SIMON SEZ: Recent Arizona Court of Appeals

Johnson v. Loving 1CA-CV24-0753 (June, 2025 - Arizona)

Community property vs. Sole and Separate Property, General rule: property acquired during the marriage is presumed to be community property. A spouse claiming that such property is separate must clearly show the funds used to acquire it were separate.

SIMON SEZ: In this case, Husband appealed the trial court awarding Wife a home purchased during the marriage. Although it was presumptively community property since it was purchased during the marriage, there was clear evidence Wife purchased the home with her separate funds and she was only listed on the deed. Husband failed to introduce any evidence to the contrary.

And compare the holding in:

Hankins v. Hankins 2CA-CV 2024-0081

During the marriage, Husband acquired an interest in a home through an inheritance. The trial court ruled this was his sole and separate property.

SIMON SEZ: The Court of Appeals reversed noting that the testimony suggested Husband may have obtained an interest in the property through inheritance, the undisputed evidence was he acquired the home by purchasing it WITH Wife through a mortgage they obtained together. By acquiring it during marriage it was presumed to be community property and the evidence presented at trial did NOT rebut this presumption by clear and convincing evidence.

Attorney Fees

Kilse v. Beerfeldt

In a family law matter, A.R.S. sect. 25-324 requires the court to consider the financial resources of both parties and the reasonableness of their positions. It does NOT support incorporating an “ability to pay” requirement into the superior court’s fee award determination, and for that reason it will not preclude an award against the party who acts unreasonably, but is unable to pay.

SIMON SEZ: The trial court found Mother in contempt for repeatedly flouting court orders, which included her preventing Father from exercising court-ordered parenting time on no less than 30 occasions. Father was awarded $56,000 in attorney’s fees. The Court of Appeals rejected Mother’s argument that the fee award constituted error because she was unable to pay it. The Court noted that A.R.S. sect.25-324, by its plain terms, “does not support an ‘ability to pay” requirement.” This statute only requires a consideration of financial resources and reasonableness, either of which can support an award of attorney fees. The Court further held “the statute is a prospective assurance that indigence will not prevent meaningful participation in litigation” and does not preclude an attorney fee award against the party, who in retrospect is unable to pay. Reading into the statute such a requirement would effectively nullify the reasonableness of the positions factor in the statute. A party could take unreasonable positions throughout and litigation and dodge an award of attorney fees by claiming indigence. This case clearly states you cannot take unreasonable positions and claim poverty to avoid an award of attorney fees.

I hope you enjoyed this first instance of Simon Sez covering recent Arizona Court of Appeals. Stay tuned for more in the future!