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In re Marriage of Stefaniga

Court of Appeals of Arizona, First Division, Department E

July 11, 2013

In re the Marriage of: DUMITRU STEFANIGA, Petitioner/Appellant,
v.
EUNICE STEFANIGA, Respondent/Appellee.

Not for Publication -Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause No. FC2011-053114 The Honorable Gerald Porter, Judge

Daniel J. Siegel, P.C. Daniel J. Siegel Attorney for Petitioner/Appellant.

Gerald D. Sherrill Attorney for Respondent/Appellee.

MEMORANDUM DECISION

MICHAEL J. BROWN, Judge.

¶1 Dumitru Stefaniga ("Husband") appeals the superior court's dissolution decree characterizing the marital home as community property and awarding the home to Eunice Stefaniga ("Wife") . For the following reasons, we vacate that portion of the decree as well as the court's award of attorney's fees and remand for proceedings consistent with this decision.

BACKGROUND

¶2 Husband and Wife married on April 7, 1998. Three months before their marriage, Husband purchased a house (the marital residence) with a down payment of $2800.

¶3 In July 2011, Wife obtained an order of protection that granted her exclusive use of the marital residence.[1] On October 3, 2011, Husband filed a petition for dissolution of marriage asserting he acquired the marital residence as his sole and separate property and therefore he should be awarded the residence upon dissolution. On October 14, 2011, after Husband filed the petition for dissolution, Wife obtained a subsequent order of protection, which again granted her exclusive use and possession of the residence.

¶4 In Wife's response to the petition for dissolution, she admitted that Husband purchased the marital residence as his sole and separate property. Likewise, in the parties' joint prehearing statement, Wife again acknowledged that the marital residence is "technically" Husband's sole and separate property. Wife requested, however, that the equity in the marital home "be considered community property" and that she be awarded the residence and ordered to pay Husband his one-half interest of the equity in the home. For reasons not clear from the record, [2] at trial Wife took the position that the residence is community property. Thus, both parties asked the court to award them the residence.

¶5 The superior court subsequently issued its decree dissolving the marriage. As pertinent here, the court found that the marital residence was community property, "with the exception of the down payment of $2800" which the court found to be Husband's sole and separate property. The court awarded Wife the residence and ordered her to pay Husband $14, 987.50[3] for his one-half interest in the community equity. The court also ordered Wife to refinance the home to remove Husband's name from the mortgages or sell the home at Wife's expense. The court ordered Husband to pay $4000 to Wife for her attorneys' fees and costs.

¶6 Following the superior court's denial of Wife's motion for a new trial, Husband timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(2).

DISCUSSION

¶7 Husband contends the superior court erred by characterizing the marital residence as community property and awarding the property to Wife. Specifically, Husband argues the marital residence is his sole and separate property and Wife is therefore entitled only to a ...


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