Opinion
2 CA-CV 2021-0119-FC
02-22-2024
In re the Marriage of Armando M. Pacho, Petitioner/Appellee, and Cathy Martinez, Respondent/Appellant.
Armando Pacho, Tucson In Propria Persona Richard M. Martinez, Tucson Counsel for Respondent/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20163592 The Honorable Patricia Green, Judge Pro Tempore
Armando Pacho, Tucson In Propria Persona
Richard M. Martinez, Tucson Counsel for Respondent/Appellant
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Cathy Martinez appeals from the decree dissolving her marriage with Armando Pacho. Martinez asserts the trial court erred by awarding Pacho attorney fees totaling $30,000. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In 2016, Pacho filed a petition for the dissolution of his marriage with Martinez. One of the primary disputes throughout the proceedings related to Martinez seeking sole legal decision-making authority for their four minor children. After a seventeen-day bench trial which concluded in April 2021, the trial court entered a decree of dissolution granting the parties joint legal decision-making authority and awarding parenting time "as identified during the reunification process, with the goal of moving to a relatively equal schedule."
¶3 The trial court awarded Pacho $30,000 in attorney fees and costs. In making the award, the court stated it had "consider[ed] the provisions of A.R.S. § 25-324 and A.R.S. § 12-349." It found that "the parties' financial resources are relatively equal" but that Martinez "took unreasonable positions during these proceedings that contributed to the extended litigation and increased attorney fees and costs." Martinez appealed. Except as discussed below, we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
The trial court additionally found that Martinez's counsel "took unreasonable positions and actions that contributed to the length and expense of these proceedings," and the initial attorney fees and costs judgment was entered against both Martinez and her counsel "jointly and individually." However, in the court's subsequent ruling on Martinez's post-judgment motions, it "modif[ied] and enter[ed] judgment in favor of [Pacho] and against [Martinez] in the sum of $8,879.24 for attorney's fees and costs"-a calculation based on the initial $30,000 judgment offset by child support arrears owed by Pacho. Although this ruling affirmed its findings from the decree of dissolution, we interpret it as modifying the attorney fees and costs judgment to be against Martinez individually, and any argument regarding the propriety of the award against Martinez's counsel is therefore moot.
Discussion
¶4 Martinez argues that we should strike or disregard Pacho's arguments because he has failed to adequately address the arguments raised on appeal or provide sufficient citation to the record or legal authority. See Ariz. R. Civ. App. P. 13(a)(7), (b)(1). We agree that Pacho's answering brief largely fails to address Martinez's arguments. Although self-represented litigants receive the same consideration as represented parties, Higgins v. Higgins, 194 Ariz. 266, ¶ 12 (App. 1999), in our discretion we decline to treat any inadequacy in Pacho's brief as a confession of reversible error, see Savord v. Morton, 235 Ariz. 256, ¶ 9 (App. 2014).
I. Failure to Rule on Objections
¶5 Martinez argues the trial court erred by awarding Pacho attorney fees before ruling on her "specific objections" which "demonstrate[d] the impropriety or unreasonableness of the requested fees." We review de novo whether the court sufficiently addressed an issue. See Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, ¶ 13 (App. 2012).
¶6 Before the trial court entered final judgment, Pacho filed a notice of attorney fees and costs totaling $85,824.65. Affidavits supporting this amount were attached to the notice. Martinez filed an objection, generally arguing against any attorney fees and claiming the affidavits were insufficient. The court awarded Pacho $30,000 in attorney fees and costs and stated it had "reviewed each parties' affidavit in support of, or objection to, their requests" for attorney fees and costs. It did not otherwise specifically address Martinez's arguments.
¶7 We disagree with Martinez that this procedure constitutes error. Martinez has not identified any legal authority suggesting a trial court must specifically explain its conclusions regarding each argument raised by a party on an issue. The court stated it considered Martinez's objection, and, by awarding Pacho attorney fees and costs, it implicitly rejected Martinez's arguments regarding the propriety of the award. Furthermore, Martinez ignores that the court awarded Pacho less than half of the amount he requested, which, as the court had noted, demonstrated that it had considered Martinez's objection. Even if Martinez's objection to attorney fees were a separate motion to be ruled on, the court's failure to address it would have been a denial of that motion by operation of law. See Pearson v. Pearson, 190 Ariz. 231, 237 (App. 1997).
II. Findings of Fact
¶8 Martinez next claims the trial court's award of attorney fees in favor of Pacho should be vacated because the court failed to make specific findings of fact. The sufficiency of factual findings is also reviewed de novo. See Murphy Farrell Dev., LLLP, 229 Ariz. 124, ¶¶ 13, 19.
¶9 Because the trial court considered both § 25-324 and § 12-349 and did not specify under which statute the award was made, we consider whether the court's factual findings were sufficient under both. See In re Marriage of Gibbs, 227 Ariz. 403, ¶ 16 (App. 2011) (we review whether judgment is correct, not reasoning underlying that judgment (citing Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, ¶ 9 (2007))); Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9 (App. 2006) ("We may affirm the trial court's ruling if it is correct for any reason apparent in the record.").
¶10 Section 25-324(A) 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 this chapter .... On request of a party . . . 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. Therefore, absent a request to do so, a trial court is under no obligation to make findings of fact regarding an award of attorney fees under § 25-324(A). Myrick v. Maloney, 235 Ariz. 491, ¶ 10 (App. 2014). It follows that a party cannot challenge a court's lack of findings on appeal where none were requested below. Id.; see also MacMillan v. Schwartz, 226 Ariz. 584, ¶ 40 (App. 2011) (party's failure to object regarding adequacy of trial court's findings regarding fee award waived appellate review).
¶11 Martinez claims she requested specific findings of fact on "three separate occasions." However, we disagree that any of these purported requests preserved this issue for review. Before the trial court entered the decree of dissolution, Martinez twice requested findings of fact, however, these requests did not mention the issue of attorney fees. Rather, the requests were limited to findings of fact and conclusions of law "regarding the issues of child custody and parenting time, spousal maintenance, child support, child support arrears, and future child support." As such, neither request invoked the court's responsibility to make specific findings concerning attorney fees under § 25-324(A).
¶12 Martinez also points to her post-judgment motion for amended or additional findings pursuant to Rule 82(b), Ariz. R. Fam. Law P. However, Martinez filed this motion after her notice of appeal from the decree of dissolution. The trial court concluded it lacked jurisdiction to rule on the motion given the pending appeal. In compliance with Rule 9(e)(2), Ariz. R. Civ. App. P., Martinez notified this court of pending post-judgment motions, and we revested the trial court with jurisdiction to rule thereon. The trial court subsequently denied Martinez's motion as it related to attorney fees, affirming its findings in the decree. Because Martinez did not file a notice of appeal from the court's ruling on the Rule 82(b) postjudgment motion, we lack jurisdiction to consider it. See Ariz. R. Civ. App. P. 9(e)(3) ("A party intending to appeal one or more of the orders disposing of one or more of the motions listed in Rule 9(e)(1) must file a notice of appeal, a notice of cross-appeal, or an amended notice of appeal ...."), 9(e)(1)(B) (specifying motions under Rule 82(b), Ariz. R. Fam. Law P.).
¶13 In any civil action, a court shall assess reasonable attorney fees and expenses against a party if that party, as relevant here, "[u]nreasonably expands or delays the proceeding." § 12-349(A)(3). If a court awards attorney fees under § 12-349, it is required to "set forth the specific reasons for the award." A.R.S. § 12-350. However, the "purpose of this requirement is to assist the appellate court on review," and "the findings need only be specific enough to allow an appellate court to test the validity of the judgment." Takieh v. O'Meara, 252 Ariz. 51, ¶ 38 (App. 2021) (quoting Bennett v. Baxter Grp., Inc., 223 Ariz. 414, ¶ 28 (App. 2010)). Even though § 12-350 requires that a court set forth its reasons for an attorney fee award under § 12-349, a party that fails to object to purportedly deficient findings waives appellate review of that issue. Trantor v. Fredrikson, 179 Ariz. 299, 300-01 (1994) (trial court should be afforded opportunity to correct asserted defects).
Section 12-349(A) provides additional justifications for awarding attorney fees. However, the trial court's finding that Martinez "took unreasonable positions" and "contributed to the extended litigation" most clearly implicates § 12-349(A)(3).
¶14 As explained in our discussion of § 25-324, Martinez only raised her argument regarding the sufficiency of the trial court's factual findings regarding attorney fees in a Rule 82(b) motion after she had filed her notice of appeal. Because we do not have jurisdiction over the court's order disposing of that motion, Martinez did not preserve the issue for this appeal.
III. Evidence Supporting Award
¶15 Martinez's remaining challenge is that "neither [she] nor counsel engaged in any conduct that justifies an award of fees" under either § 25-324 or § 12-349.
¶16 We review an award of attorney fees under § 25-324 for an abuse of discretion. Alulddin v. Alfartousi, 255 Ariz. 436, ¶ 26 (App. 2023). Under § 25-324(A), the court may award a party their reasonable attorney fees "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." The balancing of these factors is discretionary with the court. Ferrill v. Ferrill, 253 Ariz. 393, ¶ 25 (App. 2022).
Section 25-324(B) alternatively requires the court to award a party reasonable attorney fees and costs if it determines that the other party filed a petition under at least one of three enumerated circumstances. However, because subsection (A) is discretionary, Ferrill v. Ferrill, 253 Ariz. 393, ¶ 25 (App. 2022), we first consider whether the award was justified thereunder such that we need not reach subsection (B). The trial court's findings are more consistent with an award under subsection (A) as it specifically referenced the parties' financial resources and the reasonableness of their positions.
¶17 Here, the trial court found that Martinez's financial resources were "relatively equal" to Pacho's but determined that Martinez had taken "unreasonable positions." The court awarded Pacho his attorney fees and costs on that basis. Although the court did not provide further factual findings in the section titled "Attorney Fees and Costs," the eighteen-page judgment contains several findings that inform its conclusion that Martinez pursued unreasonable positions.
¶18 The trial court observed that Martinez had "demonstrated an unwillingness to follow Court orders or, at least, to timely comply." As an example, the court noted that Martinez took more than a year to complete a court-ordered psychological evaluation. The court also found "reasonable the concerns identified by . . . expert witnesses . . . that [Martinez] has improperly influenced the children" during the proceedings. The court pointed to an expert's concerns "regarding the children's knowledge of court information and the difference in their statements" between 2017 and 2019. Significantly, the court found that Martinez's conduct had "deeply ensnared the children in this litigation" and:
Although [she] persists in alleging that she has good cause . . . she has failed to establish by clear and convincing evidence, or even a preponderance of the evidence, that circumstances exist warranting no contact between [Pacho] and the children-other than the fact that the children are convinced that they should fear their father. [Martinez] denies being the source of-or even a contributor to- this belief.
With regard to this persistence, the court pointed to Martinez's multiple failed attempts to obtain an order of protection for the children against Pacho and her failed attempt to stay the trial in this case pending resolution of her petition to terminate Pacho's parental rights in a separate action.
Also, in evaluating one statutory factor pertinent to the children's best interests, see A.R.S. § 25-403(A)(7), the court stated:
The Court is concerned about the amount of time and energy [Martinez] expended during trial to try to convince this Court . . . to find that child physical and/or sexual abuse had occurred when [Martinez] (and her attorney) were well-aware that [a different Judge] had already considered many, if not all, of the allegations and found them insufficient to prohibit all contact between [Pacho] and the children.
¶19 We decline to ignore the trial court's findings discussed above purely because they were not restated in the section awarding Pacho attorney fees. Cf. Lopez v. Lopez, 125 Ariz. 309, 310 (App. 1980) (considering entire divorce decree in evaluating court's intent in using a phrase). Because the record supports these findings and they are not "clearly erroneous," Hefner v. Hefner, 248 Ariz. 54, ¶ 6 (App. 2019) (quoting Marriage of Gibbs, 227 Ariz. 403, ¶ 6), the court acted within its discretion by awarding fees under § 25-324, notwithstanding the parties' relatively equal financial resources, see Mangan v. Mangan, 227 Ariz. 346, ¶¶ 25, 28 (App. 2011) (upholding attorney fee award to father where mother took unreasonable positions even though father "earns significantly more income"); MacMillan, 226 Ariz. 584, ¶ 37.
¶20 Martinez argues that an attorney fee award can only be based on the reasonableness her "legal" positions and that she took no position "the trial court could consider legally unreasonable." See In re Marriage of Williams, 219 Ariz. 546, ¶ 10 (App. 2008) ("Section 25-324(A) requires that the propriety of a litigant's legal position be evaluated by an objective standard of reasonableness." (emphasis added)). But see Greenbank v. Vanzant, 250 Ariz. 644, ¶ 29 (App. 2021) (considering party's bad faith, lack of candor, and persistent violations of court order in determining reasonableness of positions); Mangan, 227 Ariz. 346, ¶¶ 25-26 (affirming fee award based in part on trial court's finding that party made "misrepresentations and false allegations" in effort to deny parenting time to opposing party). Assuming without deciding that the court may only consider the reasonableness of a party's "legal" positions, Martinez's positions that she alone be granted legal decision-making authority and parenting time for the children certainly qualify. And, the court specifically described its concern regarding Martinez's persistence in pursuing this goal despite the lack of factual support. The court did not err in its consideration of the reasonableness of Martinez's positions.
¶21 Although we have concluded that the trial court's award of attorney fees was justified under § 25-324, we nevertheless conclude that the award was also independently justified under § 12-349. We review the court's application of the statute de novo, but we view the evidence in the light most favorable to sustaining the award and will affirm unless the court's findings are clearly erroneous. Goldman v. Sahl, 248 Ariz. 512, ¶ 65 (App. 2020).
¶22 As explained above, a court must assess reasonable attorney fees and expenses if the attorney or party "[u]nreasonably expands or delays the proceeding." § 12-349(A)(3). "Whether issues of fact determinative of the validity of a party's claim . . . were reasonably in conflict" may be relevant to this determination. § 12-350(6).
¶23 The trial court stated in its decree that Martinez's "unreasonable positions . . . contributed to the extended litigation and increased attorney fees and costs." As explained above, this conclusion was bolstered by the court's findings that despite Martinez's persistence that she had good cause to prohibit Pacho from having contact with the children, she had failed to support that claim by even a preponderance of the evidence. Again, the record supports this finding, and the court did not err by applying § 12-349.
¶24 Martinez's remaining challenges to the attorney fee award amount to rearguing the evidence and generally disagreeing with the trial court's factual findings and conclusions regarding the reasonableness of her positions. However, we do not reweigh conflicting evidence on appeal. Lehn v. Al-Thanayyan, 246 Ariz. 277, ¶ 20 (App. 2019). As discussed above, the court's findings justifying the award are not clearly erroneous.
IV. Attorney Fees on Appeal
¶25 Martinez requests an award of her reasonable attorney fees and costs on appeal in accordance with Rule 21(a), Ariz. R. Civ. App. P. Because she has not cited to any other authority supporting her request, we decline to award attorney fees. See Ariz. R. Civ. App. P. 21(a)(2). Pacho also requests attorney fees on appeal. However, because Pacho has represented himself in this appeal, he is not entitled to an award of attorney fees incurred herein. See Motley v. Simmons, Ariz., ¶ 19, 537 P.3d 807, 813 (App. 2023). As the successful party, Pacho is entitled to his costs on appeal upon compliance with Rule 21. See A.R.S. § 12-342.
Disposition
¶26 For the foregoing reasons, we affirm.