Frankson v. Frankson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THERESA L. FRANKSON, Petitioner/Appellee,

v.

BEAR FRANKSON, Respondent/Appellant.

No. 1 CA-CV 24-0384 FC
FILED 03-13-2025

Appeal from the Superior Court in Maricopa County
No. FN2022-004873
The Honorable Melissa M. Zabor, Judge

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED

COUNSEL

Goldman Law, LLC, Phoenix
By Lundyn J. Garrett
Counsel for Petitioner/Appellee

Bear Frankson, Mesa
Respondent/Appellant
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MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Vice Chief Judge Randall M. Howe and Judge Andrew M. Jacobs
joined.

B A I L E Y, Judge:

¶1 Bear Frankson (“Husband”) appeals the superior court’s
decree dissolving his marriage to Theresa L. Frankson (“Wife”). Husband
argues the superior court erred in awarding inheritance funds to Wife as
her sole and separate property and in awarding her a portion of her
attorneys’ fees and costs under Arizona Revised Statutes (“A.R.S.”) section
25-324. For the following reasons, we affirm in part, reverse in part, and
remand.

FACTS AND PROCEDURAL HISTORY

¶2 The parties married in 1984. Wife’s father died during the
marriage, and Wife inherited more than $200,000 that was deposited in the
parties’ joint savings account in May 2021.

¶3 In November 2022, Wife filed for divorce. Each party alleged
improper behavior by the other. Wife alleged Husband had drained the
funds from the parties’ joint checking and savings accounts after they
separated. Husband alleged Wife obtained an order of protection solely to
remove him from the home and allow her to live there “free and clear”
while forcing him to pay rent.

¶4 Less than a week before the November 2023 resolution
management conference (“RMC”), Husband sent a settlement offer to Wife
in which he sought an equal split of the parties’ bank accounts, including
half of Wife’s inheritance; a $22,000 equalization credit for Wife residing in
the parties’ home; reimbursement of credit card debts incurred after he was
served; an offset credit for his proposed vehicle allocations; and award of
the marital residence. At the RMC, the court set a trial date and granted
Husband’s request to set alternative dispute resolution (“ADR”).

¶5 At ADR, the parties spent substantial time tracing the funds
in their bank accounts but were unable to resolve “anything.” Husband
continued to contend he was entitled to half of Wife’s inheritance, and he

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refused to release any of the funds he had withdrawn, even though he
acknowledged at least half of the funds belonged to Wife.

¶6 At the February 2024 trial on the dissolution petition, Wife
testified the funds in the parties’ checking account were community funds,
as were part of the funds in their savings account. However, Wife
maintained most of the money in the savings account was her sole and
separate property, derived from her inheritance. She tracked the
inheritance funds, explaining each savings account deposit and withdrawal
from May 2021 through late September 2022, when Husband withdrew
$219,344.46. Wife also sought her attorneys’ fees and costs, arguing
Husband had taken unreasonable positions throughout the litigation.

¶7 Husband argued the parties’ joint bank accounts were “too
commingled” to be traced and noted Wife withdrew a few thousand dollars
from the checking and savings accounts immediately after she moved out
of the marital residence in September 2022, a fact Wife did not dispute. He
also explained that although Wife and her ex-husband had originally
purchased the marital residence, it fell into foreclosure, and Wife and
Husband subsequently “bailed it out.” Husband also claimed he had made
some improvements to the home, mostly to accommodate his health issues.

¶8 After taking the matter under advisement, the superior court
ordered the parties to file briefs addressing the marital home’s valuation
and each party’s equity in it, then issued a dissolution decree in April 2024.
The court awarded the home to Wife, while crediting Husband for his
portion of its value. The court also concluded Wife’s inheritance was her
sole and separate property, and although the parties’ joint savings account
had both community and separate funds in it, the inheritance funds were
easily traceable and had not been commingled. Accordingly, the court
concluded Husband owed Wife both for her half of the community
property in the accounts and for the value of the inheritance. The court also
found Husband had acted unreasonably during the litigation and awarded
Wife a portion of her requested attorneys’ fees and costs.

¶9 We have jurisdiction over Husband’s timely appeal. See
A.R.S. § 12-2101(A)(1); Bollermann v. Nowlis, 234 Ariz. 340, 342, ¶ 12 (2014).

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DISCUSSION

I. Wife’s Inheritance Funds and the Joint Savings Account

¶10 Husband argues the superior court erred in concluding Wife’s
inheritance funds were traceable and awarding them as her separate
property rather than finding they had been commingled.

¶11 We review the superior court’s division of property for an
abuse of discretion, but we review de novo the classification of property as
separate or community. Helland v. Helland, 236 Ariz. 197, 199, ¶ 8 (App.
2014); Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523, ¶ 4 (App. 2007). We
do not reweigh the evidence but defer to the superior court’s resolution of
disputed facts and witness’s credibility. See Hurd v. Hurd, 223 Ariz. 48, 52,
¶ 16 (App. 2009).

¶12 In a divorce proceeding, the superior court must divide
community property equitably, although not necessarily in kind, without
regard to marital misconduct. A.R.S. § 25-318(A). Generally, equitable
division requires that community property be divided substantially
equally. Toth v. Toth, 190 Ariz. 218, 221 (1997).

¶13 Property acquired during marriage is generally considered
community property unless acquired by gift, devise, or descent. See A.R.S.
§ 25-211(A). If acquired by either spouse before marriage or acquired
during marriage by gift, devise, or descent, property is characterized as
separate property. A.R.S. § 25-213(A). The court must assign each spouse’s
separate property to that spouse. A.R.S. § 25-318(A).

¶14 “The commingling of separate and community funds into one
account does not transmute the entire account into a community account so
long as the funds remain traceable.” Noble v. Noble, 26 Ariz. App. 89, 95
(1976). Wife bore the burden of showing by clear and convincing evidence
how much of the separate funds in the parties’ savings account remained
traceable. See Cooper v. Cooper, 130 Ariz. 257, 259–60 (1981); Sommerfield v.
Sommerfield, 121 Ariz. 575, 577–78 (1979).

¶15 Here, Wife testified and showed evidence that she received
an inheritance check for $201,719.00, which was deposited into the parties’
joint savings account on May 14, 2021. From the time of the deposit until
the parties separated in 2022, the only deposits into the account were for
monthly interest, and there were only two withdrawals. One withdrawal
of $20,000 was immediately deposited into the parties’ checking account as
part of the parties’ community funds, and the other withdrawal of

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$42,632.02 was used to buy Wife’s personal automobile, an Acura. These
two withdrawals were each separately and easily traceable, and the
superior court did not err in concluding the funds from Wife’s inheritance
were her sole and separate property and had not been commingled.

¶16 We note, however, that Wife testified she understood that if
the court considered the Acura her sole and separate property, the amount
spent on it “will be reduced from the $201,000 inheritance that was placed
into this account,” and that if the court considered the Acura community
property, Wife “would owe an offset to [Husband]” after allocation of the
parties’ vehicles. In its decree, the court found “Wife purchased the Acura
with her sole and separate funds” and that it was her sole and separate
property. However, rather than subtract the amount spent on the Acura
from the inheritance funds before calculating Wife’s remaining sole and
separate property as it should have, the court instead credited Wife for the
total inheritance amount of $201,719.00. Further, because the court
considered the Acura to be Wife’s sole and separate property, the court did
not credit any of the vehicle’s value in calculating offsets, meaning that
Husband, rather than Wife, owed an offset after allocation of the parties’
vehicles. Because, according to Wife’s own testimony, the $42,632.02
withdrawal from the parties’ joint savings account should have reduced
Wife’s sole and separate property by that amount, the court erred in
crediting her for the full amount of the inheritance. We therefore reverse
that portion of the decree and remand for the court to credit Husband for
an additional $21,316.01, the additional amount he should have received as
his half of the community property from the joint savings account.

¶17 Finally, Husband seems to challenge the court’s
determination of his share of the community home’s value, suggesting the
court should have credited a higher amount because he “exclusively” paid
the mortgage for a time. Husband does not develop this argument, support
it with citations to the record, or explain when or if he made this argument
in the superior court. See ARCAP 13(a)(7). Accordingly, he has waived the
argument. See Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (App. 2022); Bobrow
v. Bobrow, 241 Ariz. 592, 597, ¶ 23 (App. 2017).

II. Award of Attorneys’ Fees and Costs to Wife

¶18 Husband next argues that, in awarding attorneys’ fees to Wife
under A.R.S. § 25-324, the superior court erred in finding he acted
unreasonably. Wife argues Husband took unreasonable positions
throughout the litigation that warranted an award of attorneys’ fees under
A.R.S. § 25-324.

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¶19 We review for an abuse of discretion an award of attorneys’
fees made under A.R.S. § 25-324. See In re Marriage of Berger, 140 Ariz. 156,
167 (App. 1983). The court abuses its discretion if it commits an error of law
in making a discretionary decision. In re Marriage of Williams, 219 Ariz. 546,
548, ¶ 8 (App. 2008).

¶20 To award attorneys’ fees under A.R.S. § 25-324, a court must
consider (1) the financial resources of the parties and (2) the reasonableness
of the positions each party has taken throughout the proceedings. A.R.S. §
25-324(A). In this case, the superior court expressly considered each.

¶21 In awarding attorneys’ fees and costs to Wife, the court found
no substantial disparity of financial resources between the parties, but
concluded Husband acted unreasonably throughout the litigation. The
court’s conclusion was supported by testimony that Husband refused
Wife’s request that he return a portion of her inheritance so she could pay
bills, claimed that some of Wife’s inheritance was his, requested
reimbursement for credit card debts he incurred after being served with the
dissolution petition, and made other unreasonable demands and requests,
including forcing Wife to incur attorneys’ fees responding to his frivolous
demands that Wife provide him health care items he later admitted he
could have obtained for free through worker’s compensation. The court
also noted that Husband appeared to have taken unreasonable positions on
settlement offers, including demanding unwarranted rental fees from Wife,
and insisted on mediation but did not negotiate in good faith. The court
added that Husband changed his position on the inheritance funds at
mediation after Wife showed they could be traced, and instead claimed he
was entitled to half the inheritance because he had helped her. The court
further noted that the week before trial, Husband sent three supplemental
disclosure statements, totaling around 500 pages, to Wife, causing her to
incur additional attorneys’ fees to determine whether the documents might
be relevant to the trial. The superior court’s findings and conclusions are
supported by the parties’ testimony and the evidence presented, and the
court did not abuse its discretion in awarding Wife a portion of her
reasonable attorneys’ fees and costs.

III. Attorneys’ Fees and Costs on Appeal

¶22 Wife requests attorneys’ fees on appeal. After considering the
parties’ financial resources and the reasonableness of their positions, we
deny Wife’s request. Husband has reduced the amount of the judgment
against him, and we award him taxable costs, contingent upon compliance
with Rule 21, ARCAP.

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CONCLUSION

¶23 We affirm in part, reverse in part, and remand for a
recalculation of the parties’ dissolution decree.

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

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