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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 NATALIA BACHRACH, Petitioner/Appellee,

                                         v.

            RANDOLPH G. BACHRACH, Respondent/Appellant.

                            No. 1 CA-CV 16-0440 FC
                                FILED 4-25-2017


            Appeal from the Superior Court in Maricopa County
                            No. FC2014-094995
                 The Honorable Laura M. Reckart, Judge

       AFFIRMED IN PART; VACATED IN PART; REMANDED


                                    COUNSEL

Scott L. Patterson, P.L.L.C., Tempe
By Scott L. Patterson
Counsel for Petitioner/Appellee

Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire, Erica Gadberry
Counsel for Respondent/Appellant
                      BACHRACH v. BACHRACH
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Randolph G. Bachrach (“Husband”) appeals from a decree
dissolving his marriage to Natalia Bachrach (“Wife”). Husband contends
the trial court erred in (1) finding the community’s interest in his
contingency fee earnings ended on the date the decree was entered; (2)
finding Wife’s artwork had no monetary value and awarding it all to Wife;
and (3) awarding Wife $1,250 per month in spousal maintenance for ten
years, which was more than Wife requested. For the reasons stated below,
we affirm the allocation of the artwork, but vacate the orders pertaining to
the community interest in Husband’s contingency fee earnings and the
spousal maintenance award.

                FACTS AND PROCEDURAL HISTORY

¶2            During the parties’ fifteen-year marriage, Husband worked as
an attorney, and Wife was not employed outside the home. Wife received
an associate degree in art and created over twenty original paintings. At
the time of the trial, Wife was working as a teacher’s assistant at an
elementary school. Wife requested spousal maintenance of $2,000 per
month for five years. Husband maintained a law office and was working
on a few cases, although he claimed to be winding down his practice due
to health issues.

¶3            Relevant to this appeal, the trial court awarded the
community an interest in Husband’s contingency fee earnings as of the date
the decree was entered, May 27, 2016. The court specifically rejected
Husband’s argument that the community interest terminated on the date
the petition was served, September 8, 2014. The court also awarded all the
paintings to Wife, finding they had no fair market value. Finally, the court
awarded Wife spousal maintenance of $1,250 per month for ten years.
Husband filed a timely notice of appeal from the decree. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-
2101(A)(1) (2016).




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                        BACHRACH v. BACHRACH
                           Decision of the Court

                                  ANALYSIS

       I.     Community Interest in Husband’s Contingency Fees

¶4            During the marriage, Husband handled or had an interest in
some contingency fee cases that had not been finally resolved at the time
Wife filed for dissolution. Husband does not dispute that the community
has some interest in the fees that were earned but not yet received before
the petition for dissolution was served. Husband contends the trial court
erred in concluding the community interest in the contingency fee earnings
terminated on the date the decree was entered because, by statute, the
community terminated on the date the petition was filed. See A.R.S. §§ 25-
211(A)(2) (2017) and 25-213(B) (2017).1

¶5             The separate or community characterization of property, or
earnings in this case, is a question of law we review de novo. Schickner v.
Schickner, 237 Ariz. 194, 199, ¶ 22, 348 P.3d 890, 895 (App. 2015). Pursuant
to A.R.S. §§ 25-211(A)(2) and 25-213(B), property (including earnings)
acquired after service of a petition for dissolution, legal separation, or
annulment is separate property if the petition results in a decree. However,
the trial court concluded the community’s interest in the contingency fee
earnings terminated on the date the decree was entered. In reaching this
conclusion, the court cited Mori v. Mori, 124 Ariz. 193, 196, 603 P.2d 85, 88
(1979) (citing In re Marriage of Goldstein, 120 Ariz. 23, 24, 583 P.2d 1343, 1344
(1978)). At the time Mori was decided, the community terminated as of the
date the decree was entered. However, A.R.S. §§ 25-211 and 25-213 were
subsequently amended in 1998 to provide that property acquired after
service of a petition for dissolution of marriage that results in a decree is not
community property. See 1998 Ariz. Sess. Laws, ch. 280, §§ 3, 4 (2d Reg.
Sess.). Pursuant to the current statutes, the community interest in
Husband’s contingency fee earnings must therefore be calculated in light of
the date the petition for dissolution was served, i.e., September 8, 2014.

¶6           In a similar case, Garrett v. Garrett, 140 Ariz. 564, 568, 683 P.2d
1166, 1170 (App. 1983), this court held “the attorney’s services performed


1      Wife argues Husband waived this objection because he did not file a
motion for reconsideration or modification. The trial court stated that if the
parties disagreed with its ruling on the community termination date, “they
are free to file for reconsideration or modification.” However, the rules of
procedure do not require Husband to file these motions to preserve the
issue for appeal because he previously argued the date of service applied.
Accordingly, Husband did not waive this argument.


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                       BACHRACH v. BACHRACH
                          Decision of the Court

during the marriage in fulfillment of the contract are community property
and the community is entitled to what the percentage of the time expended
as community labor bears to the [total] time expended in reaching the
ultimate recovery.” In addition, the court may consider “the amount of
time expended before and after the dissolution, how that time was
expended, the settlement history of the case, and any other relevant factor
as may bear on the equitable division of this community asset.” Id. at 570-
71, 683 P.2d at 1172-73. However, at the time Garrett was decided, the
previous versions of §§ 25-211 and 25-213 were in effect. Therefore, in
Garrett, the community terminated on the date of the decree, not the date
the petition was served. Although Garrett provides a framework for
determining the extent to which contingency fee earnings are a community
asset, the courts must apply the current statutes in calculating the
community’s interest.

¶7             Here, the trial court used an incorrect date in calculating the
community interest in Husband’s contingency fee earnings. Pursuant to
A.R.S. § 25-211(A)(2) and 25-213(B), that calculation must acknowledge the
termination of the community as of the date of the service of the petition for
dissolution. The court can, at the appropriate time, use the Garrett factors
to calculate the community interest, if any, in any such contingency fee.
Accordingly, we vacate the current order awarding the community an
interest in the post-petition contingency fees earned in the Walters, Bilyeu,
Preciado, and condominium water damage cases2 and remand for the entry
of a revised order (and further proceedings as necessary to calculate the
percentage of any such fee earned by the community) using the correct
termination date for the community.

       II.    Wife’s Artwork

¶8            Wife created several paintings during the marriage that the
parties attempted to sell in a gallery, at art shows, and through a website.
Ultimately, no paintings sold and more than twenty paintings remain in the
parties’ possession. The parties declined to obtain any formal appraisal;
instead, Wife testified that in her opinion, the paintings were worth $1,500
each, and Husband claimed they were worth $5,000 each. The trial court
considered these statements along with the fact that, despite best efforts,

2      Husband did not challenge the allocation of fees in the Esguerra case.
We further note that, in the condominium water damage case, the family
court found Husband was not retained until after the petition for
dissolution was served. Accordingly, as to that case, any fees to be earned
are Husband’s sole and separate property.


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                       BACHRACH v. BACHRACH
                          Decision of the Court

none of the paintings had been purchased by anyone. The trial court
therefore concluded the paintings had no fair market value and awarded
all the paintings to Wife as a fair and equitable allocation of personal
property.

¶9             Husband argues the trial court erred in finding the paintings
had no monetary value and awarding them all to Wife. Husband contends
he should have been permitted to purchase the paintings from Wife for
$1,500 each. Husband argues the valuation is subject to de novo review
because the court applied an erroneous valuation method. However, “[t]he
valuation of assets is a factual determination that must be based on the facts
and circumstances of each case.” Kelsey v. Kelsey, 186 Ariz. 49, 51, 918 P.2d
1067, 1069 (App. 1996). This factual determination will not be disturbed
unless it is clearly erroneous. Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9, 286
P.3d 1095, 1099 (App. 2012). “We view the evidence in the light most
favorable to upholding the decision[.]” Id.

¶10            Although the parties claimed the paintings had value, none of
the paintings ever sold. Except for two paintings hung in Husband’s office,
the paintings were in storage. Based on this evidence, the parties’ valuation
of the paintings was, at best, highly speculative, and the trial court did not
abuse its discretion in discounting or rejecting it. These items were properly
treated as personal property and not a valuable community asset. Wife
created the artwork; therefore, awarding it to her was fair and equitable and
not an abuse of discretion.3 See In re Marriage of Flower, 223 Ariz. 531, 535,
¶ 14, 225 P.3d 588, 592 (App. 2010) (stating “the court may consider other
factors that bear on the equities of a particular case” in equitably dividing
community property).

¶11           Husband contends the trial court should have permitted him
to purchase the paintings at $1,500 each as a “realizable benefit” to the
community or to “maximize the parties’ interest in the sale proceeds.”
Although Husband offered to buy the paintings, his offer was contingent
on “getting the money some day [sic] to pay for it.” Husband claimed he
had no money to pay spousal maintenance and has a $36,000 annual
income, so his offer to buy tens of thousands of dollars’ worth of artwork
was illusory. The court did not abuse its discretion.



3     Having upheld the finding that the artwork had no monetary value,
we need not address Wife’s argument that the overall property allocation
was fair because Husband received woodworking equipment of an
equivalent value.


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                        BACHRACH v. BACHRACH
                           Decision of the Court

       III.   Spousal Maintenance Award

¶12           Husband contends the trial court erred when it awarded Wife
spousal maintenance for ten years because Wife only sought a five-year
award. Husband also argues the trial court erred in awarding $1,250 per
month. “We review an award of spousal maintenance under an abuse of
discretion standard.” Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9, 166 P.3d
929, 931 (App. 2007).

¶13            The trial court attributed monthly earnings of $3,000 per
month to Husband and $1,390 per month to Wife. Therefore, after factoring
in spousal maintenance, Husband’s net monthly income is $1,750 and
Wife’s monthly income is $2,650. In determining the amount of the award,
the trial court was required to consider the factors listed in A.R.S. § 25-
319(B) (2017). The decree contains findings regarding many of these factors,
but the court appears to have overlooked some relevant factors. Husband
argued the court did not consider his inability to pay the amount of support
ordered. See A.R.S. § 25-319(B)(4) (stating the court shall consider the ability
of the payor spouse to meet his needs while paying support). In addressing
this factor, the court stated, “[Wife] lacks [the] skills and employability to
meet her financial needs and that of her Child given the greater
responsibility she assumes over the Child.” Thus, the court did not
consider Husband’s expenses in considering this factor despite there being
evidence presented. It may be an abuse of discretion for the court to fail to
apply one of the applicable statutory factors about which the parties
presented evidence. Cullum v. Cullum, 215 Ariz. 352, 355, ¶ 15, 160 P.3d 231,
234 (App. 2007).

¶14            Additionally, it does not appear the court considered that
Wife will receive a $17,000 payment from one of Husband’s contingency fee
cases (Esguerra) and may receive additional fees in the future, once
Husband’s pending cases are completed. See A.R.S. § 25-319(B)(9) (stating
the court shall consider “[t]he financial resources of the party seeking
maintenance, including marital property apportioned to that spouse, and
that spouse’s ability to meet [her] needs independently”). The court did not
refer to these payments in considering this factor.

¶15            Finally, Wife testified that she has an associate degree from a
local community college and wants to obtain a bachelor degree to help her
get a better job. Nothing in the record suggests Wife requires ten years to
further her education. Additionally, the ten-year period does not correlate
to Wife’s retirement age or the year the parties’ child is expected to finish
his education. Wife estimated that she required five years of support. In


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                       BACHRACH v. BACHRACH
                          Decision of the Court

short, the record does not support the trial court’s finding that Wife requires
ten years of support.

¶16           Although the trial court has discretion to determine an
appropriate spousal maintenance award, that decision must be based on
evidence in the record. In re Marriage of Hinkston, 133 Ariz. 592, 594, 653
P.2d 49, 51 (App. 1982). The record does not support the spousal
maintenance ordered by the trial court. Accordingly, we vacate the award
of spousal maintenance and remand for reconsideration in light of all the
statutory factors and evidence presented.4

       IV.    Attorneys’ Fees and Costs on Appeal

¶17            Both parties request an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. § 25-324 (2017). Finding neither party took
unreasonable positions on appeal and lacking current information about
the parties’ relative financial circumstances, we decline to award attorneys’
fees on appeal. As the overall successful party on appeal, Husband is
entitled to his costs pursuant to A.R.S. § 12-342 (2016).

                               CONCLUSION

¶18            We vacate the allocation of Husband’s contingency fee
earnings, except for the Esguerra case, and vacate the award of spousal
maintenance. We remand these issues for reconsideration consistent with
this decision. We affirm the allocation of the artwork. Husband is awarded
costs on appeal upon compliance with Arizona Rule of Civil Appellate
Procedure 21.




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




4     Having determined the evidence did not support the amount or
duration of spousal maintenance, we need not consider Husband’s due
process argument.


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