Kent v. Kent

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NICHOLE KENT, Petitioner/Appellant,

v.

MICHAEL KENT, Respondent/Appellee.

No. 1 CA-CV 24-0535 FC
FILED 02-25-2025

Appeal from the Superior Court in Maricopa County
No. FN2022-093824
The Honorable Lisa Stelly Wahlin, Judge

VACATED AND REMANDED

COUNSEL

Nichole Kent, Queen Creek
Petitioner/Appellant

Ellsworth Family Law PC, Mesa
By Stephen M. Ellsworth, Glenn D. Halterman
Counsel for Respondent/Appellee
 KENT v. KENT
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge David D. Weinzweig joined.

C A T L E T T, Judge:

¶1 Nichole Kent (“Wife”) appeals an award of attorney fees to
Michael Kent (“Husband”). Wife argues the superior court erred in
omitting specific findings explaining the award. Because Wife requested
specific findings, which the superior court did not provide, we vacate the
judgment awarding Husband attorney fees and remand for the court to
make specific findings.

FACTS AND PROCEDURAL HISTORY

¶2 Wife petitioned to dissolve her marriage to Husband and then
requested “findings of fact and conclusions of law” regarding “all
evidentiary hearings[.]”

¶3 Husband argued the couple had a prenuptial agreement,
which the superior court enforced in a minute entry with finality language
under Arizona Rule of Family Law Procedure 78(c). Husband moved to
amend the ruling to award him attorney fees; similarly, Wife moved to
amend or clarify the ruling to award her attorney fees. The court granted
Wife’s motion to clarify, but it did so to clarify that it was denying Wife’s
fee request. The court also amended the prior minute entry to strike the
Rule 78(c) language and instead add Rule 78(b) language. Wife filed an
appeal, which this court dismissed because the minute entry, even with
Rule 78(b) language, was not appealable.

¶4 Meanwhile, the superior court granted Husband’s motion to
amend, awarded him attorney fees, and ordered him to detail the amount
of fees sought. When Husband gave that detail, Wife objected and
requested “specific findings of fact on each issue presented as arguments
for or against attorney fees.” The court then entered a judgment, without
any finality language, awarding Husband $7,330.00 in fees. The court did
not give specific findings explaining that award.

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 KENT v. KENT
Decision of the Court

¶5 The court then entered a decree of dissolution. Wife moved
to set aside the decree, again pointing out that the court did not provide
specific findings explaining its fee award. The court denied Wife’s motion.
Wife timely appealed; we have jurisdiction. See A.R.S. § 12-2101(A).

DISCUSSION

¶6 Wife argues the court erred by not including specific findings
when awarding attorney fees to Husband and then not remedying that
oversight when Wife pointed it out. We review the denial of a motion to
set aside a judgment for an abuse of discretion. Quijada v. Quijada, 246 Ariz.
217, 220 ¶ 7 (App. 2019).

¶7 The superior court may award attorney fees in dissolution
proceedings “after considering the financial resources of both parties and
the reasonableness of the positions each party has taken throughout[.]”
A.R.S. § 25-324(A). “On request . . . 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.” Id.

¶8 Here, the court never made specific findings explaining why
it awarded Husband attorney fees. Failing to do so was impermissible
because Wife repeatedly requested specific findings. She did so under Rule
82(a) before the first evidentiary hearing. She did so in her response to
Husband’s application for attorney fees. And she did so a third time in her
motion to set aside the divorce decree.

¶9 The court erred by not making specific findings when
requested. See A.R.S. § 25-324(A); Murray v. Murray, 239 Ariz. 174, 179 ¶ 21
(App. 2016) (vacating an attorney fee award because the court “made no
finding[s]”). The court also erred by refusing to set aside the attorney fee
award when Wife pointed out the court’s oversight. See Ariz. R. Fam. Law
P. 85(a) (“A court must correct . . . a mistake arising from oversight or
omission if one is found in a judgment.”).

ATTORNEY FEES AND COSTS

¶10 Both Wife and Husband request attorney fees and costs on
appeal. We deny Husband’s request because he is not the successful party
on appeal. We also deny Wife’s request because she does not cite a
statutory basis for an award. Ariz. R. Civ. App. P. 21(a)(2). But, as the
successful party on appeal, we award Wife costs upon compliance with
Arizona Rule of Civil Appellate Procedure 21.

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Decision of the Court

CONCLUSION

¶11 We vacate the superior court’s judgment awarding attorney
fees to Husband and remand for the court to make the specific findings
required under § 25-324(A).

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

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