                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
                    MARYNA SACHS, Petitioner/Appellee,

                                         v.

                KENNETH H. SACHS, Respondent/Appellant.

                            No. 1 CA-CV 15-0645FC
                                 FILED 12-30-16


            Appeal from the Superior Court in Maricopa County
                           No. FC2013-053729
                The Honorable Joseph C. Kreamer, Judge

                                   AFFIRMED


                                    COUNSEL

Wees Law Firm LLC, Phoenix
By James F. Wees
Counsel for Petitioner/Appellee

Escolar Law Office, Phoenix
By M. Philip Escolar
Counsel for Respondent/Appellant
                            SACHS v. SACHS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which Judge
Peter B. Swann and Chief Judge Michael J. Brown joined.


O R O Z C O, Judge:

¶1            Kenneth Sachs (Father) appeals the superior court’s award of
$175,000 to Maryna Sachs (Mother), the denial of his motion for a new trial
or relief from judgment, and an award of attorney fees to Mother. For the
following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            Mother and Father married in May 2006, and had one child
together. Before their marriage, Mother and Father entered into a
Prenuptial Agreement (Agreement) prepared by Father’s attorney. Section
4 of the Agreement stated that “both parties shall, and do hereby waive,
release and relinquish any and all rights to maintenance, alimony or
support for themselves.” The exception to this provision in Section 4a,
stated that “[Mother] would receive a cash payment from [Father] of
$175,000 dollars US,” if the marriage were to end in seven years and the
parties had a child. Mother would also be awarded the parties’ primary
residence. The Agreement stated that Tennessee law would govern its
interpretation.

¶3            Father was diagnosed with Ulcerative Colitis and Crohn’s
disease in 2010. In August 2013, Mother filed a Petition for Dissolution of
Marriage.

¶4            The parties resolved their custody dispute, and agreed to
submit briefs addressing their understanding and the enforceability of the
Agreement. The dispute centered on Section 4a of the Agreement. In July
2014, the superior court found the Agreement’s provision that Father pay
Mother $175,000 was enforceable but Mother was not entitled to one of
Father’s premarital homes. The decree was entered on October 1, 2014 and


1      We view the facts “in the light most favorable to upholding the
[superior] court’s ruling.” Mahar v. Acuna, 230 Ariz. 530, 532, ¶ 2 (App.
2012).


                                     2
                            SACHS v. SACHS
                           Decision of the Court

Father filed a notice of appeal on October 24, 2014. After the decree was
entered, the superior court awarded Mother $12,000 in attorney fees. The
appeal was deemed abandoned on January 8, 2015, because there was an
undecided tax credit issue. The superior court entered an amended decree
addressing all issues in August 2015 based on the July 2014 minute entry.2

¶5            In January 2015, after the court found the Agreement
enforceable, but before the amended decree was filed, Father filed a Motion
for a New Trial. He alleged that in October 2014, he hired a private
investigator “to perform an independent investigation into [Mother’s]
background and financial dealings.” The private investigator’s report was
supposed to be attached to the motion for new trial, but is not part of the
record. Father alleged the report concluded that Mother received money
from “shady figures in Russia and the Middle East,” using “circumvention
methods to avoid detection by regulatory authorities,” and that Mother’s
internet behavior “fits the pattern of Islamic Terrorist Financing Activity.”
The superior court denied the motion without a response from Mother.

¶6            Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (A.R.S.) sections 12–120.21.A.1 and -2101.A (West 2016).3

                              DISCUSSION

    I.    Dismissal of the Appeal

¶7            As an initial matter, Mother contends that pursuant to
ARCAP 11(c) Father’s appeal should be dismissed because he did not
provide transcripts of the proceedings in superior court. Father counters
that there was no need for a transcript because no evidence was allowed or
presented. Father further argues that when the parties agreed to brief the
enforceability of the Agreement, everyone thought the “matter could be
adjudicated strictly on the briefs, without the need to resort to an
evidentiary hearing.” During the briefing process, Father decided that his
challenges to the enforceability of the Agreement, especially the Public
Charge argument, were fact intensive. At the outset of his brief filed in the


2      The July 2014 minute entry is dated July 15, 2014, was filed on July
18, 2014, and is referred to in the Amended Decree as the July 25, 2014
minute entry.

3     We cite to the current version of applicable statutes absent any
material change.


                                     3
                              SACHS v. SACHS
                             Decision of the Court

superior court, Father requested that the court not make a decision until
evidence could be presented. In spite of Father’s request, the court held
oral argument and determined an evidentiary hearing was not necessary.
ARCAP 11(c) does not require dismissal if transcripts are not provided. We
therefore deny Mother’s request to dismiss Father’s appeal for failure to
provide transcripts.

   II.      Enforcement of the Agreement

¶8            Father argues the trial court erred in awarding Mother
$175,000 because Section 4a of the Agreement is unconscionable,
unenforceable, and void as a matter of public policy. The parties agree the
Agreement should be interpreted according to substantive laws of
Tennessee. We review de novo issues of contract interpretation. Taylor v.
Graham Cty. Chamber of Commerce, 201 Ariz. 184, 192, ¶ 29 (App. 2001)
(citation omitted).

¶9            Neither party disputes that Father’s attorney drafted the
Agreement. However, the parties dispute whether Section 4a was drafted
by Father’s attorney or Mother herself. Father argues he did not “properly
or fully understand” Section 4a. Mother contends Father executed the
Agreement freely, knowledgeably, in good faith and without undue
influence or duress.

¶10            Father further argues Section 4a was “clumsily written” and
is, therefore, unconscionable and unenforceable. Section 4a states

         [a]t the end of Ten (10) years, if the marriage were to end, [Mother],
         would receive a cash payment from [Father] $175,000 dollars US. . . .
         If [Mother] and [Father] have a child(ren) the years shorten by three
         (3) years of each five (5) year increment, so end of five years becomes
         end of two years, etc. end of ten (10) years becomes end seven (7)
         years and so on.

¶11            “It is a bedrock principle of contract law that an individual
who signs a contract is presumed to have read the contract and is bound by
its contents.” 84 Lumber Co. v. Smith, 356 S.W.3d 380, 383 (Tenn. 2011)
(citation omitted). The ordinary meaning of words used in the contract
reflect the intention of the parties. Id. (citation omitted).

¶12           Section 4a is self-explanatory, and its purpose is clear: if the
parties have a child, and the marriage ends after seven years, Mother is
entitled to a cash payment of $175,000 from Father. Section 4a is not
ambiguous and is thus enforceable as written.


                                        4
                             SACHS v. SACHS
                            Decision of the Court

       A.     Enforcement of Section 4a Will Not Render Father a Public
              Charge

¶13           In Tennessee, a provision of a prenuptial agreement limiting
or waiving alimony will not be enforced if, at the time of divorce, its
enforcement deprives a spouse “of support that he or she cannot otherwise
obtain and results in that spouse becoming a public charge,” Cary v. Cary,
937 S.W.2d 777, 782 (Tenn. 1996), “within a reasonable period of time
following the divorce.” O’Daniel v. O’Daniel, 419 S.W.3d 280, 287 (Tenn. Ct.
App. 2013). In such a case, the trial court has to “void the provision and
award alimony in accordance with the factors set out in [T.C.A.]
§ 36–5–101.” Id.

¶14           Father argues it was reversible error for the superior court to
hold that he was not likely to become a public charge in the foreseeable
future and for the court to make such a finding without an evidentiary
hearing. However, in Father’s opening brief to the superior court he states
“[Father] realizes that the ultimate analysis on these disputed issues . . . may
rely on findings of fact, and if genuine issues of material fact with respect
to these issues still remain after the parties have completed briefing,
[Father] requests that the Court reserve final adjudication of this issue until
all appropriate evidence is presented at trial.” The superior court
determined that it did not need to hold an evidentiary hearing because it
assumed Father’s net worth, based on his own statement.

¶15           Father concedes his net worth was approximately $348,000 at
the time of divorce and his private insurance benefits would expire in about
ten years. Father’s financial affidavit indicates his monthly income is $6642
and his expenses are $5089, leaving Father excess income of over $1553.
These concessions by Father support the superior court’s findings that even
after Father pays Mother the $175,000, he will not be broke or financially
incapable of paying for his own means and, therefore, would not render
him a public charge.

¶16            Relying on the O’Daniel case, Father argues when his situation
is examined, “the holding in the O’Daniel case seems particularly applicable
to this case.” See O’Daniel, 419 S.W.3d 280. Father’s reliance on O’Daniel is
misplaced. In O’Daniel, the Wife was disabled, had signed a prenuptial
agreement waiving spousal support from husband and was contesting the
agreement. Id. Whereas in this case, it was Mother who waived spousal
support but Father, who had far greater assets at the time of the dissolution,
was contesting the support payment. Finding no error, we affirm.




                                       5
                               SACHS v. SACHS
                              Decision of the Court

          B.      Section 4a is Not Void as a Matter of Public Policy

¶17            Finally, Father argues Section 4a should be void as a matter of
public policy because it actively encourages divorce. Mother counters
Section 4a is enforceable, because the longer she stayed married, the greater
the sum she would receive upon dissolution.

¶18            Tennessee law favors prenuptial agreements. O’Daniel, 419
S.W.3d at 284. In Cary v. Cary, the Tennessee Supreme Court explained that
“divorce is such an unfortunate but commonplace fact of life that it is fair
to assume that many prospective remarriage partners with existing
property and children may want to discuss and agree upon the disposition
of their property and alimony rights in the event their marriage, despite
their best efforts, should fail. We think the public policy of this State should
allow such parties the freedom to contract and to agree on a provision
limiting or waiving alimony.” 937 S.W.2d at 781-82. The court in Cary also
expressly invalidated the original rationale for voiding prenuptial
agreements as promoting divorce. Id.

¶19           Father’s argument fails as a matter of law because it relies on
a common law doctrine that has been expressly overruled. The Agreement
does not violate public policy and is enforceable.

   III.        Court’s Denial of New Trial or Relief from Judgment

¶20           Father argues the superior court abused its discretion when it
denied his motion for new trial or relief from final judgment, because the
investigative report was newly discovered evidence. Mother argues the
investigative report was untimely as it relies on facts that allegedly
occurred during marriage.

¶21            We review the denial of a motion for new trial for abuse of
discretion. Sobieski v. Am. Standard Ins. Co. of Wis., 240 Ariz. 459, 462, ¶ 9
(App. 2016). A new trial may be granted if material evidence is found
which could not have been discovered, with reasonable diligence, prior to
trial. See Wendling v. Sw. Sav. & Loan Ass’n, 143 Ariz. 599, 602 (App. 1984);
see also Ariz. R. Fam. Law P. 83.A.4.

¶22          The parties exchanged financial information as early as
January 2014. Father argues he had “no reason to believe Mother’s
disclosures were anything less than full and frank.” However, in June 2014,
Father argued to the superior court “Mother has received funds from
mysterious men and/or benefactors.” In June 2014, Father served
subpoenas on several financial institutions used by Mother. If Father


                                        6
                             SACHS v. SACHS
                            Decision of the Court

believed he was not receiving accurate information from Mother, he could
have filed a motion to compel disclosure of the missing information or
requested a continuance to investigate his allegations before the amended
decree was entered. He did neither. Also, the report attached to the
opening brief is dated November 15, 2014, yet he did not file his motion for
new trial until January 15, 2015, two months later. Therefore, the report
was not newly discovered evidence that could not have been discovered
without reasonable diligence and we find no abuse of discretion.

   IV.    Superior Court’s Award of Attorney Fees to Mother

¶23           Father argues if the case is remanded for a new trial, the fee
award should also be vacated. Because we affirm the denial of the motion
for new trial, we also deny Father’s request to vacate the attorney fees
award.

   V.     Attorney Fees on Appeal

¶24           Both parties request attorney fees pursuant to A.R.S. § 25-324
(discretionary award based on financial resources of both parties and
reasonableness of their positions taken in the proceedings). The purpose of
A.R.S. § 25-324 is “to provide a remedy for the party least able to pay.” Bell-
Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524, ¶ 13 (App. 2007) (quoting In re
Marriage of Zale, 193 Ariz. 246, 251, ¶ 20 (1999)).

¶25           Because Father has greater financial resources and Mother’s
positions are not unreasonable, we award Mother her reasonable attorney
fees and costs incurred on appeal, upon compliance with ARCAP 21.

                              CONCLUSION

¶26           For the foregoing reasons, we affirm the superior court’s
judgment.




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


                                        7
