Myrick v. Maloney

IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

QUENTIN BARRY MYRICK,

Petitioner/Appellee,

v.

VICTORIA K. MALONEY,

Respondent/Appellant.

No. 2 CA-CV 2014-0019

Filed August 29, 2014

Appeal from the Superior Court in Pima County

No. SP20030562

The Honorable Dean Christoffel, Judge Pro Tempore

AFFIRMED

COUNSEL

The Reyna Law Firm, P.C., Tucson

By Ron Reyna

Counsel for Petitioner/Appellee

Pahl & Associates, Tucson

By Danette R. Pahl

Counsel for Respondent/Appellant

OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which

Presiding Judge Miller and Judge Espinosa concurred.

MYRICK v. MALONEY

Opinion of the Court

E C K E R S T R O M, Chief Judge:

¶1 Appellant Victoria Maloney appeals the denial of her

request for attorney fees in a proceeding to modify parenting time

and child support.1 We affirm for the reasons that follow, and we

issue an opinion to remove possible confusion regarding fees in this

context. See Ariz. R. Sup. Ct. 111(a), (b) (publication appropriate to

clarify law or call attention to laws generally overlooked).

Factual and Procedural Background

¶2 The current proceedings began in June 2013 when

appellee Quentin Myrick filed a petition to modify parenting time

pursuant to A.R.S. § 25-403. Maloney filed a response that included

a petition to modify child support pursuant to A.R.S. §§ 25-327 and

25-403.09. In her filing, she requested an award of attorney fees,

citing A.R.S. §§ 25-324(A) and 25-403.08 as grounds for the award.

¶3 Maloney has not provided this court with the transcript

of the hearing on the petitions, but the trial court’s minute entry

indicates it addressed the topic of attorney fees at that hearing. The

court granted Maloney leave to file an affidavit supporting her

request, and in that affidavit she sought nearly $5,800. Maloney

argued she was entitled to the award because she had “substantially

fewer resources to pay her attorney’s fees,” with Myrick earning “in

excess of $7,000 per month” while she was “a full-time student”

with a monthly income of only $1,350. Myrick opposed the request

on the ground that Maloney’s unreasonable positions had

necessitated the proceedings.

1 While Maloney technically sought both attorney fees and

costs, which are generally distinct items, see Spanier v. U.S. Fid. &

Guar. Co., 127 Ariz. 589, 598, 623 P.2d 19, 28 (App. 1980), we refer to

them collectively as “attorney fees” or “fees” in this opinion, both

for ease of reference and because the actual attorney fees here

represented the bulk of the claimed expenses. See A.R.S. § 25-324(C)

(including “attorney fees” among “costs and expenses” recoverable

under domestic relations statute).

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MYRICK v. MALONEY

Opinion of the Court

¶4 Maloney did not ask the trial court to make findings of

fact and conclusions of law, as permitted by Rule 82(A), Ariz. R.

Fam. Law P., and she did not file a reply to Myrick’s objection. In a

signed ruling entered in November 2013, the court denied

Maloney’s request without making any express findings. This

appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-

120.21(A)(1) and 12-2101(A)(2).

Discussion

¶5 Maloney contends the trial court abused its discretion

by denying her request for fees. In reviewing the court’s ruling, we

examine the separate statutes on which the request was based.

Section 25-324

¶6 A party in a proceeding to modify parenting time or

child support may recover fees under § 25-324(A). The statute

provides:

The court from time to time, after

considering the financial resources of both

parties and the reasonableness of the

positions each party has taken throughout

the proceedings, may order a party to pay a

reasonable amount to the other party for

the costs and expenses of maintaining or

defending any proceeding under [A.R.S.

§§ 25-301 through 25-381.24] or [A.R.S.

§§ 25-401 through 25-415]. On request of a

party or another court of competent

jurisdiction, 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. The court may

make these findings before, during or after

the issuance of a fee award.

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MYRICK v. MALONEY

Opinion of the Court

§ 25-324(A). We review a trial court’s ruling on a fee request under

§ 25-324(A) for an abuse of discretion. Mangan v. Mangan, 227 Ariz.

346, ¶ 26, 258 P.3d 164, 170 (App. 2011).

¶7 As she did below, Maloney suggests she is entitled to an

award of attorney fees because of the disparity in the parties’

incomes. In support of her argument, she relies on this court’s

statement that “‘[i]t is an abuse of discretion to deny attorney’s fees

to the [party] who has substantially fewer resources, unless those

resources are clearly ample to pay the fees.’” In re Marriage of

Robinson & Thiel, 201 Ariz. 328, ¶ 21, 35 P.3d 89, 96 (App. 2001),

quoting Roden v. Roden, 190 Ariz. 407, 412, 949 P.2d 67, 72 (App.

1997). This statement, however, does not accurately reflect our

current law. Our disposition in Robinson made it unnecessary to

clarify or amplify the point, as we could affirm the trial court there

even assuming arguendo that the statement was true. See id. ¶¶ 20-

22. For that reason, we have since cautioned litigants against taking

our reasoning in that case out of context. See Magee v. Magee, 206

Ariz. 589, ¶¶ 15-16, 81 P.3d 1048, 1051 (App. 2004) (“It is important

to note . . . that the Robinson court was reviewing for an abuse of

discretion, not establishing predicate statutory eligibility.”).

¶8 When Robinson repeated the above quotation from

Roden, we did not expressly note that Roden had addressed a prior

version of § 25-324. See Robinson, 201 Ariz. 328, ¶¶ 21-22, 35 P.3d at

96; Roden, 190 Ariz. at 412, 949 P.2d at 72, quoting 1973 Ariz. Sess.

Laws, ch. 139, § 2. An amendment in 1996 added the reasonableness

of the parties’ positions as a second factor to consider when

determining whether to award fees. 1996 Ariz. Sess. Laws, ch. 145,

§ 9. Roden was thus partly superseded by this amendment, as were a

number of other cases stating that the parties’ financial resources are

the exclusive or predominant consideration for such an award. E.g.,

Pearson v. Pearson, 190 Ariz. 231, 236-37, 946 P.2d 1291, 1296-97 (App.

1997) (“‘[T]he focus [is] on the parties’ relative abilities to pay the

fees incurred’ in accord with . . . section 25-324.”), quoting Hrudka v.

Hrudka, 186 Ariz. 84, 94-95, 919 P.2d 179, 189-90 (App. 1995); Burnette

v. Bender, 184 Ariz. 301, 305, 90 P.2d 1086, 1090 (App. 1995) (“‘Under

§ 25-324, the court’s sole consideration relates to the parties’

financial resources.’”), quoting Rowe v. Rowe, 154 Ariz. 616, 622, 744

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MYRICK v. MALONEY

Opinion of the Court

P.2d 717, 723 (App. 1987); Standage v. Standage, 147 Ariz. 473, 477-78,

711 P.2d 612, 616-17 (App. 1985) (“The sole consideration for the

awarding of attorney’s fees is the ‘financial resources’ of the

parties.”).

¶9 As we explained in Magee, § 25-324 does not require “a

showing of actual inability to pay as a predicate” for an award; “all a

[party] need show is that a relative financial disparity in income

and/or assets exists between the [parties].” 206 Ariz. 589, ¶ 1, 81

P.3d at 1048. But such a disparity alone does not mandate an award

of fees. “[T]he reasonableness of the positions each party has taken”

is an additional consideration under the current statute. § 25-324(A);

see Mangan, 227 Ariz. 346, ¶ 27, 258 P.3d at 171; Gutierrez v. Gutierrez,

193 Ariz. 343, ¶ 34, 972 P.2d 676, 684 (App. 1998). And, as the plain

language of § 25-324(A) makes clear, a trial court has the discretion

to deny a fee request even after considering both statutory factors.

See § 25-324(A) (“[t]he court from time to time . . . may order” one

party to pay a reasonable amount toward the attorney fees of the

other) (emphasis added); Alley v. Stevens, 209 Ariz. 426, ¶ 12, 104

P.3d 157, 160 (App. 2004) (noting “court may . . . award one party

attorney’s fees, but . . . is not required to do so”).

¶10 On the question of reasonableness, Maloney complains

that “the trial court made no findings whatsoever to support its

decision not to award fees.” She specifically contends that “[i]t was

an abuse of discretion for the trial court to deny [her] request for

attorney’s fees and costs . . . where there were no findings to support

a ruling that [she] behaved in an unreasonable manner that

prolonged the litigation.” We reject this argument. “There is no

obligation for the trial court to make findings of fact under . . . § 25-

324” in the absence of a request. MacMillan v. Schwartz, 226 Ariz.

584, ¶ 39, 250 P.3d 1213, 1221 (App. 2011). Furthermore, a party

cannot challenge the lack of findings when none have been

requested. See id.; see also Trantor v. Fredrikson, 179 Ariz. 299, 301, 878

P.2d 657, 659 (1994); In re Marriage of Pownall, 197 Ariz. 577, ¶ 27, 5

P.3d 911, 917 (App. 2000). Assuming, without deciding, that this

court could direct the trial court to make specific findings under

§ 25-324(A), we would decline to do so in the interest of procedural

regularity.

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MYRICK v. MALONEY

Opinion of the Court

¶11 “[T]he general law in Arizona [is] that a party must

timely present h[er] legal theories to the trial court so as to give [it]

an opportunity to rule properly.” Payne v. Payne, 12 Ariz. App. 434,

435, 471 P.2d 319, 320 (1970). An appellant also has an obligation to

provide transcripts and other documents necessary to consider the

issues raised on appeal. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764,

767 (App. 1995). We presume the items not included in the

appellate record support a trial court’s ruling. Id. Here, in the

absence of a transcript of the hearing or a responsive filing to

Myrick’s objection to the requested fees, there is no indication

Maloney presented a counterargument to the trial court regarding

the reasonableness of her positions in the proceedings. Accordingly,

we find the issue waived below. Cf. Calpine Constr. Fin. Co. v. Ariz.

Dep’t of Rev., 221 Ariz. 244, ¶ 30, 211 P.3d 1228, 1234 (App. 2009)

(finding waiver based on failure to respond in trial court).

¶12 An appellant carries the burden of showing the trial

court erred. Guard v. Maricopa County, 14 Ariz. App. 187, 188-89, 481

P.2d 873, 874-75 (1971). On the record before us, and given the

arguments presented on appeal, we have no basis to conclude the

court abused its discretion by denying fees under § 25-324(A). Cf.

Solove v. Solove, 12 Ariz. App. 203, 205, 469 P.2d 95, 97 (1970)

(upholding denial of fees when record gave “no indication that the

trial court abused its discretion”).

Section 25-403.08

¶13 Maloney also sought fees under § 25-403.08, which

provides as follows:

A. In a proceeding regarding sole

or joint legal decision-making or parenting

time, either party may request attorney

fees, costs and expert witness fees to enable

the party with insufficient resources to

obtain adequate legal representation and to

prepare evidence for the hearing.

B. If the court finds there is a

financial disparity between the parties, the

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MYRICK v. MALONEY

Opinion of the Court

court may order payment of reasonable

fees, expenses and costs to allow adequate

preparation.

We have discovered no published case that discusses this statute as

it is currently codified. In Higgins v. Higgins, we cited the

predecessor statute as an alternative basis for an award of appellate

attorney fees. 194 Ariz. 266, ¶ 30 & n.4, 981 P.2d 134, 141 & n.4

(App. 1999). This citation was unnecessary to our decision,

however, and unaccompanied by any statutory analysis. We

therefore regard this portion of Higgins as dicta, and we decline to

follow it here.

¶14 By the terms of the statute, § 25-403.08 authorizes

temporary orders to facilitate a proceeding. See A.R.S. § 25-404(A)

(“A party to a legal decision-making and parenting time proceeding

may move for a temporary order.”); Ariz. R. Fam. Law P. 47(A)(4)

(establishing procedure for temporary orders regarding fees and

expenses). The plain language of the statute indicates that it allows

certain disadvantaged parties to secure attorney fees, costs, and

expert witness fees “to allow adequate preparation.” § 25-403.08(B).

The statute does not apply to final fee determinations. See Ariz. R.

Fam. Law. P. 78(D). Rather, it is designed to enable a party to

“obtain adequate legal representation and to prepare evidence for

the hearing.” § 25-403.08(A). Accordingly, if a trial court denies a

request under this statute, then special action relief may be

appropriate, for there is often no “adequate remedy by appeal”

when a disadvantaged party is improperly denied the means of

adequate preparation, especially if the party lacks the resources

needed to retain counsel or develop an evidentiary record. Ariz. R.

P. Spec. Actions 1(a).

¶15 Here, however, Maloney obtained legal representation

and was able to prepare for the hearings without any facilitating

orders being issued under § 25-403.08. She never sought a

temporary or pre-judgment order for attorney fees, nor did she

comply with the procedural requirements for such an order under

Rule 47. Instead, she attempted to employ § 25-403.08 as an

alternative ground to recover her fees in the final judgment, after the

trial court had addressed the merits of the cause. Because this is not

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MYRICK v. MALONEY

Opinion of the Court

the purpose of the statute, the court did not err by declining to

award fees under this provision.

Appellate Fees

¶16 Both parties request an award of fees on appeal

pursuant to § 25-324(A). After considering the reasonableness of the

parties’ positions, as well as their respective financial resources and

the significant disparity between them, we decline to grant either

request in the exercise of our discretion. See Fry v. Garcia, 213 Ariz.

70, ¶ 14, 138 P.3d 1197, 1200-01 (App. 2006).

Disposition

¶17 For the foregoing reasons, the judgment is affirmed.

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