Opinion
No. 1 CA-CV 13-0471
03-03-2015
In re the Marriage of: FREDERIC DE CLAREMONT, Petitioner/Appellant, v. TERI L. LASLEY, Respondent/Appellee.
COUNSEL Gillespie, Shields & Durrant, Phoenix By DeeAn Gillespie Strub Counsel for Petitioner/Appellant The Murray Law Offices, P.C., Scottsdale By Stanley D. Murray Counsel for Respondent/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2004-015654 DR2000-022572 (Consolidated)
The Honorable Christopher T. Whitten, Judge
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Gillespie, Shields & Durrant, Phoenix
By DeeAn Gillespie Strub
Counsel for Petitioner/Appellant
The Murray Law Offices, P.C., Scottsdale
By Stanley D. Murray
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Kenton D. Jones joined. KESSLER, Judge:
¶1 Frederic De Claremont ("Father") appeals from the family court's judgment in favor of Teri Lasley ("Mother") and denial of his request for attorneys' fees. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings consistent with this decision.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Father have one child, born out of wedlock in February 1997. In February 2004, the family court entered an order, stipulated to by both Mother and Father, concerning child custody, parenting time, child support, arrearages, and attorneys' fees ("the 2004 order").
¶3 The 2004 order required Father to pay Mother child support in the amount of $400 per month, commencing July 1, 2003. Additionally, the 2004 order memorialized Mother and Father's agreement that Father owed child support arrearages in the amount of $50,000. As such, Father was required, in addition to paying child support, to "pay to Mother the sum of $300.00 per month, payable one-half on the 1st and one-half on the 15th of each month" until the $50,000 arrearage was paid in full. This obligation also commenced on July 1, 2003. Child support and arrearage payments from July 2003 until the family court's entry of the 2004 order were to be paid to Mother through her attorney. Subsequently, the payments were to be made through the Support Payment Clearinghouse ("the Clearinghouse").
¶4 According to the 2004 order, so long as Father did not become delinquent on these monthly payments, no interest would accrue on the $50,000 arrearage; however, if Father became "delinquent in payment on the arrearages . . . , interest [would] accrue on the unpaid balance at the rate of 10% per annum commencing from the date of such delinquency until the monthly arrearage payments [were] brought current." Therefore, interest was only to accrue on the arrearage at times that Father was behind on his arrearage payments.
¶5 In May 2011, Mother filed a petition for order to show cause regarding contempt. Mother alleged Father began missing his payments in November 2010, leading to $2,420.32 in unpaid child support and arrearages. This amount only included the principal which Father had not paid in child support and the $50,000 arrearage, not any interest on this amount as a result of Father's failure to timely pay. In August 2011, the family court found Father in contempt for failure to pay child support and ordered him to pay a purge of $1,500. That same day, Father paid the purge amount. Subsequently, the court entered a judgment against Father in the amount of $1,620 and $316.30 for Mother's attorneys' fees and costs. No judgment was entered regarding the remaining balance Father owed to Mother in child support and arrearage payments.
The family court reduced Father's child support obligation in April 2011 to $305.08 per month, effective January 1, 2011.
¶6 In May 2012, Mother filed another petition for order to show cause regarding contempt and Father's failure to make payments. Mother alleged Father had failed to pay all of his monthly child support and arrearage payments prior to and after November 2010 leading to Father owing $60,822.51 in unpaid child support, unpaid arrearages, and interest on these unpaid amounts as of December 31, 2011.
¶7 Father failed to assert the defenses of waiver, laches, and estoppel in his response to the petition, waiting to raise them in the joint prehearing statement. As such, Mother argued Father had failed to raise these affirmative defenses in a timely manner. At the evidentiary hearing, the family court agreed with Mother and held that Father had waived them.
¶8 Mother testified that, in making her calculations, she based the dates of the payments made by Father through Mother's attorney on the date of the letter from Father's attorney which accompanied each payment. Alternatively, she based the dates of the payments made by Father through the Clearinghouse on the dates used by the Clearinghouse. Employing these dates, Mother relied upon Arizona Revised Statutes ("A.R.S.") section 25-510(A) (Supp. 2014) to apply each of Father's payments, first, to current child support and arrearage payments, then to the remaining principal of the $50,000 arrearage. According to Mother's calculations, as of January 31, 2013, Father owed $13,124.00 on the principal of the $50,000 arrearage, $17,473.77 on the interest which had accrued on the $50,000 arrearage, $5,675.40 in unpaid child support, and $2,266.97 in interest which had accrued on the unpaid child support. Father testified that his calculations reflected that, as of January 31, 2013, Father owed $12,036.04 on the principal of the $50,000 arrearage, $5,194 on the interest which had accrued on the $50,000 arrearage, $5,674.27 in unpaid child support, and $2,198 in interest which had accrued on the unpaid child support. Father also presented evidence of a $700 payment Father had made in October 2003, which Mother had failed to give him credit for in her calculations.
We cite to the current versions of statutes when no changes material to this decision have since occurred.
¶9 The family court ordered Mother to amend her calculations to include the $700 payment from Father in October 2003 and submit it to the court. The court stated it would allow Father to file any objections he had to Mother's amended calculation. Further, the court ordered the parties to address the issue of whether the court had authority to satisfy any judgment it entered by QDRO.
The family court later entered an order directing the parties to prepare a QDRO to satisfy the judgment. Father appealed from that order. However, this Court dismissed that appeal for lack of jurisdiction because no QDRO had been filed. Order Re: Dismissing Appeal, De Claremont v. Lasley, 1 CA-CV 13-0715 (Ariz. App. Apr. 1, 2014). The issue of the QDRO is not before us in this appeal. The family court shall address the appropriateness of a QDRO on remand of this matter.
¶10 After the hearing, Mother filed her amended calculations, which now included Father's $700 payment in October 2003, and a form of judgment. Although Father filed an objection to this new calculation, the court denied his objection and adopted Mother's amended calculations by signing Mother's form of judgment. In doing so, the court found that as of January 31, 2013, Father owed $13,124 on the principal of the $50,000 arrearage, $16,932.10 on the interest which had accrued on the $50,000 arrearage, $5,275.40 in unpaid child support, and $1,899.40 in interest which had accrued on the unpaid child support. The court also denied both Mother and Father's requests for attorneys' fees, and later denied Father's motion for new trial regarding attorneys' fees in an unsigned minute entry.
¶11 Father timely appealed. We have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1) (Supp. 2014).
Pursuant to this Court's earlier order, the parties have briefed whether the failure of the family court to enter a signed order denying the motion for new trial after entering the signed judgment results in this Court lacking jurisdiction over the appeal. The judgment was entered on June 13, 2013 and the unsigned minute entry on the new trial motion was entered June 18, 2013. Normally, an order disposing of a motion for new trial must be signed to start the running of the time to appeal. See Dowling v. Stapley, 221 Ariz. 251, 264, ¶ 39, 211 P.3d 1235, 1248 (App. 2009) ("[T]he time to appeal begins to run again upon filing of a signed order disposing of or resolving a tolling motion."). However, we have jurisdiction here because the motion for new trial was filed before entry of the signed judgment and is deemed denied as a matter of law by entry of the signed judgment. See id. The post-judgment minute entry denying the motion for new trial was thus surplusage.
DISCUSSION
I. Waiver of Affirmative Defenses
¶12 Father concedes he first raised the defenses of estoppel, waiver, and laches in the parties' joint prehearing statement, but contends the family court erred in concluding Father had waived these affirmative defenses. Father argues he properly raised these defenses under the Arizona Rules of Family Law Procedure, specifically Rules 29(C) and 32(F), and Arizona case law. We disagree.
In his objection to Mother's post-hearing calculation, Father argued Mother's claims were barred by res judicata. In his opening brief, however, Father only mentions this argument in passing, failing to develop it beyond citing one case and asserting that Mother was barred by res judicata from asserting her 2012 action because her 2011 action had previously been adjudicated. Although Father developed the argument further in his reply brief, we conclude Father waived this issue on appeal and do not address its merits. See ARCAP 13(a)(6) (stating appellant's brief must contain argument with citations to authority and parts of the record relied on); In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299, ¶ 28, 18 P.3d 85, 93 (App. 2000) (stating that bald assertions "offered without elaboration or citation to . . . legal authority" will not be considered).
¶13 "Issues concerning the proper interpretation of statutes and rules are questions of law, which we review de novo." In re Reymundo F., 217 Ariz. 588, 590, ¶ 5, 177 P.3d 330, 332 (App. 2008). We approach the interpretation of rules in the same way we approach the interpretation of statutes. See State v. Hansen, 215 Ariz. 287, 289, ¶ 7, 160 P.3d 166, 168 (2007). The cornerstone of this approach is the principle "that the best and most reliable index of a [rule or] statute's meaning is its language and, when the language is clear and unequivocal, it is determinative of the [rule or] statute's construction." Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 296, ¶ 8, 152 P.3d 490, 493 (2007) (quoting Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991)).
¶14 Rule 32(F) provides that "[a] party waives all defenses and objections not presented either by motion or in that party's answer or response." Rule 32(B) allows for several defenses, none of which apply in this case, to be made by motion and requires all other defenses, "in law or fact, to a claim for relief in any pleading, . . . be asserted in the response if one is required." "If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief." Ariz. R. Fam. Law P. 32(B).
Although Rule 32(F) includes several exceptions to this general rule, none of these exceptions applies in this case.
¶15 Although a response was not required in this case, see Ariz. R. Fam. Law P. 91(J), (M), 92, Father filed one. "Except as otherwise provided in Rule 32(F), the filing of a response has the effect of placing at issue all matters pled that are not specifically admitted." Ariz. R. Fam. Law P. 29(C). Therefore, under the clear and unequivocal language of Arizona Rules of Family Law Procedure 29(C), 32(B), and 32(F), because Father filed a response even though he was not required to, and Father failed to assert these defenses in his response, the family court did not err in finding Father failed to appropriately assert the defenses of estoppel, waiver, and laches.
¶16 Father's reliance on Roszko v. Roszko, 146 Ariz. 274, 705 P.2d 951 (1985), and Romo v. Reyes, 26 Ariz. App. 374, 548 P.2d 1186 (1976), is misplaced. In Roszko, the appellant had raised his affirmative defense several times during the trial court proceedings, including in his motion to quash the order to show cause and his post-trial memorandum. 146 Ariz. at 276, 705 P.2d at 953. Conversely, Father failed to file any sort of motion regarding his defenses in the present case, only disclosing those defenses in the parties' prehearing statement and on the day of trial. In Romo, this Court vacated the trial court's denial of Romo's motion to amend his responsive pleading to include an affirmative defense. 26 Ariz. App. at 376, 548 P.2d at 1188. Here, however, Father made no motion to amend his response. Therefore, neither of these cases provide support for Father's argument that the trial court erred in refusing to hear and consider Father's arguments regarding the defenses of estoppel, waiver, and laches. II. Calculation of Previous Payments and the Accrual of Interest on the $50,000 Arrearage Judgment and Past Due Child Support
Father also argues in his reply brief that the applicability of these affirmative defenses was not apparent from Mother's petition. However, "we do not review arguments presented for the first time in the reply because it deprives the other party of the opportunity to respond." In re Marriage of Johnson and Gravino, 231 Ariz. 228, 235, ¶ 26, 293 P.3d 504, 511 (App. 2012).
¶17 While on appeal Father does not dispute the interest award after October 2010, he argues the family court erred when it imposed interest penalties on him for child support and arrearage payments due through October 2010. As we discuss below, almost all of Mother's claims to interest through October 2010 were based on a theory that an early payment of arrearages violated the 2004 order. The issue before the court was whether Father timely made his child support and arrearage payments under the 2004 order through October 2010. Although "[w]e accept the trial court's findings of fact unless they are clearly erroneous. . . . we are not bound by the trial court's conclusions of law; such questions are reviewed de novo." Alley v. Stevens, 209 Ariz. 426, 428, ¶ 6, 104 P.3d 157, 159 (App. 2004) (internal quotation marks and citation omitted). Further, we review the court's interpretation and application of a statute de novo. Thompson v. Thompson, 217 Ariz. 524, 526, ¶ 7, 176 P.3d 722, 724 (App. 2008).
Father raised several arguments under contract law in his opening brief. However, because the 2004 order properly merged any agreement Mother and Father had regarding Father's payment of child support or the $50,000 arrearages, this issue does not involve the interpretation of a contract. See LaPrade v. LaPrade, 189 Ariz. 243, 247-48, 941 P.2d 1268, 1272-73 (1997) (stating merger results in the agreement being "superseded by the decree, and the obligations imposed . . . [being] those imposed by decree, and enforceable as such. Once the contract is merged into the decree, the value attaching to the [contract] is only historical." (citation omitted)).
¶18 In arguing the court erred in imposing interest penalties on him for payments due prior to October 2010, Father contends the court, by adopting Mother's calculations, inappropriately applied A.R.S. § 25-510(A). According to Father, such application violated the 2004 order. Mother argues the parties' waiver of interest on the $50,000 arrearage in the 2004 order "did not affect the application of A.R.S. § 25-510 since the parties did not specifically waive its application or otherwise provide for a different method of application of each month's payments made by Father." As such, according to Mother, "Father could not make early payments for the next month's current child support while the [$50,000] arrears [j]udgment, and interest thereon, remained to be paid." We disagree with Mother.
¶19 In sum, as shown by Mother's exhibit at trial and her amended calculations, she argued and the family court adopted the view that if Father made an early payment of arrearages several days prior to the due date for the payment, those payments had to be applied to principal on the arrearages rather than to the next month's payment. See A.R.S. § 25-510(A) (providing that payments through the Clearinghouse would first apply to current child support and current court ordered payments for the support of a family, then to current spousal maintenance, then to the current monthly fee due to the Clearinghouse, then to past due support reduced to judgment and associated interest, then to past due spousal maintenance reduced to judgment and associated interest, then to past due support not reduced to judgment and associated interest, then to past due spousal maintenance not reduced to judgment and associated interest, and then to past due amounts of the fee due to the Clearinghouse). Thus, Mother attributed Father's November 26, 2003, January 30, 2004, December 19, 2008, February 26, 2009, April 28, 2009, and April 27, 2010 payments to the principal of the $50,000 arrearage (past due support reduced to judgment) because the monthly child support and $50,000 arrearage payments due had been previously paid by Father in each of these months. The court accepted the application of these payments to the principal of the $50,000 arrearage, despite the fact that the amount of each payment was equivalent to the $400 child support and $300 arrears payments which were due in December 2003, February 2004, March 2004, January 2009, March 2009, May 2009, and May 2010.
Additionally, Father's February 26, 2004 payment of $350 was attributed to February child support, since Father's January 30, 2004 payment was not attributed to the payments due in February 2004. Consequently, Father was only credited in March for his March 15th payment of $350, even though the amount of the payment he made on February 26th would have covered the remaining amount due for Father's March 2004 payments.
¶20 The family court erred in its interpretation of the 2004 order. That order required Father to make child support and arrearage payments "payable one-half on the 1st and one-half on the 15th of each month." This does not require Father to make the payment on the exact date, provided it is paid by that date. Given the language of the order, Father should not be penalized under A.R.S. § 25-510(A) for making payments prior to the 1st or 15th of the month. It would be inequitable, under these facts, to allow Mother to receive interest on payments she has deemed "delinquent" because Father made them early. Therefore, we vacate the family court's order as it pertains to the principal balance and interest due on the $50,000 arrearage of the 2004 order and past due child support for the period July 1, 2003 through January 31, 2013.
¶21 Applying Father's early payments to the child support and arrearage payments due in December 2003, February 2004, March 2004, January 2009, March 2009, May 2009, and May 2010, we have recalculated the amounts owed by Father to Mother, including those amounts attributed to Father after October 2010. For the period of July 1, 2003 through January 31, 2013 the principal balance due on the $50,000 child support arrearage is $15,224, the accrued interest on the $50,000 child support arrearage is $11,103.77, the principal balance due on past due child support is $2,870.32, and the accrued interest on past due child support is $782.51. III. Attorneys' Fees
Father's early payments were those made on November 26, 2003, January 30, 2004, February 26, 2004, December 19, 2008, February 26, 2009, April 28, 2009, and April 27, 2010.
Father does not contest Mother's attribution of payments after October 2010 on appeal.
These figures amount to approximately $7,250 less than those the family court entered by judgment.
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¶22 Finally, Father argues the family court erred in denying his request for attorneys' fees. We disagree. "[T]he failure to award fees in a child-support matter will not be reversed unless the court abused its discretion." Alley, 209 Ariz. at 429, ¶ 12, 104 P.3d at 160. In reviewing for an abuse of discretion, the question is not what this Court would have awarded if we had decided the matter at trial. See Heller v. Heller, 7 Ariz. App. 298, 300, 438 P.2d 445, 447 (1968). Rather, "[t]he question is whether the trial court's determination was an abuse of its discretion." Id.
¶23 Section 25-324(A) (Supp. 2014) provides the trial court may award attorneys' fees after considering the parties' financial resources and the reasonableness of their positions during the proceedings, but that the court is not required to do so. See Magee v. Magee, 206 Ariz. 589, 591 n.1, ¶ 8, 81 P.3d 1048, 1050 n.1 (App. 2004) (stating that reasonableness of the parties' positions and financial resources are two separate considerations, "and an applicant need not show both a financial disparity and an unreasonable opponent in order to qualify for consideration for an award."); see also Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 9, 333 P.3d 818, 821 (App. 2014) ("[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. 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." (second alteration in original) (citations omitted)); In re Marriage of Williams, 219 Ariz. 546, 549, ¶ 12, 200 P.3d 1043, 1046 (App. 2008) (concluding that the "legislature intended courts to assess the reasonableness of a litigant's position pursuant to § 25-324(A) by an objective standard.").
¶24 Although there is a disparity of income between the parties and some of Mother's positions were unreasonable, the proceeding below was brought based on Father's admitted failure to keep current on child support and arrearage payments. Therefore, upon our review of the record, we do not find the family court abused its discretion in denying his request for attorneys' fees.
CONCLUSION
¶25 We affirm the family court's ruling that Father waived the defenses of estoppel, waiver, and laches at trial. We vacate the court's order as it pertains to the principal balance and interest due on the $50,000 arrearage of the 2004 order and past due child support for the period July 1, 2003 through January 31, 2013 and remand this matter to the family court to enter a judgment consistent with this decision.
¶26 Mother and Father each request attorneys' fees and costs incurred in this appeal pursuant to A.R.S. § 25-324. In the exercise of our discretion, because Mother has conceded a financial disparity exists in her favor, we award Father his reasonable attorneys' fees and costs on appeal, in an amount to be determined, limited to his arguments on the issue of the calculation of previous payments and the accrual of interest on the $50,000 arrearage judgment and past due child support. Such an award is subject to timely compliance with Arizona Rule of Civil Appellate Procedure 21.