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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARYNA SACHS, Petitioner/Appellee,

v.

KENNETH H. SACHS, Respondent/Appellant.

No. 1 CA-CV 15-0645FC

Appeal from the Superior Court in Maricopa County

No. FC2013-053729

The Honorable Joseph C. Kreamer, Judge

AFFIRMED

COUNSEL

Wees Law Firm LLC, Phoenix

By James F. Wees

Counsel for Petitioner/Appellee

Escolar Law Office, Phoenix

By M. Philip Escolar

Counsel for Respondent/Appellant
SACHS v. SACHS

Decision of the Court

2

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which Judge 

Peter B. Swann and Chief Judge Michael J. Brown joined.

O R O Z C O, Judge:

¶1 Kenneth Sachs (Father) appeals the superior court’s award of 

$175,000 to Maryna Sachs (Mother), the denial of his motion for a new trial 

or relief from judgment, and an award of attorney fees to Mother. For the 

following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 Mother and Father married in May 2006, and had one child

together. Before their marriage, Mother and Father entered into a 

Prenuptial Agreement (Agreement) prepared by Father’s attorney. Section

4 of the Agreement stated that “both parties shall, and do hereby waive, 

release and relinquish any and all rights to maintenance, alimony or 

support for themselves.” The exception to this provision in Section 4a,

stated that “[Mother] would receive a cash payment from [Father] of

$175,000 dollars US,” if the marriage were to end in seven years and the 

parties had a child. Mother would also be awarded the parties’ primary 

residence. The Agreement stated that Tennessee law would govern its 

interpretation. 

¶3 Father was diagnosed with Ulcerative Colitis and Crohn’s 

disease in 2010. In August 2013, Mother filed a Petition for Dissolution of 

Marriage. 

¶4 The parties resolved their custody dispute, and agreed to 

submit briefs addressing their understanding and the enforceability of the 

Agreement. The dispute centered on Section 4a of the Agreement. In July 

2014, the superior court found the Agreement’s provision that Father pay 

Mother $175,000 was enforceable but Mother was not entitled to one of 

Father’s premarital homes. The decree was entered on October 1, 2014 and 

 

1 We view the facts “in the light most favorable to upholding the 

[superior] court’s ruling.” Mahar v. Acuna, 230 Ariz. 530, 532, ¶ 2 (App. 

2012).
SACHS v. SACHS

Decision of the Court

3

Father filed a notice of appeal on October 24, 2014. After the decree was 

entered, the superior court awarded Mother $12,000 in attorney fees. The 

appeal was deemed abandoned on January 8, 2015, because there was an 

undecided tax credit issue. The superior court entered an amended decree

addressing all issues in August 2015 based on the July 2014 minute entry.

2

¶5 In January 2015, after the court found the Agreement 

enforceable, but before the amended decree was filed, Father filed a Motion 

for a New Trial. He alleged that in October 2014, he hired a private 

investigator “to perform an independent investigation into [Mother’s] 

background and financial dealings.” The private investigator’s report was 

supposed to be attached to the motion for new trial, but is not part of the 

record. Father alleged the report concluded that Mother received money 

from “shady figures in Russia and the Middle East,” using “circumvention 

methods to avoid detection by regulatory authorities,” and that Mother’s 

internet behavior “fits the pattern of Islamic Terrorist Financing Activity.”

The superior court denied the motion without a response from Mother. 

¶6 Father timely appealed. We have jurisdiction pursuant to

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes (A.R.S.) sections 12–120.21.A.1 and -2101.A (West 2016).

3

DISCUSSION

I. Dismissal of the Appeal

¶7 As an initial matter, Mother contends that pursuant to 

ARCAP 11(c) Father’s appeal should be dismissed because he did not 

provide transcripts of the proceedings in superior court. Father counters 

that there was no need for a transcript because no evidence was allowed or 

presented. Father further argues that when the parties agreed to brief the 

enforceability of the Agreement, everyone thought the “matter could be 

adjudicated strictly on the briefs, without the need to resort to an 

evidentiary hearing.” During the briefing process, Father decided that his 

challenges to the enforceability of the Agreement, especially the Public 

Charge argument, were fact intensive. At the outset of his brief filed in the 

 

2 The July 2014 minute entry is dated July 15, 2014, was filed on July 

18, 2014, and is referred to in the Amended Decree as the July 25, 2014 

minute entry. 

3 We cite to the current version of applicable statutes absent any 

material change.
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4

superior court, Father requested that the court not make a decision until 

evidence could be presented. In spite of Father’s request, the court held 

oral argument and determined an evidentiary hearing was not necessary. 

ARCAP 11(c) does not require dismissal if transcripts are not provided. We

therefore deny Mother’s request to dismiss Father’s appeal for failure to 

provide transcripts.

II. Enforcement of the Agreement

¶8 Father argues the trial court erred in awarding Mother 

$175,000 because Section 4a of the Agreement is unconscionable, 

unenforceable, and void as a matter of public policy. The parties agree the 

Agreement should be interpreted according to substantive laws of 

Tennessee. We review de novo issues of contract interpretation. Taylor v. 

Graham Cty. Chamber of Commerce, 201 Ariz. 184, 192, ¶ 29 (App. 2001)

(citation omitted). 

¶9 Neither party disputes that Father’s attorney drafted the 

Agreement. However, the parties dispute whether Section 4a was drafted 

by Father’s attorney or Mother herself. Father argues he did not “properly

or fully understand” Section 4a. Mother contends Father executed the 

Agreement freely, knowledgeably, in good faith and without undue

influence or duress. 

¶10 Father further argues Section 4a was “clumsily written” and 

is, therefore, unconscionable and unenforceable. Section 4a states 

[a]t the end of Ten (10) years, if the marriage were to end, [Mother], 

would receive a cash payment from [Father] $175,000 dollars US. . . . 

If [Mother] and [Father] have a child(ren) the years shorten by three 

(3) years of each five (5) year increment, so end of five years becomes 

end of two years, etc. end of ten (10) years becomes end seven (7) 

years and so on.

¶11 “It is a bedrock principle of contract law that an individual 

who signs a contract is presumed to have read the contract and is bound by 

its contents.” 84 Lumber Co. v. Smith, 356 S.W.3d 380, 383 (Tenn. 2011)

(citation omitted). The ordinary meaning of words used in the contract 

reflect the intention of the parties. Id. (citation omitted). 

¶12 Section 4a is self-explanatory, and its purpose is clear: if the 

parties have a child, and the marriage ends after seven years, Mother is 

entitled to a cash payment of $175,000 from Father. Section 4a is not 

ambiguous and is thus enforceable as written. 
SACHS v. SACHS

Decision of the Court

5

A. Enforcement of Section 4a Will Not Render Father a Public 

Charge

¶13 In Tennessee, a provision of a prenuptial agreement limiting 

or waiving alimony will not be enforced if, at the time of divorce, its 

enforcement deprives a spouse “of support that he or she cannot otherwise 

obtain and results in that spouse becoming a public charge,” Cary v. Cary, 

937 S.W.2d 777, 782 (Tenn. 1996), “within a reasonable period of time 

following the divorce.” O’Daniel v. O’Daniel, 419 S.W.3d 280, 287 (Tenn. Ct. 

App. 2013). In such a case, the trial court has to “void the provision and 

award alimony in accordance with the factors set out in [T.C.A.] 

§ 36–5–101.” Id.

¶14 Father argues it was reversible error for the superior court to 

hold that he was not likely to become a public charge in the foreseeable

future and for the court to make such a finding without an evidentiary 

hearing. However, in Father’s opening brief to the superior court he states 

“[Father] realizes that the ultimate analysis on these disputed issues . . . may 

rely on findings of fact, and if genuine issues of material fact with respect 

to these issues still remain after the parties have completed briefing, 

[Father] requests that the Court reserve final adjudication of this issue until 

all appropriate evidence is presented at trial.” The superior court 

determined that it did not need to hold an evidentiary hearing because it 

assumed Father’s net worth, based on his own statement. 

¶15 Father concedes his net worth was approximately $348,000 at 

the time of divorce and his private insurance benefits would expire in about 

ten years. Father’s financial affidavit indicates his monthly income is $6642

and his expenses are $5089, leaving Father excess income of over $1553. 

These concessions by Father support the superior court’s findings that even 

after Father pays Mother the $175,000, he will not be broke or financially 

incapable of paying for his own means and, therefore, would not render 

him a public charge.

¶16 Relying on the O’Daniel case, Father argues when his situation 

is examined, “the holding in the O’Daniel case seems particularly applicable 

to this case.” See O’Daniel, 419 S.W.3d 280. Father’s reliance on O’Daniel is 

misplaced. In O’Daniel, the Wife was disabled, had signed a prenuptial 

agreement waiving spousal support from husband and was contesting the 

agreement. Id. Whereas in this case, it was Mother who waived spousal 

support but Father, who had far greater assets at the time of the dissolution, 

was contesting the support payment. Finding no error, we affirm.
SACHS v. SACHS

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B. Section 4a is Not Void as a Matter of Public Policy

¶17 Finally, Father argues Section 4a should be void as a matter of 

public policy because it actively encourages divorce. Mother counters 

Section 4a is enforceable, because the longer she stayed married, the greater 

the sum she would receive upon dissolution. 

¶18 Tennessee law favors prenuptial agreements. O’Daniel, 419 

S.W.3d at 284. In Cary v. Cary, the Tennessee Supreme Court explained that 

“divorce is such an unfortunate but commonplace fact of life that it is fair 

to assume that many prospective remarriage partners with existing 

property and children may want to discuss and agree upon the disposition 

of their property and alimony rights in the event their marriage, despite 

their best efforts, should fail. We think the public policy of this State should 

allow such parties the freedom to contract and to agree on a provision 

limiting or waiving alimony.” 937 S.W.2d at 781-82. The court in Cary also 

expressly invalidated the original rationale for voiding prenuptial

agreements as promoting divorce. Id.

¶19 Father’s argument fails as a matter of law because it relies on 

a common law doctrine that has been expressly overruled. The Agreement 

does not violate public policy and is enforceable. 

III. Court’s Denial of New Trial or Relief from Judgment

¶20 Father argues the superior court abused its discretion when it 

denied his motion for new trial or relief from final judgment, because the 

investigative report was newly discovered evidence. Mother argues the 

investigative report was untimely as it relies on facts that allegedly 

occurred during marriage.

¶21 We review the denial of a motion for new trial for abuse of 

discretion. Sobieski v. Am. Standard Ins. Co. of Wis., 240 Ariz. 459, 462, ¶ 9 

(App. 2016). A new trial may be granted if material evidence is found 

which could not have been discovered, with reasonable diligence, prior to

trial. See Wendling v. Sw. Sav. & Loan Ass’n, 143 Ariz. 599, 602 (App. 1984); 

see also Ariz. R. Fam. Law P. 83.A.4.

¶22 The parties exchanged financial information as early as 

January 2014. Father argues he had “no reason to believe Mother’s 

disclosures were anything less than full and frank.” However, in June 2014, 

Father argued to the superior court “Mother has received funds from 

mysterious men and/or benefactors.” In June 2014, Father served 

subpoenas on several financial institutions used by Mother. If Father 
SACHS v. SACHS

Decision of the Court

7

believed he was not receiving accurate information from Mother, he could 

have filed a motion to compel disclosure of the missing information or 

requested a continuance to investigate his allegations before the amended 

decree was entered. He did neither. Also, the report attached to the 

opening brief is dated November 15, 2014, yet he did not file his motion for 

new trial until January 15, 2015, two months later. Therefore, the report 

was not newly discovered evidence that could not have been discovered 

without reasonable diligence and we find no abuse of discretion.

IV. Superior Court’s Award of Attorney Fees to Mother

¶23 Father argues if the case is remanded for a new trial, the fee 

award should also be vacated. Because we affirm the denial of the motion 

for new trial, we also deny Father’s request to vacate the attorney fees

award.

V. Attorney Fees on Appeal

¶24 Both parties request attorney fees pursuant to A.R.S. § 25-324

(discretionary award based on financial resources of both parties and 

reasonableness of their positions taken in the proceedings). The purpose of 

A.R.S. § 25-324 is “to provide a remedy for the party least able to pay.” BellKilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524, ¶ 13 (App. 2007) (quoting In re 

Marriage of Zale, 193 Ariz. 246, 251, ¶ 20 (1999)). 

¶25 Because Father has greater financial resources and Mother’s 

positions are not unreasonable, we award Mother her reasonable attorney 

fees and costs incurred on appeal, upon compliance with ARCAP 21.

CONCLUSION

¶26 For the foregoing reasons, we affirm the superior court’s 

judgment.