EARLY v. EARLY

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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: ) ) HOLLY ROSE EARLY, ) ) Petitioner/Appellant, ) ) v. ) ) STEPHEN JOSEPH EARLY, ) ) Defendant/Appellee. ) ) __________________________________) DIVISION ONE FILED: 10/10/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0790 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2007-091940 The Honorable Veronica Brame, Judge Pro Tempore AFFIRMED Law Office of Stephanie J. Meade by Stephanie J. Meade Attorneys for Petitioner/Appellant Tucson P O R T L E Y, Judge ¶1 Holly Rose Early ( Mother ) appeals the denial of her request for attorney s fees and costs. Because we find that the family court did not abuse its discretion, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 After Joseph Early successfully five years ( Father ) sought a obligation in 2011. child support of were marriage, divorced modification of Mother in Stephen 2008. July and Mother Father s child support Father, like Mother, sought to modify his obligation fourteen months later. using the standard procedures some He claimed he was entitled to a child support adjustment because Mother failed to report additional income. ¶3 Mother moved to dismiss the petition pursuant to Arizona Rule of Civil Procedure 12(b)(6) for failing to state a claim upon which relief could be granted and requested attorney s fees and costs pursuant to Arizona Revised Statutes ( A.R.S. ) section 25-324(B) respond to the motion. (West 2013). Father did not The family court granted Mother s motion to dismiss the petition and denied her request for fees and costs. DISCUSSION I. Denial of Attorney s Fees and Costs ¶4 failing Mother argues that the court abused its discretion by to 324(B)(2). award her attorney s fees and costs under § 25- We review the denial of attorney s fees for an abuse of discretion. Engel v. Landham, 221 Ariz. 504, 514, ¶ 45, 212 2 P.3d 842, 852 (App. 2009) (citing Gutierrez v. Gutierrez, 193 Ariz. 343, 351, ¶ 32, 972 P.2d 676, 684 (App. 1998). 1 ¶5 Here, Father discovered that Mother had additional income and wanted it included in a new child support obligation. Mother countered with her motion to dismiss and request for fees and costs. The court considered the petition and the motion to dismiss, and ruled that the court does not generally attribute income greater than what would have been earned from full-time employment. petition, As which a he result, did not the court appeal, and dismissed denied Father s Mother s fee request. ¶6 The family court was not requested or required issue findings when denying Mother s request for fees. to In her motion, Mother told the court why she wanted fees under one or all of the subsections of § 25-324(B). We know that the court read the pleading because the court stated such in its order and considered one of Father s petition. the arguments to support the denial of As a result, we presume the court considered her arguments about fees and costs and found them unpersuasive under any of the § 25-324(B) subsections. Ariz. 1 590, Father consider required Gonzales, 592, 570 P.2d 758, 760 Cf. Neal v. Neal, 116 (1977) (stating that we did not file an answering brief. Although we may his failure as a confession of error, we are not to do so, and do not in this case. Gonzales v. 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982). 3 presume the ruling). court And, found we, like every fact necessary our supreme court, to sustain know that courts are presumed to know and correctly apply the law. its trial State v. Moody, 208 Ariz. 424, 443, ¶ 49, 94 P.3d 1119, 1138 (2004). Consequently, and because we do not reweigh the record, we find no abuse of discretion. II. Attorney s Fees and Costs On Appeal ¶7 Mother requests attorney s fees and costs on appeal. Because she has not prevailed on appeal, we deny her request for fees and costs. CONCLUSION ¶8 Based on the foregoing, we affirm the denial of fees and costs. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ JOHN C. GEMMILL, Judge /s/ ______________________________ KENT E. CATTANI, Judge 4

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