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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

ANTON FOLTIN, Petitioner/Appellee, 

v.

GERLINDE FOLTIN, Respondent/Appellant.

No. 1 CA-CV 14-0496 FC

Appeal from the Superior Court in Maricopa County 

No. FN2013-092673 

The Honorable John R. Hannah, Jr., Judge 

AFFIRMED 

COUNSEL 

Law Office of James E. Holland, P.C., Mesa 

By James E. Holland 

Counsel for Petitioner/Appellee

Harmon Law Office, Phoenix 

By Diana McCulloch 

Counsel for Respondent/Appellant
FOLTIN v. FOLTIN 

Decision of the Court 

2

MEMORANDUM DECISION 

Presiding Judge Peter B. Swann delivered the decision of the court, in 

which Judge Lawrence F. Winthrop and Judge Donn Kessler joined. 

S W A N N, Judge: 

¶1 Gerlinde Foltin (“Wife”) appeals the superior court’s denial 

of her request that it order Anton Foltin (“Husband”) to continue paying 

the outstanding mortgage on the parties’ martial residence, which Wife 

received as her sole and separate property in the decree dissolving their

marriage. Wife argues that the court’s ruling was inconsistent with the 

terms of the parties’ post-nuptial agreement, and challenges the court’s 

denial of her request for attorney’s fees and costs. 

¶2 We affirm. The court properly considered extrinsic evidence 

to determine the meaning of the post-nuptial agreement, and sufficient 

evidence supports the court’s determination that the parties did not 

intend for Husband to remain obligated for post-dissolution mortgage 

payments. The record also supports the court’s denial of Wife’s request 

for attorney’s fees and costs. 

FACTS AND PROCEDURAL HISTORY 

¶3 The parties married in 2003. In March 2005, they purchased 

the martial residence, and the following month executed a post-nuptial 

agreement that provided, as relevant: 

WHEREAS, on March 19, 2005, the parties entered 

into a Purchase Agreement with Beazer Home Sales 

Arizona, Inc., for the purchase of lot 0333 of Morning Sun 

Farms Ph 2, Park, and for the construction of a residence on 

said lot, located at 35296 North Happy Jack Drive, Queen 

Creek, Arizona (hereinafter the “Happy Jack Residence”);

WHEREAS, Beazer Home Sales Arizona, Inc., 

subsequently advised the parties it would be in their interest 

to amend the Purchase Agreement to provide only ANTON 

is a party to said Purchase Agreement given GERLINDE is 

not a permanent resident of the United States; 
FOLTIN v. FOLTIN 

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WHEREAS, it may be necessary for the Happy Jack 

Residence to be initially titled solely in ANTON’S name for 

the purpose of obtaining financing at a reasonable rate; 

WHEREAS, GERLINDE will provide seventy 

thousand dollars ($70,000.00) as the deposit for the purchase 

and construction of the Happy Jack Residence from her sole 

and separate funds and has expended approximately fifty 

thousand dollars ($50,000.00) of her sole and separate funds 

for community purposes; 

. . . .

WHEREAS, the parties anticipate it will be necessary 

to obtain financing in the approximate amount of one 

hundred twenty thousand dollars ($120,000.00) to complete 

the purchase and construction of the Happy Jack Residence, 

and that the parties may refinance in the future; 

WHEREAS, the parties contemplate a long and 

lasting marriage, terminated only by the death of one of the 

parties, they also recognize the possibility their marriage 

might be terminated by dissolution of marriage, legal 

separation or annulment; 

WHEREAS, the parties wish to preserve GERLINDE’s 

entitlement to reimbursement of her sole and separate 

property contributions and to preserve her sole and separate 

property in the event the marriage is terminated by 

dissolution of marriage, legal separation or annulment, and 

in the event ANTON were to die prematurely; 

. . . .

THEREFORE, in consideration of the mutual 

promises and covenants set forth herein, ANTON and 

GERLINDE mutually covenant and agree as follows: 

. . . .

 2. Payment of Mortgage. ANTON shall be solely 

responsible for all mortgage payments (including necessary 

escrow payments for taxes and insurance) related to the 

Happy Jack Residence (including the original mortgage and 
FOLTIN v. FOLTIN 

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any subsequent mortgage) until such time as the mortgage is 

paid in full and the property is owned free and clear. 

¶4 Husband filed a petition for dissolution of the marriage in 

2013. As part of the dissolution proceedings, the trial court held an 

evidentiary hearing regarding the division of the marital residence. Wife 

argued that the post-nuptial agreement required the court to award her 

the residence as her sole and separate property and to order that Husband 

would be solely responsible for paying the balance of the mortgage loan 

secured by the property. Husband maintained that his obligation to pay 

the mortgage for the martial residence did not survive dissolution of the 

marriage, and he asked the court to award Wife the house and allocate the 

mortgage obligation to her. 

¶5 The court interpreted the post-nuptial agreement to mean 

that Husband’s obligation to pay the mortgage terminated upon the 

division of the property at dissolution. The court awarded the residence, 

including all equity, to Wife as her sole and separate property and 

directed that she would be responsible for paying the mortgage loan 

secured by the property. The court denied both parties’ requests for 

attorney’s fees and costs. 

¶6 Wife appeals. 

DISCUSSION 

I. SUFFICIENT EVIDENCE SUPPORTS THE SUPERIOR COURT’S 

DETERMINATION THAT THE PARTIES DID NOT INTEND FOR

HUSBAND TO REMAIN OBLIGATED FOR POST-DISSOLUTION 

MORTGAGE PAYMENTS.

¶7 Wife1 first contends that the superior court erroneously 

interpreted the post-nuptial agreement in a manner contrary to the 

parties’ intent. 

 

1 We reject Husband’s argument that Wife lacks standing to 

pursue this appeal because she filed a petition for bankruptcy after the 

appeal was docketed. Wife listed the martial residence in her bankruptcy 

schedule and disclosed her appeal of the decree to the bankruptcy trustee. 

The trustee did not administer the marital residence and the bankruptcy 

court closed Wife’s bankruptcy action, thereby abandoning the property 

to Wife. See 11 U.S.C. § 554(c) (2010) (“Unless the court orders otherwise, 
FOLTIN v. FOLTIN 

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¶8 The superior court’s interpretation of a contract or 

agreement is a question of law we review de novo. In re Marriage of 

Pownall, 197 Ariz. 577, 580, ¶ 7 (App. 2000). But we accept the court’s 

factual findings as to the intent of the parties in entering an agreement 

unless they are clearly erroneous. McNeil v. Hoskyns, 236 Ariz. 173, 176, 

¶ 13 (App. 2014); Chopin v. Chopin, 224 Ariz. 425, 428, ¶ 7 (App. 2010). We 

“defer to the court’s determination of witnesses’ credibility and the weight 

to give conflicting evidence.” Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 

(App. 1998). 

¶9 Agreements between spouses, like other contracts, “are to be 

read in light of the parties’ intentions as reflected by their [contract] 

language and in view of all circumstances; if the intention of the parties is 

clear from such a reading, there is no ambiguity.” Harris v. Harris, 195 

Ariz. 559, 562, ¶ 15 (App. 1999); see also Beaugureau v. Beaugureau, 11 Ariz. 

App. 234, 237 (1970). If the contract language is reasonably susceptible to 

more than one meaning, extrinsic evidence may be admitted to interpret 

the contract. Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 154–55

(1993). We will not construe a contract term in a way that renders another 

contract term meaningless -- “each part of a contract must be read 

together, ‘to bring harmony, if possible, between all parts of the writing.’” 

ELM Retirement Ctr., LP v. Callaway, 226 Ariz. 287, 291, ¶ 18 (App. 2010) 

(citation omitted). 

¶10 The post-nuptial agreement at issue here states that 

Husband shall be solely responsible for all mortgage payments for the 

marital residence until the mortgage is paid in full. But the agreement 

does not expressly address whether this obligation continues after 

dissolution. Further, the agreement contains provisions that are contrary 

to its directive that Husband is solely responsible for the mortgage postdissolution until it is paid in full. For example, the agreement provides 

that if the parties’ marriage had been terminated by dissolution after 

Husband had paid 50% of the principal balance of the mortgage, he would 

have held equity in the property and would have been entitled to compel 

its sale, which would have presumably ended the mortgage obligation. 

¶11 Because the agreement is reasonably susceptible to more 

than one interpretation, the superior court properly considered the 

 

any property scheduled under section 521(a)(1) of this title not otherwise 

administered at the time of the closing of a case is abandoned to the 

debtor and administered for purposes of section 350 of this title.”).
FOLTIN v. FOLTIN 

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extrinsic evidence offered by both parties regarding their intentions and 

the meaning of the agreement. Wife testified that Husband agreed to pay 

the entire mortgage for the property as a means of repaying Wife for the 

down payment and for monies she lent to him for payment of his separate 

debts. Husband denied that Wife lent him any money, and he argued that 

because the house would go to Wife as her separate property, she should 

be responsible for the remaining mortgage amount. 

¶12 The court found that the parties intended to allow Wife to 

recover some of the separate property she invested in the martial 

community, but rejected Wife’s argument that the agreement entitled her 

to keep the martial residence while Husband continued to pay the 

mortgage for the property. We defer to these findings because they are 

supported by the evidence and not clearly erroneous. Moreover, as the 

superior court noted, Wife’s interpretation would render superfluous 

other contract provisions concerning Husband’s acquisition of an equity 

interest and ability to require a sale of the residence. 

II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY 

DENYING WIFE’S REQUEST FOR ATTORNEY’S FEES AND 

COSTS. 

¶13 Wife next contends that the superior court erred by denying 

her request for attorney’s fees and costs under A.R.S. § 25-324(A). We 

review the ruling for an abuse of discretion. Mangan v. Mangan, 227 Ariz. 

346, 352, ¶ 26 (App. 2011). 

¶14 A.R.S. § 25-324(A) provides that the court may award 

attorney’s fees and costs “after considering the financial resources of both 

parties and the reasonableness of the positions each party has taken 

throughout the proceedings.” Here, the court found that there was not a 

substantial disparity of financial resources between the parties and that 

neither party acted more unreasonably than the other in the litigation. 

¶15 Wife contends that the court’s finding of no substantial 

financial disparity is contrary to its finding that Husband earns $1,130 per 

month more than Wife and to its decision to award Wife spousal 

maintenance. But after taking spousal maintenance payments into 

consideration, Husband earns only $130 more per month than Wife. 

Income disparity does not mandate an award under § 25-324(A) -- the 

court has discretion to determine whether an award is warranted. See

Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 9 (App. 2014). The superior court 

acted well within its discretion by declining to award fees and costs based 

on the minor discrepancy between Husband and Wife’s incomes. 
FOLTIN v. FOLTIN 

Decision of the Court 

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CONCLUSION 

¶16 For the foregoing reasons, we affirm. In the exercise of our 

discretion, we deny both parties’ requests for attorney’s fees on appeal. 

We award costs to Husband upon compliance with ARCAP 21.