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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                           MARK CORY STEPHENS,
                             Petitioner/Appellee,

                                         v.

                              NORA STEPHENS,
                              Respondent/Appellant.

                            No. 1 CA-CV 14-0608 FC
                                FILED 1-7-2016


            Appeal from the Superior Court in Maricopa County
                           No. FN2013-092420
             The Honorable Emmet J. Ronan, Judge (Retired)

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                    COUNSEL

Schneider Law Office, Mesa
By Gary Schneider
Counsel for Petitioner/Appellee

Michael J. Shew Ltd., Phoenix
By Michael J. Shew
Counsel for Respondent/Appellant
                        STEPHENS v. STEPHENS
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1           Nora Stephens (Wife) appeals from a decree of dissolution.
For the following reasons, we affirm the decree in part and vacate and
remand in part.

                            BACKGROUND

¶2            The parties were married in January 2009. In 2013, Mark
Cory Stephens (Husband) filed a petition for dissolution without children.
The parties entered into a partial settlement agreement pursuant to
Arizona Rule of Family Law Procedure 69 in which they agreed to allocate
three debts to Wife, the 2002 Suzuki motorcycle to Husband, and to waive
any rights to the other’s retirement accounts. The agreement also
provided that each party would be awarded the personal property in his
or her possession; however, several specific household items were
disputed.

¶3            After two trial days, the family court entered a decree
resolving all but one issue relating to Husband’s claim that there was a
community lien on Wife’s personal injury settlement. After a third
hearing on the one remaining issue, the court denied Husband’s lien claim
and ordered each party to pay his or her own attorneys’ fees. Prior to the
court issuing this ruling, Wife filed a motion for new trial. The family
court denied the motion.

¶4           Wife filed a notice of appeal from the unsigned decree, the
unsigned ruling on the lien and attorneys’ fees, and the unsigned denial of
the motion for new trial. After obtaining a signed order denying her
motion for new trial, Wife filed an amended notice of appeal. This court
subsequently stayed the appeal to allow Wife to obtain a signed final
order regarding the ruling on the merits. The family court signed a final,
appealable order, and this appeal was reinstated. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona




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                           Decision of the Court

Revised Statutes (A.R.S.) sections 12-2101.A.1 and -120.21.A.1 (West
2015).1

                              DISCUSSION

I. Musical Instruments

¶5             Wife contends the family court erred by characterizing the
musical instruments and repair equipment as Husband’s separate
property. We defer to a family court’s factual findings absent clear error.
Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13 (App. 2001). However, the
classification of property as separate or community is a question of law we
review de novo. See Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 523, ¶ 4
(App. 2007). Property acquired by one spouse prior to marriage is that
spouse’s separate property. A.R.S. § 25-213.A. The character of property is
determined at the time it is acquired and retains that character until
changed by agreement or operation of law. Bell-Kilbourn, 216 Ariz. at 523,
¶ 5; see also Potthoff v. Potthoff, 128 Ariz. 557, 561(App. 1981).

¶6            Wife contends the evidence did not support the family
court’s finding that Husband acquired all the musical instruments and
repair equipment before marriage. Husband and two witnesses testified
that Husband acquired several musical instruments and repair equipment
prior to marriage when he worked as a musician and a musical
instrument repairman. Husband and his witnesses identified several
instruments and equipment that Husband owned prior to marriage.
Husband testified that he did not purchase any instruments or tools
during the marriage, only parts. Wife, however, testified that Husband
purchased some instruments during the marriage while also admitting he
owned some prior to the marriage. Wife also argues that she provided a
list (Exhibit 70) of the instruments Husband purchased during the
marriage. However, these are some of the instruments and tools Husband
and his witnesses identified as belonging to Husband prior to the parties’
marriage.

¶7             The evidence about the timing of Husband’s purchases of
the musical instruments and repair equipment was conflicting. “We will
defer to the [family] court’s determination of witnesses’ credibility and the
weight to give conflicting evidence.” Gutierrez v. Gutierrez, 193 Ariz. 343,


1     We cite the current version of applicable statutes when no revisions
material to this decision have occurred.



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347, ¶ 13 (App. 1998); see also Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App.
2009). There was evidence to support the family court’s finding that
Husband purchased the musical instruments and repair equipment prior
to the marriage. Therefore, the court properly concluded those items were
Husband’s separate property, and we affirm the award of these items to
Husband as his separate property.2

II. Victory Vision Motorcycle and Related Debt

¶8            The family court found Husband purchased a Victory Vision
motorcycle during the marriage, but because it replaced a motorcycle
Husband owned before marriage, the court awarded the Victory Vision
motorcycle to Husband as his separate property. Wife challenges the
separate property characterization of the Victory Vision motorcycle. Wife
also contends she was entitled to an order affirming her $25,000 lien
against Husband’s personal injury settlement because she loaned him
$25,000 to pay off this motorcycle.

¶9           Both parties characterized the Victory Vision motorcycle as
community property in their pretrial statements. Husband asked the
court to award him this community motorcycle and, in exchange, award
Wife the community-owned Mitsubishi of equal value. Husband never
claimed the Victory Vision motorcycle was his separate property.
Nevertheless, the family court found the Victory Vision motorcycle was
Husband’s separate property because it replaced a motorcycle that was
Husband’s separate property. This finding is not supported by the
evidence.

¶10            During the marriage, Husband was in an accident that
totaled a motorcycle he had purchased prior to the parties’ marriage. To
replace that motorcycle, Husband took out a loan and purchased the
Victory Vision motorcycle. The down payment on that loan was paid
during the marriage, presumably with community funds, but neither
party testified regarding the source of the down payment funds. See In re
Marriage of Flower, 223 Ariz. 531, 537, ¶ 24 (App. 2010) (assets and debts
incurred during marriage are presumed to be community property unless
proven by clear and convincing evidence). When Wife received her


2      In her opening brief, Wife argues the family court correctly denied
Husband’s claim that the community had an interest in her personal
injury settlement and Husband’s motion for contempt. Husband did not
challenge these rulings; therefore, we need not address them on appeal.



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                          Decision of the Court

personal injury settlement, some of those proceeds were used to pay off
the community loan on the Victory Vision motorcycle. Wife took a lien
against Husband’s personal injury settlement to secure this loan.3
Husband admitted he had not repaid Wife.

¶11          Although the family court correctly found the Victory Vision
motorcycle was purchased to replace a motorcycle Husband owed before
marriage, the Victory Vision motorcycle was purchased during the
marriage with some community funds and a community loan. Wife’s
separate property personal injury settlement was used to pay off that
loan.4 Assets and debts acquired during marriage are presumed to be
community, and the party claiming they are separate in nature must
prove that assertion by clear and convincing evidence. In re Marriage of
Flower, 223 Ariz. at 537, ¶ 24. Husband did not establish that he used any
separate property to purchase the Victory Vision motorcycle. Therefore,
the family court erred in characterizing it as Husband’s separate property.

¶12          Husband contends the decree was equitable because the
family court also awarded Wife the Mitsubishi as her separate property
and there was no evidence regarding the value of either vehicle.
However, the family court found the Mitsubishi was Wife’s separate
property. Husband did not challenge this characterization. On this
record, we cannot agree it was equitable to award a community asset to
Husband with no offset to Wife in exchange for confirming Wife’s
separate property to her.

¶13            An equitable result required the family court to also allocate
the debt associated with the Victory Vision motorcycle. Husband
admitted that Wife had a lien against his personal injury settlement
because he had not paid Wife the $25,000 she loaned him from her
separate property to pay off the motorcycle loan. The decree did not refer
to this lien or debt, yet awarded the motorcycle to Husband with no offset
to Wife.

¶14         The award of the community property motorcycle to
Husband as his separate property was erroneous. Accordingly, we vacate


3      This lien was admitted into evidence, but was apparently released
to the parties and is, therefore, not contained in the record on appeal.

4     Husband did not challenge the family court’s ruling that Wife’s
personal injury settlement proceeds were her separate property.



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                         STEPHENS v. STEPHENS
                           Decision of the Court

the award of the Victory Vision motorcycle to Husband as separate
property. On remand, the court shall determine a fair and equitable
distribution of the community motorcycle and the debt incurred from
Wife’s separate property. In light of this resolution, Husband’s argument
that the decree cancelled Wife’s lien was also erroneous.

III.   2007 Trike

¶15             The family court found Husband purchased the 2007 Trike
prior to marriage and Wife did not establish that any community funds
were used to pay for the Trike. Wife argues she is entitled to an equitable
lien to the extent community funds were used to make payments on the
Trike during the marriage. See Potthoff, 128 Ariz. at 562. We view findings
of fact in the light most favorable to supporting the trial court’s ruling. See
Boncoskey v. Boncoskey, 216 Ariz. 448, 451, ¶ 13 (App. 2007).

¶16          Wife argues that Trial Exhibit 36, prepared by Husband,
shows several payments to Silver State Schools Credit Union (credit
union). Husband, however, testified that the Trike was paid for before the
marriage and the payments to the credit union were for another
motorcycle. The testimony did not clearly explain the “auto loan”
payments to the credit union from the community bank account.

¶17          In light of Wife’s failure to provide more detailed payment
information, we cannot say the trial court abused its discretion in
accepting Husband’s testimony that the payments were not for the Trike,
which he claimed was paid for before marriage. See Gutierrez, 193 Ariz. at
347, ¶ 13. Accordingly, we affirm the award of the Trike as Husband’s
separate property.

IV.    Partial Settlement Agreement

¶18            The parties reached a partial settlement agreement
(settlement agreement) a few months before trial. Relevant to this appeal,
the parties agreed: (1) Wife would pay three debts; (2) the payment for six
other debts remained disputed; and (3) the parties agreed each would
keep the community personal property already in their possession but
listed several items of disputed personal property. Both parties noted the
existence of the settlement agreement in their pretrial statements, but the
decree did not refer to the settlement agreement. Wife argues the family
court abused its discretion by failing to make any findings regarding the
settlement agreement and because the decree contains terms inconsistent
with the agreement. Husband contends neither party asked the court to
adopt the settlement agreement, so it was not binding. Husband also


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                           Decision of the Court

argues Wife waived any claim that the settlement agreement was binding
because her positions at trial were contrary to the terms of the agreement.

¶19            The parties did not expressly ask that the family court accept
or incorporate the settlement agreement or find it was fair and equitable.
However, the parties referred to it in their pretrial statements and Wife
referred to it at trial, albeit briefly. Pursuant to A.R.S. § 25-317.B and D., a
settlement agreement is binding unless the family court finds the
agreement is unfair; if the court finds it is not unfair, the court shall set
forth the terms of the agreement or incorporate the agreement by
reference. See also Sharp v. Sharp, 179 Ariz. 205, 210(App. 1994). The court
failed to make any findings regarding the settlement agreement.

¶20            Husband suggests this court should assume the family court
rejected the partial settlement agreement because neither party requested
findings of fact pursuant to Ariz. R. Fam. L.P. 82. It is not possible to
determine whether the family court implicitly rejected the agreement as
unfair. The decree did not place a valuation on the assets or specify the
balances owed on the debts allocated in the decree.5 Neither party
repudiated the settlement agreement and Husband does not dispute that
it satisfied Rule 69, Ariz. R. Fam. Law P.

¶21           Contrary to Husband’s argument on appeal, Wife did not
take positions at trial inconsistent with the settlement agreement. At trial,
Wife did not argue the musical instruments were part of the personal
property awarded to her in the partial agreement.6 Wife argued they were



5     The settlement agreement listed nine debts, of which six were
disputed; however, the decree only allocated four of the debts. Wife
accepted liability for some of the debts at trial, presumably the same ones
she agreed to in the settlement agreement, although that is not clear.
Because the parties did not list or testify to specific account numbers or
balances for the various debts, we are unable to determine whether the
decree allocated all the debts listed in the partial settlement agreement or
whether it was ultimately fair and equitable.

6     For the first time in her reply brief, Wife claims the musical
instruments were in her possession at the time of the settlement
agreement, thus, pursuant to the agreement, they should have been
awarded to her. At trial, Wife argued the instruments were community
property because they were purchased during the marriage. “We will not



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                         STEPHENS v. STEPHENS
                           Decision of the Court

community property because they were purchased during the marriage
and asked the court to allocate them to Husband in exchange for
awarding the house to her.

¶22           The family court had an independent obligation under
A.R.S. § 25-317 to assess the fairness of the settlement agreement and to
ultimately achieve a fair and equitable allocation of the property and
debts. See A.R.S. § 25-318.A. We cannot ascertain whether the family
court rejected the settlement agreement or whether the overall allocation
was fair and equitable due to the lack of evidence regarding the valuation
of the assets and debts. Accordingly, we vacate the allocation of the
disputed personal property and the allocation of debts. On remand, the
family court shall consider whether the settlement agreement was fair and
proceed to equitably allocate the remaining personal property and debts.

V. Other Orders Relating to Debts

¶23           Wife disputes several provisions of the decree related to the
payment of debts. Specifically, the family court ordered the parties to pay
off “any of the community debts listed below” with the proceeds from the
sale of the community residence. Wife argues this was an abuse of
discretion because she should be permitted to pay her debts over time and
because the court did not order that sales proceeds be used to pay the
debts Wife agreed to pay. Wife also argues the court failed to specify the
date for determining the parties’ liability for the debts. Wife proposes the
court use the date of service. Husband did not respond to these
arguments. Having vacated and remanded for reconsideration those
portions of the decree allocating the debts, these issues are more
appropriately addressed on remand.

¶24            Finally, Wife argues the court abused its discretion by failing
to credit Wife with the reduction in principal on the marital residence and
increase in value for payments Wife made after June 1, 2013. Wife did not
raise this issue at trial. Accordingly, we do not address it on appeal. See
Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13 (App. 2000).
Moreover, there was no evidence regarding the amount of reduction in
principal or any increased value of the marital residence at any time



consider new arguments made for the first time in a reply brief.” Dawson
v. Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007).




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                          Decision of the Court

before or after June 1, 2013. Absent such evidence, the family court could
not have made such an award to Wife and we find no abuse of discretion.

VI. Attorneys’ Fees at Trial

¶25           The family court found that although Husband had greater
earnings, there was “no significant disparity of income between the
parties.” The court also found both parties had been uncooperative
throughout the litigation. We will not disturb the family court’s ruling on
attorneys’ fees absent an abuse of discretion. See Gutierrez, 193 Ariz. at
351, ¶ 32.

¶26           Wife contends the family court abused its discretion by
denying her request for an award of attorney fees without finding Wife
had adequate resources to pay her own fees. Wife, however, did not offer
any evidence that she was unable to pay her own attorney fees.
Moreover, financial “disparity alone does not mandate an award of fees.”
Myrick v. Maloney, 235 Ariz. 491, 494, ¶9 (App. 2014). Pursuant to A.R.S.
§ 25-324.A, the family court has discretion to deny a fee award after
considering the parties’ financial resources as well as the reasonableness
of the parties’ positions. Id. The family court considered both factors in
this case, and we find no abuse of discretion.

             ATTORNEY FEES AND COSTS ON APPEAL

¶27           Both parties request an award of attorney fees and costs on
appeal pursuant to A.R.S. § 25-324. We have no current information
regarding the parties’ financial resources and find neither party took
unreasonable positions on appeal. Neither party was entirely successful
on appeal. Accordingly, we deny the parties’ requests for attorney fees
and costs on appeal. See A.R.S. § 12-342.




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                          Decision of the Court

                             CONCLUSION

¶28           We affirm the award of the musical instruments, repair
equipment, and the Trike to Husband as his separate property. We vacate
the award of the Victory Vision motorcycle to Husband, finding it was
community property. We also vacate that portion of the decree allocating
the parties’ debts. On remand, the family court shall consider whether the
settlement agreement was fair and equitable and then reconsider the
allocation of debts and disputed personal property in light of that finding.
We affirm the family court’s denial of attorney fees to Wife. On appeal,
each party shall pay his or her own attorney fees and costs.




                                :ama




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