Opinion
No. 2 CA-CV 2018-0138-FC
08-02-2019
IN RE THE MARRIAGE OF TYPHANEY SHANKER, Petitioner/Appellee, and HOWARD SHANKER, Respondent/Appellant.
Typhaney Shanker, Maricopa In Propria Persona Law Office of Linda Lory, Paradise Valley By Linda Aaron-Lory Counsel for Respondent/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pinal County
No. DO201700063
The Honorable Delia R. Neal, Judge
AFFIRMED
Typhaney Shanker, Maricopa
In Propria Persona Law Office of Linda Lory, Paradise Valley
By Linda Aaron-Lory
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Judge Brearcliffe and Judge Espinosa concurred. VÁSQUEZ, Chief Judge:
¶1 In this marriage-dissolution case, Howard Shanker appeals from the trial court's ruling that he pay Typhaney Shanker's attorney fees and costs pursuant to A.R.S. § 25-324(A). He contends the court erroneously found that there was no financial disparity between the parties and that he had taken unreasonable positions throughout the litigation. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. In re Marriage of Downing, 228 Ariz. 296, ¶ 2 (App. 2011). Howard and Typhaney were married in October 2006 and have one daughter, M. In December 2016, Typhaney obtained an order of protection, prohibiting Howard from contacting her or M. and from visiting the marital residence. The order of protection was based, in part, on an incident in which Howard was arrested for multiple counts of disorderly conduct (domestic-violence offenses). Because Typhaney and M. were two of the victims of the disorderly conduct, the release conditions in that case prohibited Howard from contacting them.
¶3 In January 2017, Typhaney filed a petition for dissolution of marriage. After she filed an application for entry of default, Howard responded and filed an "Accelerated Petition for Order to Show Cause Re: Temporary Orders." At a subsequent hearing, the trial court denied Howard's petition, explaining that no temporary orders had been entered and it was "unclear as to what, exactly, [Howard was] requesting." In denying Howard's motion for reconsideration, the court again explained that, because no motion for temporary orders had been filed, no temporary orders were in place and an order-to-show-cause hearing would be premature. Thereafter, Howard filed an "Accelerated Motion to Schedule Hearing Re: Petition for Order to Show Cause," urging the court to again reconsider its prior decision. The court, however, determined that Howard's request "ha[d] already been addressed." Howard subsequently filed a motion for temporary orders, requesting parenting time with M. and access to the marital residence to retrieve his belongings.
The motion for reconsideration is not part of our record on appeal.
¶4 In June 2017, Howard pled guilty to attempted possession of marijuana for sale. Although his release conditions in that case provided that he was not to return to the marital residence, the judge made an exception for him to do so to retrieve his belongings, upon authorization of the trial court in the dissolution matter. Thereafter, Howard and Typhaney stipulated in the dissolution case that he could pick up his belongings.
¶5 At a September 2017 hearing, the trial court addressed Howard's request for parenting time. Howard asked the court to modify the order of protection and allow him supervised parenting time. He stated that his release conditions in the disorderly conduct case would be modified if he were granted supervised parenting time. Typhaney responded that no motion to modify had been filed and urged the court to affirm the order of protection. The court declined to modify the order of protection, also noting that it "cannot modify any release conditions in a criminal matter." However, the court added, "if those preclusions were lifted, [it could] order [Howard] to have supervised parenting time with [M.]."
¶6 In December 2017, Howard pled guilty to four counts of disorderly conduct, and the charges involving Typhaney and M. were dismissed. The order of protection also expired that month. Howard began supervised parenting time with M. in January 2018.
¶7 After a one-day trial, the trial court entered a decree of dissolution. As part of the decree, the court found that Typhaney was entitled to an award of attorney fees and costs under § 25-324(A), ordered her to submit documentation to support the award, and allowed Howard to file an objection. After the parties filed their respective pleadings, the court entered a final order, awarding Typhaney $15,000 in attorney fees and costs. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
This order does not include language pursuant to Rule 78(c), Ariz. R. Fam. Law P. However, at the time the order was entered, that rule had not yet been adopted, and the order resolved the final claim of the dissolution matter. Compare Ariz. Sup. Ct. Order No. R-17-0054 (Aug. 30, 2018), with Ariz. Sup. Ct. Order No. R-05-0008 (Oct. 19, 2005).
Discussion
¶8 Howard argues the trial court erred in awarding Typhaney attorney fees and costs under § 25-324(A). We review an award of attorney fees and costs under § 25-324(A) for an abuse of discretion. Murray v. Murray, 239 Ariz. 174, ¶ 20 (App. 2016). In doing so, we defer to the trial court's factual findings, "so long as there is competent evidence to support them." Quijada v. Quijada, 246 Ariz. 217, ¶ 13 (App. 2019).
¶9 Section 25-324(A) provides that the trial court, "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." "[C]osts and expenses" include "attorney fees, deposition costs and other reasonable expenses." § 25-324(C).
¶10 In awarding Typhaney attorney fees and costs under § 25-324(A), the trial court considered the financial resources of the parties and the reasonableness of their positions throughout the litigation. With regard to the former, the court noted: "[Howard's] counsel argued that there was a substantial disparity of income between the parties, however the Court finds that any disparity is due entirely to [Howard's] actions and [Typhaney] should not be liable for his attorney fees because of his criminal behavior." Accordingly, the court found that there was "no substantial disparity of financial resources between the parties."
¶11 Regarding the latter consideration, the trial court found that Howard had "acted unreasonably in the litigation." Specifically, the court pointed out that Howard had "refused to engage in any pre-trial settlement proceedings where many of the issues raised at [trial] could have been resolved"; that he had "filed an 'Accelerated Petition for Order to Show Cause'" but "there were no orders in place . . . that would justify a contempt hearing so early in the proceedings"; and that he had made requests to "be allowed to return to the residence" and to "have immediate access" to M. but the order of protection and the "'no contact' release conditions in the criminal matter" precluded such requests. The court further observed that Howard had "failed to appropriately respond to discovery requests."
¶12 On appeal, Howard maintains the trial court's finding that "there was no financial disparity between the parties had no basis in fact." He contends that he cannot find "gainful employment" because of his felony conviction and that the court unjustly imputed income to him for purposes of determining child support—income that is less than half of Typhaney's.
¶13 Although the trial court found there was "no substantial disparity of financial resources," it based its decision for the award of attorney fees and costs on the unreasonable positions taken by Howard throughout the litigation. See § 25-324(A). And the court noted that, to the extent there was any disparity, it was due entirely to Howard's actions. As such, we fail to see how the court's finding of no financial disparity could show the court abused its discretion in entering the award based on Howard's unreasonableness.
¶14 In any event, the trial court's finding of "no substantial disparity of financial resources" is supported by the record. See Quijada, 246 Ariz. 217, ¶ 13. Howard did not file an updated financial affidavit, and his affidavit from July 2017 indicated he was making $100 per month, which the court found to be "unrealistic." Although Howard testified that he had been unsuccessful in finding "gainful employment," he did not present evidence of his efforts. See Henderson v. Henderson, 241 Ariz. 580, ¶ 23 (App. 2017) (unsupported allegations of financial disparity insufficient to show abuse of discretion). He previously had worked as a mechanic and home inspector, and he testified that he "know[s the] construction [industry] intimately." Howard earned $6,000 per month during the marriage, compared to Typhaney's current income of approximately $4,300 per month. To the extent the evidence was conflicting, we do not reweigh it on appeal and instead defer to the trial court's resolution of this factual dispute. See Lehn v. Al-Thanayyan, 246 Ariz. 277, ¶ 31 (App. 2019).
¶15 Howard also maintains the trial court's finding that he had acted unreasonably during the litigation had "no basis in fact." He asserts that he filed five motions for temporary orders that the court erroneously construed as requests to hold Typhaney in contempt. He also seems to challenge the court's ultimate resolution of his motion for temporary orders, suggesting that the court improperly "kept [him] from any of his belongings" and refused to modify the order of protection.
¶16 The trial court's treatment of Howard's various motions concerning temporary orders was proper. As he did below, Howard does not appreciate the difference between a motion for temporary orders and a motion for hearing to show cause regarding non-compliance with temporary orders. Compare Ariz. R. Fam. Law P. 47 (motions for temporary orders), with Ariz. R. Fam. Law P. 92 (sanctions for non-compliance with court orders). Howard repeatedly filed motions requesting an expedited hearing to show cause regarding temporary orders, consistent with Rule 92, even after the court had explained that such motions were inappropriate because there were no temporary orders in place. Typhaney nevertheless had to respond to these motions, causing her to incur additional expenses related to the dissolution. Cf. Moreno v. Silva, 231 Ariz. 428, ¶ 4 (App. 2013) (awarding attorney fees on appeal when mother forced to respond to "groundless arguments" on appeal).
¶17 To the extent Howard challenges the trial court's rulings at the September 2017 hearing related to his motion for temporary orders, the transcript from that hearing is not part of our record on appeal. It was Howard's burden to provide the necessary documents for our review. See Ariz. R. Civ. App. P. 11(c). We presume the missing transcript supports the court's rulings. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995). In any event, we observe that the parties had, before the September 2017 hearing, stipulated that Howard could pick up his belongings and that, at the hearing, the court permitted the parties to brief the issue of modifying the order of protection to allow for parenting time.
¶18 Howard additionally disputes the trial court's finding concerning settlement, asserting that Typhaney's proposed offers were "untenable" and, as such, "[t]here was nothing for the parties to agree upon." Typhaney testified that she had sent settlement letters "multiple times" but Howard never responded. Howard seems to acknowledge as much, suggesting that he did not respond because her offers were unreasonable. But Howard's argument misses the mark. Because he did not respond with any counter-offers to seek a compromise, he wholly impeded the possibility of settlement. Such conduct was a proper consideration in the court's reasonableness assessment. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 34 (App. 1998).
¶19 Likewise, we reject Howard's argument that the trial court erroneously found he had "failed to appropriately respond to discovery requests" because he did not have access to his belongings for the first several months of this litigation. Consistent with the court's suggestion that Howard could have otherwise obtained the necessary documents, Typhaney testified that she had to call multiple entities to obtain disclosure statements because the information was not in her possession at the residence. Moreover, as mentioned above, Howard did not file an updated financial affidavit even after he received his belongings, and his answers to the interrogatories—standard yes-no questions that did not require his belongings—were largely incomplete.
Howard seems to suggest that Typhaney's counsel misled the trial court concerning disclosure. Although there was some confusion at trial about the timing of Howard's January 2018 disclosure, that does not appear to have been the basis of the court's disclosure finding. --------
¶20 In sum, the trial court's finding that Howard had "acted unreasonably in the litigation" is supported by the record. See Quijada, 246 Ariz. 217, ¶ 13. Accordingly, the court did not abuse its discretion by awarding Typhaney attorney fees and costs under § 25-324(A). See Murray, 239 Ariz. 174, ¶ 20.
Attorney Fees and Costs on Appeal
¶21 Howard requests his attorney fees and costs on appeal pursuant to A.R.S. §§ 25-324 and 25-415. See Ariz. R. Civ. App. P. 21(a). After considering the financial resources of the parties and the reasonableness of their positions on appeal, we exercise our discretion and deny Howard's request under § 25-324(A).
¶22 Section 25-415(A) requires the court to "sanction a litigant for costs and reasonable attorney fees incurred by an adverse party if the court finds that the litigant" knowingly presented a false claim, knowingly accused an adverse party of making a false claim, or violated a disclosure or discovery order. Howard has not provided any argument on what subsection applies here, and, in any event, based on our review of the record, we fail to see how any subsection applies. Accordingly, his request is denied.
Disposition
¶23 For the foregoing reasons, we affirm the trial court's ruling.