McLaughlin v. McLaughlin

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WAYNE DOUGLAS MCLAUGHLIN, Petitioner/Appellant,

v.

ALIYA MCLAUGHLIN, Respondent/Appellee.

No. 1 CA-CV 22-0763 FC
FILED 9-21-2023

Appeal from the Superior Court in Maricopa County
No. FC2021-094004
The Honorable Rusty D. Crandell, Judge Retired

AFFIRMED

COUNSEL

Wayne Douglas McLaughlin, Prescott
Petitioner/Appellant

Barreda Law, PLLC, Gilbert
By Joshua A. Barreda
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Anni Hill Foster joined.

C A T T A N I, Judge:

¶1 Wayne Douglas McLaughlin (“Father”) appeals the superior
court’s award of attorney’s fees in favor of Aliya McLaughlin (“Mother”) in
this post-decree modification proceeding. For reasons that follow, we
affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Mother and Father have one child together, born in 2013.
Father petitioned to dissolve their marriage the following year. The parties
entered a separation agreement governing legal decision-making and
parenting time, which the superior court adopted as part of the dissolution
decree. The agreement provided for joint legal-decision making, with
Father having final authority, and made Father the primary residential
parent, with Mother having parenting time every other weekend “at all
times under the supervision of the Mother’s Grandmother” or another
agreed-upon family member.

¶3 Mother later explained that her parenting time had not, in
fact, been supervised since at least early 2017, as Father became less
restrictive over time. And beginning in early 2020, Mother’s parenting time
increased (without a formal change in the parenting plan) until, in
September, the parties were exercising essentially equal parenting time.

¶4 This continued for approximately eight months until, in April
2021, Father again began to limit Mother’s parenting time to every other
weekend and, soon thereafter, resumed insisting that Mother’s parenting
time be supervised. At that time, Father justified limiting Mother’s
parenting time based on their child purportedly having issues in school. He
later acknowledged, however, that their child “was doing well in school”
and that the restriction had more to do with his disagreements with
Mother’s significant other.

¶5 Mother filed a petition to modify legal decision-making and
parenting time in June 2021. While the post-decree proceedings were

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pending, in May 2022, Mother obtained an order of protection against
Father based on allegations of domestic violence. And Mother testified at
the hearing on modification that Father had committed acts of domestic
violence against her, which Father denied.

¶6 The superior court ultimately awarded joint legal decision-
making (with the caveat that Father would have sole authority until
Mother’s no-contact order of protection was dismissed or modified to
permit communication). The court expressly found that, notwithstanding
the order of protection, Mother had not proven her allegations of domestic
violence. The court designated Father as the child’s primary residential
parent and granted Mother parenting time every other weekend during the
school year (because greater frequency was not feasible due to the distance
between the parties’ homes), plus two consecutive weeks followed by
alternating weeks over summer vacation. And the court expressly found
that the evidence showed no basis for requiring Mother’s parenting time to
be supervised.

¶7 The court awarded Mother a portion of her attorney’s fees
and costs under A.R.S. § 25-324(A). First, the court found that Father had
“considerably more [financial] resources available” than Mother. Second,
the court found that Father had acted unreasonably during the litigation by
insisting on supervised parenting time without any reasonable basis for it
and by limiting Mother’s parenting time to every other weekend even
during vacations. The court explained that these needless restrictions were
contrary to the child’s best interests, had poisoned the parties’ co-parenting
relationship, and had expanded the litigation.

¶8 Mother filed her application seeking just over $40,000 in
attorney’s fees and costs. The court initially ruled (awarding Mother
$12,000) before the deadline for Father’s objections had passed. On Father’s
motion, the court vacated its initial award to permit consideration of his
objections. Along with numerous objections to individual billing entries,
Father argued that Mother’s litigation strategy improperly “hinged on false
allegations of domestic violence,” and he pointed out that her order of
protection against him had been dismissed after an evidentiary hearing.
After considering Father’s objections, the court awarded Mother $9,000 in
attorney’s fees and costs.

¶9 Father timely appealed the award of attorney’s fees and costs.
We have jurisdiction under A.R.S. § 12-2101(A)(2).

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DISCUSSION

¶10 Father challenges the superior court’s award of attorney’s fees
in favor of Mother and suggests that he should have been awarded fees
instead. In post-dissolution proceedings, the superior court is authorized
to 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). The court
compares “relative financial disparity in income and/or assets” between
the spouses, including each party’s ability to pay their own (and the other’s)
fees and “other similar matters.” Magee v. Magee, 206 Ariz. 589, 589, 592–
93, ¶¶ 1, 17–18 (App. 2004). And the court assesses, under an objective
standard, each party’s reasonableness (or unreasonableness) throughout
the proceedings. In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 10 (App.
2008). We review the resulting award for an abuse of discretion. Murray v.
Murray, 239 Ariz. 174, 179, ¶ 20 (App. 2016).

¶11 First, Father asserts that Mother presented false claims of
domestic violence, which wrongly poisoned the court’s perception of him.
He urges that her domestic-violence allegations in the modification
proceedings and references to the order of protection (which he had not yet
contested at the time of the modification trial) effected a “systematic
destruction of [his] reputation” and thereby tainted the court’s
reasonableness assessment.1

¶12 But in ruling on modification, the court expressly found that
Father “has not engaged in acts of domestic violence against [Mother].”
Moreover, the award of attorney’s fees was not based on any purported
domestic violence but rather on Father’s other actions, including needlessly
restricting Mother’s time with their child for reasons unrelated to the child’s
best interests. Father relies heavily on the fact that Mother’s order of
protection against him was in effect at the time of the hearing on
modification, but the court was aware that the order of protection had been
dismissed before entering the fee award. Father offers only speculation—
belied by the superior court’s express findings and conclusions—that the
court was improperly influenced by Mother’s allegations. And to the extent
Father argues that the court erred by failing to award fees in his favor, he

1 Father also seeks fees, costs, and sanctions against Mother and her
attorney predicated on conduct in the protective-order proceedings and
based on a free-standing allegation of abuse of process. Such claims are
beyond the scope of our review on appeal from the fee judgment in this
case.

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offers no record basis to controvert the court’s findings that neither party
knowingly presented a false claim or filed a groundless, bad faith, or
otherwise improper petition. See A.R.S. §§ 25-415(A), -324(B).

¶13 Second, Father asserts the court erred by finding him
unreasonable in restricting Mother’s parenting time (both requiring
supervision and limiting duration) beginning in April 2021 because such
restrictions were permitted by the parenting-time order then in effect. But
the court appropriately considered the existing factual circumstances,
including Mother’s months-long track record of sharing essentially equal,
unsupervised parenting time without safety concerns. This is especially
significant given Father’s testimony that reinstituting restrictions had more
to do with his interactions with Mother’s significant other than with any
concerns about Mother’s fitness or the child’s interests. The record
supports the court’s conclusion that Father thereby acted unreasonably.

¶14 We note that the court also found Father had substantially
more financial resources than Mother, which (independent of the
reasonableness assessment) supports the award. See A.R.S. § 25-324(A);
Magee, 206 Ariz. at 591, ¶ 8 n.1. Father did not challenge this finding on
appeal until his reply and has thus waived the issue. See Dawson v.
Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007). And although he now
asserts that the fee award works an extreme hardship on him, he did not
raise this argument in superior court (or in his opening brief on appeal),
and we thus do not address it. See Englert v. Carondelet Health Network, 199
Ariz. 21, 26, ¶ 13 (App. 2000).

¶15 Finally, Father argues that the court should have stricken
Mother’s fee application as insufficient because the accompanying affidavit
was not signed and notarized. To be sure, Mother’s attorney should have
signed and notarized the affidavit provided with the application for
attorney’s fees. But the attorney signed the application itself as required
under Rule 26(a)(1) of the Arizona Rules of Family Law Procedure. And
the application was supported not just by the unsigned affidavit, but also
by itemized billing statements as permitted under Rule 78(e)(2) (allowing
submission of “an itemized affidavit or exhibits” to support an application
for attorney’s fees) (emphasis added). The court thus did not err by
considering the application and awarding fees on that basis.

¶16 Mother requests an award of attorney’s fees on appeal under
A.R.S. § 25-324(A). Having considered the relevant factors and in an
exercise of our discretion, we award her costs and a portion of her
attorney’s fees on appeal upon compliance with ARCAP 21.

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CONCLUSION

¶17 The judgment is affirmed.

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

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