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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

CHRISTINA MARIE BURGER, Petitioner/Appellant, 

v.

TY WALDREN, Respondent/Appellee. 

No. 1 CA-CV 22-0764 FC 

No. 1 CA-CV 23-0210 FC 

(Consolidated) 

Appeal from the Superior Court in Maricopa County 

No. FC2021-094839 

The Honorable Charlene D. Jackson, Judge 

REVERSED IN PART AND REMANDED 

COUNSEL 

Law Offices of Vescio & Seifert, P.C., Glendale 

By Theresa L. Seifert 

Counsel for Petitioner/Appellant 

Stanley David Murray, Attorney at Law, Scottsdale 

By Stanley David Murray 

Counsel for Respondent/Appellee

FILED 11-30-2023
BURGER v. WALDREN 

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 Christina Marie Burger appeals the superior court’s 

dissolution decree ordering the sale of real property and an equal 

distribution of the proceeds. She also challenges the denial of her motion to 

alter or amend the decree and the court’s reduced attorneys’ fee award. For 

the following reasons, the superior court’s ruling ordering the distribution 

of real property sale proceeds is reversed and the case is remanded for 

proceedings consistent with this decision. 

FACTS AND PROCEDURAL HISTORY 

¶2 Burger purchased real property in 2010 before the parties 

married. Ty Waldren, her soon to be husband, contributed $3,000 towards 

the down payment. Waldren did not sign the purchase contract, was not 

listed on the warranty deed, and did not sign any of the documentation 

provided by the title agency. Only Burger’s name appeared on the deed, 

which identified her as “a single woman.” 

¶3 The parties married on October 12, 2011. They lived together 

in the property as their marital residence. Waldren made the mortgage 

payments. 

¶4 Burger petitioned for dissolution in October 2021. In the joint 

pre-trial statement, Burger requested the superior court award her the 

marital residence as her sole and separate property because she purchased 

it before marriage and the property was titled in her name only. Burger 

acknowledged that Waldren was entitled to an equitable lien of $39,512.55, 

using the formula in Drahos v. Rens, 149 Ariz. 248 (App. 1985) and Barnett v. 

Jedynak, 219 Ariz. 550 (App. 2009), plus reimbursement for his $3,000 down 

payment contribution. Waldren conceded the property was “technically” 

Burger’s sole and separate property but asked for a 50% equitable lien not 

calculated using the Drahos/Barnett formula. Waldren asserted that, at the 

time of the property purchase, he believed the parties were taking title in 

both names, intended to purchase the home and upgrade it with money 
BURGER v. WALDREN 

Decision of the Court 

3 

borrowed from his parents, sell it to buy a bigger home, and then repay his 

parents once the house was sold. He also asserted that he paid the $3,000 

down payment with his sole and separate funds and paid all the mortgage 

payments before and during the marriage. In addition to the 50% equitable 

lien on the home, Waldren also asked that his parents be paid the 

approximately $50,0001 they “lent the community to improve the home.” 

Burger denied any knowledge of a loan or agreement to repay Waldren’s 

parents for improvements to the property. 

¶5 After trial, the superior court ruled that the real property was 

community property. Despite noting that the home was titled only in 

Burger’s name, the court found the parties “purchased the home together 

and intended to own the home together.” The court also found that 

Waldren “never disclaimed the deed” and that he “presented clear and 

convincing evidence that the parties intended to own the property together 

and equally.” In the Decree of Dissolution, the court ordered the property 

be sold and the equity be divided equally.2 The court also found that Burger 

was unaware of a contract between Waldren and his parents for 

reimbursement of the approximately $50,000 for home improvements and 

was not a party to that contract; thus, Burger was not responsible for 

repayment of that debt.3 

¶6 Additionally, the superior court found that Waldren acted 

unreasonably during the litigation and awarded Burger $7,500 of the 

$25,067.50 she requested in attorneys’ fees. The court awarded this reduced 

amount after determining that Burger’s position on the marital home had 

been unreasonable. Burger moved to alter or amend the decree, which the 

superior court denied. 

¶7 This Court has jurisdiction over Burger’s timely appeal under 

A.R.S. § 12-2101(A)(1). 

DISCUSSION 

1 In the joint pre-trial statement, Waldren advised the court his parents 

spent $54,425.87, but his mother testified the actual costs were $50,631. The 

record shows additional charges of $3,794.87 for interest. 

2 At the time of the trial, the property was under contract for $300,000.

3 Waldren does not cross-appeal this ruling. 
BURGER v. WALDREN 

Decision of the Court 

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I. The superior court erred by holding that the real property was a 

community property asset. 

¶8 Burger argues the superior court erred in finding Waldren 

was entitled to half the sale proceeds of her sole and separate real property. 

A court’s characterization of property as community or separate is 

reviewed de novo. In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15 (App. 

2000). A court’s order distributing property is reviewed for an abuse of 

discretion. Saba v. Khoury, 253 Ariz. 587, 590, ¶ 7 (2022). “A trial court abuses 

its discretion when it misapplies the law or predicates its decision on 

incorrect legal principles.” State v. Jackson, 208 Ariz. 56, 59, ¶ 12 (App. 2004). 

¶9 The status of property is established at the time of acquisition. 

Bender v. Bender, 123 Ariz. 90, 92 (App. 1979). Property status does not 

change “except by agreement or operation of law.” Id. Spouses may convey 

their separate or community property interests to one another, but the 

conveyance must be by a written instrument and have contemporaneous 

supporting conduct. Id. at 93. Property acquired during marriage may be 

acquired as, or converted to, sole and separate property by way of a 

disclaimer deed in which one spouse states he or she has no interest in the 

property acquired by the other spouse. See, e.g., id. at 93-94; Bell-Kilbourn v. 

Bell-Kilbourn, 216 Ariz. 521, 524, ¶¶ 10-11 (App. 2007). 

¶10 Waldren concedes the superior court erred in finding the 

martial residence was community property and that whether Waldren 

signed a disclaimer deed was irrelevant. He argues, however, that the court 

reached the right result because the parties owned the property as tenants 

in common at the time of purchase and each party owned a 50% interest as 

sole and separate property. He argues that dividing the property held as 

tenants in common would have resulted in the same equal distribution that 

the court used. Waldren waived this tenancy-in-common argument by 

failing to raise it before the superior court. See Odom v. Farmers Ins. Co. of 

Ariz., 216 Ariz. 530, 535, ¶ 18 (App. 2007) (stating that “[g]enerally, 

arguments raised for the first time on appeal are untimely and deemed 

waived.”). Regardless, Waldren does not dispute that the deed was solely 

in Burger’s name, and the parties were not married at the time of purchase. 

“Moreover, a joint tenancy is not created in Arizona unless it clearly 

appears that the grantees have agreed to accept the conveyance as joint 

tenants. Bostwick v. Jasin, 170 Ariz. 15, 17 (App. 1991) (citation omitted). No 

evidence supports an argument that the parties jointly purchased the home 

at the time of the acquisition. A.R.S. § 33-431. The record clearly establishes 

that the property was Burger’s separate property. 
BURGER v. WALDREN 

Decision of the Court 

5 

¶11 When a spouse owns real property before the parties’ 

marriage, that real property and any increase in value is the separate 

property of the acquiring spouse. See A.R.S. § 25-213(A). Even if community 

funds are expended on separate property, the community does not acquire 

an interest in the title of the property, but instead has only a potential claim 

for reimbursement for any expenditure of community funds. Bourne v. 

Lorde, 19 Ariz. App. 228, 231 (1973); see also Drahos, 149 Ariz. at 249-50 

(recognizing the community’s right to an equitable lien against separate 

property when community funds are used to pay the mortgage on the 

separate property). 

¶12 Applying the formula from Drahos, the court must apportion 

to the community the increase in a spouse’s separate property value 

attributable to the community’s mortgage payments. 149 Ariz. at 250. “The 

community property equitable lien interest is determined by adding the 

principal balance paid by the community to the product of the community 

property principal payments divided by the purchase price times the 

appreciation in value.” Id. The formula from Drahos was adjusted in Barnett 

to account only for post-marriage appreciation and uses the appraised 

value of the separate property as of the date of marriage rather than the 

purchase price. 219 Ariz. at 555, ¶ 21. Here, it is undisputed that the 

purchase price and the value as of the date of marriage are the same. In 

Saba, the Arizona Supreme Court held that courts must use the 

Drahos/Barnett formula as a starting point to achieve substantial justice in 

calculating a marital community’s equitable lien on a spouse’s separate 

property. 253 Ariz. at 592, ¶ 14. 

¶13 Waldren concedes that Burger’s calculations using the 

Drahos/Barnett formula were correct. But, because the court improperly 

concluded the marital residence was community property, it did not use 

the formula to calculate the marital community’s equitable lien on Burger’s 

separate real property. 

¶14 Waldren argues the marital community contributed money 

and labor to Burger’s separate property with the improvements made by 

his parents. In such cases, the community “is entitled to share in the 

enhanced value of that property.” Saba, 253 Ariz. at 592, ¶ 15 (quoting 

Honnas v. Honnas, 133 Ariz. 39, 40 (1982)). But, the spouse claiming he or 

she increased the value of the other spouse’s separate property through 

community labor and funds has the burden of showing the increased value. 

Hefner v. Hefner, 248 Ariz. 54, 60, ¶ 17 (App. 2019); Walker v. Walker, No. 1 

CA-CV 23-0036 FC, 2023 WL 6397297, at *5, ¶ 29 (Ariz. App. Oct. 3, 2023). 
BURGER v. WALDREN 

Decision of the Court 

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¶15 Here, the record shows that Waldren’s father volunteered to, 

and performed, labor to improve the home, not Waldren himself. And 

Waldren did not offer any evidence at trial about how much of the funds 

used to make improvements to the house contributed to the increased value 

of the home. In the decree, the superior court noted that “substantial 

upgrades” to the home were made but there were no factual findings about 

whether those improvements increased the value of the property. And 

although an appraisal in evidence shows that the interior of the home 

“appear[ed] to have been updated,” the parties did not direct the superior 

court’s attention to any evidence from which it could determine the 

difference in increased value attributable to market forces compared to 

home improvements or a combination thereof. Waldren did not meet his 

burden on this issue. 

¶16 Given the parties’ acknowledgment that the property is 

Burger’s separate property and that her Drahos/Barnett calculation is 

accurate this case is remanded, directing the superior court to order a 

$39,512.55 distribution to Waldren as his share of the community’s 

equitable lien, plus $3,000 to reimburse him for his contribution to the down 

payment, for a total of $42,512.55. 

II. The superior court’s order to sell the marital property is moot. 

¶17 As to the sale of the marital residence, Burger argues the 

superior court could not order the sale of her separate real property. 

Because the marital residence has now been sold, this issue is moot. Vinson 

v. Marton & Assocs., 159 Ariz. 1, 4 (App. 1988) (noting that a court’s decision 

is moot for appellate purposes when appellate action would have no effect 

on the parties due to a change in circumstances before the appellate 

decision). 

III. The award of attorneys’ fees must be recalculated. 

¶18 Burger challenges the attorneys’ fee award, arguing that the 

superior court reduced her requested fee amount based on its erroneous 

finding that her position regarding the marital residence was unreasonable. 

This Court agrees. 

¶19 An award of attorneys’ fees is reviewed for an abuse of 

discretion. Hefner, 248 Ariz. at 57, ¶ 6. Under A.R.S. § 25-324, the superior 

court may award attorneys’ fees to one party based on unreasonable 

positions taken by the other party. Magee v. Magee, 206 Ariz. 589, 591 n.1 

(App. 2004); Clark v. Clark, 239 Ariz. 281, 283, ¶¶ 10-12 (App. 2016). The 
BURGER v. WALDREN 

Decision of the Court 

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superior court has discretion regarding the amount ultimately awarded. 

Hunt Inv. Co. v. Eliot, 154 Ariz. 357, 362 (App. 1987). 

¶20 Here, in analyzing Burger’s application for fees, the superior 

court found Waldren acted unreasonably and that Burger’s position on the 

marital home was unreasonable. But as discussed above, Burger’s position 

on the marital home was not unreasonable, and her calculation of the 

community’s equitable lien was accurate. 

¶21 It is unclear from the court’s ruling to what extent it reduced 

Burger’s attorneys’ fee award based on her position regarding the marital 

home. Accordingly, this issue is remanded for the superior court to 

reconsider the attorneys’ fee award. 

CONCLUSION 

¶22 For the foregoing reasons, the superior court’s ruling ordering 

an equal division of the sale proceeds is reversed. On remand, the superior 

court shall enter an order awarding Waldren $39,512.55 for his share of the 

community’s equitable lien and $3,000 for reimbursement of his down 

payment contribution. The superior court should also reconsider the 

amount of Burger’s attorneys’ fee award. 

¶23 After considering the parties’ relative financial resources and 

their positions on appeal pursuant to A.R.S. § 25-324, Burger’s request for 

costs and reasonable attorneys’ fees is granted upon compliance with 

Arizona Rule of Civil Appellate Procedure 21.