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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL OBERG, 

Petitioner/Appellee,

v.

MARGARET OBERG, 

Respondent/Appellant.

No. 1 CA-CV 20-0468 FC

Appeal from the Superior Court in Maricopa County

No. FC2019-096521

The Honorable Suzanne Scheiner Marwil, Judge

VACATED AND REMANDED

COUNSEL

The Cavanagh Law Firm, P.A., Phoenix

By Christina S. Hamilton

Counsel for Respondent/Appellant

Tiffany & Bosco P.A., Phoenix

By Amy D. Sells

Counsel for Petitioner/Appellee

FILED 4-22-2021
OBERG v. OBERG

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Kent E. Cattani and Judge Brian Y. Furuya joined.

T H U M M A, Judge:

¶1 Margaret Oberg (Wife) appeals the superior court’s denial of 

her motions to set aside a Default Decree of Dissolution (Decree) of her 

marriage to Michael Oberg (Husband). Because the court did not expressly 

address the fairness of the post-nuptial agreement upon which the Decree 

is based, the orders denying those motions are vacated and this matter is 

remanded for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶2 In December 2019, Husband petitioned for dissolution of the 

parties’ 23-year marriage with two minor children, one of whom has since 

turned 18. Husband properly served Wife with the original petition in 

December 2019 and an amended petition in January 2020. Wife, however,

failed to respond to either pleading. Husband then applied for entry of 

default, with supporting affidavits and attachments, in February 2020. The 

default became effective 10 days later when Wife failed to respond. See Ariz. 

R. Fam. L.P. (Rule) 44(a)(4)(2021).

1 Husband then filed a motion and 

affidavit for default decree without a hearing. The court entered the Decree, 

in the form submitted by Husband, on March 13, 2020.

¶3 The substance of the Decree incorporated the terms of a postnuptial agreement drafted by Husband’s counsel and signed by both 

parties in October 2019. That agreement, “in consideration of remaining 

within the marriage,” waived any future claims by either party to spousal 

maintenance and provided that the couple’s community property residence 

would be awarded in its entirety to Husband should the marriage dissolve.

1 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
OBERG v. OBERG

Decision of the Court

3

¶4 On April 22, 2020, Wife moved to set aside the Decree 

pursuant to Rule 85. Wife’s motion claimed the Decree and the agreement 

on which it was based were unfair. Among other things, Wife argued, the 

agreement to waive future spousal maintenance and provide Husband the 

community residence violated Arizona law. After an evidentiary hearing, 

the court denied the Rule 85 motion to set aside in a Rule 78(c) judgment. 

The court then denied Wife’s subsequent Rule 83 motion. Wife appeals

from both rulings. This court has jurisdiction over Wife’s timely appeal 

pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 

12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶5 A married couple may “validly divide their property 

presently and prospectively by a post-nuptial agreement, even without its 

being incident to a contemplated separation or divorce.” In re Harber’s 

Estate, 104 Ariz. 79, 88 (1969). To be enforceable, a post-nuptial agreement 

must be a valid contract “free from any taint of fraud, coercion or undue 

influence;” the contracting parties must have “acted with full knowledge of 

the property involved and [their] rights therein” and the division must have 

been “fair and equitable.” Id.

¶6 The superior court is “duty-bound” to distribute the parties’ 

property in a “fair, just and equitable” manner. Wick v. Wick, 107 Ariz. 382, 

385 (1971). The existence of a post-nuptial agreement does not “foreclose[]”

the court “from the performance of this duty.” Id. Instead, the court must, 

in every case, independently determine that an agreement is not “unfair” 

before incorporating it into a decree of dissolution. Harber’s Estate, 104 Ariz. 

at 87. This is particularly true where, as here, the best interests of a minor 

are involved. Cf. Hays v. Gama, 205 Ariz. 99, 102 (2003) (“the child’s best 

interest is paramount in custody determinations.”).

¶7 Although a post-nuptial agreement is reviewed for its validity

under traditional contract law, it is not a traditional contract. Unlike a 

typical arm’s-length commercial transaction, a separation agreement shall

not be enforced if it is unfair. “To hold otherwise would, in effect, allow 

parties to a divorce action to completely defeat the [statutory] authority 

expressly conferred upon the trial court.” Wick, 107 Ariz. at 385.
OBERG v. OBERG

Decision of the Court

4

¶8 Here, the superior court determined that the parties’ postnuptial agreement was “voluntary and without coercion or duress.” The 

court then incorporated the terms of the agreement into the Decree, while 

recognizing “it is different than what the law would have required absent 

an agreement of the parties.” But the circumstances required the court to 

determine whether the agreement was “fair and equitable.” Harber’s Estate, 

104 Ariz. at 87. Although the agreement need not comply with the property 

distribution and spousal maintenance provisions of A.R.S. §§ 25-318 and -

319, Husband concedes the post-nuptial agreement is governed “by case 

law, such as” Harber’s Estate, Austin v. Austin, 237 Ariz. 201 (App. 2015) and 

Hutki v. Hutki, 244 Ariz. 39 (App. 2018).2 Those cases require the court to 

determine that the post-nuptial agreement was both fair and equitable.

¶9 Here, the record does not reflect that the superior court made 

this required determination, a prerequisite for the post-nuptial agreement 

to be incorporated into the Decree. Accordingly, the Decree cannot stand.

CONCLUSION

¶10 The Decree is vacated, and this matter remanded for the 

superior court to make the requisite determinations. Upon the conclusion 

of those proceedings, the court will enter a new Decree. Wife’s request for 

attorneys’ fees and costs on appeal pursuant to A.R.S. § 25-324(A) is 

granted, contingent upon her compliance with ARCAP 21.

2 Although Husband argues Hutki found that a procedural rule superseded 

Harber’s Estate, he has not shown how Hutki could negate Harber’s Estate’s 

requirement that the superior court determine whether the post-nuptial 

agreement is “fair and equitable” before incorporating it into the Decree.