Opinion
No. 1 CA-CV 13-0526 FC
03-31-2015
In the Matter of: HEIDE HILLE, Petitioner/Appellee, v. JONATHAN HILLE, Respondent/Appellant.
COUNSEL Judith A. Morse, P.C., Phoenix By Judith A. Morse Counsel for Petitioner/Appellee Wilenchik & Larson, PLLC, Scottsdale By Gregory A. Larson Counsel for Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. FC2007-053697
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
COUNSEL Judith A. Morse, P.C., Phoenix
By Judith A. Morse
Counsel for Petitioner/Appellee
Wilenchik & Larson, PLLC, Scottsdale
By Gregory A. Larson
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 Jonathan Hille ("Father") appeals from the family court's order characterizing as domestic-support obligations three attorney's fees awards entered against him. We affirm. The record supports the court's determination that the awards arose from child-support proceedings and therefore relate to domestic-support obligations.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Heide Hille ("Mother") married in 1999 and divorced in 2008. They have one minor child ("Child"). After the dissolution of their marriage, the parties continued to litigate certain issues, including child support.
¶3 During the course of the post-decree litigation, the family court entered multiple attorney's fees awards in favor of Mother, including:
1. A 2010 award of $15,000 in attorney's fees and costs incurred by Mother in connection with the filing of two motions to compel Father to produce financial information.
2. A 2011 award of $140,480.75 in attorney's fees and $1,766.26 in costs incurred by Mother in connection with a trial.
3. A 2012 award of $2,500 in attorney's fees and costs incurred by Mother in connection with efforts to enforce orders regarding the reimbursement of Child's non-covered medical expenses.
¶4 Father sought Chapter 13 bankruptcy protection in June 2012, but he voluntarily dismissed his petition in November 2012. Several months later, Mother filed a Motion for Determination of Domestic Support Order. The motion requested that:
[T]he Court clarify its rulings regarding several attorneys' fees judgments entered against [Father] during the course of various proceedings before this Court. Mother is requesting clarification
because Father filed a voluntary bankruptcy petition in the United States Bankruptcy Court for the District of Arizona ("Bankruptcy Court") seeking a discharge of these judgments. While Father's petition has recently been dismissed, Father's bankruptcy counsel indicated at the end of the proceedings that Father may file again in the future and will seek a discharge of these judgments.Father filed a one-page response arguing that Mother was seeking an "advisory decision." He also requested that the court schedule oral argument "before considering [ ] the need for an evidentiary hearing of Mother's requests."
¶5 Without hearing oral argument, the court ruled that the attorney's fees awards listed above could be classified as domestic-support obligations under 11 U.S.C. § 523(a)(5). The court qualified its ruling as follows: "[T]his court will accept Mother's invitation to decide the issue of how to characterize these fee judgments, because it appears the superior court is entitled to do so, and leave to other tribunals the question of how much weight its ruling deserves."
DISCUSSION
¶6 We review an award of attorney's fees for abuse of discretion. Mangan v. Mangan, 227 Ariz. 346, 352, ¶ 26 (App. 2011). We also review a determination that attorney's fees awards constitute domestic-support obligations for abuse of discretion. Shaver v. Shaver, 736 F.2d 1314, 1316 (9th Cir. 1984) ("Because the right to a discharge in bankruptcy is a matter generally left to the sound discretion of the bankruptcy judge, we disturb this determination only if we find a gross abuse of discretion."). Applying this standard, we consider in turn the two issues Father raises on appeal: (1) whether the family court abused its discretion by determining that the attorney's fees awards were domestic-support obligations, and (2) whether the family court abused its discretion by denying Father's request for oral argument or an evidentiary hearing. I. THE FAMILY COURT DID NOT ABUSE ITS DISCRETION BY CLARIFYING THAT THE FEE AWARDS RELATE TO DOMESTIC-SUPPORT OBLIGATIONS.
¶7 As an initial matter, we reject Father's contention that the family court exceeded its jurisdiction. Mother asked the family court to clarify the nature of the fee awards because under the Bankruptcy Code, domestic-support obligations are nondischargeable. See 11 U.S.C. § 523(a)(5). State and federal courts have concurrent jurisdiction to determine whether debts are nondischargeable domestic-support obligations. Rein v. Providian Fin. Corp., 270 F.3d 895, 904 n.15 (9th Cir. 2001); In re Siragusa, 27 F.3d 406, 408 (9th Cir. 1994).
¶8 But "[f]or a nondischargeability proceeding . . . to be ripe and to present an actual controversy, the defendant self-evidently must be a 'debtor,' which status requires a bankruptcy case, and must either have a discharge in prospect or have already received a discharge." In re Menk, 241 B.R. 896, 905 (B.A.P. 9th Cir. 1999); see also In re Moncur, 328 B.R. 183, 187 (B.A.P. 9th Cir. 2005) ("The doctrines regarding ripeness and advisory opinions underlie the reasoning of decisions holding that no court, not even a bankruptcy court, can adjudicate the dischargeability of a debt of a person who is not yet a debtor in a bankruptcy case."). Because Father had dismissed his bankruptcy at the time Mother filed her motion, the family court could not properly render an advisory opinion concerning the effect of federal bankruptcy law on the outstanding judgments. But the court's decision was not simply a prediction concerning dischargeability -- it was a clarification of the court's own intent concerning the nature of, and underlying reasons for, the judgments it entered. Whatever effect the court's determination might have on future proceedings is outside the scope of the family court case, and outside the scope of this appeal.
To the extent that the court's decision can be read as commenting on how Father's debts should be treated in a bankruptcy proceeding, the court correctly noted that the determination will be made, if at all, by a different court that can ascribe whatever weight it considers appropriate to the decision now on appeal.
¶9 We conclude that the court did not abuse its discretion by determining that the fee awards relate to domestic-support obligations. The Bankruptcy Code defines "domestic support obligation" as:
[A] debt that accrues before, on, or after the date of the order for relief in a case under this title . . . that is --11 U.S.C. § 101(14A). Attorney's fees awarded to a non-debtor spouse arising from dissolution or child-support proceedings can be considered a domestic-support obligation if the ultimate purpose of the proceedings is to provide support for the child. See In re Gionis, 170 B.R. 675, 682-84 (B.A.P. 9th Cir. 1994), aff'd, 92 F.3d 1192 (9th Cir. 1996); see also In re Hudson, 107 F.3d 355, 357 (5th Cir. 1997) ("Because the ultimate purpose of such a proceeding is to provide support for the child, the attorney fees incurred inure to her benefit and support, and therefore fall under the exception to dischargeability set out in § 523(a)(5)."); In re Dvorak, 986 F.2d 940, 941 (5th Cir. 1993) (affirming that attorney's fees incurred in post-divorce proceeding for a child's benefit and support were nondischargeable under § 523(a)(5)). In determining whether the fee award constituted a domestic-support obligation in Gionis, the Ninth Circuit Bankruptcy Appellate Panel considered the need for support and the intent of the state court. 170 B.R. at 682. The court explained that both the presence of a minor child and a disparity in income "may serve as indicia of need." Id.
(A) owed to or recoverable by --
(i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; or
. . . .
(B) in the nature of alimony, maintenance, or support . . . of such spouse, former spouse, or child of the debtor or such child's parent, without regard to whether such debt is expressly so designated . . .
¶10 On the issue of intent, we will defer to the family court because it is in the best position to determine its own intent. With respect to the issue of need, this case involves both a minor child and a discrepancy in income. On this record, the court properly exercised its discretion by clarifying that each of the awards relate to a domestic-support obligation. First, the 2010 award resulted from Mother's efforts to compel Father to provide evidence of his income and financial resources that was relevant to child-support calculations. Second, the 2011 award followed a trial in which many of the issues related to child support. In her application for attorney's fees, Mother categorized the time entries and corresponding fees according to the trial issue each entry addressed. Father raised no objection to the application. Moreover, in responding to Mother's Motion for Determination of Domestic Support Order, Father did not argue that certain fees arose from non-support issues nor did Father attempt to separate the fees on this basis. He has therefore waived any objection to the family court's conclusion that the fees, as a whole, constituted a domestic-support obligation. See Pflum v. Pflum, 135 Ariz. 304, 307 (App. 1982) ("Matters not raised below will not be considered on appeal."). Finally, the 2012 award resulted from litigation surrounding Child's unreimbursed medical expenses. The court did not abuse its discretion by determining that each of the fee awards entered against Father relate to a domestic-support obligation. II. THE FAMILY COURT DID NOT ABUSE ITS DISCRETION BY DENYING FATHER'S REQUEST FOR ORAL ARGUMENT.
The record reflects that Father has significantly more income than Mother.
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¶11 Father contends that the family court abused its discretion by denying his request for oral argument or an evidentiary hearing on Mother's motion. Under ARFLP 35(C)(1), "[t]he setting of oral argument is at the discretion of the court." No credibility determinations were necessary to clarify the fee awards. Accordingly, the court did not abuse its discretion by denying Father's request for oral argument. In accordance with ARFLP 35(A)(3), Father was provided the opportunity to file a written response to Mother's motion, and did so. Notably, his response did not contain either a recitation of pertinent facts or any citation to legal authority.
CONCLUSION
¶12 For the foregoing reasons, we affirm. In exercise of our discretion, we deny Mother's request for attorney's fees on appeal.