Opinion
No. 1 CA-CV 13-0235
02-27-2014
In the Matter of: ERIN BRIGHT, Petitioner/Appellee, v. MICHAEL TORBERT, Respondent/Appellant. STATE OF ARIZONA, ex rel. THE DEPARTMENT OF ECONOMIC SECURITY, Intervenor/Appellee
Lawrence B. Slater, PLLC, Gilbert By Lawrence B. Slater Counsel for Petitioner/Appellee Michael Torbert, Apache Junction Respondent/Appellant In propria persona
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. FC2005-092543
The Honorable Paul J. McMurdie, Judge
AFFIRMED IN PART; JURISDICTION ACCEPTED IN PART, RELIEF
DENIED
COUNSEL
Lawrence B. Slater, PLLC, Gilbert
By Lawrence B. Slater
Counsel for Petitioner/Appellee
Michael Torbert, Apache Junction
Respondent/Appellant In propria persona
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Maurice Portley joined. KESSLER, Presiding Judge:
¶1 Michael Torbert appeals the family court's judgment awarding Erin Bright child support arrears, finding Torbert in contempt for his knowing and willful failure to comply with a valid child support order, and awarding Bright attorneys' fees and costs. For the following reasons, we affirm the family court and deny Torbert any relief from the contempt citation.
FACTUAL AND PROCEDURAL HISTORY
¶2 In 2012, Torbert filed a petition to modify child custody, parenting time, and child support. Bright responded and filed a counter-petition for contempt alleging Torbert failed to pay child support and accumulated arrears in excess of $30,000. Bright requested attorneys' fees and costs associated with filing the contempt petition.
¶3 The family court held an evidentiary hearing on the contempt petition in December 2012, but Torbert has not provided us a transcript from that hearing. The court ordered Torbert to continue to make arrearage payments and the Attorney General to prepare an arrearage calculation, holding that, "[i]f no objection is received from either party within 10 days following receipt [of the calculation], the Court will enter judgment based upon the report." The court also ordered Bright to file an affidavit as to attorneys' fees and costs and gave Torbert the opportunity to respond.
¶4 Bright filed her application and affidavit for attorneys' fees and costs requesting approximately $4260, but Torbert did not respond. The parties did not dispute the arrearage calculation, and on February 19, 2013, the family court entered an order awarding $23,680.94 in principle to Bright in child support arrears for the period of 2005 to 2012. The court also ruled that Torbert was in contempt because he willfully failed to pay a valid child support order. On March 4, 2013, the court entered an order awarding Bright $2,000 in attorneys' fees. Torbert filed a notice of appeal on March 20, but indicated he was appealing from the February order.
DISCUSSION
I. Appellate Jurisdiction
¶5 On appeal, Torbert requests that we vacate the order finding him in contempt and awarding Bright attorneys' fees because he testified he was not in contempt, and there was no evidence of a knowing and willful violation of prior child support orders because he missed payments only when involuntarily unemployed. The State, although not participating in the appeal, contends that we lack jurisdiction to review the contempt citation. It also contends that Torbert has not challenged the arrearage amount, and that he never appealed from the March order awarding fees. Bright also argues that we lack jurisdiction to review the contempt citation and the award of fees, and that Torbert has not challenged the arrearage order on appeal.
Torbert also appears to contend that the family court erroneously awarded him only $675 in support credits paid directly to Bright when he had paid $800. In the minute entry awarding such credits, the court stated that it was based on the stipulation of the parties. Because Torbert has not provided us the transcript from the December evidentiary hearing, we presume that the evidence presented supported the court's order on this issue. See Auman v. Auman, 134 Ariz. 40, 42-43, 653 P.2d 688, 690-91 (1982) (stating that appellant has burden to provide a complete trial court record, and that appellate court will presume that any missing portion of the record supports the judgment).
Torbert also states that the family court previously told him that he would not be found in contempt, which somehow affected his preparation for or presentation at the evidentiary hearing. Torbert cites no portion of the record to support this statement and we have found none. Accordingly, we will not consider the argument on appeal. In re Aubuchon, 233 Ariz. 62, 6465, ¶ 6, 309 P.3d 836, 88889 (2013) ("[W]e consider waived those arguments not supported by adequate explanation, citations to the record, or authority."); see ARCAP 13(a)(6) (stating appellant's brief must contain an argument).
We granted the State of Arizona's motion to change the caption in this appeal to reflect that the State is an Intervenor/Appellee. Thereafter, the State filed a notice of nonparticipation.
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¶6 In general, our appellate jurisdiction "is limited to appeals from final judgments which dispose of all claims and parties." Baker v. Bradley, 231 Ariz. 475, 479, ¶ 9, 296 P.3d 1011, 1015 (App. 2013) (citing Garza v. Swift Transp. Co., 222 Ariz. 281, 284, ¶ 12, 213 P.3d 1008, 1011 (2009); see also Ariz. Rev. Stat. ("A.R.S.") § 12-2101(A) (Supp. 2013). Final judgments must be in writing, signed by the judge, and entered by the clerk. Ariz. R. Fam. L. P. 81(A).
¶7 We have jurisdiction to review the family court's arrearage and attorneys' fees determinations. Here, the court issued a written and signed judgment in February 2013 that disposed of the merits of Bright's claim against Torbert for child support arrears and found Torbert in contempt, but did not determine Bright's request for attorneys' fees. We need not decide whether the February 2013 order was final and appealable due to the lack of an award of fees because the March signed order awarding fees clearly was a final order and Torbert's notice of appeal was filed within thirty days of both orders. See Williams v. Williams, 228 Ariz. 160, 166, ¶¶ 21-22, 264 P.3d 870, 876 (App. 2011) (stating that order resolving one, but less than all, pending post-decree petitions, is appealable). The fact that Torbert's notice of appeal only referred to the February order is a technical defect and such error did not prejudice the State or Bright. See McKillip v. Smitty's Super Valu, Inc., 190 Ariz. 61, 62, 945 P.2d 372, 373 (App. 1997) (stating that "the court must review notices of appeal liberally, disregarding technical, harmless errors in favor of disposition on the merits").
¶8 As to that portion of the February order finding Torbert in contempt, "orders adjudicating whether a person should be held in contempt for refusing to obey a court order are not appealable in Arizona." Elia v. Pifer, 194 Ariz. 74, 80, ¶ 30, 977 P.2d 796, 802 (App. 1998) (stating that "where review of a contempt order is needed, it must be by the speedier route of special action petition"). In Green v. Lisa Frank, Inc., we elaborated: "[C]ontempt orders are unappealable unless the substance or effect of the order in question—beyond including a 'finding[] of contempt,'—qualifies the order as one of those made appealable pursuant to [A.R.S.] § 12-2101." 221 Ariz. 138, 148, ¶ 21, 211 P.3d 16, 26 (App. 2009) (citation omitted); see also State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 18, 66 P.3d 70, 73 (App. 2003).
¶9 Unlike Green, in which the contempt order resulted in dismissal of the underlying action thereby qualifying the order as appealable pursuant to A.R.S. § 12-2101 and constituting a final judgment on the merits of that action, 221 Ariz. at 146-47, ¶¶ 15-16, 211 P.3d at 25-26, here the contempt order stands alone and did not result in an otherwise appealable order.
¶10 Thus, we lack jurisdiction to consider the appeal from the contempt order. However, in the exercise of our discretion, we accept special action jurisdiction to consider Torbert's appeal from the contempt order. Burton, 205 Ariz. at 30, ¶ 18, 66 P.3d at 73. We accept jurisdiction of that issue, but, for the reasons state below, deny relief.
II. Merits
¶11 Torbert argues there was no evidence he willfully and purposefully failed to obey prior child support orders and, thus, he should not have been held in contempt or ordered to pay Bright's attorneys' fees. However, despite his statement that he had transcripts, Torbert does not provide us with a transcript from the evidentiary hearing on the contempt petition. See ARCAP 11(b) (stating it is the duty of the appellant to provide transcripts on appeal). Thus, we presume that the evidence supports the finding of contempt. See Auman v. Auman, 134 Ariz. 40, 42-43, 653 P.2d 688, 690-91 (1982). Accordingly, we deny Torbert relief from the contempt citation. Moreover, although it is unclear whether Torbert seeks relief from the arrearage determination, the family court indicated it would make an arrearage determination based on the State's calculation unless the parties objected to that calculation. Torbert never objected to the calculation and the calculation supports the court's award of arrearages. Thus, we affirm the arrearage award. Torbert never objected to Bright's fee application in the family court, and he has not provided us with any transcript to support an attack on those fees. Accordingly, we also affirm the award of attorneys' fees and costs to Bright.
III. Attorneys' Fees and Costs on Appeal
¶12 Although Bright requests attorneys' fees on appeal, she does not provide a substantive basis for a fee award. Normally, we would deny her request for her failure to cite a basis for the award. See Ezell v. Quon, 224 Ariz. 532, 539, ¶ 31, 233 P.3d 645, 652 (App. 2010) (stating that when a party requests fees it must state the statutory or contractual basis for the award). However, we have discretion to award reasonable attorneys' fees and costs in appeals that are "frivolous or taken solely for the purpose of delay." ARCAP 25 (providing that the court can exercise discretion to award costs and fees "as the circumstances of the case and the discouragement of like conduct in the future may require"); Ariz. Dep't of Rev. v. Gen. Motors Acceptance Corp., 188 Ariz. 441, 446, 937 P.2d 363, 368 (App. 1996). An argument is not objectively frivolous for purposes of Rule 25 "if the issues raised are supportable by any reasonable legal theory, or if a colorable legal argument is presented about which reasonable attorneys could differ." In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100 (1993).
¶13 Here, Torbert's appeal is frivolous. First, Torbert seeks to appeal the contempt and the corresponding award of attorneys' fees for contempt. However, as we explained, contempt is not reviewable on direct appeal and Torbert did not provide us with a transcript to support his arguments about why he was not in contempt. Moreover, Torbert did not object to the request for fees in the proceedings below despite the opportunity to do so. Thus, his argument is not supported by any reasonable legal theory and is objectively frivolous.
¶14 Second, to the extent Torbert actually challenges the arrearage determination, he does not provide a transcript of the relevant evidentiary hearing and the record reflects that during the hearing he stipulated to receiving a certain amount of credit for paying past child support payments. In addition, the court informed the parties that absent an objection, the amount of arrearages would be based on a calculation provided by the State. Torbert did not object to the calculation and, thus, any challenge to the calculation now is not supported by a reasonable legal theory nor is a matter about which reasonable attorneys could differ. See id.
¶15 We find that Torbert's appeal is neither supported by a reasonable legal theory nor did it raise legal arguments about which reasonable attorneys could differ. In our discretion we award Bright her reasonable attorneys' fees and costs on appeal upon her timely compliance with ARCAP 21.
CONCLUSION
¶16 For the reasons stated, we affirm the family court's February 2013 order awarding child support arrearages and its March 2013 judgment awarding Bright her attorneys' fees and costs. In the exercise of our discretion, we accept special action jurisdiction to consider Torbert's appeal from the contempt citation and deny relief.