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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NATALIA BACHRACH, Petitioner/Appellee,

v.

RANDOLPH G. BACHRACH, Respondent/Appellant.

No. 1 CA-CV 16-0440 FC

Appeal from the Superior Court in Maricopa County

No. FC2014-094995

The Honorable Laura M. Reckart, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Scott L. Patterson, P.L.L.C., Tempe

By Scott L. Patterson

Counsel for Petitioner/Appellee

Berkshire Law Office, PLLC, Phoenix

By Keith Berkshire, Erica Gadberry

Counsel for Respondent/Appellant
BACHRACH v. BACHRACH

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

W I N T H R O P, Judge:

¶1 Randolph G. Bachrach (“Husband”) appeals from a decree 

dissolving his marriage to Natalia Bachrach (“Wife”). Husband contends 

the trial court erred in (1) finding the community’s interest in his 

contingency fee earnings ended on the date the decree was entered; (2) 

finding Wife’s artwork had no monetary value and awarding it all to Wife;

and (3) awarding Wife $1,250 per month in spousal maintenance for ten 

years, which was more than Wife requested. For the reasons stated below, 

we affirm the allocation of the artwork, but vacate the orders pertaining to 

the community interest in Husband’s contingency fee earnings and the

spousal maintenance award.

FACTS AND PROCEDURAL HISTORY

¶2 During the parties’ fifteen-year marriage, Husband worked as 

an attorney, and Wife was not employed outside the home. Wife received 

an associate degree in art and created over twenty original paintings. At 

the time of the trial, Wife was working as a teacher’s assistant at an 

elementary school. Wife requested spousal maintenance of $2,000 per

month for five years. Husband maintained a law office and was working 

on a few cases, although he claimed to be winding down his practice due 

to health issues.

¶3 Relevant to this appeal, the trial court awarded the 

community an interest in Husband’s contingency fee earnings as of the date 

the decree was entered, May 27, 2016. The court specifically rejected 

Husband’s argument that the community interest terminated on the date 

the petition was served, September 8, 2014. The court also awarded all the 

paintings to Wife, finding they had no fair market value. Finally, the court 

awarded Wife spousal maintenance of $1,250 per month for ten years. 

Husband filed a timely notice of appeal from the decree. We have 

jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-

2101(A)(1) (2016).
BACHRACH v. BACHRACH

Decision of the Court

3

ANALYSIS

I. Community Interest in Husband’s Contingency Fees

¶4 During the marriage, Husband handled or had an interest in 

some contingency fee cases that had not been finally resolved at the time 

Wife filed for dissolution. Husband does not dispute that the community 

has some interest in the fees that were earned but not yet received before 

the petition for dissolution was served. Husband contends the trial court 

erred in concluding the community interest in the contingency fee earnings 

terminated on the date the decree was entered because, by statute, the 

community terminated on the date the petition was filed. See A.R.S. §§ 25-

211(A)(2) (2017) and 25-213(B) (2017).

1

¶5 The separate or community characterization of property, or 

earnings in this case, is a question of law we review de novo. Schickner v. 

Schickner, 237 Ariz. 194, 199, ¶ 22, 348 P.3d 890, 895 (App. 2015). Pursuant 

to A.R.S. §§ 25-211(A)(2) and 25-213(B), property (including earnings) 

acquired after service of a petition for dissolution, legal separation, or 

annulment is separate property if the petition results in a decree. However, 

the trial court concluded the community’s interest in the contingency fee

earnings terminated on the date the decree was entered. In reaching this 

conclusion, the court cited Mori v. Mori, 124 Ariz. 193, 196, 603 P.2d 85, 88 

(1979) (citing In re Marriage of Goldstein, 120 Ariz. 23, 24, 583 P.2d 1343, 1344 

(1978)). At the time Mori was decided, the community terminated as of the 

date the decree was entered. However, A.R.S. §§ 25-211 and 25-213 were 

subsequently amended in 1998 to provide that property acquired after 

service of a petition for dissolution of marriage that results in a decree is not 

community property. See 1998 Ariz. Sess. Laws, ch. 280, §§ 3, 4 (2d Reg. 

Sess.). Pursuant to the current statutes, the community interest in 

Husband’s contingency fee earnings must therefore be calculated in light of

the date the petition for dissolution was served, i.e., September 8, 2014.

¶6 In a similar case, Garrett v. Garrett, 140 Ariz. 564, 568, 683 P.2d 

1166, 1170 (App. 1983), this court held “the attorney’s services performed 

 

1 Wife argues Husband waived this objection because he did not file a 

motion for reconsideration or modification. The trial court stated that if the 

parties disagreed with its ruling on the community termination date, “they 

are free to file for reconsideration or modification.” However, the rules of 

procedure do not require Husband to file these motions to preserve the

issue for appeal because he previously argued the date of service applied. 

Accordingly, Husband did not waive this argument.
BACHRACH v. BACHRACH

Decision of the Court

4

during the marriage in fulfillment of the contract are community property 

and the community is entitled to what the percentage of the time expended 

as community labor bears to the [total] time expended in reaching the 

ultimate recovery.” In addition, the court may consider “the amount of 

time expended before and after the dissolution, how that time was 

expended, the settlement history of the case, and any other relevant factor 

as may bear on the equitable division of this community asset.” Id. at 570-

71, 683 P.2d at 1172-73. However, at the time Garrett was decided, the 

previous versions of §§ 25-211 and 25-213 were in effect. Therefore, in 

Garrett, the community terminated on the date of the decree, not the date 

the petition was served. Although Garrett provides a framework for 

determining the extent to which contingency fee earnings are a community 

asset, the courts must apply the current statutes in calculating the 

community’s interest.

¶7 Here, the trial court used an incorrect date in calculating the 

community interest in Husband’s contingency fee earnings. Pursuant to 

A.R.S. § 25-211(A)(2) and 25-213(B), that calculation must acknowledge the 

termination of the community as of the date of the service of the petition for 

dissolution. The court can, at the appropriate time, use the Garrett factors 

to calculate the community interest, if any, in any such contingency fee. 

Accordingly, we vacate the current order awarding the community an 

interest in the post-petition contingency fees earned in the Walters, Bilyeu, 

Preciado, and condominium water damage cases

2 and remand for the entry 

of a revised order (and further proceedings as necessary to calculate the 

percentage of any such fee earned by the community) using the correct 

termination date for the community.

II. Wife’s Artwork

¶8 Wife created several paintings during the marriage that the 

parties attempted to sell in a gallery, at art shows, and through a website. 

Ultimately, no paintings sold and more than twenty paintings remain in the 

parties’ possession. The parties declined to obtain any formal appraisal; 

instead, Wife testified that in her opinion, the paintings were worth $1,500 

each, and Husband claimed they were worth $5,000 each. The trial court 

considered these statements along with the fact that, despite best efforts, 

 

2 Husband did not challenge the allocation of fees in the Esguerra case. 

We further note that, in the condominium water damage case, the family 

court found Husband was not retained until after the petition for 

dissolution was served. Accordingly, as to that case, any fees to be earned 

are Husband’s sole and separate property.
BACHRACH v. BACHRACH

Decision of the Court

5

none of the paintings had been purchased by anyone. The trial court 

therefore concluded the paintings had no fair market value and awarded 

all the paintings to Wife as a fair and equitable allocation of personal 

property.

¶9 Husband argues the trial court erred in finding the paintings 

had no monetary value and awarding them all to Wife. Husband contends 

he should have been permitted to purchase the paintings from Wife for 

$1,500 each. Husband argues the valuation is subject to de novo review 

because the court applied an erroneous valuation method. However, “[t]he 

valuation of assets is a factual determination that must be based on the facts 

and circumstances of each case.” Kelsey v. Kelsey, 186 Ariz. 49, 51, 918 P.2d 

1067, 1069 (App. 1996). This factual determination will not be disturbed 

unless it is clearly erroneous. Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9, 286 

P.3d 1095, 1099 (App. 2012). “We view the evidence in the light most 

favorable to upholding the decision[.]” Id.

¶10 Although the parties claimed the paintings had value, none of 

the paintings ever sold. Except for two paintings hung in Husband’s office, 

the paintings were in storage. Based on this evidence, the parties’ valuation 

of the paintings was, at best, highly speculative, and the trial court did not 

abuse its discretion in discounting orrejecting it. These items were properly 

treated as personal property and not a valuable community asset. Wife 

created the artwork; therefore, awarding it to her was fair and equitable and 

not an abuse of discretion.3 See In re Marriage of Flower, 223 Ariz. 531, 535, 

¶ 14, 225 P.3d 588, 592 (App. 2010) (stating “the court may consider other 

factors that bear on the equities of a particular case” in equitably dividing 

community property).

¶11 Husband contends the trial court should have permitted him 

to purchase the paintings at $1,500 each as a “realizable benefit” to the 

community or to “maximize the parties’ interest in the sale proceeds.” 

Although Husband offered to buy the paintings, his offer was contingent 

on “getting the money some day [sic] to pay for it.” Husband claimed he 

had no money to pay spousal maintenance and has a $36,000 annual 

income, so his offer to buy tens of thousands of dollars’ worth of artwork 

was illusory. The court did not abuse its discretion.

 

3 Having upheld the finding that the artwork had no monetary value, 

we need not address Wife’s argument that the overall property allocation 

was fair because Husband received woodworking equipment of an 

equivalent value.
BACHRACH v. BACHRACH

Decision of the Court

6

III. Spousal Maintenance Award

¶12 Husband contends the trial court erred when it awarded Wife 

spousal maintenance for ten years because Wife only sought a five-year 

award. Husband also argues the trial court erred in awarding $1,250 per 

month. “We review an award of spousal maintenance under an abuse of 

discretion standard.” Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9, 166 P.3d 

929, 931 (App. 2007).

¶13 The trial court attributed monthly earnings of $3,000 per

month to Husband and $1,390 per month to Wife. Therefore, after factoring 

in spousal maintenance, Husband’s net monthly income is $1,750 and 

Wife’s monthly income is $2,650. In determining the amount of the award, 

the trial court was required to consider the factors listed in A.R.S. § 25-

319(B) (2017). The decree contains findings regarding many of these factors, 

but the court appears to have overlooked some relevant factors. Husband

argued the court did not consider his inability to pay the amount of support 

ordered. See A.R.S. § 25-319(B)(4) (stating the court shall considerthe ability 

of the payor spouse to meet his needs while paying support). In addressing 

this factor, the court stated, “[Wife] lacks [the] skills and employability to 

meet her financial needs and that of her Child given the greater 

responsibility she assumes over the Child.” Thus, the court did not 

consider Husband’s expenses in considering this factor despite there being 

evidence presented. It may be an abuse of discretion for the court to fail to 

apply one of the applicable statutory factors about which the parties 

presented evidence. Cullum v. Cullum, 215 Ariz. 352, 355, ¶ 15, 160 P.3d 231, 

234 (App. 2007).

¶14 Additionally, it does not appear the court considered that 

Wife will receive a $17,000 payment from one of Husband’s contingency fee 

cases (Esguerra) and may receive additional fees in the future, once 

Husband’s pending cases are completed. See A.R.S. § 25-319(B)(9) (stating 

the court shall consider “[t]he financial resources of the party seeking 

maintenance, including marital property apportioned to that spouse, and 

that spouse’s ability to meet [her] needs independently”). The court did not 

refer to these payments in considering this factor.

¶15 Finally, Wife testified that she has an associate degree from a 

local community college and wants to obtain a bachelor degree to help her 

get a better job. Nothing in the record suggests Wife requires ten years to 

further her education. Additionally, the ten-year period does not correlate 

to Wife’s retirement age or the year the parties’ child is expected to finish 

his education. Wife estimated that she required five years of support. In 
BACHRACH v. BACHRACH

Decision of the Court

7

short, the record does not support the trial court’s finding that Wife requires

ten years of support.

¶16 Although the trial court has discretion to determine an 

appropriate spousal maintenance award, that decision must be based on 

evidence in the record. In re Marriage of Hinkston, 133 Ariz. 592, 594, 653 

P.2d 49, 51 (App. 1982). The record does not support the spousal 

maintenance ordered by the trial court. Accordingly, we vacate the award 

of spousal maintenance and remand for reconsideration in light of all the 

statutory factors and evidence presented.4

IV. Attorneys’ Fees and Costs on Appeal

¶17 Both parties request an award of attorneys’ fees and costs on 

appeal pursuant to A.R.S. § 25-324 (2017). Finding neither party took 

unreasonable positions on appeal and lacking current information about 

the parties’ relative financial circumstances, we decline to award attorneys’ 

fees on appeal. As the overall successful party on appeal, Husband is 

entitled to his costs pursuant to A.R.S. § 12-342 (2016).

CONCLUSION

¶18 We vacate the allocation of Husband’s contingency fee 

earnings, except for the Esguerra case, and vacate the award of spousal 

maintenance. We remand these issues for reconsideration consistent with 

this decision. We affirm the allocation of the artwork. Husband is awarded 

costs on appeal upon compliance with Arizona Rule of Civil Appellate 

Procedure 21.

 

4 Having determined the evidence did not support the amount or 

duration of spousal maintenance, we need not consider Husband’s due 

process argument.