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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

          FERIDE-KHANUM IMATDINOV, Petitioner/Appellant,

                                        v.

                ERNEST IMATDINOV, Respondent/Appellee.

                           No. 1 CA-CV 18-0560 FC
                                FILED 1-9-2020


           Appeal from the Superior Court in Maricopa County
                           No. FC2017-010410
                  The Honorable Justin Beresky, Judge

                          VACATED; REMANDED


                                   COUNSEL

Stevens & Van Cott, PLLC, Scottsdale
By Laurence B. Stevens, Charles C. Van Cott
Counsel for Petitioner/Appellant

Owens & Perkins, P.C., Scottsdale
By Lisa A. Whalen
Counsel for Respondent/Appellee
                       IMATDINOV v. IMATDINOV
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.


W I N T H R O P, Judge:

¶1            Feride-Khanum Imatdinov (“Mother”) appeals from (1) the
decree of dissolution awarding joint legal decision-making authority to
Ernest Imatdinov (“Father”), and (2) an order denying her request that
Father reimburse the community for amounts paid toward Father’s
premarital debt and to reduce the mortgage thereby increasing the value of
Father’s sole and separate real property. Mother also appeals from the
court’s denial of her request for attorneys’ fees. For the reasons that follow,
we vacate the legal decision-making authority order, the community
reimbursement order, and the denial of Mother’s attorneys’ fees and
remand for reconsideration.

                 FACTS AND PROCEDURAL HISTORY

¶2           Mother was born in Ukraine and resided in the Crimea region
until March 17, 2015, when she moved to Arizona to marry Father. Prior to
relocating, Mother had taken no English classes; throughout the marriage,
she communicated in Russian with Father and Father’s family. Mother’s
family remains in Crimea, and when she moved, Mother had no contacts in
Arizona outside of Father and Father’s family.

¶3            A few months after marrying Mother, Father purchased a
residential property with a down payment that included funds he had
earned prior to the marriage, a gift from his mother, and funds he had
earned after marrying Mother. Despite being unable to read the documents
that were provided only in English, Mother signed a disclaimer deed,
waiving any past, present, or future interest in the residence and confirming
the residence as Father’s separate property.

¶4            In January 2016, Mother gave birth to the parties’ child, E.I.
Mother stayed at home to care for E.I., and Mother and the child “were
nearly constantly together.” Mother was the primary caregiver for E.I.; the
child spoke only Russian and did not begin to learn English until after the
parties separated.



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                      IMATDINOV v. IMATDINOV
                         Decision of the Court

¶5             As the court subsequently found, Father “maintained
absolute control over all finances” throughout the marriage and
“financially terrorized Mother.” She could not access any banking accounts
and had to rely on Father for cash or a credit card linked to one of Father’s
accounts. Mother was unable to attend English courses with any regularity
and Father prevented her from obtaining a driver’s license. Father kept
Mother socially isolated, forbidding her from having friends over to the
home.

¶6           When Mother eventually obtained work and relied on a
friend’s husband to drive her, Father and Father’s mother reacted by
“yelling at Mother, calling her names and trying to take Mother’s phone
away.” That incident in December 2017 prompted Mother to seek and
obtain an order of protection against Father’s mother.

¶7            Mother petitioned for dissolution shortly thereafter, and
Father moved out of the marital residence. A few weeks later, Mother
discovered listening devices in the bedroom and the kitchen that had been
hidden by Father. Mother then obtained an order of protection against
Father.

¶8            The family court issued temporary orders that granted
Mother exclusive use of the marital residence, awarded the parties joint
legal decision-making authority with Mother having final decision-making
authority, issued an equal parenting time schedule, and ordered Father to
pay $3,500 toward Mother’s attorneys’ fees. When the equal parenting time
schedule went into effect, Mother called police several times when Father
refused to allow Mother any contact with E.I. during Father’s parenting
time. The Department of Child Safety (“DCS”) opened a brief investigation
of Father following a report of child abuse, closing the investigation upon
finding the report unsubstantiated.1

¶9             At trial, Mother sought to continue the temporary orders for
joint legal decision-making authority with final decision-making authority
for Mother, citing the parties’ inability to agree on medical care and daycare



1      The family court identified Mother as the individual who called
DCS. The record, however, indicates that a counselor placed the call as part
of mandated reporting procedures and had Mother describe alleged
incidents to DCS officials through an interpreter while the counselor
remained on the call.



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                         Decision of the Court

for E.I. and alleging Father had committed domestic violence.2 Father
sought sole legal decision-making authority. The family court found that
Father had “engaged in acts that constitute domestic violence” but awarded
joint legal decision-making authority to the parties after finding sole legal
decision-making “is not in the child’s best interests.”

¶10          The family court found that “Mother has virtually no financial
resources other than the monetary orders made herein.” At the time of the
trial, Mother was working at a dual-language daycare facility earning
minimum wage; prior to moving to the United States, Mother had worked
as a pediatric nurse in a children’s hospital. Mother testified that she
planned to complete both the English and nursing courses necessary to
become certified in Arizona, a process the court estimated would take three
years. Father worked as a pharmacist earning significantly more than
Mother, approximately $10,000 per month. The court ordered Father pay
spousal maintenance to Mother for thirty-six months.

¶11           Given Father’s control over finances and Mother’s lack of
knowledge of the marital assets, the court found “an equal division of
community property is inappropriate to achieve equity.” The court
awarded the residential property to Father as sole and separate property
and divided the funds in the family’s checking account equally. The court
also ordered that Father pay to Mother an equalization payment
representing community funds he used to make a lump-sum payment
toward his student loans in 2017. Despite the “substantial disparity of
financial resources” the court denied both parties’ requests for attorneys’
fees and costs, finding both parties acted “unreasonably.”

¶12            The court granted Mother’s motion to reconsider the issue of
a community lien on the residence and awarded an equalization payment
for half of the amount of community funds Father used as part of the down
payment for the marital residence. The court declined, however, to find
community liens against the earnings used to pay the monthly mortgage,
for the increase in equity in the marital residence, or for the community
earnings used to make payments toward Father’s student loans. The court

2      The record indicates Mother made this request relying on this court’s
decision in Nicaise v. Sundaram, which determined that joint legal decision-
making with final decision-making “is, in reality, an award of sole legal
decision-making.” 244 Ariz. 272, 278, ¶ 18 (App. 2018). The Arizona
Supreme Court vacated that portion of the decision in 2019, but after the
family court issued the dissolution decree. See Nicaise v. Sundaram, 245 Ariz.
566, 569, ¶ 17 (2019).


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                       IMATDINOV v. IMATDINOV
                          Decision of the Court

also denied Mother’s request to reconsider the rulings regarding legal
decision making and attorneys’ fees.

¶13         Mother timely appeals. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                                 ANALYSIS

      I.      Legal Decision-Making Authority

¶14            Mother argues that the family court misapplied A.R.S. § 25-
403.03(A) and improperly granted joint legal decision-making authority
after finding Father had committed acts of domestic violence under A.R.S.
§ 25-403. We review the court’s orders on legal decision-making authority
for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App.
2003). Abuse of discretion exists “when the record is ‘devoid of competent
evidence to support the decision,’ or when the court commits an error of
law in the process of reaching a discretionary conclusion.” Engstrom v.
McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018) (quoting Hurd v. Hurd, 223
Ariz. 48, 52, ¶ 19 (App. 2009)). We defer to the court’s findings of fact unless
the findings are clearly erroneous, but we review the court’s conclusions of
law and interpretation of statutes de novo. Id.

¶15             In determining legal decision-making authority, the family
court must consider “all factors that are relevant to the child’s physical and
emotional well-being,” including “[w]hether there has been domestic
violence . . . pursuant to § 25-403.03.” A.R.S. § 25-403(A), (A)(8). A finding
of domestic violence “must be treated as a factor of ‘primary importance’”
and the court must consider the safety of both the child and the victim of
domestic violence. Christopher K. v. Markaa S., 233 Ariz. 297, 301, ¶ 19 (App.
2013) (quoting A.R.S. § 25-403.03(B)).

¶16           Section 25-403.03(A) states in relevant part that

       [J]oint legal decision-making shall not be awarded if the court
       makes a finding of the existence of significant domestic
       violence . . . or if the court finds by a preponderance of the
       evidence that there has been a significant history of domestic
       violence.

If the court does not make such findings and a parent who has committed
domestic violence against the other parent seeks sole or joint legal decision
making, A.R.S. § 25-403.03 creates a rebuttable presumption that “an award
of sole or joint legal decision-making to the parent who committed the act


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                      IMATDINOV v. IMATDINOV
                         Decision of the Court

of domestic violence is contrary to the child’s best interests.” The court
must make specific findings on the record of specific evidence to rebut the
presumption before awarding sole or joint legal decision-making authority
to the parent who has committed domestic violence. A.R.S. §§ 25-403.03(D),
-403(B); see Christopher K., 233 Ariz. at 301, ¶¶ 18-19.

¶17            As previously noted, Mother sought to finalize the temporary
orders granting her joint legal decision making with final decision-making
authority. Father sought sole legal decision-making authority. The court
made findings that Father committed domestic violence against Mother,
specifically that he “financially terrorized Mother by exercising absolute
control over all the finances during the marriage” and that she “was not
allowed to have a life outside the marriage.” Father admitted to placing
recording devices in the home, and the court found his testimony “revealed
how paranoid and controlling Father was during the marriage.” After
making these findings, the court determined Father’s acts did not preclude
an award of joint legal decision-making authority under A.R.S. § 25-
403.03(A), found Father rebutted the presumption against joint legal
decision-making authority under A.R.S. § 25-403.03(D), and ultimately
awarded joint legal decision making.

¶18          The decree of dissolution blurs the distinction between the
two considerations in A.R.S. § 25-403.03(A). The decree reads

      Having found the existence of domestic violence, the Court
      addresses the admonition in A.R.S. § 25-403.03(A), which
      states that notwithstanding the presumption in subsection D,
      “joint custody shall not be awarded if the court makes a
      finding of the existence of significant domestic violence
      pursuant to § 13-3601 or if the court finds by a preponderance
      of the evidence that there has been significant domestic
      violence.” A.R.S. § 25-403.03(A) (emphasis added).

      Meaning, a finding of significant domestic violence or a
      history of significant domestic violence precludes an award
      of joint legal decision making or an award of sole legal
      decision making to the parent who committed the significant
      act of domestic violence.

(Citation omitted.). The statute, however, refers to a finding “by a
preponderance of the evidence that there has been a significant history of
domestic violence.” A.R.S. § 25-403.03(A) (emphasis added).




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                       IMATDINOV v. IMATDINOV
                          Decision of the Court

¶19           In interpreting a statute, we must give meaning to each word,
phrase, or clause “so that no part of the statute will be void, inert,
redundant, or trivial.” Walker v. City of Scottsdale, 163 Ariz. 206, 210 (App.
1989). As it relates to the appropriate standard, we find a distinction
between the statute’s explicit language of “significant history of domestic
violence” and the court’s use instead of “a history of significant domestic
violence” as its standard. The family court’s misunderstanding or
misstatement of the relevant statutory language amounts to an error in the
law, and we cannot tell to what extent that misstatement or
misunderstanding affected its discretionary conclusion that A.R.S. § 25-
403.03(A) did not apply to Father’s acts of domestic violence against
Mother. While we may have our own view of what constitutes a
“significant history of domestic violence,” we are not finders of fact, and it
is instead the role of the family court to consider and weigh the facts, and
to apply the correct statutory standard in reaching its findings.
Accordingly, we remand this issue to the family court to determine
whether, on this record, Father’s conduct constituted a “significant history
of domestic violence,” as required by the statute.

      II.     Community Reimbursement

¶20           Mother argues that the family court erred in not awarding
Mother equalization payments for community funds used to pay the
monthly mortgage and Father’s student loan payments and for the increase
in equity in the marital residence. We will not disturb the family court’s
apportionment of community property in a marital dissolution absent an
abuse of discretion. Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005). “An
abuse of discretion exists when the trial court commits an error of law in
the process of exercising its discretion.” Fuentes v. Fuentes, 209 Ariz. 51, 56,
¶ 23 (App. 2004).

              A.     Marital Residence

¶21            The community is entitled to a share of any equity attributed
to community funds used to pay the mortgage of the marital residence.
Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524, ¶ 12 (App. 2007). This is
true even if the residence is the separate property of one spouse. See Drahos
v. Rens, 149 Ariz. 248, 249-50 (App. 1985). “[I]f the mortgage payments were
made from commingled funds, there is a presumption that community
funds were used.” Id. at 251. The community is also entitled to share in the
increase of the property’s value during the marriage, “even if the increased
value was due only to general market conditions.” Valento v. Valento, 225
Ariz. 477, 481, ¶ 13 (App. 2010) (citing Honnas v. Honnas, 133 Ariz. 39, 40


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                      IMATDINOV v. IMATDINOV
                         Decision of the Court

(1982) and Drahos, 149 Ariz. at 250). The value-at-dissolution formula
applies to the calculation of the community’s share of enhanced value of the
property due to the expenditure of community funds to benefit the
property. See Drahos, 149 Ariz. at 250.

¶22           Father purchased the marital residence a few months after
marrying Mother. The court found the property to be the Father’s separate
property because Mother signed a disclaimer deed, waiving her interest in
the property.3 Assuming without deciding the disclaimer deed is
enforceable, we note a disclaimer deed does not affect the community’s
interest in the property’s increased value or whether an equitable lien
attaches as the result of using community funds to reduce Father’s
mortgage. See Bell-Kilbourn, 216 Ariz. at 524, ¶¶ 10, 12. Father cites Valento
for the proposition that community payments toward interest on separate
property do not create a community lien. Valento, 225 Ariz. at 481, ¶ 13 n.4.
In Valento, however, the court distinguished between payments against
interest and payments against principal; the community is entitled to “the
increased equity resulting from payments that reduced the mortgage
principal.” Id. at ¶ 13.

¶23            The record indicates that community funds were used to
reduce Father’s mortgage from $334,800 upon purchase to $321,195.06 at
the time the petition for dissolution was filed. The court did not make
findings as to the value of the community’s interest in the mortgage
payments and increase in the property’s value. The only evidence of the
marital residence’s increase in value came from Mother’s testimony, and
she testified that a real estate agent “gave an estimate of approximately
$450,000.” Father did not dispute Mother’s testimony and did not provide
evidence or testimony as to a different valuation. We vacate the court’s
finding that Mother was not entitled to a share of the increased equity in
the marital residence and remand for the court to calculate the community’s
share of the increased equity from reduction of the mortgage and any
increase of the property’s value during marriage, and if appropriate, to
award an equalization payment to Mother accordingly.

              B.     Father’s Student Loans

¶24         The community is entitled to reimbursement for payments
made with community funds to satisfy Father’s separate debt obligations.


3      Mother has not challenged on appeal the validity of the disclaimer
deed, despite not being provided a Russian translation of the document and
only receiving information about its contents and implications from Father.


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                       IMATDINOV v. IMATDINOV
                          Decision of the Court

See DeLuna v. Petitto, 247 Ariz. 420, 425, ¶ 21 (App. 2019). Father testified
that he made a lump-sum payment of “$27,000 and change” in January 2017
toward his outstanding student loans, which extinguished that debt. The
court found a community lien for $27,000 and awarded Mother an
equalization payment for half of that amount, but denied Mother an
equalization payment for the community interest in any prior monthly
student debt payments Father made after marriage using community
earnings. The court cited no reason and Father makes no argument to
support why any of these monthly payments should be treated differently
than the lump-sum payment. Father acknowledges that community funds
were used to make monthly payments in addition to the January 2017
lump-sum payment. We therefore vacate the court’s order denying Mother
an equalization payment and remand for the court to calculate the amount
of community funds paid toward Father’s student loans and make a
property distribution in line with this analysis.

      III.    Attorneys’ Fees at Family Court

¶25           The family court denied Mother and Father’s respective
requests for attorneys’ fees and costs, from which Mother appeals. We
review the court’s denial of a request of attorneys’ fees for an abuse of
discretion. In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8 (App. 2008).
“[W]e defer to the court’s factual findings so long as there is competent
evidence to support them.” Quijada v. Quijada, 246 Ariz. 217, 222, ¶ 13 (App.
2019). An abuse of discretion exists when the reasons given by the court
cannot be supported by law, are clearly untenable, or amount to a denial of
justice. Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17
(App. 2006).

¶26           Under A.R.S. § 25-324, the court may order a party to pay a
reasonable amount for attorneys’ fees and costs to the other party “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.” The
family court has discretion to deny a request even after considering these
statutory factors. See Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 9 (App. 2014).

¶27           The court found a “substantial disparity” in financial
resources, noting that Father “has considerably more resources available to
contribute toward [Mother’s] attorney fees and costs.” The court then
found that both parties “acted unreasonably in the litigation,” citing the
parties’ respective positions on parenting time, legal decision-making
authority, and spousal maintenance. A review of the record, however, does
not support a finding that Mother took unreasonable positions in litigation


                                      9
                      IMATDINOV v. IMATDINOV
                         Decision of the Court

in requesting temporary spousal maintenance and an unequal division of
parenting time. The record does, however, support the court’s finding of
the substantial disparity in finances. Father’s control over the finances
throughout the marriage amplified this disparity, further impairing
Mother’s ability to pay fees and costs incurred in the proceedings.
Accordingly, we conclude that the court’s denial of Mother’s request for
attorneys’ fees and costs amounts to an abuse of discretion.

      IV.    Attorneys’ Fees on Appeal

¶28           Both parties request attorneys’ fees on appeal pursuant to
A.R.S. § 25-324. Neither party took unreasonable positions on appeal,
although Father’s Answering Brief misquoted the decree of dissolution in a
misleading manner by neglecting to indicate that language negative to
Father had been omitted. As noted, the record indicates that Father earns
significantly more than Mother largely because Father’s actions severely
curtailed Mother’s earning ability throughout the marriage. We will
therefore award Mother a reasonable amount of attorneys’ fees upon
compliance with ARCAP 21. Because Mother prevailed in increasing the
amount of the judgment in her favor, we also award Mother her taxable
costs “in both courts” upon compliance with ARCAP 21. See A.R.S. § 12-
342.

                              CONCLUSION

¶29          For the foregoing reasons, we vacate the legal decision-
making order, the order denying equalization payments to Mother related
to repayment of Father’s student loans and increased equity in the marital
residence, and the denial of Mother’s request for attorneys’ fees and costs;
we remand for reconsideration consistent with this decision. Mother is
awarded her reasonable attorneys’ fees on appeal pursuant to our
discretion under A.R.S. § 25-324 and her costs pursuant to A.R.S. § 12-342
upon compliance with ARCAP 21(b).




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



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