Salus v. Mata

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SARRAH SALUS, Petitioner/Appellee,

v.

ERNESTO MATA, Respondent/Appellant.

No. 1 CA-CV 22-0258 FC
FILED 6-1-2023

Appeal from the Superior Court in Maricopa County
No. FC2019-053504
The Honorable John R. Doody, Judge Pro Tempore

AFFIRMED

COUNSEL

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

Rose and Associates, PLLC, Chandler
By Timothy J. Rose
Counsel for Respondent/Appellant
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MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Angela K. Paton joined.

W I L L I A M S, Judge:

¶1 Ernesto Mata (“Father”) appeals three separate awards of
attorney’s fees and costs to Sarrah Salus (“Mother”). For reasons that
follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The First Award

¶2 Mother and Father never married but have one child in
common, born in 2018. In 2019, Mother petitioned the superior court to
establish paternity and issue legal decision-making, parenting time, and
child support orders. About a year later, before the court had issued any
order on Mother’s petition, Father moved for emergency temporary orders,
alleging Mother had, among other things, “recklessly” placed the child in
“physical harm,” including exposing the child to COVID-19 while traveling
out-of-state for a family member’s funeral. The court held an evidentiary
hearing on Father’s motion, largely denying it, and later held a trial on
Mother’s petition. In December 2020, the court issued its final order on
Mother’s petition. As part of its final order, the court denied both parties’
requests for attorney’s fees.

¶3 Within weeks, Mother moved the superior court to amend its
order, including its denial of Mother’s request for attorney’s fees, based
upon newly discovered evidence related to Father’s emergency motion for
temporary orders. Mother alleged that Father’s motion was made in “bad
faith,” and that shortly after Father filed his motion, he traveled out-of-state
to visit his girlfriend—a nurse who actively worked with COVID-19
patients—and then exercised parenting time with the child immediately
afterwards. Mother also alleged that Father manipulated and threatened his
girlfriend to conceal this fact, as well as other instances of domestic
violence, from the court.

¶4 The superior court held an evidentiary hearing on Mother’s
motion to amend in early 2021. The court found that Father’s conduct had

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been “egregious”; that Father “[lied] to Mother and the Court”; that Father
“emotionally manipulated” his girlfriend to conceal his domestic violence
against her, including domestic violence in front of the child; and that
Father violated a previous court order. The court stated it “never would
have denied Mother’s original request for attorney’s fees had it been aware
of [Father’s] conduct.” The court directed Mother to submit an affidavit for
attorney’s fees for “all work performed on this case.” Mother complied,
requesting $65,641.60 in attorney’s fees. Father objected. The court awarded
Mother $39,284.00 in attorney’s fees.

The Second Award

¶5 A few months later, Mother petitioned the court to enforce
child support when Father failed to make support payments for three
months. She also requested attorney’s fees related to the newly filed
petition. The parties reached an Arizona Rule of Family Law Procedure
(“ARFLP”) 69 agreement on the issue, and the court scheduled an
enforcement hearing a few months later “to make sure that Father was
performing his obligations under the Rule 69 agreement.” About a month
after the hearing, Mother filed an application for attorney’s fees and costs
requesting $1,840.00. The court granted Mother’s request, finding, in part,
“Father and his attorney asserted unreasonable positions at the review
hearing.”

¶6 Mother submitted a prepared order for the court’s signature,
which the court endorsed. Father moved for relief arguing that Mother’s
request for attorney’s fees was untimely under ARFLP 78(e)(3) because it
was filed more than fifteen days after the court issued its minute entry. The
court denied Father relief.

The Third Award

¶7 In late 2021, Father petitioned the superior court to modify
child support under the simplified process, alleging that there had been a
substantial and continuing change of circumstances since the last child
support order based upon his change in employment and reduction in
income. Following an evidentiary hearing, the court denied Father’s
petition, finding that no substantial and continuing change of
circumstances had occurred, and that even viewing the evidence in a light
most favorable to Father, his modified child support obligation would
differ from his current obligation by less than 3%. The court granted Mother
her attorney’s fees and costs over Father’s objection but awarded only
$4,500.00 of the $5,112.00 Mother requested. In its order, the court stated

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“[t]his judgment is entered in the nature of child support and as such is
enforceable by all legal remedies, including the court’s contempt power.”

¶8 Father timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and
-2101(A)(1).

DISCUSSION

¶9 Section 25-324(A) gives the superior court discretion to award
attorney’s fees and costs after considering (1) “the financial resources of
both parties” and (2) “the reasonableness of the positions each party has
taken throughout the proceedings.” We review each of the court’s awards
of attorney’s fees and costs for an abuse of discretion. Myrick v. Maloney, 235
Ariz. 491, 494, ¶ 6 (App. 2014).

I. The First Award

¶10 Father contends that $39,384.00 was an unreasonable amount
for the superior court to award Mother because Mother had only accrued
$8,052.46 in attorney’s fees as of August 2020, but that amount increased to
$65,641.60 eight months later, “an increase of 800%.” Father does not
explain why $39,384.00 was unreasonable, only that the percentage of the
increase in fees over several months was unreasonable. But on appeal,
Father does not object to specific billing entries, identify any duplication or
unreasonable billing practices, or raise other factual issues with the amount
of fees billed. And the $8,052.46 of attorney’s fees Mother had accrued by
August 2020 did not include attorney’s fees incurred for the trial on
Mother’s petition, for subsequent investigation into Father’s deceptive
behaviors connected to his motion for emergency temporary orders, for
Mother’s motion to amend the court’s judgment, or for the evidentiary
hearing held on Mother’s motion to amend.

¶11 Father also claims that the superior court did “not rule on” his
objection to Mother’s request. Though the court’s order awarding Mother
$39,384.00 does not expressly state that the court considered Father’s
written objection, the court clearly did as evinced by the court awarding
$26,257.60 less than Mother requested.

¶12 Father further argues that the superior court erred because it
failed to explain what made the award of $39,384.00 reasonable. But the
court is not required to make specific factual or legal findings when
awarding attorney’s fees under A.R.S. § 25-324. MacMillan v. Schwartz, 226
Ariz. 584, 592, ¶ 39 (App. 2011). Regardless, the court stated it considered

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both parties’ financial resources and found that “Father’s financial
resources are superior to those of Mother.” The court also identified several
specific acts of dishonest behavior by Father, supra ¶ 4, which ultimately
caused Mother to accrue more in attorney’s fees in uncovering Father’s
“egregious” behavior and litigating over it. Father has shown no error.

II. The Second Award

¶13 Mother requested attorney’s fees in her petition to enforce
child support. At the enforcement hearing, the superior court expressed its
reluctance to award those fees but invited Mother to “[g]o ahead and file
your [] motion, I guess, but I’m going to look at it real hard.” The court
subsequently issued an unsigned minute entry on the child support issue
but did not address attorney’s fees. Nearly a month later, Mother again
petitioned for attorney’s fees and costs, requesting $1,840.00. The court
granted Mother’s request based upon Father and his attorney’s conduct at
the hearing, supra ¶ 5.

¶14 Father contends that Mother was obligated under ARFLP 78
to file her petition for attorney’s fees within fifteen days of the court’s
minute entry.

¶15 ARFLP 78(e)(3) provides:

The determination of attorney fees, costs, and expenses must
be included in the judgment or as otherwise ordered by the
court. If a party asserts a claim for attorney fees, costs, and
expenses under subpart (e)(1), and a judgment is entered
under this rule that omits a ruling on the claim, the claim is
deemed denied unless the party files a timely Rule 83 motion
within 15 days after entry of the judgment.

¶16 The fifteen-day requirement for requesting attorney’s fees
and costs under ARFLP 78(e)(3) applies specifically to Rule 78 judgments.
Judgments include, inter alia, “decision[s] defining or modifying . . . child
support.” ARFLP 78(a)(1). On the other hand, Rule 78 “decisions” include
“a written order, ruling, or minute entry that adjudicates at least one claim
or defense.” ARFLP 78(a)(2). The minute entry here looks more like a
decision and less like a judgment. That distinction is worth noting because
Rule 78’s fifteen-day requirement for Mother to request her attorney’s fees
and costs expressly applies to “judgments” (with no mention of
“decisions”). Regardless, the court never signed the minute entry, nor did
the minute entry contain any Rule 78(b) or (c) finality language. See ARFLP
78(g)(1) (“All judgments must be in writing and signed by a judge or court

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commissioner duly authorized to do so.”). The fifteen days did not begin to
run upon the court’s issuance of the minute entry. Mother’s subsequent
petition for attorney’s fees and costs was not untimely. On this record,
Father’s argument fails.

III. The Third Award

¶17 Father next argues that the superior court abused its
discretion by awarding Mother attorney’s fees stemming from Father’s
unsuccessful petition to modify child support.

¶18 Father filed his petition under the simplified procedure:

[A] parent . . . may request the court to modify a child support
order if application of the guidelines results in an order that
varies 15% or more from the existing amount. A fifteen
percent variation in the amount of the order will be
considered evidence of substantial and continuing change of
circumstances.

...

The simplified procedure also may be used by [a] parent . . .
to modify a child support order to assign or alter the
responsibility to provide medical insurance for a child who is
subject of a child support order. A modification of the medical
assignment or responsibility does not need to vary by 15% or
more from the existing amount to use the simplified
procedure.

See A.R.S. § 25-320 app. (2018) (“Guidelines”) § 24(B). The parties stipulated
to using the Guidelines and child support calculator that existed at the time
Father filed his petition.

¶19 The superior court found that Father failed to show a
substantial and continuing change of circumstances between the initial
child support order and his petition to modify. See A.R.S. §§ 25-327, -503,
Guidelines § 24(A), (B). The court stated that under the simplified process,
“Father had the burden to show that the application of the Guidelines
results in an order that varies 15% or more from an existing amount.” And
that “even after viewing the evidence in the light most favorable to Father,
. . . Father’s modified child support obligation would differ from his current
obligation by less than [3%].” Mother, as the prevailing party, requested her

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attorney’s fees and costs. Over Father’s objection, the court awarded
Mother $4,500.00.

¶20 Father contends it was error for the superior court to find no
substantial change in circumstances because his change of employment
resulted in a loss of health insurance coverage for the child. See Guidelines
§ 24(B) (“A modification of the medical assignment or responsibility does
not need to vary by 15% or more from the existing amount to use the
simplified procedure.”)

¶21 Though Father briefly mentioned a change in his health
insurance at the evidentiary hearing, Father did not claim in his petition
that a change in the child’s health insurance was a basis for modification,
nor did Father’s child support worksheet he submitted with that petition
indicate any change in the child’s health insurance coverage. To the
contrary, Father’s own child support worksheet credits him with $660.00
monthly for the child’s health insurance cost and Father’s financial affidavit
expressly states that the child is covered under Father’s health insurance.
On this record, Father has shown no error.

¶22 Finally, Father takes issue with the superior court’s order that
Mother’s $4,500.00 attorney’s fees award “is entered in the nature of child
support . . . .” But Father provides no legal authority to support his position.
ARCAP 13(a)(7)(A) (requiring arguments on appeal to contain “supporting
reasons for each contention, and with citations of legal authorities . . . on
which appellant relies”).

IV. Attorney’s Fees on Appeal.

¶23 Both parties request attorney’s fees on appeal under A.R.S.
§ 25-324(A). Having considered both parties’ financial resources and the
reasonableness of positions taken, in our discretion we grant Mother’s
request for reasonable attorney’s fees and costs upon compliance with
Arizona Rule of Civil Appellate Procedure 21.

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CONCLUSION

¶24 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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