IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In Re The Matter Of:

WENDY LYNN LARCHICK, Petitioner/Appellee,

v.

ROBERT JOHNSTON POLLOCK, Respondent/Appellant.

No. 1 CA-CV 19-0649 FC

Appeal from the Superior Court in Maricopa County

No. FN2017-004494

The Honorable Michael C. Blair, Judge

VACATED AND REMANDED IN PART

COUNSEL

Berkshire Law Office PLLC, Tempe

By Keith Berkshire, Alexandra Sandlin

Counsel for Respondent/Appellant

Jardine Baker Hickman & Houston PLLC, Phoenix

By Amy H. Hoffman

Counsel for Petitioner/Appellee

FILED 12-9-2021
LARCHICK v. POLLOCK

Opinion of the Court

2

OPINION

Presiding Judge Jennifer B. Campbell delivered the opinion of the Court, in 

which Judge Lawrence F. Winthrop1 and Judge Samuel A. Thumma joined.

C A M P B E L L, Judge:

¶1 Robert Johnston Pollock (Husband) appeals from a decree 

dissolving his marriage to Wendy Larchick (Wife). He challenges the family 

court’s rulings on (1) the admissibility of expert testimony, (2) the division 

of property, and (3) a partial award of attorneys’ fees to Wife. For the 

following reasons, we vacate the decree in part and remand for further 

proceedings consistent with this opinion.

BACKGROUND2

¶2 Husband and Wife married in October 2016. Before the 

marriage, Wife started a real estate business (the Business). During the 

marriage, Wife created, and was the managing member of, a limited 

liability company (the LLC). In April 2017, the LLC purchased a building 

(the Office) in which to run operations for the Business. 

¶3 Approximately ten months after the parties married, Wife 

served Husband with a petition for legal separation that she later converted 

into a petition for dissolution. At the resulting trial, over Wife’s objection, 

1 Judge Lawrence F. Winthrop was a sitting member of this Court 

when the matter was assigned to this panel of the court. He retired effective 

June 30, 2021. In accordance with the authority granted by Article 6, Section 

3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief 

Justice of the Arizona Supreme Court has designated Judge Winthrop as a 

judge pro tempore in the Court of Appeals, Division One, for the purpose of 

participating in the resolution of cases assigned to this panel during his 

term in office.

2 “We view the facts in the light most favorable to sustaining the 

[family] court’s findings and orders.” Hefner v. Hefner, 248 Ariz. 54, 57 n.2 

(App. 2019) (citation omitted).
LARCHICK v. POLLOCK

Opinion of the Court

3

Husband claimed a community interest in both the increased value of the 

Business during the marriage and the Office. 

¶4 Following trial, the family court entered orders dividing

certain property and dissolving the parties’ marriage. The court did not, 

however, address the allocation of the Business’ alleged increased value, 

nor did it determine whether the community had an interest in the Office. 

Instead, the court ordered a second trial to determine whether the Business 

increased in value during the marriage, and, if so, the cause of that increase.

¶5 Before the second trial, Husband timely disclosed a 

“calculation of value” report created by his expert, Don Bays, opining that

the Business increased in value by $546,041 during the marriage. In his 

pretrial statement, Husband explained the methods Bays used to determine 

the increase. Wife, in turn, timely disclosed her expert’s “full appraisal” 

report, stating that the Business increased in value by $93,000 during the 

marriage. Claiming Husband’s “calculation of value” report was not as 

reliable as other, more complete types of valuation reports, Wife objected 

to the admission of Bays’ report and corresponding testimony under 

Arizona Rule of Evidence (Rule) 702. 

¶6 Both experts were present at the second trial. Wife was 

allowed to voir dire Bays before the family court ruled on her objection to 

him testifying. In response to voir dire questioning, Bays stated that he had 

advised Husband in his initial engagement letter that he would be unable 

to testify to a calculation of value report. Bays also confirmed that he 

repeated the same disclaimer in the report itself: “[I]n the event that 

testimony is required, either at a deposition or trial, we require the 

calculation schedules be upgraded to a formal summary valuation report 

with a conclusion of value.” (Emphasis added).

¶7 After the voir dire was completed, the family court sustained 

Wife’s objection and excluded Bays’ opinion testimony. Noting that Bays 

admitted he did not expect his report would be admissible at trial, the court 

ruled his testimony was inadmissible because he failed to “follow all 

possible methods that an expert should be using, all reliable methodology.” 

¶8 Husband then attempted to call Wife’s expert to testify as an 

adverse witness. Although both parties had listed Wife’s expert as a trial 

witness and the expert was present in the courtroom, the family court 

sustained Wife’s objection. The court ruled that because Husband had not

subpoenaed Wife’s expert, she was under no obligation to testify. After 

excluding Husband’s expert and precluding Husband from calling Wife’s 
LARCHICK v. POLLOCK

Opinion of the Court

4

expert, the court granted Wife’s motion for a directed verdict because there 

was “no evidence presented . . . that there was an increase in the business.” 

¶9 The family court then considered whether the community 

had any interest in the Office. Wife offered in evidence the purchase 

contract for the building, which named Wife and the Business as the buyer. 

She also offered a loan agreement to finance the purchase of the Office. That 

agreement named the LLC as the borrower, was signed by Wife in her 

capacity as the LLC’s managing member, and identified Wife and the 

Business as guarantors. Wife asserted that she had paid the remainder of 

the purchase price with her “sole and separate funds.” For his part, 

Husband pointed out that the marital community had also guaranteed the 

purchase loan. The court found that because there was never any default 

on the loan, the “marital guarantee,” which was Husband’s “only tie” to the 

Property, no longer existed. Accordingly, the court ruled that Husband had 

“no community claim” to the Property.

¶10 After trial, the family court awarded Wife a portion of her 

attorneys’ fees and costs, finding that Husband’s “unreasonableness” in 

failing to prepare and present admissible testimony at trial outweighed 

“the substantial disparity that [W]ife earns more.” Husband unsuccessfully 

moved to alter or amend the court’s resulting final judgment and then 

timely appealed.

DISCUSSION

¶11 As an initial matter, we address the family court’s decision to 

dissolve the parties’ marriage while retaining jurisdiction to subsequently 

decide property issues.

¶12 Under Arizona’s statutory scheme, property-allocation issues 

must be resolved concurrent with dissolution. Section 25-312(4) provides 

that “[t]he court shall enter a decree of dissolution of marriage if,” among 

other things, “[t]o the extent it has jurisdiction to do so, the court has 

considered, approved and made provision for . . . the disposition of 

property.” (Emphasis added). Similarly, A.R.S. § 25-318(A) provides that, 

when dissolving a marriage, “the court shall assign each spouse’s sole and 

separate property to such spouse . . . [and] it shall also divide the 

community, joint tenancy and other property held in common equitably.” 

(Emphasis added). See also Dole v. Blair, 248 Ariz. 629, 633, ¶ 12 (App. 2020) 

(“A.R.S. § 25-318 is clear in its mandate that community property must be 

divided on dissolution of the marriage.”); A.R.S. § 25-327(A) 

(contemplating inclusion of property-division provisions in decree). 
LARCHICK v. POLLOCK

Opinion of the Court

5

¶13 Here, the family court erred by bifurcating its rulings. But the 

error did not void the dissolution, which neither party appealed. See Porter 

v. Estate of Pigg, 175 Ariz. 194, 196-97 (App. 1993) (holding that A.R.S. § 25-

312’s command regarding property disposition did not void a predisposition dissolution, which was merely correctable by timely appeal), 

approved by 175 Ariz. 303 (1993) (“The use of separate judgments to resolve 

issues of marriage dissolution and property distribution is error,” but “such 

judgments are not void.”); see also A.R.S. § 25-318(D) (providing for 

automatic imposition of tenancy in common for commonly held property 

“for which no provision is made in the decree”). Nor does the error deprive 

us of jurisdiction to consider the appeal from the post-dissolution property 

rulings. See Cooper v. Cooper, 167 Ariz. 482, 487 (App. 1990) (holding that 

wife had right to bring action to divide property that parties knew about at 

time of decree but that was omitted from decree); see also Rinegar v. Rinegar, 

231 Ariz. 85, 88, ¶ 12 (App. 2012) (recognizing that party may seek 

allocation of property omitted from decree either by separate civil action or 

by motion to reopen dissolution). Having jurisdiction in this matter, we 

now turn to the issues raised on appeal.

I. The Family Court Erred by Precluding Bays’ Testimony.

¶14 Husband argues the family court erred by deciding that Bays 

could not testify that the Business had increased in value because his 

calculation did not employ “all possible methods” of valuation. Wife argues 

the court did not err because Bays himself had stated that his summary 

valuation would not be admissible. 

¶15 We review a family court’s ruling on the admissibility of 

expert testimony under Rule 702 for an abuse of discretion. See Vanoss v. 

BHP Copper Inc., 244 Ariz. 90, 96, ¶ 13 (App. 2018). Under Rule 702, a witness 

“who is qualified as an expert” by knowledge or experience may render 

opinion testimony if the witness’ “specialized knowledge will help the trier 

of fact to understand the evidence or to determine a fact in issue.” Although 

Rule 702 “recognizes that trial courts should serve as gatekeepers” to 

ensure expert evidence is reliable (and helpful) to the finder of fact, this 

“gatekeeping function is not intended to replace the adversary system.” 

State v. Bernstein, 237 Ariz. 226, 229, ¶ 14 (2015) (citing Ariz. R. Evid. 702 

cmt.). Rather, “cross-examination, presentation of contrary evidence, and 

careful instruction on the burden of proof are the traditional and 

appropriate means of attacking shaky but admissible evidence.” Id. (citation 

omitted) (emphasis added). 
LARCHICK v. POLLOCK

Opinion of the Court

6

¶16 Nothing in Rule 702 requires an expert to account for “all 

possible methods” of assessment, which would be an impossible standard 

in practice. To the extent the family court excluded Bays’ testimony because 

he “did not follow all possible methods,” it erred. In excluding the 

testimony, the court improperly deferred to Bays’ understanding of what 

evidence would be admissible on the matter. Bays’ statements reflected his 

personal view that in creating the “calculation of value” report, he did not 

employ “all the [possible] processes and procedures” of a full “summary 

valuation” analysis. But Bays was not qualified to offer legal opinions on 

the admissibility of the evidence under Rule 702; that is the job of the court. 

¶17 Husband was entitled to have the family court assess the 

admissibility of his expert’s testimony under the applicable Rules of 

Evidence, in particular, Rule 702. Bays’ “calculation of value” evidence 

might have been vulnerable to effective cross-examination, but it was not 

rendered inadmissible simply because the expert called its admissibility 

into question. As the trier of fact, the family court would be free to give the 

expert’s opinion little or no weight. But the court could not simply declare 

the testimony inadmissible based on the expert’s suggestion that his 

opinion would have been better had he been allowed to do more analysis.

¶18 Moreover, even though a “calculation of value” opinion may 

be short of the gold standard, it is not per se unacceptable or inadmissible. 

See Mortensen v. Mortensen, 1 CA-CV 15-0097 FC, 2016 WL 3211196, at *1-4, 

¶¶ 1-19 (Ariz. App. June 9, 2016) (mem. decision); see also Driss v. Driss, 

1 CA-CV 18-0243 FC, 2019 WL 544495, at *1-3, ¶¶ 1-11 (Ariz. App. Feb. 12, 

2019 ) (mem. decision); Stickler v. Stickler, 1 CA-CV 19-0115 FC, 2020 WL 

62473, at *1-3, ¶¶ 1-16 (Ariz. App. Jan. 7, 2020) (mem. decision). Here, the 

family court apparently precluded Bays’ testimony because the expert’s 

“calculation of value” opinion did not consider every single process and 

procedure that would be included in a full “summary valuation” report. 

Although a mere “calculation of value” perhaps presents substantial crossexamination fodder, an expert’s failure to consider every single process, 

standing alone, does not render relevant evidence inadmissible. Ariz. R. 

Evid. 703; Bernstein, 237 Ariz. at 229, ¶ 14.

¶19 Wife argues on appeal that Mortensen supports the exclusion 

of Bays’ evidence. In Mortensen, however, the family court allowed the 

expert to testify at trial, but ultimately disregarded his opinion when it 

ruled on the valuation issue. 1 CA-CV 15-0097 FC, at *2, ¶¶ 3, 5. On appeal, 

this Court upheld the court’s discounting of the expert’s “calculation of 

value” report because it was “incomplete and unreliable,” and “[t]he record 

containe[d] evidence supporting these findings.” Id. at *3, ¶ 17. Here, 
LARCHICK v. POLLOCK

Opinion of the Court

7

however, the court precluded the evidence altogether. Moreover, as 

Mortensen acknowledged, an expert’s failure to “use the most appropriate 

method of valuation” and “consider all appropriate data” in valuing a 

business does not preclude admissibility. Id. at *4, ¶ 18 (emphasis added). 

Such failures may indicate “flaws” in an expert’s valuation but are 

ultimately “matters of credibility that are within the family court’s 

discretion.” Id. (citing Bernstein, 237 Ariz. at 229, ¶ 14). 

¶20 Because the family court failed to properly evaluate Bays’ 

testimony under Rule 702, we remand so the court may determine whether 

Bays’ evidence clears the reliability threshold. If the court concludes Bays’ 

testimony is admissible, it may then determine the proper weight to afford 

it.

¶21 Given our resolution of this issue, the family court’s award of 

attorneys’ fees to Wife (based on its finding that Husband took 

unreasonable positions at trial) is vacated for further consideration 

following proceedings on remand. We also need not resolve Husband’s

argument that the family court erred by precluding him from calling Wife’s 

expert, who had been listed as a potential witness by both parties and was 

present in the courtroom on the day of trial, to testify. Nonetheless, we note 

that when a witness listed for trial is present in the courtroom, whether the 

witness was subpoenaed to be present is irrelevant. A party may call to the 

witness stand any witness properly noticed and present. Cf. Gordon v. Indus. 

Comm’n, 23 Ariz. App. 457, 459 (1975) (explaining that “[t]he purpose of a 

subpoena is to obtain the presence of a witness at the hearing,” adding that

“[o]nce that witness is present, barring any sort of privilege, generally, 

either party may call him to testify”); Garcia v. Indus. Comm’n, 20 Ariz. App. 

243, 246 (1973) (“[T]here is nothing to prevent a party from presenting 

witnesses who are willing to appear and testify without being 

subpoenaed.”).

II. The Family Court Erred by Concluding There Was No Evidence 

the Business Increased in Value During the Marriage.

¶22 Husband does not dispute that the Business is Wife’s sole and 

separate property, but argues the community is entitled to an equitable lien 

on the amount by which it increased in value during the marriage. He 

argues the court erred by finding the Business did not increase in value, 

given that Wife’s pretrial statement recounted her expert’s opinion that the 

business had increased by $93,000. We agree the court erred by concluding 

the Business did not increase in value. 
LARCHICK v. POLLOCK

Opinion of the Court

8

¶23 The opinion of Wife’s expert, as recounted in her pretrial 

statement, was admissible as a statement by an opposing party under Rule 

801(d)(2)(D). See Ryan v. San Francisco Peaks Trucking Co., 228 Ariz. 42, 47,

¶ 16 (App. 2011). Wife argues that her disclosure of her expert’s opinion

that the Business increased in value was “irrelevant” because Husband had 

the burden to prove any increase. See Hefner v. Hefner, 248 Ariz. 54, 60, ¶ 17

(App. 2019). But whether Wife now agrees with her expert’s opinion does 

not matter. Her disclosure of that opinion in her pretrial statement rendered 

it admissible against her, and once Husband cited it to the family court, the 

opinion constituted some evidence that the Business had increased in value. 

See Ryan, 228 Ariz. at 47, ¶ 16; Ariz. R. Fam. Law 76.1(f)(7) (pretrial 

statement must contain a party’s “position on each contested issue”). In 

short, Wife’s pretrial statement informed the family court what her 

evidence would show. Having disclosed her expert’s opinion, that opinion 

became a basis upon which the court could rely. For that reason, and 

contrary to the court’s finding, there was evidence before it that the 

Business had increased in value during the marriage. On remand, the court 

must determine the amount and nature of that increase, if any.

III. The Family Court Erred by Dismissing Husband’s Community 

Claim to the Property.

¶24 Husband next argues the family court improperly imposed 

on him the burden to show a community interest in the Office and “erred 

in finding that [he] had no community claim.” As noted, Wife’s LLC 

purchased the Office during the marriage, and on appeal, Wife contends 

that “there is no evidence in the record to demonstrate that this could have 

ever been community property.” 

¶25 We review de novo the family court’s characterizations of

property as separate or community. Schickner v. Schickner, 237 Ariz. 194, 199, 

¶ 22 (App. 2015). Subject to exceptions not applicable here, “[a]ll property 

acquired by either husband or wife during the marriage is the community 

property of the husband and wife.” A.R.S. § 25-211(A); see also Hammett v. 

Hammett, 247 Ariz. 556, 559, ¶ 14 (App. 2019). To rebut this strong 

presumption, the spouse contending such property is separate has the 

burden of establishing the property is separate by “clear and convincing 

evidence.” Nace v. Nace, 104 Ariz. 20, 22-23 (1968) (citations omitted); see also 

Brebaugh v. Deane, 211 Ariz. 95, 97-98, ¶ 6 (App. 2005). In the absence of such 

evidence, all property acquired during the marriage by either spouse is 

community property. Benson v. Hunter, 23 Ariz. 132, 134-35 (1921).
LARCHICK v. POLLOCK

Opinion of the Court

9

¶26 When a claim is made that “property purchased during the 

existence of a marriage is the separate property of one of the spouses, the 

fund with which such property was acquired must be clearly shown to have 

been the separate property of such spouse.” Blaine v. Blaine, 63 Ariz. 100, 

109-10 (1945) (emphasis added). Wife, however, did not prove the source of 

the funds used to purchase the Office, nor did she establish those funds 

were her separate property.

¶27 Here, the LLC apparently borrowed a significant portion of 

the purchase price of the Office. Although Wife asserted the balance of the 

price was paid with her “sole and separate funds,” no trial evidence reveals

the source of those funds. Because the evidence does not support the family 

court’s finding that Husband had no community claim to the Office, we 

vacate that finding and remand for further proceedings. 

CONCLUSION

¶28 We vacate the decree in part and remand for further 

proceedings consistent with this opinion. On remand, the family court will 

need to address the admissibility of Bays’ testimony, whether the Business 

increased in value during the marriage, the source of the funds used to 

purchase the Office, whether the Office is separate or community property, 

and the award, if any, of attorneys’ fees. In our discretion, we decline both 

parties’ requests for attorneys’ fees on appeal under A.R.S. § 25-324. As the 

prevailing party, however, Husband is entitled to recover taxable costs

incurred on appeal upon compliance with ARCAP 21.