Sembower v. Sembower

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LARISA LEE SEMBOWER, Petitioner/Appellee,

v.

GREG LITMAN SEMBOWER, Respondent/Appellant.

No. 1 CA-CV 21-0498 FC
FILED 6-21-2022

Appeal from the Superior Court in Maricopa County
No. FN2019-092241
The Honorable John L. Blanchard, Judge

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

COUNSEL

Patricia A. Mellen Attorney at Law, Denver, Colorado (Pro Hac Vice)
By Patricia A. Mellen
Counsel for Petitioner/Appellee

Stanley David Murray Attorney at Law, Scottsdale
By Stanley David Murray
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.

G A S S, Vice Chief Judge:

¶1 Husband appeals two post-decree orders, the first denying
his request for wife to reimburse him for alleged community debts he paid
and the second awarding wife attorney fees. We affirm in part and vacate
and remand in part.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court views the facts in the light most favorable to
affirming the superior court. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 283,
¶ 14 (App. 2019).

¶3 The parties’ 2020 dissolution decree required them to sell two
jointly-owned properties—one in Scottsdale and one in Colorado. The
superior court appointed two real-estate commissioners to effectuate the
sales. The decree equally divided community debt, including “[a]ny
community debts that were not identified at the time of the trial.” The
decree also required the parties to “indemnify and hold harmless from any
and all debts [the decree] designated as the responsibility of that party.”

¶4 Husband paid numerous community debts in full, including
portions which were wife’s responsibility. But he consistently thwarted the
real estate sales. Both real estate commissioners said husband was
“uncooperative” and “horrible to deal with.” As to the Colorado property,
husband contacted potential buyers to “scare them.” As to the Scottsdale
property, husband allowed a guest to occupy and run a business at it, left
the home dirty and unpresentable for showings, made unreasonable
documentary demands, and hid the for-sale sign behind trash.

¶5 Husband filed a petition to enforce the decree seeking
reimbursement for his payment of wife’s share of the community debts.
Within two weeks, wife filed a petition for contempt and sanctions
regarding husband’s obstruction of the property sales.

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¶6 After an evidentiary hearing on both petitions, the superior
court denied husband’s requests for reimbursement but granted wife’s
requests, finding husband in contempt and sanctioning him. The sanctions
included granting wife exclusive use of the Colorado property, prohibiting
husband from communicating with potential buyers, and ordering
husband pay the commissioner an additional one percent of the Scottsdale
property sales price from husband’s share of the proceeds. In resolving both
petitions, the superior court awarded wife $20,000 in attorney fees.

¶7 Husband timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1
and 12-2101.A.2.

ANALYSIS

¶8 Husband appeals the superior court’s denial of his
reimbursement claim for alleged community debts and the superior court’s
award of attorney fees to wife. We address each issue in turn.

I. Reimbursement Claim

A. Community Debt

¶9 Husband argues wife must reimburse him for his payment of
community debts the decree explicitly allocated to wife. We agree.

¶10 “The provisions [in a decree of dissolution] as to property
disposition may not be revoked or modified, unless the court finds the
existence of conditions that justify the reopening of a judgment under the
laws of this state.” A.R.S. § 25-327.A. “The allocation [provided in the
decree] fix[es] responsibility between the parties for the debt and can be
used by one spouse to sue the other for contribution, if necessary.” Cmty.
Guardian Bank v. Hamlin, 182 Ariz. 627, 631 (App. 1995) (citing Cadwell v.
Cadwell, 126 Ariz. 460, 461–62 (App. 1980)); see also Bobrow v. Bobrow, 241
Ariz. 592, 596, ¶ 19 (App. 2017) (an equitable property distribution must
account for voluntary payments a spouse makes toward community debts
to maintain community assets after the filing of a dissolution petition).

¶11 Here, the decree divided responsibility for community debts
evenly between wife and husband. And the decree included an
indemnification clause requiring each spouse to “indemnify and hold
harmless from any and all debts [the decree] designated as the
responsibility of that party.” Husband subsequently paid most of those
community debts, including debts the decree allocated to wife.

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¶12 To begin, in denying husband’s reimbursement request, the
superior court did not find—and indeed wife did not allege— conditions
justifying reopening the decree’s debt-disposition provisions. See A.R.S.
§ 25-327.A; see also Birt v. Birt, 208 Ariz. 546, 552–53, ¶ 26 (App. 2004)
(discussing the form of relief envisioned by A.R.S. § 25-327.A); Fischer v.
Sommer, 160 Ariz. 530, 532–33 (App. 1989) (same); In re Marriage of Bobbitt,
144 P.3d 306, 311, ¶ 18 (Wash. App. 2006) (applying a similar provision
under Washington law to reverse an improper modification of a property
division).

¶13 Instead, the superior court treated husband’s payments as a
gift, finding husband paid the debts voluntarily and “at his own peril.”
Though a decree fixes community debt, a spouse may relieve the other
spouse of a community-debt obligation by paying the other’s obligation as
a gift. See generally Bobrow, 241 Ariz. at 596–97, ¶ 20. The facts, however, do
not support a finding husband intended the payments as a gift.

¶14 This court reviews factual issues—such as whether here
husband intended the payments as a gift—for clear error. See id. at 595, ¶
11. In the post-decree setting, the party claiming the other party intended a
payment to be a gift—here, wife—has the burden to establish “by clear and
convincing evidence [h]usband intended the payments for community
[debt] to be a gift.” See id. at 596, 597, ¶¶ 15, 20. Though a matrimonial
presumption of a gift applies to payments made during the marriage, that
presumption does not apply after the superior court issues a decree of
dissolution. Id. at 594, ¶ 1. In determining whether payments were gifts, the
donor’s intent controls. See id. at 596, ¶ 16 (citing In re Marriage of Berger, 140
Ariz. 156, 162 (App. 1983)).

¶15 Here, the evidence does not support the superior court’s
finding husband intended to repay wife’s community debt as a gift. See id.
at 597, ¶ 20 (citing Schickner v. Schickner, 237 Ariz. 194, 197–98, ¶ 13 (App.
2015)). Husband testified he satisfied those community debts to avoid
interest payments and avoid losing equity in their properties. After paying
those community debts, he promptly filed a petition to enforce the decree
and obtain reimbursement for wife’s obligation. Because husband did not
intend these payments as a gift, the superior court erred in excusing wife’s
obligation to reimburse him for community debts identified in the decree.
See id. at 596–97, ¶¶ 16–20.

¶16 Wife argues husband’s premature repayment prevented her
from renegotiating debts with her creditors. But wife cites no authority
protecting a former spouse’s ability to renegotiate debts, and we decline to

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bar reimbursement whenever one spouse prematurely repays community
obligations because of a supposed renegotiation privilege.

¶17 Accordingly, we vacate the superior court’s order relieving
wife of her obligation to reimburse husband for community debts allocated
to wife in the decree. We remand for the superior court to calculate wife’s
debt obligation consistent with this decision.

B. Remaining Debt and Expenses

¶18 Husband also sought reimbursement for other expenses he
argues were community debt.

¶19 “[T]he superior court has broad discretion” in apportioning
community property and debts, and this court “will not disturb its
allocation absent an abuse of discretion.” See Boncoskey v. Boncoskey, 216
Ariz. 448, 451, ¶ 13 (App. 2007). This court will affirm the allocation of
community debt if the superior court’s findings are supported by
reasonable evidence. See Johnson v. Johnson, 131 Ariz. 38, 44 (1981).

1. Maintenance Expenses on Community Properties
Pending Post-Decree Sale

¶20 In ruling on husband’s petition, the superior court denied his
reimbursement request for post-decree expenses he incurred to maintain
the properties pending their sale. In denying the property-maintenance
expenses, the superior court found husband caused unnecessary expenses
by obstructing the sales. Because reasonable evidence in the record
supports this finding, we will not disturb it. See Johnson, 131 Ariz. at 44.

2. Other Debts

¶21 The superior court did not resolve some of husband’s
requested reimbursements. Husband’s petition sought reimbursement for
debts not identified at the time of dissolution, specifically an Alliant loan, a
Discover credit card debt, wife’s health and dental insurance, a Range
Rover car loan, mortgage payments, and other expenses related to the yet-
to-be-sold community properties. The superior court also denied husband’s
requested reimbursement for some debts included in the decree but for
amounts greater than those listed. The superior court did not resolve those
additional debts.

¶22 We remand for the superior court to resolve whether husband
can meet his burden to prove the community nature of those debts. See

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Miller v. Bd. of Supervisors of Pinal Cnty., 175 Ariz. 296, 301 (1993) (declining
to adjudicate an issue on appeal unaddressed in the superior court’s
findings because a “final decision without findings was impossible without
transforming this court into a factfinder resolving disputed issues of fact”);
see also Troutman v. Valley Nat’l Bank of Ariz., 170 Ariz. 513, 517 (App. 1992)
(“The party who asserts a fact has the burden to establish that fact.”). In
doing so, we do not require the superior court to hold another evidentiary
hearing if it determines it can resolve those issues with the existing record.

II. Attorney Fees in the Superior Court

¶23 Husband argues this court should reduce the superior court’s
attorney-fee award to account for his reasonable litigation positions.

¶24 “[T]he amount of attorney fees in a dissolution action is a
matter left to the sound discretion of the [superior] court.” Baum v. Baum, 120 Ariz. 140, 146 (App. 1978). This court reviews for an abuse of discretion
an award of attorney fees under A.R.S. § 25-324. Mangan v. Mangan, 227
Ariz. 346, 352, ¶ 26 (App. 2011). An abuse of discretion is “an exercise of
discretion which is manifestly unreasonable, exercised on untenable
grounds or for untenable reasons.” Williams v. Williams, 166 Ariz. 260, 265
(App. 1990).

¶25 Section 25-324.A provides the superior court “may order a
party to pay a reasonable amount” in attorney fees “after considering the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.” (Emphasis added.)
Though the superior court must consider both factors, it may base an award
on either financial disparity or reasonableness, or both. See Magee v. Magee, 206 Ariz. 589, 591, ¶ 8 n.1 (App. 2004).

¶26 Here, the superior court’s fee award covered both husband’s
enforcement petition and wife’s contempt petition. The superior court did
not identify the basis for its fee award, though it included relevant
reasonableness findings when discussing the merits of wife’s contempt
petition. The superior court awarded attorney fees after consideration, in
part, of the reimbursement petition. Because we largely vacate the rulings
on the reimbursement petition, we also vacate and remand the attorney-fee
award. See Eans-Snoderly v. Snoderly, 249 Ariz. 552, 559, ¶ 27 (App. 2020).

ATTORNEY FEES ON APPEAL

¶27 Husband and wife request their attorney fees on appeal under
A.R.S. § 25-324.A. After considering the relevant factors, we decline to

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award attorney fees. See MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 41
(App. 2011). As the successful party on appeal, we award husband his
reasonable costs under § 12-341 upon compliance with ARCAP 21.

CONCLUSION

¶28 We affirm the superior court’s order denying husband’s
reimbursement request for property-maintenance expenses. We vacate and
remand the superior court’s attorney-fee award and its remaining
community-debt orders.

AMY M. WOOD • Clerk of the Court
FILED: AA

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