Smith v. Smith ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
TARA JANE SMITH, Petitioner/Appellee,
v.
JEFFREY R. SMITH, Respondent/Appellant.
No. 1 CA-CV 20-0589 FC
FILED 7-1-2021
Appeal from the Superior Court in Maricopa County
No. FC2012-090788
The Honorable Suzanne Scheiner Marwil, Judge
JURISDICITON ACCEPTED; RELIEF DENIED
COUNSEL
Alongi Law Firm, PLLC, Phoenix
By Thomas P. Alongi
Counsel for Petitioner/Appellee
Collins & Collins, LLP, Phoenix
By Joseph E. Collins
Counsel for Respondent/Appellant
SMITH v. SMITH
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Brian Y. Furuya joined.
C A T T A N I, Judge:
¶1 Jeffrey R. Smith (“Father”) challenges the award of attorney’s
fees in favor of Tara Jane Smith (“Mother”) arising from Mother’s civil
contempt petition seeking enforcement of parenting time orders. For
reasons that follow, we treat this appeal as a special action and accept
jurisdiction but deny relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father and Mother have three children in common. The level
of conflict in the parties’ parenting relationship has increased over the
years, reflected by their repeated requests for court intervention following
their 2014 divorce. The last post-decree proceeding before the events at
issue here resulted in a December 2019 modification judgment establishing
parenting time orders that designated Mother as the children’s primary
residential parent during the school year, with Father receiving parenting
time every other weekend, and additional time over summer break. Mother
appealed that judgment, and this court affirmed. See Brown v. Smith, 1 CA-
CV 20-0069 FC, 2020 WL 7038504 (Ariz. App. Dec. 1, 2020) (mem. decision).
¶3 At the end of March 2020, Mother filed a contempt petition
seeking to enforce the parenting time orders in place at that time. Citing
Rule 91 and Rule 92 of the Arizona Rules of Family Law Procedure
(“ARFLP”), Mother asserted that Father had violated the modification
judgment’s parenting time orders by failing to return the children to her
custody after his weekend parenting time ended on March 22, 2020,
purportedly due to concerns about the COVID-19 pandemic. Mother asked
the court to hold Father in contempt, order return of the children, provide
her additional parenting time to compensate for lost time, and award her
attorney’s fees and costs related to the contempt proceeding.
¶4 Father returned the children before the court held a hearing
on the petition, and Mother submitted an unopposed request to postpone
the scheduled evidentiary hearing and instead set a resolution management
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conference. At the resolution management conference, Mother’s counsel
informed the court that Father had provided adequate makeup parenting
time to compensate Mother for lost time, leaving only Mother’s claim for
attorney’s fees and costs unresolved. Father’s counsel agreed that the
requested fee award was the only remaining issue, and he agreed that the
parties and the court could “deal[] with that on the papers.”
¶5 The court confirmed that Mother’s request for fees
“stemm[ed] out of the need for the filing of the petition for contempt” and
set a briefing schedule to resolve the issue, expressly providing Father an
opportunity to cite any “extenuating circumstances” he thought the court
should consider. In light of the parties’ resolution of the parenting time
issues, the court ordered that Mother’s contempt petition otherwise be
“deemed resolved.”
¶6 Mother then filed an affidavit seeking $2,159.24 in attorney’s
fees and $89 in costs “related to [the] Rule 91 enforcement (and Rule 92
contempt) petition.” See Schweiger v. China Doll Rest., Inc., 138 Ariz. 183(App. 1983) (setting forth requirements for such an affidavit). In response,
Father expressed confusion about the basis for any attorney’s fee award
absent an evidentiary hearing and express contempt findings, focusing on
the court’s prior denial of attorney’s fees under A.R.S. § 25-324 related to
the modification judgment. Other than generally stating that the issue arose
at the beginning of the COVID-19 pandemic and that “Father did of course
do what he felt was best for the children,” Father offered no extenuating
circumstances or other justifiable reason to show that his failure to timely
return the children was not a willful violation of the existing parenting time
orders.
¶7 The superior court awarded Mother the full amount of
attorney’s fees and costs requested in a Rule 78(c) final judgment, and
Father filed a notice of appeal.
DISCUSSION
I. Jurisdiction.
¶8 Father asserts that this court has appellate jurisdiction under
A.R.S. § 12-120.21(A)(1) because “[t]his is an appeal from a judgment for
attorney’s fees without any underlying reason.” But as described below,
the challenged attorney’s fee ruling is grounded in civil contempt
proceedings seeking enforcement of existing parenting time orders and
compensation for expenses (here, attorney’s fees) incurred to secure
Father’s compliance with those orders. See ARFLP 92(a)(1); cf. United Farm
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Decision of the Court
Workers Nat’l Union v. Heggblade-Marguleas-Tenneco, Inc., 21 Ariz. App. 514,
515 (App. 1974). Such a civil-contempt-based ruling is not appealable. See
In re Marriage of Chapman, 251 Ariz. 40, 42, ¶ 8 (App. 2021) (collecting cases).
Nevertheless, because Father would otherwise be deprived of appellate
review, we exercise our discretion sua sponte to treat the appeal as a special
action and accept jurisdiction. See Danielson v. Evans, 201 Ariz. 401, 411,
¶ 35 (App. 2001); see also A.R.S. § 12-120.21(A)(4); Ariz. R. Spec. Act. 1(a).
II. Attorney’s Fee Award.
¶9 Father argues that the superior court lacked a legal basis to
award Mother her attorney’s fees; he does not challenge the reasonableness
of the amount awarded. We generally review this type of fee award for an
abuse of discretion, see Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 9 (App.
2010), although we review de novo the legal basis for the award. See Burke
v. Ariz. State Ret. Sys., 206 Ariz. 269, 272, ¶ 6 (App. 2003).
¶10 On petition by a party, the superior court may impose civil
contempt sanctions “for compelling compliance with a court order or for
compensating a party for losses because of a contemnor’s failure to comply
with a court order.” ARFLP 92(a)(1). The alleged contemnor must receive
notice of the “essential facts” underlying the allegations and an opportunity
to be heard. ARFLP 92(b)(1)–(3); see also Ong Hing v. Thurston, 101 Ariz. 92,
99 (1966). The court generally must take evidence to determine the
existence of a prior order of which the contemnor had notice and with
which the contemnor failed to comply, and the contemnor may show that
non-compliance was not willful. ARFLP 92(d)–(e). Attorney’s fees may be
awarded to defray the cost of seeking enforcement given the contemnor’s
failure to comply with the underlying order. See ARFLP 92(a)(1), (e)(2).
¶11 Father asserts that the attorney’s fee award here was
improperly based on his failure to “comply with a policy statement by a
committee of Superior Court judges.” But this assertion is not supported
by the record. Despite Father’s protestations that he has no idea what court
order he violated, Mother’s contempt petition specifically referenced the
parenting time orders in “the modification judgment filed on December 2,
2019” and described the violation as his failure to return the children to
Mother as required on a specific date.
¶12 While contempt proceedings generally involve “testimony
and evidence” underpinning a formal contempt adjudication, see ARFLP
92(e), the parties’ independent resolution of the substantive parenting time
issues—Father’s return of the children and provision of compensatory
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parenting time to make up for the time he withheld from Mother—resolved
any factual dispute as to the violation alleged. See ARFLP 92(d)(3). And
Father has never disputed the existence of the modification judgment or his
knowledge of the parenting plan encapsulated therein. See ARFLP
92(d)(1)–(2).
¶13 As to the basis of the attorney’s fee award itself, Mother’s
contempt petition cited Rule 92 and sought fees to “reimburse” her for the
cost of bringing the enforcement proceeding. The court orally confirmed
that the fee request “stemm[ed] out of the need for the filing of the petition
for contempt” to secure Father’s compliance with the parenting time order.
See ARFLP 92(a)(1) (permitting compensation for losses stemming from a
contemnor’s non-compliance with a court order).
¶14 Father’s counsel also expressly agreed that the issue could be
resolved by motion. While the court appropriately contemplated that
Father might offer “extenuating circumstances” to excuse or explain his
conduct, see ARFLP 92(e) (permitting the contemnor an opportunity to
show the violation was not willful), Father’s agreement to address fees “on
the papers” undercuts his assertion that an evidentiary hearing was
necessary to support the award. And in any event, beyond simply stating
that Father did “what he felt was best for the children,” Father offered no
excuse or explanation showing how his non-compliance with existing
parenting time orders was not willful.
¶15 Accordingly, Father has not established that the superior
court erred by awarding Mother attorney’s fees.
III. Attorney’s Fees on Appeal.
¶16 Mother seeks an award of appellate attorney’s fees and costs
under A.R.S. § 25-324. Having considered the statutory factors and in an
exercise of our discretion, we deny Mother’s fee request. We award Mother
her taxable costs on appeal upon compliance with ARCAP 21. See A.R.S.
§ 12-342(A).
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CONCLUSION
¶17 Treating the appeal as a special action, we accept jurisdiction
but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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