Opinion
No. 1 CA-CV 12-0783
01-21-2014
In re the Marriage of: HERMILA OTERO, Petitioner/Appellant, v. MINOR PEREZ, Respondent/Appellee
Gillespie, Shields & Durrant, Mesa By DeeAn Gillespie Strub and Mark A. Shields Counsel for Petitioner/Appellant Minor Perez, Phoenix Respondent/Appellee 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NOTICE: NOT FOR PUBLICATION.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. FC2008-050453
The Honorable Douglas Gerlach, Judge
The Honorable Alfred M. Fenzel, Judge
AFFIRMED
COUNSEL
Gillespie, Shields & Durrant, Mesa
By DeeAn Gillespie Strub and Mark A. Shields
Counsel for Petitioner/Appellant
Minor Perez, Phoenix
Respondent/Appellee In Propria Persona
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Margaret H. Downie joined. BROWN, Judge
¶1 Hermila Otero ("Otero") appeals the trial court's denial of her request for attorneys' fees. Finding no abuse of discretion, we affirm.
BACKGROUND
¶2 Otero and Minor Perez ("Perez") married in 1992 and are the parents of three minor children. In February of 2008, Otero petitioned for dissolution of the marriage. As part of her petition, she alleged that Perez had absconded with a majority of the community funds the parties had saved during their marriage.
After various preliminary matters were considered, Judge Fenzel was assigned to the case in May 2008 and remained as the assigned judge through June 2011.
¶3 Prior to trial, after extensive discovery motion practice, Otero filed several requests for contempt and sanctions, all of which were ultimately denied by the trial court. The parties then presented evidence at trial on matters relating to custody, child support, spousal maintenance, distribution of property, and Perez's alleged dissipation of community assets.
¶4 According to the decree of dissolution entered on November 5, 2008, Perez acknowledged that he removed $528,975.50 from community accounts and transferred them to a bank account in Guatemala. He explained, however, that he transferred the funds to repay loans owed to family members in Guatemala. Otero countered that Perez never borrowed any money, and that if he had, it had been repaid. The trial court rejected Perez's justification and found that pursuant to Arizona Revised Statutes ("A.R.S.") section 25-211, Perez failed to rebut the presumption that all funds transferred to the Guatemala account were community property. Accordingly, the court entered judgment against Perez in the amount of $264,487.75, which represented half of the dissipated community funds.
Otero has not provided this court with transcripts of the trial or any other hearings conducted in the superior court. As such, we presume that the missing transcripts would support the trial court's findings and conclusions. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); see also ARCAP 11(b) (explaining an appellant is responsible for making certain that the record on appeal contains all transcripts or other documents necessary for the court to consider the issues raised on appeal).
¶5 Regarding attorneys' fees, the trial court explained:
From the record presented, there is a basis to award fees to [Otero] in accordance with A.R.S. § 25-324. There is a disparity of income between the parties. An additional basis arises for several positions taken by [Perez], including the issues regarding dissipation of assets.The court then stated "that [Otero] may submit a China Doll Affidavit to this court for consideration in an award of attorneys' fees."
Schweiger v. China Doll Restaurant, 138 Ariz. 183, 673 P.2d 927 (App. 1983).
¶6 Shortly thereafter, Otero submitted her fee application and affidavit in the amount of $93,911.09. She asserted that attorneys' fees and discovery costs increased significantly because of Perez's decision to hide community assets in a foreign country, requiring extensive certified translation. Otero also claimed that fees had escalated because she was forced to work though the Secretary of State, Guatemalan Consulate, and a Guatemalan attorney to obtain bank records.
¶7 Perez filed an objection to the fee application, arguing that Otero's fees and costs were unreasonable. Specifically, Perez argued that Otero's application for fees was plagued with excessive costs and unnecessary pleadings. For example, Otero was charged $3,462.50 for a two-hour deposition. By comparison, Perez was only charged $440 by his attorney for the same deposition. In reply, Otero largely incorporated her previous arguments and challenged the assertions made by Perez, including the reference to the deposition charge.
¶8 For reasons not clear from the record, nothing further happened on Otero's application for fees and costs until March 2010, when Otero filed a motion for a ruling. On April 2, 2010, Judge Fenzel summarily denied the application. Father's counsel was permitted to withdraw from the case in May 2010. On August 28, 2012, Judge Gerlach, newly assigned to the case, issued a signed order denying Otero's application. Otero then filed a motion for new trial, asserting that "the record clearly justifies an award of attorneys' fees to [Otero] as the trial judge granted those fees and then inexplicably, more than a year later, denied them."
¶9 Judge Gerlach denied Otero's motion for new trial, concluding that the "award of attorneys' fees was subject to revision at any time" while the matter was still pending. Judge Gerlach explained further that the "record here 'reasonably support[s]' an inference that Judge Fenzel, in his discretion, found the application unreasonable on its face, warranting its denial outright. Nothing in the application, nothing in the Motion, and nothing otherwise appearing in the record compels a different conclusion[.]" Otero then timely appealed.
DISCUSSION
¶10 Otero argues the trial court abused its discretion in denying her application for attorneys' fees and costs in light of the court's findings regarding disparity of the parties' financial resources and unreasonable positions taken by Perez in the litigation.
¶11 A trial court's authority to award attorneys' fees in dissolution proceedings is governed by A.R.S. § 25-324(A), which provides, in part:
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."We review a trial court's denial of a party's request for an award of attorney fees [under A.R.S. § 25-324(A)] for an abuse of discretion." In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8, 200 P.3d 1043, 1045 (App. 2008). In doing so, we give deference to the trial court's findings of fact and conclusions of law, as it is in the best position to assess the arguments of the parties to the action, observe their conduct, and review their financial records. See MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 38, 250 P.3d 1213, 1221 (App. 2011); Graville v. Dodge, 195 Ariz. 119, 131, ¶ 56, 985 P.2d 604, 616 (App. 1999). Although the trial court has broad discretion to award attorneys' fees in a dissolution proceeding, Medlin v. Medlin, 194 Ariz. 306, 309, ¶ 17, 981 P.2d 1087, 1090 (App. 1999), an abuse of discretion occurs when an error of law is committed in the process of reaching the discretionary conclusion, Williams, 219 Ariz. at 548, ¶ 8, 200 P.3d at 1045.
¶12 Otero asserts that an abuse of discretion occurred here because the trial court's summary denial of the fee application contradicts the court's prior findings made in the decree of dissolution. According to Otero, it is "inexplicable that the same court later entered an order denying her request for fees without any explanation." Otero therefore concludes that the court abused its discretion. However, even assuming that the trial court's orders were contradictory, the "decision" regarding attorneys' fees was subject to revision at any time before entry of the signed order. See Ariz. R. Fam. L. P. 78(B) (stating that an order issued without an express determination that there is no just reason for delay "shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties"); see also In re Marriage of Kassa, 231 Ariz. 592, 594, ¶ 6, 299 P.3d 1290, 1292 (App. 2013); Stevens v. Mehagian's Home Furnishings, Inc., 90 Ariz. 42, 45, 365 P.2d 208, 210 (1961). The decree of dissolution did not include Rule 78(B) language and thus the decree, including the court's statements providing the basis for an attorneys' fees award, was not a final appealable order and was therefore subject to revision until a signed order granting or denying the fee application was entered by the court. Judge Gerlach entered such an order on August 30, 2012.
"Where the language of the family law rules is substantially the same as the language of other statewide rules, case law interpreting that language is applicable." Kline v. Kline, 221 Ariz. 564, 568-69, ¶ 13, 212 P.3d 902, 906-07 (App. 2009) (citing Ariz. R. Fam. L. P. 1, cmt.).
¶13 Moreover, to the extent Otero asserts an abuse of discretion based on the lack of an explanation for the April 2010 order denying fees, nothing in the record indicates that she challenged the court's summary denial based on lack of findings. A litigant is required "to object to inadequate findings at the trial court level so that the court will have an opportunity to correct them, and failure to do so constitutes a waiver." MacMillan, 226 Ariz. at 592, ¶ 39, 250 P.3d at 1221 (citation omitted); see also Elliott v. Elliott, 165 Ariz. 128, 134, 796 P.2d 930, 936 (App. 1990). "There is no obligation for the trial court to make findings of fact under A.R.S. § 25-324" unless a party makes a formal request. MacMillan, 226 Ariz. at 592, ¶ 39, 250 P.3d at 1221. Otero could have requested that the court make specific findings when it issued its order summarily denying the fee request:
On request of a party or another court of competent jurisdiction, 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. The court may make these findings before, during or after the issuance of a fee award.A.R.S. § 25-324(A) (emphasis added). Otero's only objection to the court's ruling was made in her motion for new trial, when she argued that the ruling was against the weight of the evidence and contrary to law. Further, Otero did not challenge the court's lack of explanation or otherwise request findings under § 25-324(A). Therefore, Otero is precluded from raising lack of findings on appeal. See MacMillan, 226 Ariz. at 592, ¶ 39, 250 P.3d at 1221 (noting that failure to object to inadequate findings at the trial court level constitutes waiver).
Because we have not been provided with transcripts of any of the various hearings conducted by the trial court, we presume that Otero did not make an oral request for findings at any hearing.
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¶14 Similarly, Otero argues the court abused its discretion because "it was evident that [Perez's] financial resources far exceeded any amount of money that [Otero] had access to." Despite Otero's argument that the final order is "both unfair and inconsistent," she never challenged the order for a lack of findings under § 25-324(A). Had she done so, Otero would have allowed the court "an opportunity to correct [its] own errors," Bayless Inv. & Trading Co. v. Bekins Moving & Storage Co., 26 Ariz. App. 265, 271, 547 P.2d 1065, 1071 (1976), and, "[i]f it fail[ed] to do so, the issue [would have been] preserved for [our] review." Trantor v. Fredrikson, 179 Ariz. 299, 301, 878 P.2d 657, 659 (1994). This would have been particularly helpful in light of the court's alleged change in position on attorneys' fees. For that reason a party may not "sit back and not call the trial court's attention to the lack of a specific finding on a critical issue, and then urge on appeal that mere lack of a finding on that critical issue as a ground[] for reversal." Bayless, 26 Ariz. App. at 271, 547 P.2d at 1071; see also Trantor, 179 Ariz. at 301, 878 P.2d at 659 ("we think that if findings are waivable [for attorneys' fees] even where [a rule] specifically requires them, they are waivable where awards are made under statutes that do not specifically require them.") (emphasis added).
¶15 Finally, we reject Otero's assertion that "the trial court appears to have lost its understanding and recollection of the facts" given the lengthy delay between Otero's original application for attorneys' fees and the ultimate denial of her application in the court's signed minute entry. Maricopa County Rule 2.10 requires parties to promptly bring any pending matter to the court's attention:
In any case where more than fifty-five (55) days has elapsed after a matter has been finally submitted to the court for decision, and no such decision has been rendered, counsel shall file a notice of impending time limits with the assigned judge.Ariz. Local R. Prac. Super. Ct. (Maricopa) 2.10. Otero filed her application for attorneys' fees on November 12, 2008. But she did not ask the court for a ruling until March 26, 2010. Furthermore, once the court initially denied Otero's request on April 2, 2010, Otero never questioned the court's order. Ultimately, Judge Gerlach filed a signed order denying Otero's attorneys' fees on August 30, 2012, and Otero then filed her motion for new trial. As such, we are not persuaded by Otero's criticism of the judicial process when she failed to timely bring the pending matter to the court's attention.
¶16 Given the complexity of the record on appeal, and in particular the lack of transcripts of any of the hearings conducted by the trial court, we find it appropriate to defer to the broad discretion of the trial court, as it was in the best position to assess the arguments of both parties, observe their conduct, and review their financial records. See MacMillan, 226 Ariz. at 592, ¶ 38, 250 P.3d at 1221. Thus, we cannot say that the trial court abused its discretion in denying Otero's request for attorneys' fees and costs.
¶17 Otero requests an award of attorneys' fees on appeal pursuant to § 25-324. In our discretion, we deny the request. As the prevailing party, Perez is entitled to an award of costs incurred on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶18 Based on the foregoing, we affirm the trial court's order.