriding consideration…that the ultimate division be equitable—that property be fairly divided between the parties.”[i] When so dividing property, there is a general presumption that each party retain his or her separate property—“married persons have a right to separately own and enjoy property, and that right does not dissipate upon divorce.”[ii] Marital property ordinarily includes all property acquired during the marriage, while separate property typically includes premarital property, gifts, inheritances, which also includes any appreciation that may accrue during the marriage.[iii] However, Utah courts have consistently found otherwise separate property is “not totally beyond the court’s reach.”[iv]
There are three circumstances identified in Utah under which the presumption of retention of separate property can be overcome: (1) the separate property has been inextricably commingled so as to lose separate property character; (2) the other spouse has augmented, maintained, or protected the separate property; and (3) in extraordinary circumstances when equity so demands.[v] Courts are given broad discretion in dividing property upon dissolution of the marriage.[vi]
In the following three (3) segments to this introductory blog post, we will explore each of the aforementioned exceptions to presumption of retention of separate property—namely, (1) commingling, (2) augmentation or maintenance, and (3) extraordinary circumstances.
[i] Granger v. Granger, 2016 UT App 117, ¶15, 374 P.3d 1043 (internal citations and quotations omitted); see also Utah Code Ann. § 30-3-5.
[ii] See Lindsey v. Lindsey, 2017 UT App 38, ¶32, 392 P.3d 968 (internal citations and quotations omitted).
[iii] Id. at ¶31.
[iv] See Sandusky v. Sandusky, 2018 UT App 34, ¶12, 417 P.3d 634.
[v] See Dunn v. Dunn, 802 P.2d 1314, 1320 (Utah Ct.App 1990); see also Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988).
[vi] See, e.g., Clarke v. Clarke, 2012 UT App 328, 292 P.3d 76; Elman v. Elman, 2002 UT App 83, 45 P.3d 176.