Lanese v. Lanese

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PEGGY ANN LANESE, Petitioner/Appellee,

v.

ANTHONY FRED LANESE, Respondent/Appellant.

No. 1 CA-CV 25-0439 FC
FILED 10-14-2026

Appeal from the Superior Court in Maricopa County
No. FC2021-001375
The Honorable Lauren R. Guyton, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Singer Pistiner, PC, Scottsdale
By Jason Pistiner, Robert S. Singer
Counsel for Petitioner/Appellee

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Alexandra Sandlin, Elizabeth Nanez, Alicia Derr
Counsel for Respondent/Appellant

LANESE v. LANESE
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge David D. Weinzweig delivered the decision of the Court,
in which Presiding Judge D. Steven Williams and Judge Anni Hill Foster
joined.

W E I N Z W E I G, Vice Chief Judge:

¶1 Anthony Lanese (“Husband”) appeals the superior court’s
dissolution decree. We affirm in part, vacate in part and remand for further
proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view and thus recount the facts in the light most favorable
to sustaining the superior court’s findings, deferring to the court’s
assessment of witness credibility and the weight given to conflicting
evidence. See Gutierrez v. Gutierrez, 193 Ariz. 343, 346–47, ¶¶ 5, 13 (App.
1998).

¶3 Husband married Peggy Lanese (“Wife”) in 1998. He was a
real estate developer and sales manager. She was the homemaker. During
the marriage, Husband formed TPL Investments, LLC (“TPL”) to buy,
renovate and resell homes, including the North Cattle Track and Desert
Mirage properties. Husband and Wife renovated and resold several marital
homes too, including the Rancho Verde, McDowell Mountain and
Woodshire properties. Husband invested in other real estate ventures with
his sister and her husband (“Underwoods”), including properties in
Flagstaff, Payson and the San Gianni Hills development.

¶4 Wife petitioned to dissolve the marriage in 2021 after
discovering Husband had concealed community funds from her, including
a $542,000 payment to the Underwoods she knew nothing about.

¶5 Wife hired a forensic accountant, who prepared three reports
documenting real estate transactions that resulted in missing funds or
appeared to benefit the Underwoods at the community’s expense.
Husband retained his own forensic accountant to rebut Wife’s expert.
Husband’s expert acknowledged that many records from those real estate
transactions no longer existed and he instead relied on Husband’s
assurances that the transactions benefited the community.

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¶6 At trial, Wife alleged Husband wasted almost $5 million in
community assets and sought reimbursement for half. The superior court
heard testimony from Wife, Husband, both their expert accountants and
Husband’s sister. The court found the community was “heavily indebted”
and had “virtually no cash or assets” despite Husband’s six-figure income
and successful real estate dealings. It concluded that Wife presented
credible evidence of waste and found that neither Husband nor his expert
credibly explained how the missing funds or Underwood dealings
benefited the community. It found that Husband was not credible when he
claimed the relevant records no longer existed. But the court also
considered the parties’ standard of living during the marriage and
“infer[red] that a portion of the funds from the transactions were used for
the community.” Altogether, it found a total waste of $3 million, “about
half the amount” Wife proposed, so it divided the community property
unequally and ordered Husband to pay Wife an equalization payment of
$835,886.24.

¶7 The court also found Wife eligible for spousal maintenance
and awarded her about $4,000 a month for nine years. The court denied
both parties’ requests for attorney fees. It found Husband had substantially
more financial resources but reasoned Wife’s equalization payment was
enough to cover her attorney fees.

¶8 Husband timely appealed. We have jurisdiction. A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶9 Husband argues the superior court erred in (1) finding he
committed marital waste, (2) relying on a depublished case, (3) awarding
Wife spousal maintenance and (4) denying his request for attorney fees.

I. Waste.

¶10 In dividing community property, the superior court may
consider “excessive or abnormal expenditures, destruction, concealment or
fraudulent disposition” of the property. A.R.S. § 25-318(C). If the court
finds waste, it may add the value of the wasted property to the total value
of community property, equitably divide the total between the spouses and
order an equalizing payment to compensate the complaining spouse.
Martin v. Martin, 156 Ariz. 452, 458 (1988).

¶11 We review the superior court’s division of property for an
abuse of discretion, including waste findings. Gutierrez, 193 Ariz. at 346, ¶

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5. We view the evidence in the light most favorable to sustaining the court’s
findings and defer to its factual findings unless no reasonable evidence
supports them. See id.

¶12 The spouse alleging waste has the burden to make a prima
facie showing of waste. Id. at 346–47, ¶ 7. That showing requires only
enough evidence to allow a fact-finder to infer that the allegation is true.
See Prima Facie Case, Black’s Law Dictionary (12th ed. 2024); Mahan v. First
Nat’l Bank of Ariz., 139 Ariz. 138, 142 n.3 (App. 1984) (prima facie case
requires only “evidence to justify, not necessarily compel, an inference”).
The burden then shifts to the other spouse “to rebut the showing of waste
because all of the evidence relative to the expenditures is generally within
the knowledge, possession, and control of the spending spouse.” Gutierrez,
193 Ariz. at 346–47, ¶ 7. This shifting burden reflects the practical reality
that, when a community asset goes missing, “in most cases only the
dissipating spouse will know how the asset came to be lost,” and it would
be unrealistic to expect an innocent spouse to “prove not only the
disappearance of marital property but also the precise way it disappeared.”
2 Brett R. Turner, Equitable Distribution of Property, § 6:105 (4th ed. 2025).

¶13 Husband challenges each of the superior court’s waste
findings, arguing the court improperly placed the burden on him to
“explicitly trace all transactions” before Wife had met her burden to
establish a prima facie case. He also argues Wife failed to raise two of the
waste allegations in her pretrial statement. We address each waste finding
in turn.

A. TPL Distributions.

¶14 The superior court first found Husband wasted a portion of
$339,150 in TPL distributions that could not be traced to a community
account.

¶15 Husband argues Gutierrez required Wife to affirmatively
prove he spent the funds excessively or abnormally, or concealed them,
before the burden shifted to him to rebut the showing of waste. But
Husband misunderstands the prima facie burden described above. See
supra ¶ 12.

¶16 Wife presented evidence that TPL issued $339,150 in
distributions—undisputedly community funds—and Wife, through her
expert accountant, could not trace the funds into a community account. At
that point, the burden shifted to Husband under Gutierrez to show the funds
were used to benefit the community. Gutierrez, 193 Ariz. at 347, ¶ 7.

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Husband presented no evidence that they benefited the community beyond
his own expert’s opinion that “Husband [wa]s certain the funds . . . went
into an account that benefited the marital community.” And the court
found neither Husband nor his expert credible. On this record, we defer to
that finding.

¶17 Husband relies on Albright v. Albright, 1 CA-CV 19-0841 FC,
2020 WL 6834341, at *2, ¶ 9 (Ariz. App. Nov. 19, 2020) (mem. decision), to
argue that a dispute over how funds were spent does not establish a prima
facie case of waste. But this case is unlike Albright. There, the superior court
found both spouses benefited from the excessive spending, “both enjoying
a lifestyle well beyond their means.” Id. at *2, ¶ 11. Here, the court weighed
the parties’ standard of living against the extent of the untraced funds and
inferred that only some of the funds benefited the community.

¶18 We affirm the superior court’s finding that Husband wasted
a portion of the untraced $339,150 in TPL distributions. On remand, the
court must specify the portion Husband wasted.

B. North Cattle Track Sales Proceeds.

¶19 The court next found Husband wasted a portion of the
$283,303 in sales proceeds from the sale of the parties’ North Cattle Track
property that could not be traced to a community account.

¶20 Wife’s expert accountant reported that he could not
determine where the $283,303 in proceeds from the sale of this property
were “ultimately deposited.” His report says the proceeds were moved
from the parties’ joint account into Husband’s separate savings account and
that some portion funded another property purchase. Husband presented
no evidence on what portion he used to buy the other property or how he
used the remaining proceeds. Again, all he presented was the conclusory
assertion that he was “certain” the funds benefited the community.

¶21 We defer to the superior court’s assessment of credibility and
affirm the court’s finding that Husband wasted a portion of the $283,303 in
sales proceeds. See Gutierrez, 193 Ariz. at 347, ¶ 13.

C. Desert Mirage Mortgage.

¶22 The court also found Husband wasted a portion of a $60,000
mortgage on the parties’ Desert Mirage property, reasoning Wife “did not
consent to” or “was unaware of” it. Nothing in the record supports either
finding. Wife’s expert’s report simply noted Husband had taken out the

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mortgage. Nothing in his report or testimony conveyed that the proceeds
could not be traced. And Wife never testified that she did not know about
or consent to it. We therefore vacate the court’s finding that Husband
wasted a portion of the $60,000 mortgage.

D. Rancho Verde Loan Proceeds.

¶23 The court found Husband wasted $281,000 in loans against
the parties’ Rancho Verde property.

¶24 Wife’s expert accountant found Husband borrowed $475,000
in construction loans, but documents showed less than $174,360 in actual
construction costs, and the rest of the loan proceeds could not be traced.
Wife testified she believed Husband gave the money to the Underwoods.
Husband claimed the construction costs exceeded $500,000. Wife’s expert
explained that his own estimate was based on a tax filing and invoices,
while Husband’s figure relied on a preliminary budget that included the
land’s cost and was therefore less accurate. We defer to the superior court’s
finding that Wife’s construction cost estimate was more credible than
Husband’s estimate. Gutierrez, 193 Ariz. at 347, ¶ 13. We affirm the
$281,000 waste finding.

E. San Gianni Hills Easement.

¶25 The superior court found Husband wasted $242,250 by
granting easements that reduced the value of the parties’ San Gianni Hills
property, without Wife’s knowledge or consent. Husband claims Wife
waived this issue in her pretrial statement because it alleged these
easements reduced the value of their Karen Way property instead of their
San Gianni Hills property. We need not resolve that dispute because Wife
presented no evidence that the easements reduced the value of either
property. We therefore vacate the court’s finding that Husband wasted a
portion of the $242,250 reduction in property value.

F. McDowell Mountain Property.

¶26 The court next found Husband wasted a portion of $515,000
in loan and sales proceeds related to the parties’ McDowell Mountain
property. Wife identifies three components of that figure: a $250,000 casita
loan, $200,000 in sales proceeds and $65,000 in furniture sales proceeds. We
address each in turn.

¶27 Wife presented evidence that Husband borrowed $250,000 to
build a casita on their McDowell Mountain property but never built the

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casita. She testified she believed he paid the money to the Underwoods
instead. Husband testified the parties never had plans to build a casita. He
claimed he took out the loan because Wife was worried about the market
crashing and wanted them to have cash available. But he never explained
where that cash went or how it was used.

¶28 Wife added that, after the McDowell Mountain property was
sold, Husband put $200,000 of the sales proceeds into a new separate
savings account that he opened without her knowledge. She also
introduced into evidence a bank statement showing an approximately
$200,000 deposit into that account the same month the property was sold.
Husband testified he had no documents to show where the money went,
but he “believe[d] it was split in two.”

¶29 On this record, the court did not abuse its discretion in finding
Husband wasted a portion of the $250,000 loan proceeds and $200,000 sales
proceeds.

¶30 But the court also found Husband wasted $65,000 in proceeds
from the sale of furniture from the McDowell Mountain property. Wife
concedes she presented no evidence on this issue. We thus vacate the
finding that Husband wasted the furniture sales proceeds.

G. Woodshire Sales Proceeds.

¶31 The court next found Husband wasted $561,818.67 in
proceeds from the sale of the parties’ Woodshire property.

¶32 Wife presented evidence that Husband paid the Underwoods
$542,000 out of the $561,818.67 in sales proceeds. Husband claimed this
repaid two loans from the Underwoods: one to pay off the Woodshire
property’s mortgage and one to fund TPL. But Wife’s expert accountant
testified there were no promissory notes evidencing such loans, and
Husband’s sister conceded on cross-examination that there were no formal
notes.

¶33 Given the conflicting evidence on whether the loans existed,
the superior court is in the best position to determine whether Husband
presented credible evidence that the payment to the Underwoods
extinguished a community debt. It found he had not. We will not reweigh
the evidence.

¶34 But the court erroneously found Husband wasted the full
$561,818.67. Wife concedes it was only $542,000.

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H. San Marino Mortgage.

¶35 The court next found Husband secretly took out a $56,000
mortgage on the parties’ San Marino residence and wasted the funds. Wife
concedes she presented no evidence to support this finding. We therefore
vacate it.

I. Flagstaff Property.

¶36 The court found Husband retained a secret interest worth
$1,672,000 in a Flagstaff property after purportedly selling it.

¶37 Wife’s expert accountant’s preliminary report noted the land
may have been swapped in a land exchange, and his first supplemental
report showed the parties’ “tax returns do not indicate that the Flagstaff
land was sold.” But at trial, he testified that he concluded the land had been
sold and questioned why the parties continued to pay the property tax after
that sale. Husband explained that the property was initially sold on “seller
carryback,” and the terms of the sale required the parties to continue paying
the property tax while the buyer was paying off the carryback. He also
explained that the buyer later defaulted, so he sold it to the Underwoods
instead. He testified he retained no ownership interest in any property in
Flagstaff.

¶38 The court found the community retained a 25% interest in the
property through the P&B Underwood Trust. It valued the property at
$6,688,000, speculating it “ha[d] likely appreciated 120%” over the past 24
years, and awarded Wife half the community’s $1,672,000 interest. Wife,
however, presented no evidence for the value of the Flagstaff property,
much less the value of whatever secret interest Husband allegedly retained.
Wife’s expert accountant himself admitted on cross-examination that he
“never saw any underlying value” for the Flagstaff property.

¶39 Barbara Underwood’s testimony further undercuts the
superior court’s valuation, which Husband corroborated with his own
testimony. Both testified the Flagstaff property was part of a roughly 40-
acre exchange, of which the parties purchased only a 10-acre interest—not
the full property the court valued at $6,688,000. Husband testified the
whole parcel ultimately sold for $10,000 an acre. Nothing in this testimony
supports a $1,672,000 community interest in the property.

¶40 Even though the superior court has the discretion to weigh
conflicting evidence on the Flagstaff property’s value, the record does not
support the court’s finding that Husband’s “dissipation and obstructionist

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behaviors” made that value impossible to determine, and the only
testimony on the property’s scale contradicts it. We therefore vacate the
court’s $836,000 award for the Flagstaff property.

J. Payson Properties.

¶41 The superior court also found Husband concealed an interest
in property in Payson. Husband argues that Wife failed to raise this
allegation in her pretrial statement, so it is waived. We need not resolve
that question because the court did not attribute any portion of its waste
award to this finding. Any error is thus harmless.

K. Community Funds Removed Post-Service.

¶42 Unlike the findings above, this item turns on the date used to
value the parties’ accounts, not on the sufficiency of Wife’s prima facie
showing. The superior court found Husband withdrew $46,500 from the
community’s joint accounts within a month after Wife served him with the
petition for dissolution, and Husband failed to prove he used those funds
for the community’s benefit. Husband argues the community terminated
on the service date, so the court erred by requiring him to prove the funds
benefited the community. He claims the court should have instead
determined whether he used the funds reasonably, under Goodell v. Goodell, 257 Ariz. 563, 571–72, ¶ 36 (App. 2024).

¶43 Whether Husband wasted the funds after service is irrelevant
because the court valued the community’s joint accounts as of the date of
service when apportioning the community property. The superior court
has broad discretion to choose a valuation date, which is “dictated by
largely pragmatic considerations,” and we will not disturb its exercise of
discretion so long as “the equitableness of the result . . . stand[s] the test of
fairness on review.” Sample v. Sample, 152 Ariz. 239, 242 (App. 1986).

¶44 Valuing the accounts as of the service date was both
pragmatic and equitable here because Husband and the parties’ adult
children spent money from the accounts throughout the dissolution
proceedings, and Husband “unilaterally closed several of the accounts.”
Husband does not contest the valuation date, and we have approved using
the service date to value bank accounts even when no waste occurred. See,
e.g., In re Marriage of Whiteside & Autrand, 2 CA-CV 2019-0191-FC, 2020 WL
7391891, at *2, ¶¶ 7 n.2, 8 (Ariz. App. Dec. 16, 2020) (mem. decision); Li v.
Zhao, 1 CA-CV 22-0378 FC, 2023 WL 3245224, at *3, ¶ 13 n.2 (Ariz. App. May
4, 2023) (mem. decision). We affirm the court’s use of the service date to
value the community’s accounts.

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the extent amounts are credited as having been given to Wife . . . , those
amounts should not be ‘double counted’ as waste.”).

II. Citation to Depublished Case.

¶46 Husband argues the superior court erred in relying on a
depublished case, Skoglund v. Barbour, 258 Ariz. 313 (App. 2024), depublished
by 259 Ariz. 221 (2025).

¶47 We agree the court erred in citing Skoglund. Under Arizona
Supreme Court Rule 111(c)(1)(C), a depublished opinion may not be cited,
even for persuasive value. But the error was harmless. The legal
propositions set out in the decree are adequately supported by its other
citations. And, as discussed earlier, each of the waste findings that we
affirm properly applied Gutierrez.

III. Spousal Maintenance.

¶48 Husband next contends the superior court’s erroneous waste
findings distorted its spousal maintenance award. We review a spousal
maintenance award for an abuse of discretion. Andrews v. Andrews, 252
Ariz. 415, 417, ¶ 7 (App. 2021).

¶49 Spousal maintenance may be awarded to a spouse who meets
any of five criteria “in an amount and for a period of time as the [superior]
court deems just.” A.R.S. § 25-319(A), (B) (2018). To determine the amount
and duration, the court considers thirteen factors listed in A.R.S. § 25-319(B)
(2018).1

¶50 Husband argues the court’s erroneous waste findings tainted
two of its spousal-maintenance eligibility findings: (1) that Wife lacked
sufficient property to provide for her needs, and (2) that she had limited her
income or career opportunities for Husband’s benefit. But a spouse is
eligible for spousal maintenance if any one of the factors is present. In re
Marriage of Cotter & Podhorez, 245 Ariz. 82, 86, ¶ 10 (App. 2018). And the
court found Wife eligible under two other criteria that were not affected by
his waste: She lacked earning capacity to be self-sufficient, and their
marriage was “of long duration.” A.R.S. § 25-319(A)(2), (5) (2018).

1 The Spousal Maintenance Guidelines do not apply here because
Wife filed her dissolution petition before September 24, 2022. A.R.S. § 25-
319 app. § I.C.1.

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¶51 But determining the amount and duration of the award
requires the court to consider “[t]he financial resources of the party seeking
maintenance, including marital property apportioned to that spouse” and
“[e]xcessive or abnormal expenditures, destruction, concealment or
fraudulent disposition” of community property. A.R.S. § 25-319(B)(9), (11)
(2018). Our decision changes both the extent of Husband’s waste and the
amount of property apportioned to Wife. We thus vacate and remand the
spousal maintenance award for recalculation.

IV. Attorney Fees.

¶52 The superior court denied the parties’ dueling requests for
attorney fees. The court has discretion to grant attorney fees “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.” A.R.S.
§ 25-324(A). We review its decision on whether to award attorney fees for
an abuse of discretion. Jacobs v. Jacobs, 259 Ariz. 467, 471, ¶ 19 (App. 2025).

¶53 Our remand for the superior court to recalculate the extent of
Husband’s waste and Wife’s spousal maintenance award may bear on both
the reasonableness of Wife’s positions in litigation and the parties’ relative
financial resources. We thus vacate the court’s denial of attorney fees to
both parties. The superior court may consider any renewed requests for
attorney fees on remand. See id. at ¶ 20.

CONCLUSION

¶54 We affirm in part, vacate in part and remand for further
proceedings consistent with this decision. Both parties request their
attorney fees on appeal under A.R.S. § 25-324, which we decline in our
discretion. We award Husband his costs on appeal upon compliance with
ARCAP 21. See A.R.S. § 12-342(A).

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

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