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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

GINA BENETICH, Petitioner/Appellee, 

v.

GEORGE PETER BENETICH, III, Respondent/Appellant. 

No. 1 CA-CV 22-0701 FC 

Appeal from the Superior Court in Maricopa County 

No. FC2021-070181 

The Honorable Stasy D. Avelar, Judge 

AFFIRMED 

COUNSEL 

Modern Law, Peoria 

By B. Kathleen Gilbertson 

Counsel for Petitioner/Appellee 

The Hogle Firm, Mesa 

By Nathan J. Hogle 

Counsel for Respondent/Appellant

FILED 12-05-2023
BENETICH v. BENETICH, III 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Anni Hill Foster delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined. 

F O S T E R, Judge: 

¶1 In this dissolution proceeding, Appellant George Peter 

Benetich, III, (“Husband”) argues that the superior court miscalculated the 

marital community’s equitable lien against an Arizona home owned by 

Gina Benetich (“Wife”) as her separate property. Husband argues 

specifically that the court erred by finding that Wife’s separate property 

funds were used to make the downpayment on the Arizona home. For 

reasons that follow, the superior court’s order is affirmed. 

FACTS AND PROCEDURAL HISTORY 

¶2 Before marriage, Wife owned a home in Indiana. Wife also 

had a savings account and checking account held solely in her name. 

During the marriage, Wife deposited her paychecks, paid the mortgage on 

the Indiana home, and made other withdrawals from her separate checking 

account. She also deposited unidentified funds into her separate savings 

account and transferred funds between the two accounts. In 2015, Wife sold 

the Indiana home and deposited the sale proceeds of $88,788.71 into her 

savings account.

¶3 After relocating to Wisconsin, Wife transferred the funds in 

both separate accounts to one account in her name only. Wife regularly 

wrote checks and made other withdrawals from this account. When Wife 

and Husband moved to Arizona, Wife purchased a home with a down 

payment of $52,100 from her separate account. Husband signed a 

disclaimer deed.

¶4 In February 2021, Wife filed for divorce. The parties resolved 

all issues in their dissolution by agreement except the amount of the 

community’s equitable lien on Wife’s separate property — the Arizona 

home. Husband argued the down payment on the Arizona home came from 

community funds because (1) the community had an interest in the 

proceeds from the earlier sale of the Indiana home and (2) Wife commingled 

the Indiana home sale proceeds with other community funds, rendering her 
BENETICH v. BENETICH, III 

Decision of the Court 

3 

separate bank account, from which the down payment came, community 

property. Stating that it was “not required to dissect every real estate 

transaction that occurred during the marriage,” the superior court ruled it 

need not determine whether the community had an equitable lien in the 

sale proceeds from the Indiana home, sold two years prior to the dissolution 

action. It found the $88,788.71 Indiana sale proceeds were Wife’s separate 

property and that, although Wife’s bank accounts contained commingled 

funds, the Indiana home sale proceeds remained traceable. As a result, the 

court rejected Husband’s claim that the $52,100 down payment on the 

Arizona home came from community funds. 

¶5 Relying on the formula set forth in Drahos v. Rens, 149 Ariz. 

248 (App. 1985), the superior court determined the community had an 

equitable lien of $32,076.97 and awarded Husband $16,038.40. After an 

unsuccessful motion to alter or amend the decree, Husband timely 

appealed. This Court has jurisdiction under A.R.S. § 12-2101(A)(1) and (2). 

DISCUSSION 

¶6 Husband does not dispute the classification of the Arizona 

home as Wife’s separate property and the superior court’s use of the Drahos 

formula. His sole argument is that the court erred by mischaracterizing the 

funds used for the down payment as Wife’s separate property. 

¶7 This Court reviews de novo, as a question of law, whether 

property is separate or community. In re Marriage of Pownall, 197 Ariz. 577, 

581, ¶ 15 (App. 2000). “[A] marital community is entitled to reimbursement 

for its contributions to a spouse’s separate property” by way of “an 

equitable lien against the separate property.” Saba v. Khoury, 253 Ariz. 587, 

590, ¶ 8 (2022). “The determination of the amount of the community interest 

in separate property resulting from an equitable lien is a mixed question of 

fact and law, . . . so [this Court] defer[s] to the trial court’s factual findings 

but review[s] legal conclusions de novo[.]” Id. (citations omitted). To 

determine the amount of the community’s equitable lien in the Arizona 

home, a court must determine how much of the down payment came from 

community funds and how much from separate property funds. See id. at 

592, ¶ 15 (courts consider community contributions to reducing the 

principal or loan balance and any improvements). 

I. A.R.S. § 25-318(A) DOES NOT APPLY TO THE SALE PROCEEDS 

FROM THE INDIANA HOME. 

¶8 Husband first argues the superior court erred by not applying 

A.R.S. § 25-318(A) to the Indiana home sale proceeds. He claims the 
BENETICH v. BENETICH, III 

Decision of the Court 

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proceeds were partly community property because the community had an 

equitable lien on the Indiana home. Under that statute, “property acquired 

outside this state shall be deemed to be community property if the property 

would have been community property if acquired in this state.” A.R.S. § 25-

318(A). According to Husband, the community’s equitable lien arose 

because Wife used her salary, acquired during the marriage, to pay the 

mortgage on the Indiana home and that he made improvements to the 

home. 

¶9 Reading the statute in context, Husband’s argument fails. See 

Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017) (“In construing a specific 

provision, [this Court] look[s] to the statute as a whole[.]”). The cited 

provision reads: “For the purposes of this section only, property acquired by 

either spouse outside this state shall be deemed to be community property 

if the property would have been community property if acquired in this 

state.” A.R.S. § 25-318(A) (emphasis added). Section 25-318 addresses the 

division of community property and assigning separate property at the time 

of dissolution. In other words, this section affects only property owned by 

one or both parties at the time of dissolution. It does not address property 

sold years before the proceeding began and property no longer in either 

party’s possession. 

II. THE DOWN PAYMENT FOR THE ARIZONA HOME IS

TRACEABLE TO THE INDIANA HOME SALE PROCEEDS.

¶10 Husband argues alternatively that the down payment came 

from a comingled bank account and was untraceable as Wife’s separate 

property. Separate property may be transmuted into community property 

when it is commingled to the degree that “the identity of the property as 

separate or community is lost.” Potthoff v. Potthoff, 128 Ariz. 557, 562 (App. 

1981). Merely commingling does not transmute the entire account to 

community property if the separate property funds can be clearly traced or 

identified. Cooper v. Cooper, 130 Ariz. 257, 259-60 (1981). The party asserting 

that funds are separate property must identify the separate funds by clear 

and satisfactory evidence. Id. This Court will affirm the superior court’s 

ruling on tracing if sufficient evidence supports it. See In re Marriage of Cupp, 

152 Ariz. 161, 164 (App. 1986). 

¶11 According to Husband, the proceeds from the sale of the 

Indiana home were commingled with community funds Wife deposited 

into her separate account for about 18 months. He contends her bank 

account became commingled and the proceeds became untraceable 

rendering the entire amount in the account community property. But he 
BENETICH v. BENETICH, III 

Decision of the Court 

5 

does not dispute that he disclaimed any interest in the property as of the 

date Wife purchased the property. 

¶12 Moreover, the record shows the Indiana home proceeds were 

deposited into Wife’s individual savings account, which was later 

transferred to another separate account, used for the down payment for the 

Arizona home. Husband testified $25,000 left the Wife’s account between 

the time Wife opened the account and the date Wife withdrew the down 

payment. Indeed, Wife regularly wrote checks and made other withdrawals 

from this account. Husband argues that it is impossible to determine 

whether those withdrawals came from community or separate funds, so the 

account was hopelessly commingled. Not so. Even if this Court presumes 

all the $25,000 withdrawn came from Wife’s separate Indiana home sale 

proceeds, the remaining separate proceeds in her account exceeded $60,000. 

The remaining separate funds were sufficient to cover the $52,100 down 

payment. “The mere fact that the property was commingled does not cause 

it to lose its separate identity, as long as the separate property can still be 

identified.” See Cupp, 152 Ariz. at 164. “Furthermore, there is a presumption 

that where separate and community funds are comingled in one account, 

payments out of that account for charges against separate property or for 

separate uses are deemed to be paid out of the separate funds.” Blaine v. 

Blaine, 63 Ariz. 100, 113 (1945); accord Noble v. Noble, 26 Ariz. App. 89, 96 

(1976). Husband’s argument fails. 

III. THE DISCLAIMER DEED DOES NOT DESTROY HUSBAND’S

INTEREST IN THE COMMUNITY LIEN ON THE HOME.

¶13 Wife argues the disclaimer deed’s broad language waived 

any interest Husband may have had in the Arizona home. However, in 

superior court, Wife conceded there was a community lien on the Arizona 

home. Wife cannot now assert an inconsistent position on appeal. See In re 

Marriage of Thorn, 235 Ariz. 216, 223-24, ¶ 34 (App. 2014). To the extent Wife 

challenges the community lien on the Arizona home, this Court will not 

consider such an argument because she did not file a cross-appeal. Ariz. R. 

Civ. App. P. 13(b)(2) (appellate court may not reduce an appellant’s rights 

without a cross-appeal).
BENETICH v. BENETICH, III 

Decision of the Court 

6 

CONCLUSION 

¶14 For the foregoing reasons, the superior court’s judgment is 

affirmed. Wife’s request for attorneys’ fees on appeal is denied. See A.R.S. 

§ 25-324.