                    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       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


                SANDRA L. LEHMAN, Plaintiff/Appellant,

                                       v.

     PAUL A. FUSSELL; DANIEL K. FUSSELL; Defendants/Appellees.

                            No. 1 CA-CV 14-0778
                             FILED 1-19-2016


          Appeal from the Superior Court in Maricopa County
                         No. CV2012-070072
          The Honorable Thomas L. LeClaire, Judge (Retired)

                      VACATED AND REMANDED


                               APPEARANCES

Sandra L. Lehman, Phoenix, AZ
Plaintiff/Appellant

Paul A. Fussell, Atoka, OK
Defendant/Appellee

Daniel K. Fussell, Lakeside, AZ
Defendant/Appellee
                          LEHMAN v. FUSSELL
                           Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


G E M M I L L, Judge:

¶1           Sandra Lehman appeals from the superior court’s order
granting summary judgment in favor of Paul and Daniel Fussell. For the
following reasons, we vacate and remand.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             Sandra1 and Paul signed a “pre-nuptial contract” (“the
contract”) in which they mutually agreed to “reside and live together as
husband and wife,” but “without benefit of a state license or permission
granted by any public authority.” Their written agreement stated that “all
income earned by either Paul or Sandra, while living together and all
property accumulated from that income belongs in equal shares to both and
should they separate, all accumulated property shall be divided equally.”
Sandra and Paul agreed that Paul would pay Sandra “spousal support in
the event that this contract is terminated, by either party.” Sandra and Paul
further agreed “[t]hat any property or properties purchased by either or
both parties after the execution date of this agreement shall be jointly
owned by them as tenants in common,” and that upon termination of the
contract, “all such property acquired, held and shared by Paul and Sandra
shall be equally divided between them.”

¶3            Sandra and Paul never legally married. Some time after they
signed their contract, Sandra moved out of the couple’s residence. She filed
suit against Paul, alleging breach of contract and seeking her share of
“community property” and money due pursuant to the terms of the
contract. Sandra later amended the complaint and added Paul’s brother




1For clarity and convenience, we refer to the parties by their first names.
No disrespect is intended by the use of first names.




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                          LEHMAN v. FUSSELL
                           Decision of the Court

Daniel2 as a defendant, alleging tortious interference with the contract and
fraud for aiding and abetting Paul in concealing income from her and
stealing her property.

¶4           The parties filed cross motions for summary judgment. The
superior court found that, because Sandra and Paul never married,

      [t]he contract never became effective, and it is not possible to
      breach an unenforceable contract. Further, without an
      enforceable contract, it is not possible to tortiously interfere
      with one. Finally, the basis for the fraud claim on assets and
      income . . . also stems from the same unenforceable contract.
      All other statements regarding theft and concealment are
      unsupported with facts or evidence.

Accordingly, the superior court denied Sandra’s motion for summary
judgment and granted Paul’s and Daniel’s motions for summary judgment.
Sandra timely appealed.3 We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                              DISCUSSION

¶5            Sandra contends the trial court erred by granting summary
judgment to Paul and Daniel because it based its ruling on Arizona’s
“marriage laws” instead of contract law. Sandra argues that the label “pre-
nuptial contract” does not govern the contract’s enforceability and that the
contract at issue is not a marriage contract, but an enforceable
“cohabitation” contract.

¶6           We review de novo the grant of summary judgment and view
all facts and reasonable inferences drawn therefrom in the light most
favorable to Sandra, against whom the superior court granted judgment.

2 Sandra also added Underground Discovery Inc. (“UDI”), Derrill Fussell,
and Linda Fussell as defendants. Sandra obtained a default judgment
against these defendants.

3  Paul’s and Daniel’s answering briefs were due by March 3, 2015. Neither
filed answering briefs nor requested an extension of time. This court
ordered Paul and Daniel to pay the filing fees and file the answering briefs
by March 23, 2015. No filing fees have been paid and no answering briefs
have been filed. We therefore determine this appeal on the record and the
opening brief.



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                            Decision of the Court

See Awsienko v. Cohen, 227 Ariz. 256, 258, ¶ 7 (App. 2011). Summary
judgment is proper when “there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law.” Ariz.
R. Civ. P. 56(a).

¶7            Premarital agreements become effective upon the marriage of
the parties. A.R.S. § 25-202(B). By implication, in the absence of a valid
marriage, a premarital agreement is not effective. Arizona law requires a
marriage ceremony, solemnization of the marriage by an authorized
person, and a marriage license. See A.R.S. § 25–111(A)–(B). Under Arizona
law, a private marriage contract cannot by itself establish a marriage and
any contract terms contained therein “relating to the establishment of a
marriage are unenforceable.” Moran v. Moran, 188 Ariz. 139, 145 (App.
1996).

¶8             Courts can, however, enforce an agreement to cohabitate and
share income if it is supported by proper consideration. See Cook v. Cook,
142 Ariz. 573, 577–78 (1984). A promise between cohabitants to “pool their
earnings and share in their accumulations” is proper consideration. Garza
v. Fernandez, 74 Ariz. 312, 316, 248 P.2d 869, 871 (1952); see also Cook, 142
Ariz. at 578; Fernandez v. Garza, 88 Ariz. 214, 219 (1960); Stevens v. Anderson,
75 Ariz. 331, 335–36 (1953).

¶9            The superior court erred as a matter of law by concluding
there was no enforceable contract and granting summary judgment on all
claims solely because Sandra and Paul never married. See Ariz. R. Civ. P.
56(a). Although the contract was entitled “pre-nuptial contract,” the
contract expressly stated Sandra and Paul’s intent to “reside and live
together as husband and wife” but “without the benefit of a state license or
permission granted by any public authority.” Sandra explained that she
and Paul “got married with a minister and a ceremony” but “did not get a
marriage license.” Sandra also admitted that she was aware the marriage
was not valid under Arizona law. The parties did not consider their
arrangement a legal “marriage” under Arizona law.

¶10           Here, the contract was an agreement to create a marriage-like
relationship, comingle real and personal property, and distribute that
property a certain way upon dissolution of the relationship. The contract
contained mutual promises to live together, jointly acquire assets, pool
income, and share equally in the accumulations therefrom. These mutual
promises are adequate and proper consideration to support an enforceable
agreement. Cook, 142 Ariz. at 578; see also Palmer v. Kelly, 52 Ariz. 98, 103
(1938) (“It has always been held that mutual promises are a sufficient


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                          LEHMAN v. FUSSELL
                           Decision of the Court

consideration for a contract.”). We therefore vacate the judgment and
remand for the superior court to consider Sandra’s claims.

                             CONCLUSION

¶11          For these reasons, we vacate the summary judgment and
remand for further proceedings.4 We also award Sandra taxable costs upon
compliance with Arizona Rule of Civil Appellate Procedure 21.




                                 :ama




4In her opening brief, Sandra requests that we find the pre-nuptial contract
to be a “valid, binding and enforceable contract,” grant her motion for
summary judgment with a hearing on damages as to both Paul and Daniel,
or grant a default judgment against Daniel with a hearing on damages.
Moreover, Sandra requests on remand a damages hearing as to UDI, Derrill,
and Linda, as well as a hearing on sanctions against these defendants’
attorney and against Paul and Daniel for alleged misconduct concerning
“ex-parte communications.” We leave these matters for the superior court
to consider on remand.

                                     5
