Sammons v. Peril

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE THE MATTER OF: ) ) PAIGE G. SAMMONS, ) ) Petitioner/Appellant, ) ) v. ) ) ALAN J. PERIL, ) ) Respondent/Appellee. ) __________________________________) DIVISION ONE FILED: 11-30-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CV 09-0664 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2003-005985 The Honorable Alfred M. Fenzel, Judge AFFIRMED Franks, Sheldon & Houser, P.C. by Todd Franks Steven D. Sheldon Robert C. Houser Attorneys for Petitioner/Appellant Phoenix Mariscal, Weeks, McIntyre & Friedlander, P.A. by Leonce A. Richard Dana M. Levy Attorneys for Respondent/Appellee Phoenix P O R T L E Y, Judge ¶1 Paige Sammons ( Mother ) appeals from the denial of her request for attorneys fees arising out of a child custody modification. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Alan Peril ( Father ) and Mother were divorced in November 2004, and agreed to joint legal custody of their two children. Their required them decisions, agreement, to mutually including which agree changes in is to part all schools. of major the decree, educational Mother moved to Peoria a year later, and Father agreed that the children could attend elementary school in Peoria. ¶3 Subsequently, based on their Parenting Coordinator s recommendation, 1 the family court amended the decree to require that the parents attempt to resolve any educational before asking the court to resolve the dispute. Parenting Coordinator was appointed in August issues A different 2006, and the family court ordered that the parents consult with the Parenting Coordinator before filing any petitions regarding parenting time absent an emergency. 1 A Parenting Coordinator was appointed in September 2004 to help the parents resolve conflicts. 2 ¶4 school, In September 2008, and before their son started high Father and Mother unsuccessfully mediate which school he would attend. tried to privately Father refused to discuss the issue with the Parenting Coordinator. Father, in October 2008, filed a motion and requested a hearing to (i) resolve the selection of high school, (ii) modify the parenting time schedule, and (iii) enforce financial responsibilities per the divorce decree. ¶5 Mother moved to dismiss Father s motion. 2 At the February 2009 hearing, and at Mother s request, the family court appointed Dr. Lavit to conduct a full custody evaluation, parents and scheduled subsequently a trial settled their on Father s custody motion. dispute the The day before trial was to begin, but were unable to agree on Mother s request for attorneys fees. The next day, the family court accepted the settlement agreement that gave Mother sole legal custody and the authority to determine where the children would attend school; required Father to attend therapy; and imposed financial sanctions and reduced visitation if Father violated the custody agreement. ¶6 Before the fee request hearing, Mother submitted a request for $76,596.34 in attorneys fees and $8,786.00 for the cost of the custody evaluator. 2 After the hearing, the family Mother filed a response to Father s motion on June 1, 2009. 3 court ordered both parties to pay their own attorneys fees and awarded Mother $2,308.00 for the custody evaluator expenses. ¶7 Mother appeals, and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) § 12-2101(B) (2003). DISCUSSION ¶8 Mother contends that the family court erred by failing to award her attorneys fees under (1) A.R.S. § 25-411(G) (Supp. 2009), (2) A.R.S. § 25-324(A) (Supp. 2009), and (3) A.R.S. § 12349(A)(3) (2003). favorable to We sustaining review the the facts family in court s the light decision. most Phx. Newspapers, Inc. v. Dep t of Corrections, 188 Ariz. 237, 243, 934 P.2d 801, 807 (App. 1997). I. Attorneys Fees Pursuant to A.R.S. § 25-411(G) ¶9 Mother first contends that she should receive attorneys fees under A.R.S. § 25-411(G), which provides that [t]he court shall party seeking assess attorney modification if fees the and court costs against finds that a the modification action is vexatious and constitutes harassment. ¶10 We review interpretation and application of A.R.S. § 25-411(G) de novo. P.2d at 808. See Phx. Newspapers, 188 Ariz. at 244, 934 Although fees and costs must be awarded if the family court finds that the modification request is vexatious and constitutes harassment, the court has to make that factual finding. Here, the family court did not make the finding and, 4 by denying fees to both parties, implicitly rejected the notion that Father s constituted modification harassment. petition See General was Elec. vexatious Capital and Corp. v. Osterkamp, 172 Ariz. 191, 193, 836 P.2d 404, 406 (App. 1992) (necessary findings Consequently, the are family implied court in every evaluated the judgment). conduct of the parties to determine whether fees should be awarded pursuant to A.R.S. § 25-411(G), and we will accept findings unless they are erroneous. the family court s See Phx. Newspapers, 188 Ariz. at 243, 934 P.2d at 807. ¶11 The pursuant to evidence. Ariz. A.R.S. court s § determination 25-411(G) to award supported was not fees by substantial See Scottsdale Princess P ship v. Maricopa Cnty., 185 368, clearly family 379, erroneous 916 as substantial evidence). request for mediation P.2d a finding 1095 that (App. is 1995) (defining unsupported by any First, the petition was Father s first modification, effort 1084, and he failed. only Second, filed Mother it after expanded the the proceedings from where the child should attend high school to whether she should have sole custody and limited parenting time for Father. Consequently, the family court did not err by determining the petition was not vexatious nor did it constitute harassment. 5 II. Attorneys Fees Pursuant to A.R.S. § 25-324(A) ¶12 Mother next argues that the family court erred by denying her request for attorneys fees pursuant to A.R.S. § 25324(A). have Specifically, she contends that the family court should granted her request for fees because Father unreasonable positions throughout the proceedings. took We review a family court s decision concerning attorneys fees under A.R.S. § 25-324(A) for an abuse of discretion. See In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8, 200 P.3d 1043, 1045 (App. 2008). ¶13 We find no error. Section 25-324(A) provides that the family court 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 costs and expenses of maintaining or defending any proceeding. self represented, reasonableness. are held to an The parties, even if objective standard of Williams, 219 Ariz. at 548-49, ¶¶ 10, 13, 200 P.3d at 1045-46. ¶14 Although Mother argues that Father took unreasonable positions during his settlement negotiations, he settled and gave Mother everything she wanted other than attorneys fees, even though she rejected his counter-proposals. family court did not abuse its 6 discretion Therefore, the when it rejected Mother s request for attorneys fees pursuant A.R.S. § 25- 324(A). III. Attorneys Fees Pursuant to A.R.S. § 12-349 ¶15 Finally, Mother argues that the family court abused its discretion by failing to award her fees pursuant to A.R.S. § 12-349. Specifically, she argues that she is entitled to attorneys fees because Father unreasonably delayed or expanded the proceedings. ¶16 assess Section reasonable party . . . 12-349(A)(3) attorney [u]nreasonably provides fees expands . . or that the court if the attorney delays the proceeding. . shall or We will uphold the family court s decision to deny attorneys fees pursuant to A.R.S. § 12-349 unless it is clearly erroneous. Phx. Newspapers, 188 Ariz. at 243, 934 P.2d at 807. ¶17 Although Mother argues that Father made no effort to minimize his claims, to determine if there was a basis for his claims, or make a reasonable effort to settle, Mother expanded the scope of the proceedings when she requested a full custody determination in response to Father s petition about the child s high school. proceedings, Although the family Father court wanted denied to his continue the continuances. Moreover, he settled by conceding to the majority of Mother s requirements. 7 ¶18 the Mother also argues that Father s decision to settle case sought hours to before increase provide Father stating [w]e proposal at trial started her with did an the expenses. a settlement not earlier provide date, suggest Mother, offer you with because you consider any such proposals in good faith. his counter-proposals, he settled. however, until a that May formal were Father did 6, not 2009, settlement unlikely to After she rejected Because the family court had all the relevant information and considered it, the family court did not err when it rejected Mother s request for attorneys fees. ATTORNEYS FEES ON APPEAL ¶19 Because Both parties Mother attorneys fees. was request attorneys unsuccessful, Father, however, pursuant to A.R.S. § 25-324(A). we fees decline requests to on appeal. award attorneys her fees After considering the parties financial resources and the reasonableness of their positions on appeal, we grant Father s request for reasonable attorneys fees and costs on appeal pursuant to A.R.S. § 25-324(A), subject to Father s compliance with ARCAP 21. 8 CONCLUSION ¶20 Based on the foregoing, we affirm the family court s resolution of the attorneys fee issue. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ MARGARET H. DOWNIE, Judge /s/ ____________________________ PATRICIA A. OROZCO, Judge 9

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