Prasek v. Prasek

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IZABELA PRASEK, Petitioner/Appellee,

v.

ROBERT PRASEK, Respondent/Appellant.

No. 1 CA-CV 25-0478 FC
FILED 04-15-2026

Appeal from the Superior Court in Maricopa County
No. FN2021-090695
The Honorable Charlene D. Jackson, Judge

VACATED AND REMANDED FOR RECONSIDERATION

COUNSEL

Becker Zarling & Smith Law, Avondale
By Gina M. Becker-Zarling, Sara Smith
Counsel for Petitioner/Appellee

Zwillinger Wulkan PLC, Phoenix
By Larry Wulkan, Peter S. Kozinets, Lauren Whittaker
Co-Counsel for Petitioner/Appellee

Reardon House Colton PLC, Scottsdale
By Kristi A. Reardon
Counsel for Respondent/Appellant
PRASEK v. PRASEK
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Angela K. Paton joined.

P E R K I N S, Judge:

¶1 Robert Prasek (“Husband”) appeals from the community
property allocation in the decree dissolving his marriage to Izabela Prasek
(“Wife”). We conclude the superior court erroneously allocated the
community’s equitable lien. As explained below, we vacate the court’s
community property allocation and remand for reconsideration.

FACTS AND PROCEDURAL BACKGROUND

¶2 The parties married in 1993 and separated in 2006, with Wife
living in Arizona and Husband living in Chicago, Illinois. Wife petitioned
for dissolution in 2021. During the marriage, the parties bought a home in
Goodyear, Arizona.

¶3 It is undisputed that (1) the Goodyear home is Wife’s separate
property because Husband signed a disclaimer deed, and (2) the
community is entitled to an equitable lien because the parties paid the down
payment and mortgage with community funds. On appeal, Husband does
not challenge the amount of the equitable lien stated in the decree, only the
allocation of the equitable lien.

¶4 Husband owns and operates a construction business. Wife
owns and operates a business that provides nutritional advice. The parties
disputed the value of the businesses, but agreed they were both community
property and the court should award each party their respective business.

¶5 Wife testified that during the dissolution proceedings, she
discovered there were liens on the Goodyear house for a homeowners’
association (“HOA”) debt on a different property and “tax liens.” She
estimated that the tax liens were $140,000. Husband asserted that the parties
owed over $90,000 in unpaid taxes from 2014 to 2023. Husband asked the
court to allocate the tax debts to him and award him his business with no
offset to Wife. Wife argued that because all the liens were related to
Husband’s business, the court should allocate those debts to him. But she
agreed that if the court awarded her half of the value of Husband’s
business, she would be responsible for half of the business-related debts.

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PRASEK v. PRASEK
Decision of the Court

¶6 Consistent with the pretrial stipulation, the superior court
awarded each party its business, including all liabilities, subject to
equalization. It valued Wife’s business at $2,000 and Husband’s at $190,000.
The court found the Goodyear house was Wife’s separate property, and the
community had an equitable lien of $143,000. The court awarded each party
$71,500 in its equalization calculation. As for the liens on the Goodyear
house, the court ordered Husband to pay the HOA lien. The court found
neither party presented evidence to support Wife’s testimony about the tax
liens or their amount. Nevertheless, the court ordered the parties to equally
split “any other liens.” The court listed and allocated several other debts,
but did not address the other tax debts Husband testified about. Still, the
court granted Husband’s reimbursement request and ordered Wife to pay
Husband half of what he paid toward the community tax debt after the
petition was served.

¶7 Ultimately, after accounting for Husband’s reimbursement
claim, the superior court ordered Husband to pay Wife $83,866.25 for an
equalization of the community property. Husband moved to alter or amend
the decree, arguing the court erred in how it treated the equitable lien when
calculating the equalization payment and by failing to allocate the
community tax debt. Wife argued it was equitable to order Husband to pay
the entire tax debt. Alternatively, she claimed the tax debt was related to
Husband’s business, so the court had implicitly allocated it to Husband
along with his business. The court denied the motion without comment.

¶8 Husband timely appealed. We have jurisdiction under
Section 12-2101(A)(1), (2).

DISCUSSION

¶9 The superior court divides community property “equitably,
though not necessarily in kind.” A.R.S. § 25-318(A). The court “has broad
discretion in determining what allocation of property and debt is equitable
under the circumstances.” In re Marriage of Inboden, 223 Ariz. 542, 544, ¶ 7
(App. 2010). We will affirm the allocation absent an abuse of discretion. Id.
“In most cases, dividing jointly held property substantially equally will be
the most equitable unless there exists a sound reason to divide the property
otherwise.” Id. at 544, ¶ 6. Indeed, the superior court found that an equal
property division was equitable here.

I. The equalization order is erroneous.

¶10 The superior court determined that the community had an
equitable lien of $143,000 for its contributions to Wife’s separate property

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Goodyear house. The court awarded the Goodyear house to Wife and
credited each party with a $71,500 interest in the equitable lien. In
calculating the overall property equalization, the court stated:

IT IS THEREFORE ORDERED that [i]ncluding the division of
property and debts as divided herein, including the offset of
the parties’ respective businesses and including the division
of the community interest lien on the residence, but excluding
the Bobrow reimbursement, Husband is allocated a total of
$265,974.59 of the assets and debt and Wife is allocated a total
of $75,893.61. This results in an equalization of $95,040.49 to
be paid by Husband to Wife. However, Wife owes Husband
Bobrow reimbursement of $6,372.74 for insurance + $4,801.50
for tax payments applicable to the community totaling
$11,174.24 owed from Wife to Husband. Taking the two
amounts, the overall offset and equalization owed by
Husband to Wife is $83,866.25.

As both parties acknowledge, the list of community assets and debts in the
decree, after accounting for the reimbursement amount, does not result in
an equalization order in the amount of $83,866.25. But they disagree on the
correct calculation.

¶11 The superior court erred in how it treated the equitable lien
on Wife’s separate property house. The court credited Husband with
$71,500 for his share of the equitable lien without ordering Wife to pay him
that amount. The court properly awarded Wife her separate property
house, which included the equity. The court’s calculation inflated
Husband’s share of community assets because he did not actually receive
his share of the equitable lien. The court should have credited the full
amount of the equitable lien to Wife because she was awarded the house.
The court should have then offset Husband’s share of the lien against the
other assets Wife received, including her share of Husband’s business. By
crediting each party as receiving their share of the equitable lien when Wife
alone received the house and all the equity, the court incorrectly treated
Wife as having paid Husband for his share.

¶12 To be sure, Wife is entitled to keep her separate property
house and the equity, but she must pay Husband for his share of the
community’s equitable lien now, even if she will not realize the equity until
a future sale. Contrary to Wife’s claim, she does not have to pay Husband
out of pocket for his share of the equitable lien with money she “does not

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have.” Rather, Husband receives his share of the equitable lien by offsetting
it against other property Wife receives.

¶13 The correct allocation, according to the figures in the decree,
is as follows:

Husband Wife
$143,000.00 equitable lien on the
Goodyear home
$8,781.00 vehicles $7,845.00 vehicle
$67.41 Chase #7030 $1,985.43 Chase #8773
$190,000.00 business $2,000.00 business
($8,415.82 share of community ($8,415.82 share of community
debts listed in decree) debts)
$190,432.59 total $146,414.61 total

Based on these “total” figures, Husband owed Wife $22,008.99 to equalize
the property and debts. But Wife also owed Husband a Bobrow
reimbursement of $11,174.24. See Bobrow v. Bobrow, 241 Ariz. 592, 596–97,
¶¶ 19–20 (App. 2017) (a spouse is generally entitled to be reimbursed for
servicing community debt with separate funds after the petition has been
filed). As a result, the total amount Husband owed Wife is $10,834.75. We
reject Husband’s proposed calculation because he included the separate
debts allocated to each party, which are not relevant in equaling the
community property and debts.

¶14 But our calculation does not factor in the tax liens on Wife’s
separate property house or the unpaid tax debts, which we discuss below.
Accordingly, we vacate the equalization order and remand for
reconsideration using a correct allocation of the equitable lien and to
account for the community tax obligations as explained below. See infra
¶¶ 19–20. On remand, the superior court shall also consider whether the
modified equalization order affects the spousal maintenance award and
whether any adjustment is necessary. We express no opinion on the result.

II. The superior court found the tax obligations are community debts
for which the parties are presumed to be equally liable.

¶15 The parties presented evidence about tax obligations incurred
during the marriage. Wife testified there were tax liens totaling $140,000 on
her separate property Goodyear house. Husband claimed the community
owed over $90,000 in unpaid taxes from 2014 to 2020 (“unpaid tax debts”).
These obligations are presumed to be community debts because they were

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incurred during the marriage. In re Marriage of Flower, 223 Ariz. 531, 535, ¶
12 (App. 2010) (“[A]ll debt incurred by either spouse during marriage is
presumed a community obligation.”).

¶16 The superior court ordered the parties to equally divide the
liens on the Goodyear house. But the court found there was no evidence
showing the amount of the liens or the lienholder, so the court did not
determine the amount of the liens. Nor did it determine the amount of or
specifically allocate the unpaid tax debts Husband testified about. Yet the
court characterized the unpaid tax debts as a community obligation when
addressing Husband’s reimbursement claim.

¶17 The record supports the finding that those tax debts were a
community obligation. See id. This defeats Wife’s argument that the court
found that Wife rebutted the community presumption and allocated the
unpaid tax debts to Husband. For the same reason, we reject Wife’s
contention that the court allocated the unpaid tax debts to Husband when
it awarded his business to him subject to all liabilities. Nor does the record
support Wife’s claim that the business valuation included these unpaid tax
debts.

¶18 Although the decree did not order each party to pay half of
the community tax debt, an equal division is presumed. Fleming v. Tanner,
248 Ariz. 63, 70, ¶ 23 (App. 2019) (community debts not allocated in the
decree remain joint obligations and are apportioned equally); accord Fischer
v. Sommer, 160 Ariz. 530, 531 (App. 1989) (community debts not allocated in
a decree “remain the joint obligations of the parties”); Jankowski v. Jankowski,
114 Ariz. 406, 407 (App. 1977) (parties remain jointly and severally liable for
community debts not allocated in the decree). Therefore, the tax debts are a
community obligation for which the parties are equally liable. Despite this
presumption, we remand for the superior court to consider how the
allocation of these community tax obligations affects the equalization
calculation.

¶19 It is also unclear, on this record, whether the lien on the
Goodyear house and the unpaid tax debts are two different debts or
whether they cover the same community tax obligations. We remand for
the court to determine the amount of and allocate the community tax
obligations, including the lien and unpaid tax debts. The court may, in its
discretion, allow the parties to present evidence to clarify the amount of the
community tax obligation.

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PRASEK v. PRASEK
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¶20 In sum, on remand, the court must reconsider the
equalization order, correctly allocating the equitable lien and accounting
for the community tax obligations. The court must then consider whether
the spousal maintenance award should be adjusted as a result. See supra
¶ 14.

III. Attorney fees and costs on appeal.

¶21 Both parties request an award of attorney fees and costs on
appeal based on Section 25-324. After considering the parties’ financial
resources and the reasonableness of their positions, we order each party to
bear his or her own attorney fees on appeal. Husband is entitled to his
reasonable costs under Section 12-342 upon compliance with ARCAP 21.

CONCLUSION

¶22 We vacate the equalization order and remand for
reconsideration consistent with this decision.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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