Brown v. Smith

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TARA JANE BROWN, Petitioner/Appellee,

v.

JEFFREY R. SMITH, Respondent/Appellant.

No. 1 CA-CV 24-0164 FC
FILED 10-17-2024

Appeal from the Superior Court in Maricopa County
No. FC2012-090788
The Honorable Keith A. Miller, Judge

AFFIRMED

COUNSEL

Alongi Law Firm, PLLC, Phoenix
By Thomas P. Alongi, Elizabeth A. Alongi
Counsel for Petitioner/Appellee

Reynolds Legal Group, PLLC, Flagstaff
By Michael T. Reynolds
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Michael J. Brown and Judge Daniel J. Kiley joined.

W I L L I A M S, Judge:

¶1 Jeffrey Smith (“Father”) appeals the superior court’s
attorney’s fee award to Tara Brown (“Mother”). For the following reasons,
we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Father and Mother married in 1999 and divorced by consent
decree in 2014. Among other things, the parties agreed to a parenting plan
and to share joint legal decision-making authority for their three children.

¶3 In the years that followed, the parents’ willingness to work
together on matters concerning their children eroded, resulting in ongoing
litigation. In 2021, Father petitioned the court to hold Mother in contempt
for failing to include him in decisions about the children’s schooling,
medical care, and activities. Two months later, Mother petitioned to modify
legal decision-making authority and parenting time.

¶4 The court held a trial on both petitions in 2023, denying
Father’s petition for contempt as well as Mother’s request for sole legal
decision-making authority. The court did, however, adjust Father’s
parenting time and child support obligation. And, after finding that both
parents “acted unreasonably in the litigation,” and Father had
“considerably more resources” than Mother, the court ordered Father to
“pay a portion, presumably 40%, of Mother’s reasonable attorney fees and
costs.” The court later awarded Mother $12,500 in fees and costs
(approximately twenty-five per cent of the total amount she requested).

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

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Decision of the Court

DISCUSSION

¶6 Father argues the superior court erred by failing to include
Mother’s current spouse’s income when determining her “financial
resources” for purposes of an award of attorney’s fees under A.R.S. § 25-
324.

¶7 We review an attorney’s fees award for an abuse of discretion,
Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2004), and will not reverse
the award “if there is any reasonable basis for it.” In re Marriage of Gibbs, 227
Ariz. 403, 410, ¶ 20 (App. 2011) (quotation omitted). We interpret the
meaning of a statute de novo. Haag v. Steinle, 227 Ariz. 212, 214, ¶ 9 (App.
2011).

¶8 Section 25-324(A) gives a court discretion to award reasonable
attorney’s fees to either party after considering “the financial resources of
both parties and the reasonableness of the positions each party has taken
throughout the proceedings.” But after considering both, a court may grant
an attorney fee award based upon either factor alone. See Magee v. Magee, 206 Ariz. 589, 591, ¶ 8 n.1 (App. 2004) (“[A]n applicant need not show both
a financial disparity and an unreasonable opponent in order to qualify for
consideration for an award.”). And because Father never requested written
findings of fact nor conclusions of law pursuant to A.R.S. § 25-324(A) or
Arizona Rule of Family Law Procedure 82, the court had no duty to explain
how it allocated the fee award between the two factors. A.R.S. § 25-324(A)
(“On request of a party . . . the court shall make specific findings concerning
the portions of any award of fees and expenses that are based on
consideration of financial resources and that are based on consideration of
reasonableness of positions.”); Ariz. R. Fam. Law. P. 82 (“If requested before
trial, the court must make separate findings of fact and conclusions of
law.”). We presume the superior court found every fact necessary to
support its ruling. Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13 (App. 2001).

¶9 The court found that both parties acted unreasonably, but that
Father had frustrated the discovery process more than Mother had and was
unreasonable more frequently than Mother was:

[Mother] and [Father] acted unreasonably in the litigation.
Specifically, [Mother] and [Father] acted unreasonably by
doing the following: Both parties have been warring on this
case in ways that are unreasonable. Both parties have, at
times, taken precisionist interpretations of the parenting plan
in a way that has multiplied litigation costs. Father has done

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Decision of the Court

this even more frequently than Mother, but Mother has also
been intransigent at times. Additionally, Father obstructed
the discovery process by resisting his scheduled deposition.

Record evidence supports the court’s findings. Consequently, the court was
within its discretion to award Mother attorney’s fees based upon Father’s
unreasonableness alone so long as it also considered the parties’ financial
resources, which the court did. See Magee, 206 Ariz. at 591, ¶ 8 n.1.

¶10 Father focuses his argument on the court’s financial disparity
finding:

[T]here is substantial disparity of financial resources between
the parties. Because of the disparity [Father] has considerably
more resources available to contribute toward [Mother]’s
attorney fees and costs.

¶11 Father provides no legal authority to support his position that
the court was required to consider Mother’s community property interest
in her current spouse’s income, see A.R.S. § 25-211(A), when determining
her “financial resources” under A.R.S. § 25-324. Ariz. R. Civ. App. P.
13(a)(7)(A) (requiring Appellant to provide “citations of legal authorities”
for each issue raised on appeal). But even if, arguendo, the court’s financial
resources finding was error, it would not necessarily invalidate the court’s
attorney fee award based upon its unreasonableness finding, discussed
supra ¶ 9.

¶12 The term “financial resources” is not defined in Title 25. But
Father contends that related Title 25 statutes provide guidance. For
example, though Father concedes a spouse’s income is expressly excluded
from consideration of either parent’s financial resources when determining
child support, see A.R.S. § 25-320 app. (“Guidelines”) § II.A.2.c, he argues
that a spouse’s income is considered for spousal maintenance purposes.
Father relies on A.R.S. §§ 25-319 and -327 to support his position. But A.R.S.
§ 25-319 establishes several factors a court must consider at the time of
divorce when determining whether a spousal maintenance award is
appropriate, and if so, the amount and duration of the award. Section
25-327 addresses modification of a spousal maintenance award post-
divorce, including the general rule that an award terminates upon
remarriage of the party receiving the award, unless otherwise agreed to or
ordered by the court. Section 25-327 makes no mention of either party’s
financial resources as the basis for automatic termination of the award.

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¶13 Father also relies on Noorda v. Rasor, 1 CA-CV 16-0062FC, 2016
WL 7508083 (Ariz. App. Dec. 30, 2016) (mem. decision), to support his
argument. In Noorda, the mother challenged, inter alia, the termination of
her spousal maintenance award upon her remarriage and the court’s failure
to award her attorney’s fees based upon the father’s “unreasonable” failure
to pay child support. Id. at *1, ¶ 7. Concluding that (1) A.R.S. § 25-327(B)
terminated the mother’s spousal maintenance award by operation of law
on the date of her remarriage, and (2) the appellate record contained no
evidence that the father “took an unreasonable position in [the] litigation,”
this court held that the superior court did not abuse its discretion in
declining the mother’s request for attorney’s fees. Id. at *2–3, ¶¶ 10, 21. The
Noorda court made no mention of the mother’s current spouse’s income in
its analysis of either the termination date of spousal maintenance or the
denial of attorney’s fees. See id. Noorda does not support Father’s position.
On this record, Father has shown no error.

CONCLUSION

¶14 We affirm the superior court’s award of attorney’s fees to
Mother. Mother requests an award of attorney’s fees on appeal under A.R.S.
§§ 12-349(A)(1)–(3) and -324. After considering the relevant factors and in
an exercise of our discretion, we deny her request. Because Mother is the
successful party on appeal, she is entitled to recover taxable costs upon
compliance with ARCAP 21. See A.R.S. § 12-342(A).

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

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