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In re Defrancesco

Court of Appeals of Arizona, First Division

December 5, 2019

In re the Matter of: ANTHONY DEFRANCESCO, Petitioner/Appellee,
ADRIENE DEFRANCESCO, Respondent/Appellant.

          Appeal from the Superior Court in Maricopa County Nos. FC2011-091013, FN2017-092333 The Honorable Katherine M. Cooper, Judge

          The Murray Law Offices, PC, Scottsdale By Stanley D. Murray Counsel for Petitioner/Appellee

          Dickinson, Wright, PLLC, Phoenix By Steven D. Wolfson, Michael R. Scheurich Counsel for Respondent/Appellant

          Judge Diane M. Johnsen delivered the opinion of the court, in which Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


          JOHNSEN, JUDGE:

         ¶1 The manager of a professional minor-league baseball team served a petition for dissolution on his wife in June 2017, midway through the baseball season. We hold that a bonus he received after his organization's major-league team won the World Series that year is his separate property.


         ¶2 Anthony DeFrancesco ("Husband") and Adriene DeFrancesco ("Wife") married in 1988 and legally separated in 2012. Husband served a petition for dissolution on June 23, 2017. Notwithstanding their legal separation, both parties acknowledged they shared community property that would need to be divided in the dissolution.

         ¶3 Husband was a long-time employee of the Houston Astros baseball organization. From the outset of the 2017 baseball season, he managed the Astros' AAA minor league affiliate team. After the Astros won the World Series in October 2017, the team paid Husband a bonus of $28, 151.26. The superior court rejected Wife's argument that the bonus belonged to the community and ruled it was Husband's separate property. After the court entered its decree of dissolution, Wife timely appealed the ruling. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120(A)(1) (2019) and -2101(A)(1) (2019).[1]


         ¶4 Whether property belongs to the community or is the separate property of a spouse is a matter of law that we review de novo. In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15 (App. 2000). The general rule is that "[p]roperty that is acquired by a spouse after service of a petition for dissolution" that results in a dissolution is that spouse's separate property. A.R.S. § 25-213(B) (2019). Because Wife argues the bonus Husband received after service of the petition was an exception to that rule, she had the burden to establish any facts required to support her contention. See generally In re Marriage of Foster, 240 Ariz. 99, 101, ¶ 6 (App. 2016) (parallel community-property statute, A.R.S. § 25-211(A) (2019), creates "legal presumption" that must be overcome by spouse claiming an exception).

         ¶5 Wife correctly argues that, notwithstanding § 25-213(B), not every item of value a spouse receives after service of a dissolution petition is that spouse's separate property. For example, a pension earned during a marriage belongs to the community even though it may not be paid out until after dissolution. In Van Loan v. Van Loan, 116 Ariz. 272 (1977), a spouse argued that as long as he had not yet retired, his pension was a "mere 'expectancy'" rather than a property right subject to equitable division in his dissolution. 116 Ariz. at 273. Our supreme court ruled the pension was community property because it was a contractual right earned during the marriage, "not an expectancy." Id. at 274. The court cited the California Supreme Court for the proposition that "the defining characteristic of an expectancy is that its holder has no enforceable right to its beneficence." Id. at 274 (quoting In re Marriage of Brown, 544 P.2d 561, 565 (Cal. 1976)).

         ¶6 Similarly, a contingent fee a lawyer earns during the marriage but receives after dissolution is a community asset because it is an enforceable contractual right that arose during the marriage. Garrett v. Garrett, 140 Ariz. 564, 567-68 (App. 1983) (because contingent fee was not a "mere expectancy," it was community property to the extent "community labor contributed to" its acquisition).

         ¶7 Courts in other community-property states have applied a similar analysis in considering whether a payment received after the marriage could belong to the community as compensation for services rendered during the marriage. For example, in In re Marriage of Nelson, 222 Cal.Rptr. 790 (App. 1986), the court ruled that a year-end bonus a spouse received after the parties separated in anticipation of divorce was that spouse's separate property. 222 Cal.Rptr. at 794. The other spouse asserted the bonus "was paid either in consideration for or in recognition of services rendered during marriage," id., but the court concluded that although the employer often awarded ...

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