Griffiths v. Heywood

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOHN ALAN GRIFFITHS, Petitioner/Appellant,

v.

MICHELLE HEYWOOD, Respondent/Appellee.

No. 1 CA-CV 14-0556 FC
1 CA-CV 14-0655 FC
(Consolidated)
FILED 2-16-2016

Appeal from the Superior Court in Maricopa County
No. FC2010-090193
The Honorable Emmet J. Ronan, Judge (Retired)

DISMISSED IN PART; AFFIRMED IN PART

COUNSEL

The Law Office of Kyle T. Green, PLLC, Mesa
By Kyle Green
Counsel for Petitioner/Appellant

Udall Shumway, PLC, Mesa
By Barry C. Dickerson, David R. Schwartz
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Kenton D. Jones and Judge Samuel A. Thumma joined.

S W A N N, Judge:

¶1 These consolidated appeals arise from several post-decree
orders in a dissolution proceeding. John Alan Griffiths (“Father”) appeals
in 1 CA-CV 14-0556 FC from the family court’s appointment of a real
estate special commissioner (“special commissioner”) and its grant of
attorney’s fees. In 1 CA-CV 14-0655 FC, Father appeals two family court
orders awarding attorney’s fees. For the following reasons, we affirm the
award of attorney’s fees in 1 CA-CV 14-0655 FC and the appointment of
the special commissioner in 1 CA-CV 14-0556 FC. We dismiss the
remainder of the issues in 1 CA-CV 14-0556 FC for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶2 In January 2010, Father petitioned the family court for
dissolution of marriage from Michelle Heywood (“Mother”). In April
2010, the family court entered a consent decree in which it awarded the
marital residence to Father.

¶3 In August 2012, the family court modified the decree,
ordering Father to “continue his best efforts” to remove Mother’s name
from the two mortgages on the marital residence within six months.
Nearly a year later, Father had failed to have Mother’s name removed
from the mortgages. She then filed a post-decree petition, requesting the
appointment of a special commissioner to sell the marital residence and
requesting attorney’s fees. She also filed petitions for civil contempt to
enforce Father’s obligation to pay child support. Thereafter, the court
issued several rulings relevant to this consolidated appeal.

The May 1, 2014 Ruling

¶4 In a signed order on May 1, the family court ordered Father
to relinquish the marital residence to the lender by a deed in lieu of
foreclosure, and awarded attorney’s fees to Mother. The ruling did not
specify the amount of attorney’s fees and did not include Ariz. R. Fam.

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Law P. 78(B) language. Father filed his first notice of appeal challenging
the May 1 ruling, but later voluntarily dismissed it.

The June 25, 2014 Rulings

¶5 As Father’s noncompliance with the order to have Mother
removed from the mortgages continued, Mother filed an emergency
motion for appointment of a special commissioner and again requested
attorney’s fees. In an unsigned minute entry, the family court ordered the
appointment of the special commissioner and awarded Mother attorney’s
fees. The court also entered a signed order appointing a special
commissioner the same day. Father filed his second notice of appeal
challenging the family court’s appointment of the special commissioner
and the award of attorney’s fees, giving rise to 1 CA-CV 14-0556 FC. In
his opening brief to this court, Father added that he was appealing the
order for the deed in lieu of foreclosure.

The August 1, 2014 Ruling

¶6 Pursuant to its June 25 unsigned minute entry awarding
attorney’s fees and costs for Mother’s emergency motion for appointment
of the special commissioner, the family court awarded her $3,046.87 in a
signed order entered on August 1. Father did not appeal from the August
1 ruling.

The August 4, 2014 Rulings

¶7 On August 4, the family court entered a signed order
awarding Mother $15,607.38 in attorney’s fees and costs as authorized by
the May 1 ruling related to Mother’s efforts to remove her name from the
mortgages. That same day, the family court also awarded Mother
$2,928.60 in attorney’s fees relating to Mother’s petition for contempt for
non-payment of child support. Father filed his third notice of appeal
challenging the attorney’s fees entered in both orders, giving rise to 1 CA-
CV 14-0655 FC.

DISCUSSION

I. PARTIAL DISMISSAL AND PARTIAL AFFIRMATION OF 1 CA-CV
14-0556 FC

¶8 In his opening brief, Father challenges the family court’s
order of “a Deed in Lieu of Foreclosure and appointment of the [special
commissioner],” as well as the award of attorney’s fees. Mother argues

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that we lack jurisdiction to consider these issues. She contends that
Father’s second notice of appeal challenged only the family court’s
unsigned June 25, 2014 ruling appointing the special commissioner and
awarding an unspecified amount of attorney’s fees and that the appeal
therefore was premature and a nullity. Further, she asserts that because
the deed in lieu of foreclosure was not mentioned in the notice of appeal,
we lack jurisdiction to review it.

¶9 We agree that Father’s second notice of appeal was
ineffective to challenge the award of fees from the unsigned June 25
minute entry. The minute entry did not resolve the amount of attorney’s
fees stemming from Mother’s motion for appointment of a special
commissioner, and it did not contain Rule 78(B) finality language. Father
did not appeal the family court’s August 1 ruling, which resolved the
amount of attorney’s fees related to the June 25 ruling, and the time to do
so has long since passed. We therefore lack jurisdiction to review the
award of fees from Father’s second notice of appeal, and dismiss that
portion of his appeal. We also agree that we lack jurisdiction to review
the deed in lieu of foreclosure. The court ordered the deed in an order
entered May 1, which Father appealed and voluntarily dismissed. He did
not include the May 1 order in his notice of appeal from the June 25 order,
but even had he included the May 1 order, the appeal would have been
untimely.

¶10 But the court also entered a signed order appointing a special
commissioner on June 25. That order was final and appealable, and
Father’s appeal from it was timely. We review measures to enforce prior
orders for an abuse of discretion. See Ariz. R. Fam. Law P. 91(A), (H); cf.
In re Marriage of Priessman, 228 Ariz. 336, 338, ¶ 7 (App. 2011). Abuse of
discretion exists when the record, viewed in a light most favorable to
upholding the court’s decision, demonstrates no evidence to support the
decision. Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999). Mother first
requested a court-appointed special commissioner in 2011 to assist in the
sale of the house, and the court ordered Father to have Mother’s name
removed from the mortgages through refinance, foreclosure, deed in lieu
of foreclosure, sale or short sale within six months after June 15, 2012. As
of June 25, 2014 when the court appointed the special commissioner,
Father still had not complied with the court’s order to remove Mother’s
name from mortgages. Based on the evidence in this record, the trial court
did not abuse its discretion in appointing the special commissioner to
enforce its orders, and we affirm the order.

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II. ATTORNEY’S FEES AWARD IN 1 CA-CV 14-0655 FC

¶11 We next turn to Father’s timely appeal from the two August
4, 2014 rulings awarding attorney’s fees. We review an award of
attorney’s fees under A.R.S. § 25–324 for an abuse of discretion. Rinegar v.
Rinegar, 231 Ariz. 85, 90, ¶ 22 (App. 2012).

¶12 The court may award reasonable attorney’s fees “after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings.” A.R.S.
§ 25-324(A). Either prong of the statute may justify an award. Magee v.
Magee, 206 Ariz. 589, 591 n.1, ¶ 8 (App. 2004). Income disparity may
support an award of attorney’s fees even when the opposing party’s
positions have been reasonable. In re Marriage of Pownall, 197 Ariz. 577,
583, ¶ 29 (App. 2000). When considering the parties’ financial resources
under § 25-324, “the court is obligated to consider factors such as the
degree of the resource disparity between the parties, the ratio of the fees
owed to the assets and/or income of each party, and other similar
matters.” Magee, 206 Ariz. at 592, ¶ 17. The family court need not make
express findings of fact in support of an award unless such findings are
specifically requested. A.R.S. § 25-324(A).

¶13 Here, though the parties did not request and the family
court did not make any findings establishing Mother’s entitlement to fees
under A.R.S. § 25-324(A), the record contains Mother and Father’s
affidavits of financial information, filed within the same year as Mother’s
petitions concerning child support and the marital residence. The
affidavits show significant financial disparity: Father’s income was more
than double Mother’s income. Father listed no outstanding debt in his
affidavit, and Mother listed many thousands of dollars of debt. This
disparity was sufficient to justify an award of fees. See Pownall, 197 Ariz.
at 583, ¶ 29.

¶14 We discern no abuse of discretion in the amount of fees the
court awarded. Father argues that the family court’s August 4 ruling that
awarded Mother $2,928.60 for Mother’s contempt petition for non-
payment of child support permitted recovery of fees only for “pleadings
generated after the child support issue was raised.” He therefore argues
that Mother could only recover fees for the contempt petition itself, but
not time spent on ancillary tasks such as phone calls, emails, or hearing
preparation. The family court considered Father’s objection to Mother’s
request for attorney’s fees and correctly rejected it. The family court’s

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order awarded fees for Mother’s petition and all related legal efforts, and
those fees were reasonable. We discern no abuse of discretion.1

¶15 Father further challenges the reasonableness of the family
court’s August 4 ruling awarding Mother $15,607.38 in attorney’s fees
arising out of Mother’s efforts to remove her name from the mortgages.
He argues that the fees were “excessive” and “exorbitant” because the
court found Mother acted in bad faith. But the court did not find Mother
acted in bad faith, only that Mother had been “somewhat uncooperative,”
and that both parties had “at times, been unreasonable in their positions.”
Father further argues the family court should have reduced the fee award
due to Father’s financial situation. Father also contends Mother’s
counsel’s fee affidavit contained inconsistencies, duplicative entries, and
billed excessive time for drafting the petition and a related motion to
consolidate. Ultimately, the family court exercised its discretion by
awarding Mother $7,662 less than she requested. In view of the fact that
Father created the need for Mother’s attorney’s fees by his long
noncompliance with court orders, we find his arguments unavailing and
perceive no abuse of discretion.

III. REQUEST FOR ATTORNEY’S FEES ON APPEAL

¶16 Mother requests attorney’s fees on appeal pursuant to § 25-
324. In the exercise of our discretion, we deny her request for fees.

1 Father also alerts us to an alleged billing error for a single time
entry, wherein Mother’s counsel’s paralegal’s rate is incorrectly listed as
$90 an hour instead of her usual $80 per hour rate. Examination of the
affidavit, however, shows that although the paralegal’s hourly rate is
listed incorrectly for the one time entry, the mathematical computation of
her fee is correct.

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CONCLUSION

¶17 For the foregoing reasons, we affirm the appointment of the
special commissioner (1 CA-CV 14-0556 FC) and the awards of attorney’s
fees (1 CA-CV 14-0655 FC). We award Mother her costs on appeal upon
compliance with ARCAP 21.

:ama

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