In re the Marriage of: PAM CASE BOBROW, Petitioner/Appellee/Cross-Claimant,
KENNETH S. BOBROW, Respondent/Appellant/Cross-Claimant. 
from the Superior Court in Maricopa County No. FN2013-004259
The Honorable Christopher T. Whitten, Judge
IN PART, REVERSED IN PART, AND REMANDED
Dickinson Wright PLLC, Phoenix By Steven D. Wolfson, Anne L.
Tiffen Counsel for Petitioner/Appellee/Cross-Claimant
Fennemore Craig, P.C, Phoenix By Alexander R. Arpad
Co-Counsel for Respondent/Appellant/Cross-Claimant
Smith & Gadow PC, Phoenix By Stephen R. Smith Co-Counsel
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson
In these consolidated appeals, we resolve two issues of first
impression in this state. The first issue is whether a
divorcing spouse is entitled to reimbursement for paying
community obligations while the petition for dissolution is
pending, or whether a matrimonial presumption of a gift
should apply. We hold there is no presumption of a gift once
the petition for dissolution is filed. The second issue is
whether the parties may stipulate to a prevailing-party
standard for attorney's fees in a premarital agreement.
We hold that such agreements violate public policy per
se, and that courts should apply the statutory standards
contained in Arizona Revised Statutes ("A.R.S.")
section 25-324 (2016).
Kenneth S. Bobrow ("Husband") and Pam Case Bobrow
("Wife") separately appeal from their decree of
dissolution. Husband appeals the denial of his claim for
reimbursement of community expenses he paid following the
filing of the petition for dissolution. Wife appeals the
denial of her request for attorney's fees.
For the reasons stated below, we hold the superior court
erred by finding that Husband's post-petition payments of
community expenses constituted a gift, and remand to allow
the superior court to determine the offset to which Husband
is entitled. We affirm the denial of attorney's fees to
AND PROCEDURAL BACKGROUND
When the parties married in 2002, they entered into a
premarital agreement ("Agreement"). Although the
parties stipulated in the superior court the Agreement was
valid and enforceable, they disputed how the Agreement should
be applied. What was not in dispute, however, was that the
Agreement provided, in the event of a dissolution, Wife would
not receive spousal maintenance.
On October 7, 2013, Wife filed a petition for dissolution.
Thereafter, Husband voluntarily made monthly loan payments
due on Wife's vehicle and the marital
residence. At trial, Husband requested an offset of
approximately $77, 000 for Wife's share of the community
expenses he paid toward the marital residence. Husband also
requested an offset for the monthly loan payments that he
paid toward Wife's vehicle. The superior court denied
both requests, holding the payments were "gifts, "
because Husband had voluntarily paid these expenses without
an agreement for reimbursement.
¶6The court found, given the totality
of the decree, neither party was entitled to attorney's
fees under the prevailing-party standard in the Agreement.
The court later denied, without comment, Wife's motion
for a new trial on the issue of attorney's fees, which
also sought fees pursuant to A.R.S. § 25-324.
Both parties filed multiple amended notices of appeal from
the decree and the denial of post-decree
motions. The appeals were consolidated, and this
court has jurisdiction pursuant to A.R.S. §
Husband's Payments Toward Community Debt After the Filing
of the Petition for Dissolution Were Not a Gift.
Matrimonial law in Arizona recognizes that, in certain
circumstances, courts will treat a transaction between
spouses as a gift unless contrary intent is evidenced at the
time. For example, when real property is paid for with
separate funds, but title is taken in the name of both
spouses, a gift is presumed. Becchelli v. Becchelli,
109 Ariz. 229, 232 (1973), superseded on other grounds by
statute, A.R.S. § 25-318, as recognized in
Jordon v. Jordan, 132 Ariz. 38, 39 (1982). This
presumption is based on the premise that "the [party] is
discharging [his or her] legal duty to provide support for
[the other spouse]." Becchelli, 109 Ariz. at
232. In order to overcome the presumption, the burden falls
on the party claiming it is not a gift, and the evidence must
be clear, satisfactory, and convincing. Blaine v.
Blaine, 63 Ariz. 100, 108 (1945).
This court has extended the gift presumption to a situation
in which a spouse voluntarily uses separate property to pay
community expenses during the marriage. Baum v.
Baum, 120 Ariz. 140, 146 (App. 1978). In such a case,
the spouse is entitled to reimbursement from the other spouse
"[o]nly if there is an agreement to that effect."
Id. We explained:
To rule otherwise would be to require all married persons to
keep detailed accounts of all the money they spent during the
marriage and of all community expenses. We do not believe
this is the intent of the Arizona statutes regulating ...