Hofstetter v. Hofstetter

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELIZABETH ANN HOFSTETTER, Petitioner/Appellant,

v.

MICHAEL PAUL HOFSTETTER, Respondent/Appellee.
_______________________

BETH JO ZEITZER, Real Estate Special Commissioner, Appellee.

No. 1 CA-CV 25-0833 FC
FILED 08-31-2026

Appeal from the Superior Court in Maricopa County
No. FN2022-050635
The Honorable Cassie Bray Woo, Judge

AFFIRMED

APPEARANCES

The Law Office of Carrie M. Wilcox PLLC, Phoenix
By Carrie M. Wilcox
Counsel for Petitioner/Appellant

Michael Paul Hofstetter, Phoenix
Respondent/Appellee

Nach, Rodgers, Hilkert & Santilli, Phoenix
By Stuart B. Rodgers
Counsel for Appellee Real Estate Special Commissioner

HOFSTETTER v. HOFSTETTER
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered Court’s decision in which Presiding
Judge Daniel J. Kiley and Judge Cynthia J. Bailey joined.

W I L L I A M S, Judge:

¶1 Elizabeth Ann Hofstetter (“Wife”) appeals the award of
attorneys’ fees to Beth Jo Zeitzer, a Real Estate Special Commissioner (the
“RESC”) appointed to sell the marital home as part of Wife and Michael
Paul Hofstetter’s (“Husband”) dissolution of marriage. Discerning no error,
we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In February 2024, Husband and Wife divorced. As part of the
dissolution decree, the superior court ordered Husband to refinance the
mortgage on the marital home—but if he could not, it was to be sold.
Husband never refinanced the home, so the court appointed a RESC to sell
it (“appointment order”). See Ariz. R. Fam. Law P. 95(g) (court may appoint
a RESC to assist “in dividing and disposing of community real property”).
The appointment order set forth certain terms including, as relevant here,
that the home be maintained in a “market-ready condition” and that it be
accessible for showings. To that end, the order also directed the parties to
give the RESC a key “within 48 hours of request,” “permit placement of a
lockbox,” and allow the RESC access to the home “for a minimum of five
hours daily.”

¶3 Wife promptly moved the superior court to vacate those
terms and instead adopt Wife’s suggested terms. But the RESC objected,
claiming Wife’s terms were too restrictive and interfered with the RESC’s
duties. Husband also objected. The court denied Wife’s motion, as well as
her subsequent motion for reconsideration.

¶4 A month later, the RESC, through her attorney, provided a
written update of concerns to the superior court. The RESC reported that
Wife would only meet after business hours, would not allow photos of the
home other than to document specific damage, and had yet to provide keys
to the home or allow a lockbox. The RESC asked the court to order Wife to
comply and requested a hearing and attorneys’ fees as a sanction if Wife

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failed to do so. The court scheduled a status conference in May 2024, and
ordered Wife to hand over the keys within two days and maintain the home
in show-ready condition (the “May order”).

¶5 Wife’s attorney appeared on her behalf at the status
conference. And by the time the hearing began, Wife had turned over the
key to the home and agreed to sign the listing agreement.

¶6 In June 2024, the superior court held an evidentiary hearing
to address Wife’s petition for contempt against Husband for his failure to
satisfy various financial obligations related to the home. The court denied
Wife’s request for attorneys’ fees at that hearing, finding Wife unreasonably
delayed the listing and sale of the home and “repeatedly object[ed]” to the
stipulated RESC.

¶7 In September 2024, the RESC petitioned for an order to show
cause (“OSC”) based, in part, on Wife’s failure to comply with the May
order to maintain the home in show-ready condition. The RESC requested
sanctions and attorneys’ fees. With her motion, the RESC included
correspondence with Wife and Wife’s attorney disputing the terms of the
May order. The court scheduled an evidentiary hearing to address the
RESC’s OSC petition. Separately, Husband petitioned for contempt
alleging, among other things, that Wife failed to comply with orders
regarding the sale of the home and delayed the sales process. The court
scheduled a separate hearing on Husband’s petition.

¶8 At the evidentiary hearing on the RESC’s petition, the parties
agreed: (1) to specific terms for pricing and showing times, (2) that the RESC
could file an application for attorneys’ fees pursuant to China Doll 1 , and (3)
that the superior court would decide the reasonableness of the RESC’s
attorneys’ fees, including the apportionment between Husband and Wife.
The court endorsed the parties’ prepared order, which also stated that the
RESC’s attorneys’ fees “shall be paid” from the home’s sale proceeds, but
the parties would be liable for any shortfall. By the next status conference,
the parties were compliant with the stipulated order. Wife raised no
objection to the RESC appearing with counsel or when the RESC’s attorney
stated his intent to seek attorneys’ fees after the home sold.

¶9 Shortly after the home sold, the RESC filed an application for
attorneys’ fees requesting $10,919 in fees and $474.82 in costs. The RESC
also filed an emergency application for the superior court to order the title

1 Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183 (App. 1983).

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company to hold back $16,000 from the sale proceeds until the court had a
chance to rule on the fee application. The court granted the hold back
request. Wife objected to the fee application and moved to set aside the hold
back order. In both pleadings, Wife argued for the first time that the court
lacked any authority to award fees to the RESC. Wife also requested a
hearing.

¶10 The superior court rejected Wife’s contention that it lacked
authority to award attorneys’ fees to the RESC. The court noted that the
appointment order required the parties to cooperate with the RESC and
authorized sanctions for any noncompliance or unreasonable conduct.
Moreover, the court concluded that the parties stipulated the RESC could
apply for attorneys’ fees and the court would determine the reasonableness
of them. The court found that this stipulation waived any challenge to the
court’s authority to award attorneys’ fees to the RESC because it resolved
the RESC’s OSC petition, which also requested fees. The court also found
that Wife was not entitled to a hearing on sanctions because the prior
hearings and pleadings showed Wife’s unreasonableness. The court denied
Wife’s subsequent motion to alter or amend these orders.

¶11 Before the superior court signed an appealable order, the title
company moved to intervene and interplead the funds. The court denied
the motion but ordered the title company to release the funds to the RESC,
which it did. Wife timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(2).

DISCUSSION

I. The Appeal is not Moot.

¶12 The RESC argues that this appeal is moot because: (1) the title
company already released the funds to her, (2) she was discharged, and (3)
Wife did not post a supersedeas bond. A moot case is one asking the court
to decide “an abstract question which does not arise upon existing facts or
rights” or one where the decision would not affect the parties. Freeman v.
Wintroath Pumps-Div. of Worthington Corp., 13 Ariz. App. 182, 183 (1970);
Vinson v. Marton & Assocs., 159 Ariz. 1, 4 (App. 1988).

¶13 The failure to post a supersedeas bond does not moot the
appeal. Hall v. World Sav. & Loan Ass’n, 189 Ariz. 495, 504 (App. 1997)
(rejecting argument that failing to file supersedeas bond bars relief);
Freeman, 13 Ariz. App. at 183 (same). Nor does the fact that the RESC was
paid render the appeal moot or deprive Wife of her right to appeal. Id.
(holding payment of a judgment does not render the appeal moot). The

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failure to post a bond and the payment of the judgment would only make
recovery harder for Wife should she prevail. Id.

II. The Superior Court Did Not Err in Awarding Attorneys’ Fees as a
Contempt Sanction.

¶14 We review an award of attorneys’ fees as a contempt sanction
for an abuse of discretion. Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 9 (App.
2010). But whether the superior court had legal authority to award fees in
the first instance is a question of law we review de novo. Kaufmann v.
Cruikshank, 222 Ariz. 488, 488–89, ¶ 1 (App. 2009). We review the denial of
Wife’s motion to alter or amend under an abuse of discretion standard.
Wisniewski v. Dolecka, 251 Ariz. 240, 241, ¶ 5 (App. 2021).

¶15 Wife contends the superior court lacked authority to award
attorneys’ fees to the court-appointed RESC. An award of attorneys’ fees
must be based on a contract, statute, or court rule. Kaufmann, 222 Ariz. at
490, ¶ 7. The court based the fee award on Wife’s violation of the
appointment order, finding Wife’s conduct constituted contempt under
Arizona Rule of Family Law Procedure (“Rule”) 92. We agree that the court
properly relied on Rule 92 and its inherent contempt powers to authorize
the fee award.

¶16 Under Rule 92, the superior court may sanction a party for
failing to comply with a court order. Ariz. R. Fam. Law P. 92(a)(1). Those
sanctions may include an award of attorneys’ fees. Ariz. R. Fam. Law P.
92(e)(2). Rule 92(e)(2) grants the court wide latitude in determining
appropriate sanctions and does not preclude an award of attorneys’ fees to
a court-appointed special commissioner. See Berry v. 352 E. Virginia, L.L.C.,
228 Ariz. 9, 15, ¶ 31 (App. 2011). Moreover, the appointment order
authorized an award of attorneys’ fees and an order “holding [the]
disobedient party liable for the [RESC]’s time and costs incurred in
obtaining compliance and/or requesting a hearing with the Court.” Thus,
Wife had notice that the court may award attorneys’ fees to the RESC as a
potential sanction.

¶17 The appointment order required the parties to cooperate with
the RESC by signing necessary documents, providing access, and
facilitating showings. Because Wife had not complied with the appointment
order, the court granted the RESC’s request for a hearing in May. Wife
eventually agreed to hand over a key and sign the listing agreement at the
May hearing. The May order also required Wife to maintain the home in
show-ready condition from nine a.m. to four p.m. every day.

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¶18 Wife disputed the terms of the showing requirements. The
RESC asked Wife to abide by the May order and their subsequent
agreement to show the home from nine a.m. to four p.m. on weekdays and
from noon to four p.m. on weekends with two hours’ notice. But Wife
demanded that showings take place from three to eight p.m. Monday,
Tuesday, and Friday, and four to nine p.m. on Wednesday and Thursdays
with four hours’ notice. Wife also refused to vacate the home for showings.
Again, the RESC could not compel Wife’s compliance on her own and
requested court intervention, this time by filing an OSC petition. At the time
set for an evidentiary hearing on the RESC’s OSC petition, the parties
entered a stipulated agreement and the court issued an order reflecting that
agreement to resolve the OSC petition. Wife agreed to longer showing times
and shorter notice period.

¶19 On appeal, Wife misstates the record. The superior court set
the October evidentiary hearing in response to the RESC’s OSC petition, for
which Wife agreed to accept service. The court also set forth written
findings about Wife’s contemptuous conduct. Thus, we reject Wife’s
contention that these procedural requirements were not met. See Ariz. R.
Fam. Law P. 92(b), (e).

¶20 Even if the OSC petition did not expressly request a contempt
sanction or cite Rule 92, the superior court has inherent authority to impose
contempt sanctions for a party who fails to comply with its orders. Owen v.
City Ct. of Tucson, 123 Ariz. 267, 269 (1979) (holding courts have inherent
powers “as are necessary to the ordinary and efficient exercise of
jurisdiction[,]” including the power of contempt); see also Green v. Lisa Frank,
Inc., 221 Ariz. 138, 152, ¶ 37 (App. 2009) (holding court has “inherent
authority to sanction parties for failing to comply with its orders”). Thus,
the court had authority to impose attorneys’ fees as a contempt sanction for
Wife’s failure to comply with the appointment and May orders.

III. The Stipulated Order Reserved Only Objections to the Amount
and Allocation of Attorneys’ Fees.

¶21 The RESC’s OSC petition requested attorneys’ fees as
provided in the appointment order. To resolve the OSC petition, the parties
agreed to several terms related to the sale of the home. They also agreed:
(1) the RESC “may file an Application for and Affidavit on attorney fees
pursuant to China Doll as and for the [RESC’s] attorney fees”; (2) the parties
may respond and the court would “determine the reasonableness of the fees
and the apportionment of the attorney fees between Husband and Wife”;
and (3) the RESC’s fees “shall be paid” from the sale proceeds, but the

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parties would be liable for any shortfall. We agree with the superior court’s
finding that the stipulation waived Wife’s claim that the RESC was not
legally entitled to an award of attorneys’ fees.

¶22 Wife argues that if she intended to waive objections to the
authority to award fees, then there would be no reason for a fee application
and response. We disagree. The RESC was still required to show the
reasonableness and amount of the fee request. Although the parties
reserved their right to respond, the only issues they left for the superior
court to decide were the reasonableness of the fee request and the
allocation. This reservation of specific issues suggests that the parties
waived the right to raise other issues in their responses. See Est. of Tovrea v.
Nolan, 173 Ariz. 568, 573 (App. 1992) (applying the doctrine
of expressio unius est exclusio alterius, i.e., “the statement of one exception
implicitly denies the existence of other unstated exceptions,” in a contract
case). That is, the stipulated order implies the parties agreed that the RESC
was entitled to attorneys’ fees in an amount to be determined once she filed
an application. They reserved the right to object to the reasonableness and
the allocation of the fees only.

¶23 “[P]arties are bound by their stipulation unless relieved
therefrom by the court.” Pulliam v. Pulliam, 139 Ariz. 343, 345 (App. 1984).
Stipulations are favored by courts “because they reduce the time of trial and
narrow the issues.” Id. (emphasis added). The stipulated order did just that.
It determined the RESC was entitled to fees but preserved the right to
challenge the reasonableness of the fee request and the allocation between
the parties. Wife has shown no grounds to relieve her of this agreement.

IV. Wife Waived Her Right to a Hearing on the RESC’s Fee
Application.

¶24 Finally, Wife argues that due process obligated the superior
court to hold an evidentiary hearing before ordering sanctions. Due process
requires notice and a meaningful opportunity to be heard in person
“whenever resolution of a material contested issue hinges on credibility.”
Volk v. Brame, 235 Ariz. 462, 466, ¶ 14 (App. 2014). But Wife waived her right
to challenge the factual basis of her contemptuous conduct by stipulating
that the RESC was entitled to attorneys’ fees in an amount to be determined.
See supra, ¶¶ 21–23. Wife could contest the amount requested in the RESC’s
fee application and the allocation of the fees between her and Husband. She
did neither in response to the RESC’s fee request. Therefore, she also
waived these objections.

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V. Attorneys’ Fees and Costs on Appeal

¶25 The RESC requests attorneys’ fees as a sanction under
Arizona Rule of Civil Appellate Procedure (“ARCAP”) 25. ARCAP 25
authorizes sanctions if an appeal is frivolous or filed solely for the purpose
of delay. We cannot say the appeal was filed solely for delay because the
RESC’s attorneys’ fees have been paid. But the appeal was frivolous. Wife’s
interpretation of the stipulated order was not supported by any reasonable
legal theory. See Matter of Levine, 174 Ariz. 146, 153 (1993) (holding that, for
purposes of ARCAP 25, an appeal is frivolous if it raises issues that are not
supported by any reasonable legal theory or presents arguments about
which no reasonable attorneys could differ). She sought to raise issues
waived in the stipulated order. Additionally, on appeal, Wife claimed she
was entitled to an award of attorneys’ fees based on statutes she previously
argued did not apply, e.g., A.R.S. §§ 25-324, 12-341.01. The RESC is entitled
to an award of attorneys’ fees and costs on appeal upon compliance with
ARCAP 21.

CONCLUSION

¶26 We affirm the award of attorneys’ fees to the RESC and grant
the RESC’s request for attorneys’ fees and costs on appeal.

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

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