Bobrow v. Bobrow
241 Ariz. 592
| Ariz. Ct. App. | 2017Background
- Kenneth and Pam Bobrow married in 2002 and executed an enforceable premarital agreement that terminated Husband’s obligation to pay ordinary living expenses and spousal maintenance after either party filed for dissolution.
- Wife filed for dissolution on October 7, 2013; thereafter Husband paid monthly loan payments on the marital residence and Wife’s vehicle using his funds.
- Husband later sought reimbursement (an offset) of roughly $77,000 for Wife’s share of post-petition community expenses; the superior court denied reimbursement, characterizing the payments as gifts.
- Wife sought attorney’s fees under the Agreement’s prevailing-party clause; the superior court found neither party prevailed and denied fees; Wife later argued the prevailing-party clause violated public policy and sought fees under A.R.S. § 25-324.
- Both parties appealed; the appellate court considered whether (1) a gift presumption applies to post-petition payments of community obligations and (2) a premarital prevailing-party attorney-fee provision is enforceable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-petition payments of community expenses by one spouse are presumptively gifts | Wife: post-petition payments are gifts under matrimonial presumptions (citing Baum) | Husband: no gift presumption applies after petition is filed; he did not intend to gift and sought reimbursement | Court: No presumption of gift post-petition; donor’s intent controls and Wife failed to prove gift by clear and convincing evidence; remanded for offset calculation |
| Whether parties may contractually adopt a prevailing-party standard for attorney’s fees in a premarital agreement that displaces statutory § 25-324 protections | Husband: Agreement’s prevailing-party clause governs and is enforceable | Wife: Prevailing-party clause violates public policy; fees should be awarded under § 25-324 | Court: § 25-324 governs attorney-fee awards in dissolution matters; but Wife waived the public-policy challenge by relying on the Agreement at trial; superior court’s denial under prevailing-party standard affirmed on the record |
| Whether the trial court abused discretion denying fees under the Agreement | Wife: She should have fees under alternative statutory standard | Husband: Neither party prevailed; court acted within discretion | Court: No abuse of discretion; trial court reasonably found no prevailing party and denied fees |
| Whether appellate fees should be awarded | Wife: Seek fees under § 25-324 due to disparity/unreasonable positions | Husband: Enforce contractual prevailing-party clause | Court: Apply § 25-324 on appeal; neither party acted unreasonably and no appellate fees awarded |
Key Cases Cited
- Becchelli v. Becchelli, 109 Ariz. 229 (1973) (marital payments with separate funds and title in both spouses may give rise to a gift presumption)
- Baum v. Baum, 120 Ariz. 140 (1978) (spouse who voluntarily uses separate property to pay community expenses during marriage is entitled to reimbursement only if there is an agreement)
- O'Hair v. O'Hair, 109 Ariz. 236 (1973) (gifts between spouses governed by ordinary gift rules; donor’s intent must be clear and convincing)
- Berger, In re Marriage of, 140 Ariz. 156 (1983) (separate funds used to improve jointly owned real estate do not give rise to a gift presumption)
- Edsall v. Superior Court, 143 Ariz. 240 (1984) (A.R.S. § 25-324 governs attorney-fee awards in dissolution proceedings and supersedes contractual prevailing-party clauses)
- Schickner v. Schickner, 237 Ariz. 194 (App. 2015) (appellate standard that factual findings are erroneous if no substantial evidence supports them)