Pappas v. Pappas

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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 MARRIAGE OF: ) ) IRMA PAPPAS, ) ) Petitioner/Appellant, ) ) v. ) ) JAMES JOSEPH PAPPAS, ) ) Respondent/Appellee. ) __________________________________) DIVISION ONE FILED: 06-22-010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-CV09-0528 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC 2005-090617 FC 2005-091709 The Honorable David B. Gass, Judge AFFIRMED Harry P. Friedlander, Attorney for Appellant Wilson-Goodman & Fong, P.C. By Angela M. Wilson-Goodman Attorneys for Appellee D O W N I E, Judge Mesa Gilbert ¶1 Irma orders of Pappas ( Mother ) the family court. appeals For the certain following post-decree reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 The Mother $619 parties per divorced month in in child 2006. support The and decree $800 maintenance for a period of twenty-four months. in awarded spousal In August 2006, the parties agreed to reduce spousal maintenance payments to $396 per month to offset roughly $9900 that Mother owed Father as an equalization payment ordered in the decree. ¶3 In June 2008, Father sought to modify the existing order of assignment so that spousal maintenance would no longer be deducted from his wages. Mother petitioned for modification of custody, child support, and spousal maintenance. The family court dismissed Mother s custody modification request, but held an evidentiary hearing in May 2009 regarding the remaining issues. ¶4 By ruling entered on May 15, 2009, the court reduced Father s child denied Mother s support request obligation to extend to $526.93 spousal per month maintenance. and The court also found that Mother had taken unreasonable positions in 1 We view the evidence and inferences therefrom in the light most favorable to sustaining the trial court s rulings. Gutierrez v. Gutierrez, 193 Ariz. 343, 348, ¶ 14, 972 P.2d 676, 681 (App. 1998) (citation omitted). 2 the litigation attorneys fees. and that Father was entitled to an award of Father s counsel submitted an application for $17,569.73 in fees and costs. ¶5 Mother filed a motion for objected to Father s fee application. the motion for new trial. new trial. She also The family court denied It found that, with the exception of one, $26.35 prescription medical bill, [Mother] s Motion for New Trial, which was eighteen pages long, was unreasonable. awarded motion Father for new $1500 in trial. fees It incurred in subsequently responding awarded to Father It the an additional $7500 in attorneys fees. ¶6 to Mother timely appealed. Arizona Revised Statutes We have jurisdiction pursuant ( A.R.S. ) Sections 12-120.21(A) (2003) and -2101(B), (F)(1) (2003). DISCUSSION ¶7 Mother contends the family court erred by: (1) not applying the law of the case doctrine; (2) refusing to extend spousal maintenance; (3) not requiring Father to reimburse her for HOA fees; and (4) awarding attorneys fees to Father. We briefly address each claim. 1. ¶8 Law of the Case Mother believes the family court erred in finding that Father no longer earns income from side jobs. She argues that the June 2006 ruling, which imputed $1500 in monthly income to 3 Father from side jobs, constitutes law of the case. We disagree. ¶9 The law of the case doctrine describes the judicial policy of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court. Powell-Cerkoney v. TCR-Mont. Ranch Joint Venture, II, 176 Ariz. 275, 278, 860 P.2d 1328, 1331 (App. 1993) (citations omitted). At the trial court level, the doctrine of the law of the case is merely a practice that protects the ability of the court to build to its final judgment by cumulative rulings, with reconsideration or review postponed until after the judgment is entered. 1035 State v. King, 180 Ariz. 268, 279, 883 P.2d 1024, (1994) (citation omitted). Law of the case is a procedural doctrine rather than as a substantive limitation on the court's power. Powell-Cerkoney, 176 Ariz. at 278, 860 P.2d at omitted). 1331 (citations We may decline to apply the doctrine when a substantial change has occurred in the essential facts, issues, evidence, or applicable law. Id. at 279, 860 P.2d at 1332 (citation omitted). ¶10 years Father testified that he last worked side jobs four previously. Although Mother stated that Father s situation had not in fact changed, the family court ruled that her testimony lacked foundation and that she offered no credible evidence supporting her claim of continued income from 4 side jobs. Under these circumstances, the law of the case doctrine is inapplicable. 2. ¶11 Modification of Spousal Maintenance Mother next argues the court erred in refusing extend spousal maintenance beyond its initial term. to She claims the 2006 maintenance award was based on an expectation that she would become a permanent employee of the U.S. Postal Service within two years. her Because that did not occur, Mother contends, circumstances changed substantially and continuously, warranting extension of spousal maintenance. ¶12 An initial award of spousal maintenance may be modified only on a showing of changed circumstances that are substantial and continuing. A.R.S. § 25-327(A) (2007). deciding a whether to modify maintenance award, a In court considers the same factors taken into account when initially awarding maintenance. 591 P.2d 980, 983 Scott v. Scott, 121 Ariz. 492, 495 n.5, n.5 (1979). These factors include the financial resources of the party receiving maintenance, ability of the party receiving maintenance to produce sufficient income, and the financial resources of the party paying maintenance. Id.; Nace v. Nace, 107 Ariz. 411, 413, 489 P.2d 48, 50 (1971) (citation omitted). ¶13 See also A.R.S. § 25-319(B) (2007). We review the family court s decision for an abuse of discretion. Linton v. Linton, 17 Ariz. App. 560, 563, 499 P.2d 5 174, 177 (1972). record must decision. 532, be For an abuse of discretion to exist, the devoid of competent evidence to support the Platt v. Platt, 17 Ariz. App. 458, 459, 498 P.2d 533 (1972) modification (citation bears circumstances. the Scott, omitted). burden 121 of Ariz. The party proving at 494, a 591 seeking change P.2d at in 982 (citation omitted); Van Dyke v. Steinle, 183 Ariz. 268, 278, 902 P.2d 1372, 1382 (citation omitted) (App. 1995). ¶14 We find no error here. At the time of the evidentiary hearing in 2009, Mother s income was substantially higher than when the decree was issued. 2 significantly decreased. 3 In contrast, Father s income had See, e.g., Chaney v. Chaney, 145 Ariz. 23, 25, 699 P.2d 398, 400 (App. 1995) (allowing the court to consider substantial changes in the financial circumstances of either spouse) (citations omitted). The family court found that Mother is earning more now than she earned at the time of the decree and is earning nearly as much as Father earns. ¶15 Mother s Lindsay, 115 Ariz. opening 322, proposition that expectations constitutes modification. 2 an brief 565 incorrectly P.2d inability a change cites Lindsay 199 (App. 1977), to meet her in circumstances for v. the employment warranting In Lindsay, we found that the inability of a At the time of the decree, Mother s monthly income was In 2009, she earned $3,863. 3 Although Father s base salary rose from $3898 to $4224.66, he no longer earned income from side jobs. 6 $2851. spouse to become self-sufficient within a fixed period of spousal maintenance constituted changed circumstances, where there was a prolonged absence from the job market due to a longterm marriage that affected the wife s ability to find work, despite good-faith efforts and the parties expectations. Id. at 328-29, 565 P.2d at 205-06 (disapproved in part by Schroeder v. Schroeder, 161 Ariz. 316, 323, 778 P.2d 1212, 1219, (1989)). Here, on the other hand, the record supports the family court s conclusion that Mother can be self-sufficient at her current level of income. The court did not err in refusing to modify spousal maintenance. 3. ¶16 HOA Fees The family court did not issue any orders regarding HOA fees, stating: [Father] acknowledged his obligation to pay past HOA fees under the dissolution decree. [Father] said that he thought the HOA fees were in the neighborhood of $400.00 to $500.00 and stated that [Mother] had not provided him with the coupon book to pay the HOA fees and provided him with no accounting of HOA fees that [Mother] had paid. Nothing more was established. [Mother] offered no evidence of the actual amount owed for HOA fees or evidence that she had submitted the fees to Father for reimbursement. No exhibits that were entered into evidence establish the actual amount. The Pretrial Statement does not indicate an actual amount. And Petitioner s counsel made no mention of the HOA fees in his closing argument. 7 Our review of the record confirms the family court s findings and, thus, its determination that Mother failed to carry her burden of proof as to this reimbursement claim. 4. Attorneys Fees ¶17 Finally, Mother contends the court abused discretion in awarding attorneys fees to Father. its She argues the claimed fees and costs were excessive; that they included litigation initiated or prolonged by Father because he insisted on strict mediation; compliance that unreasonable; her that with the maintenance counsel s rules of evidence and on request was not modification affidavit failed to comply with minimum requirements; and that the court failed to consider the parties financial resources. See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188, 673 P.2d 927, 932 (App. 1983). The record does not support these claims. ¶18 We review an award of attorneys' fees under A.R.S. § 25-324 (2007) for an abuse of discretion. Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 35, 163 P.3d 1024, 1033 (App. 2007) (citation omitted). fees may be Pursuant to A.R.S. § 25-324(A), reasonable awarded after the court considers the parties' financial resources and the reasonableness of positions taken throughout the proceedings. ¶19 The family court had sufficient information about the parties financial circumstances 8 before it in the form of financial affidavits supports the and court s trial finding positions in the litigation. testimony. that Mother The record took also unreasonable Her claims were often unsupported by the evidence, unfounded in fact or law, not covered by the decree, or continued in to direct raise contravention child custody of the decree. issues after Mother the court repeatedly advised her that that matter was not properly before it. The record supports the finding that Mother s reimbursement requests for spending money, out-of-pocket expenses, and items that were not related to uniforms, passports and travel tickets were unreasonable. 4 ¶20 Finally, counsel s we affidavit find no failed merit to to comply Mother s with requirements 138 Ariz. at 188, 673 P.2d at 932. establishes an agreement, description of each charge. the billing rate, claim China that Doll The affidavit and a detailed We also reject Mother s claim that the award improperly included fees arising from any unreasonable insistence on strict compliance with the rules of evidence or on mediation. 4 Moreover, at trial, Mother admitted her hours had not in fact been reduced, nearly a year after claiming she was entitled to extend spousal maintenance because her hours had been reduced to twenty-five hours per week. 9 CONCLUSION ¶21 For the foregoing reasons, we affirm the orders of the family court. pursuant to We deny Father s request for an award of fees A.R.S. § 12-341.01 (2007). Father is, however, entitled to recover his costs on appeal upon compliance with ARCAP 21(c). /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 10

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