Opinion
No. 1 CA-CV 13-0394
06-24-2014
In re the Matter of: KIMBERLY THUY WHEELER, Petitioner/Appellant, v. JAMES MINOTTO, Respondent/Appellee.
Stevens & Van Cott, PLLC, Scottsdale By Charles Van Cott Counsel for Petitioner/Appellant Gillespie, Shields & Durrant, Mesa By DeeAn Gillespie Strub, Mark A. Shields Counsel for Respondent/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 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. FC2006-071292
The Honorable Gerald Porter, Judge
AFFIRMED
COUNSEL
Stevens & Van Cott, PLLC, Scottsdale
By Charles Van Cott
Counsel for Petitioner/Appellant
Gillespie, Shields & Durrant, Mesa
By DeeAn Gillespie Strub, Mark A. Shields
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Lawrence F. Winthrop joined.
SWANN, Judge:
¶1 Kimberly Thuy Wheeler ("Mother") appeals from the superior court's judgment granting James Minotto ("Father") an award of attorney's fees and costs incurred in a proceeding concerning child custody, support and parenting time. Mother contends that the court erred by characterizing the award as being in the nature of child support instead of as a sanction, which impacts her ability to discharge the award in bankruptcy. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father dissolved their marriage and agreed to joint custody of their two minor children. The parties continued to litigate custody and parenting time for years after the dissolution became final. At one point during this protracted dispute, Mother alleged that Father had sexually abused her son ("Son") from a previous relationship. The parties eventually agreed to have a court-appointed evaluator conduct a limited assessment of the allegation.
¶3 In January 2013, the court held an evidentiary hearing on the parties' outstanding petitions for modification of child custody and parenting time, and on Father's motion for contempt. The court found that it was in the children's best interests to award Father sole legal decision-making authority and to adopt Mother's requested parenting-time schedule. The court also ordered both Mother and Father to pay child support. The court made no contempt findings but ordered Mother to pay Father's attorney's fees. In pertinent part, the court's minute entry provides:
The Court has considered the factors as set out in A.R.S. § 25-324, in particular the positions taken by the parties and the relative financial resources of the parties. The Court incorporates its findings above, especially the 25403 findings in question seven. Although this Court finds that both parties have failed to timely produce documents
and have missed Court timelines, Mother's conduct in this case is so especially egregious, and is responsible for the vast majority of litigation expense in this case that was both unnecessary and potentially damaging to the children. Although Father's income appears to be greater going forward,
IT IS ORDERED that Mother shall pay all of Father's reasonable attorney's fees and costs.
The court's incorporated findings further provide that Mother forwarded a letter to her counsel before trial regarding Father's alleged sexual abuse and captioned it "the dramatic letter lol," which, in the court's view, "indicates that Mother knows the allegation is not true and is all too happy to perpetuate a fraud on [the] Court." Moreover, the court found that Mother's phone records contradicted her testimony that she had not been in contact with Son for some time. The court ultimately found that Mother "delayed these proceedings and thwarted [the] Court's efforts to resolve the matter[, thereby] significantly increasing the cost of litigation for Father."
¶4 Father proceeded to file a China Doll affidavit and an application for attorney's fees and costs requesting a judgment against Mother for $147,818.37. Father argued in the application that Mother "has shown a propensity for playing games and ignoring Court Orders" and therefore asked that "the Court add appropriate and necessary language to prevent Mother from discharging the judgment through a bankruptcy." Father asserted that, "[u]nder Arizona law, attorney fee awards in a child custody dispute can be found by the trial court to be in the nature of child support and, therefore, nondischargeable in bankruptcy." Mother objected to the requested amount and argued that the dischargeability of a debt is an issue of federal law reserved exclusively for federal courts. She also argued that the court should not base its ruling on Father's speculative assertion that she intended to file for bankruptcy, and that it should not change the basis of the award "from the sanction it plainly intended to impose against [Mother]" to an award in the nature of child support.
¶5 The court granted Father's request for attorney's fees and costs. It reduced the amount of the award to $101,719.41, and ordered him to submit a proposed order for the court's review and signature. The minute entry granting the request did not mention the nature of the award or its dischargeability. Father in turn lodged a proposed order that stated:
"[T]he $101,719.41 judgment is for attorney's fees and costs incurred in a proceeding regarding custody and child support, and as such are in the nature of support for the children, even if payable to someone else. [It is ordered t]hat this amount is therefore non-dischargeable." Mother objected to the proposed order by arguing that it exceeded the scope of the court's ruling awarding Father attorney's fees, contradicted the court's intention to impose the award as a sanction, and presented a question of federal law reserved for federal courts. The court signed and entered the order over Mother's objection. Mother timely appeals.
DISCUSSION
¶6 Mother challenges neither the entry nor the amount of the attorney's fees award, but instead contends that the court erred by characterizing the award as being in the nature of child support.
¶7 First, Mother relies on her own interpretation of the record preceding the judgment to argue that the court "plainly intended to" impose the attorney's fees award as a sanction instead of an award in the nature of child support. "A judgment which is ambiguous and uncertain may be read in connection with the entire record and construed accordingly." Benson v. State ex rel. Evman, 108 Ariz. 513, 515, 502 P.2d 1332, 1334 (1972) (citation omitted). "[B]ut if the language employed is plain and unambiguous there is no room for construction or interpretation, and the effect [of the judgment] must be declared in the light of the literal meaning of the language used." Harold Laz Adver. Co. v. Dumes, 2 Ariz. App. 236, 237-38, 407 P.2d 777, 778-79 (1965) (emphasis removed) (citation omitted). In this case, the judgment plainly states that the attorney's fees and costs were "incurred in a proceeding regarding custody and child support, and as such are in the nature of support for the children."
¶8 We decline Mother's invitation to disregard the judgment's unambiguous language and replace it with her inferences from other parts of the record to the effect that the court intended the award as a sanction only. Although Father drafted the judgment, the court neither signed nor entered it until after Mother filed an objection on the grounds that the award was intended only to be a sanction. The judgment's language leaves no room for interpretation, and on this record we will not speculate that the court intended something other than the literal meaning of the language used.
¶9 Mother has also failed to cite any authority for her implicit proposition that the court cannot award attorney's fees intending for them to be both a sanction and an award in the nature of child support. Here, the fee award was calculated to compensate Father for expenditures he incurred in protecting the welfare of the children. There is no reason that such an award cannot properly be cast in the nature of child support.
¶10 Mother next argues that because neither party requested a deviation from the Arizona Child Support Guidelines, and because the court did not make the findings required to support a deviation from the Guidelines, the court lacked the authority to characterize the attorney's fees award as being in the nature of child support. See A.R.S. §§ 25-320; 25-320 app. § 20. Mother's argument fails because the judgment and order of attorney's fees from which she appeals did not order her to pay child support. Rather, it characterized an award of attorney's fees incurred in a proceeding regarding child custody and parenting time as being in the nature of support for her children. The two are not equivalent.
¶11 Mother next argues that to the extent an award of attorney's fees under A.R.S. § 25-324 may be characterized as a support obligation, such an obligation is only in the nature of spousal support and not child support. In a proceeding concerning legal decision-making and child support, A.R.S. § 25-324(A) gives the court discretion to "order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending [the proceeding]," provided that it first considers "the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." We review de novo the interpretation and application of statutes. Schwarz v. City of Glendale, 190 Ariz. 508, 510, 950 P.2d 167, 169 (App. 1997). We have previously determined that the court may characterize attorney's fees awarded under A.R.S. § 25-324 to be in the nature of support. See Birt v. Birt, 208 Ariz. 546, 555, ¶ 32, 96 P.3d 544, 553 (App. 2004) ("If the trial court reaffirms the prior award of attorneys' fees to Wife, it shall clarify whether such an award is based on Wife's financial circumstances and whether it was in the nature of maintenance or support rather than part of a property division." (emphasis added)); see also Magee v. Magee, 206 Ariz. 589, 592, ¶ 13, 81 P.3d 1048, 1051 (App. 2004) ("[C]ourts have discerned the broader rationale for the statute; namely, that requiring payment of fees by one spouse on behalf of the other is derived from and justified by the duty of support.").
¶12 Mother cites In re Catlow, 663 F.2d 960 (9th Cir. 1981), to support her argument. In Catlow, the Ninth Circuit considered whether
attorney's fees awarded under A.R.S. § 25-324 in a post-dissolution proceeding concerning child custody were dischargeable under the now-superseded Bankruptcy Act. Id. at 961. Mother focuses on the fact that the court rejected the father's argument that the characterization of attorney's fees as spousal support should not extend to post-dissolution proceedings unrelated to enforcing spousal support obligations. Id. at 962-63. The court held that "[a]s Arizona law considers attorney's fees to be spousal support if awarded in the original divorce action, this characterization must therefore also apply to fees awarded in post-divorce child custody proceedings." Id. at 963. But Mother misconstrues Catlow to stand for the proposition that attorney's fees awarded under A.R.S. § 25324 may only be considered to be in the nature of spousal support and not in the nature of child support. The father in Catlow did not argue that the court should have characterized the award to be in the nature of child support instead of spousal support -- he argued that the court should not have characterized the award to be in the nature of support at all. See id. at 962-63. And the court did not hold that the award should be characterized as spousal support even though the proceeding concerned children, but rested its decision on the fact that Arizona law does not distinguish the nature of attorney's fees awards depending on the timing of the proceedings. See id. at 963.
¶13 Relying in part on Catlow, the Bankruptcy Court for the District of Arizona has held that "[f]ees incurred in a child custody dispute are in the nature of support for the child, even if payable to someone else." In re Jarski, 301 B.R. 342, 347 (Bankr. D. Ariz. 2003). Notably, the court reasoned:
Under Arizona law the best interests of the child is the dispositive issue: "The court shall determine custody, either originally or upon petition for modification, in accordance with the best interests of the child." A.R.S. § 25-403(A). With Arizona's statutory requirement that custody disputes be resolved in the "best interests of the child," and that any award of attorney's fees must be based upon consideration of "the financial resources of both parties and the reasonableness of the positions each party has taken" in the child custody dispute, it would take a strong showing by the Debtor to demonstrate that an award of attorneys fees was intended to be, or in fact was, something other than in the nature of support for the child. Perhaps such a showing could be made if the fees were awarded purely as a sanction.
Id. We agree with this reasoning and hold that the court may characterize attorney's fees awarded under A.R.S. § 25-324 as in the nature of child support. Contrary to Mother's assertion, we do not find support in the record for the proposition that the court intended to award Father attorney's fees solely as a sanction against Mother.
¶14 Mother also argues that "A.R.S. § 25-324 creates a support obligation only if a disparity exists between the parties' financial resources," and that "fees awarded under A.R.S. § 25-324 to redress a party's unreasonableness do not give rise to a support obligation." We disagree. "The legal question is not whether repayment of the debt will benefit the children, but whether the basis of the debt benefitted the children." In re Leibowitz, 217 F.3d 799, 803 (9th Cir. 2000). There can be no question here that Father's attorney's fees were incurred in a proceeding concerning modification of child custody and parenting time intended to benefit the children.
¶15 Having concluded that the court intended to characterize the attorney's fees award as in the nature of child support, and that it had the authority to do so, we decline to express any opinion regarding whether the award is dischargeable under federal bankruptcy law. Because Mother has not yet filed for bankruptcy protection, our resolution of that issue would be merely advisory. See Velasco v. Mallory, 5 Ariz. App. 406, 410-11, 427 P.2d 540, 544-45 (1967) ("We will not render advisory opinions anticipative of troubles which do not exist; may never exist; and the precise form of which, should they ever arise, we cannot predict.").
CONCLUSION
¶16 For the foregoing reasons, we affirm.
¶17 Father requests an award of attorney's fees on appeal, citing A.R.S. § 25-324 and ARCAP 21, and arguing that Mother has caused him to incur additional fees by "fighting over an order that was plainly within
the trial court's jurisdiction and discretion." In the exercise of our discretion, we grant Father's request for an amount of attorney's fees and costs on appeal upon his compliance with ARCAP 21. Mother's request for attorney's fees on appeal is denied.