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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               BOGDANA T. IGNATOVA, Petitioner/Appellee,

                                         v.

                  IVAN D. IGNATOV, Respondent/Appellant.

                            No. 1 CA-CV 19-0100 FC
                              FILED 2-4-2020


            Appeal from the Superior Court in Maricopa County
                            No. FC2017-003149
                The Honorable Kerstin G. LeMaire, Judge

                     VACATED IN PART; REMANDED


                                    COUNSEL

Bellah Perez, PLLC, Glendale
By Shasta Marie Nolte
Counsel for Petitioner/Appellee

John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Respondent/Appellant
                         IGNATOVA v. IGNATOV
                           Decision of the Court



                       MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Randall M. Howe and Judge David D. Weinzweig joined.


G A S S, Judge:

¶1            Ivan D. Ignatov (husband) appeals the superior court’s
dissolution of his marriage to Bogdana T. Ignatova (wife). Husband
challenges only the superior court’s classification of a Glendale
condominium (the condo) as community property. Because the superior
court reviewed evidence under an incorrect standard, its characterization
of the condo is vacated and remanded for further proceedings.

               FACTUAL AND PROCEDURAL HISTORY

¶2            This court views the facts in the light most favorable to
upholding the superior court’s ruling. See Kohler v. Kohler, 211 Ariz. 106, 107,
¶ 2 (App. 2005). Husband and wife were born in Bulgaria and married there
in October 1995. Wife does not speak English. Husband has limited English
proficiency. During the marriage, they purchased the condo and two
properties in Bulgaria.

¶3           Husband purchased the condo in 2013 while wife was in
Bulgaria. Husband contacted wife in Bulgaria and told her to transfer funds
from a Bulgarian bank to husband’s Wells Fargo account in Arizona so he
could complete the purchase. The Bulgarian account was in husband’s
name, but husband authorized wife to use it, including making
withdrawals.

¶4           As part of the purchasing process, husband sent wife a
disclaimer deed (the deed). Husband told wife she needed to sign, notarize,
and return the deed quickly or they could not purchase the condo and
“would have lost a lot of money.” The deed husband sent was in English
and required translation. Wife signed, notarized, and returned both English
and Bulgarian translations of the deed.

¶5           In September 2017, wife filed for dissolution. The couple
reached a Rule 69 agreement, settling the division of their two properties in
Bulgaria. The superior court held a trial in September 2018 to resolve
ownership of the condo, among other issues. The following month, the


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                          IGNATOVA v. IGNATOV
                            Decision of the Court

superior court issued a Decree of Dissolution (decree). In its decree, the
superior court found:

       After considering the credibility of the testimony of the
       parties and the reliability of the evidence, the Court finds that
       Wife has rebutted the presumption that the [condo] is
       sole and separate due to the Husband’s fraudul[e]nt
       representation to her regarding the need to sign the document
       and her complete misunderstanding of the nature of [the]
       document.

¶6             The superior court ordered the condo sold and the proceeds
equally divided between husband and wife. Husband moved for a new
trial, submitting new evidence and arguing the superior court did not use
the correct standard when analyzing the deed’s enforceability. The superior
court summarily denied husband’s motion. Husband timely appealed.

                                  ANALYSIS

¶7            This court reviews the characterization of property as
separate or community de novo. Bell–Kilbourn v. Bell–Kilbourn, 216 Ariz. 521,
523, ¶ 4 (App. 2007). Property acquired during a marriage is presumed to
be community property. In re Marriage of Pownall, 197 Ariz. 577, 582, ¶ 16
(App. 2000). Spouses may convey their community or separate property to
one another by written instrument. Bender v. Bender, 123 Ariz. 90, 93 (App.
1979).

¶8            A valid disclaimer deed rebuts the presumption of
community property and “must be enforced in the absence of fraud or
mistake.” Bell–Kilbourn, 216 Ariz. at 523-24, ¶¶ 7, 11. Fraud and mistake,
however, are affirmative defenses and must be proved by clear and
convincing evidence. Bender, 123 Ariz. at 94; see also Powers v. Guar. RV, Inc.,
229 Ariz. 555, 562, ¶ 27 (App. 2012); Gutierrez v. Gutierrez, 193 Ariz. 343, 347,
¶ 7 (App. 1998).

¶9            At the conclusion of trial, the superior court said a “rebuttable
presumption attaches” to the deed. After reviewing the evidence presented
and the parties’ credibility, the superior court said wife “has rebutted the
presumption that the [condo] is sole and separate.” The deed, however,
created no presumption. A disclaimer deed instead rebuts the presumption
that property acquired during marriage is community property, but it may
be challenged as unenforceable based on fraud or mistake. See Bell–Kilbourn,
216 Ariz. at 523, ¶ 7. Though no “magic language” is required to establish
fraud, wife had the burden of proving fraud by clear and convincing


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                         IGNATOVA v. IGNATOV
                           Decision of the Court

evidence. See Green v. Lisa Frank, Inc., 221 Ariz. 138, 155, ¶ 53 (App. 2009).
Accordingly, the superior court applied an incorrect standard when
evaluating wife’s challenge to the deed.

¶10           The superior court correctly said a disclaimer deed may be
voided by a unilateral mistake induced by misrepresentation. See Parrish v.
United Bank of Ariz., 164 Ariz. 18, 20 (App. 1990). This court, however,
cannot resolve whether the evidence supports the superior court’s finding
under a clear and convincing standard. See Denise R. v. Ariz. Dep’t of Econ.
Sec., 221 Ariz. 92, 94, ¶ 5 (App. 2009) (appellate courts will not reweigh
evidence or second guess the superior court’s credibility determinations);
Gutierrez, 193 Ariz. at 347, ¶ 13. Because the superior court did not review
the testimony and evidence under this higher standard, its judgment cannot
be affirmed.

                              CONCLUSION

¶11           For the reasons stated above, the portion of the decree
characterizing the condo as community property is vacated and remanded
for proceedings consistent with this decision. The superior court may, in its
discretion, make appropriate findings based on the current record or choose
to hold an evidentiary hearing to consider additional evidence.




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




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