Lacy v. Lacy ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JILL J. LACY, Petitioner/Appellant,
v.
JOHN KEVIN LACY, Respondent/Appellee.
No. 1 CA-CV 17-0437 FC
FILED 5-8-2018
Appeal from the Superior Court in Yavapai County
No. V1300DO201580401
The Honorable Jeffrey G. Paupore, Judge Pro Tempore
AFFIRMED
COUNSEL
Jill J. Lacy, Tucson
Petitioner/Appellant
Aspey Watkins & Diesel, PLLC, Flagstaff
By Zachary J. Markham, John W. Carlson
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.
LACY v. LACY
Decision of the Court
C R U Z, Judge:
¶1 Jill J. Lacy (“Wife”) appeals the superior court’s entry of a
decree of dissolution denying her spousal maintenance, ordering her to pay
John K. Lacy’s (“Husband”) attorneys’ fees, and declining to order
attorneys’ fees and sanctions against Wife’s counsel. For the following
reasons, we affirm the court’s judgment.
FACTUAL AND PROCEDURAL HISTORY
¶2 Wife filed for divorce in November 2015. Three months later
the parties entered into an Arizona Rule of Family Law Procedure (“Rule”)
69 agreement providing Husband agreed to pay Wife $1,250 per month in
spousal maintenance. It also provided, in part, that Wife would take
possession of the couple’s fifth-wheel trailer so she could live in it.
¶3 Wife and her counsel, Judd S. Nemiro, failed to appear at the
first status conference for setting the trial date. Mr. Nemiro then failed to
appear at the first trial date and a status conference in March 2017. The
court filed a petition for civil contempt pursuant to Rule 92, ordered the
presence of Wife’s counsel for a hearing as to why civil contempt should
not be entered against him, and bifurcated the hearing from the dissolution
of marriage. It then stated that if a finding of contempt was made against
Mr. Nemiro, it would consider the award of Husband’s reasonable
attorneys’ fees and costs as a sanction against him. Wife acquired new
counsel for the final trial date.
¶4 At trial, Wife testified she was too disabled to work because
of multiple injuries and a hearing disability. However, the parties’ now-
adult daughter Paige testified that although Wife was fifty-percent deaf in
one ear, the instances in which Wife was not able to hear her were limited.
Additionally, witness Matthew Brothers testified that Wife had lived with
him for approximately six months, and that he and Wife had selectively
provided medical records to Wife’s attorney to make it appear that Wife
was disabled. Paige also said she knew Wife to be a healthy individual,
able to do many physically-rigorous tasks, and fully able to support herself
and work outside the home. Both Brothers and Paige denied that Wife had
lived in the fifth-wheel trailer, and Brothers and Wife stated Wife sold the
trailer without permission of the court.
¶5 After trial, the superior court issued a decree of dissolution of
marriage and, although neither party requested the court make findings of
fact and conclusions of law pursuant to Rule 82(A), it made several
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findings. For one, it determined insufficient medical evidence supported
Wife’s claims regarding her inability to work and Wife and Brothers had
created a “scheme to try to show that [Wife] was disabled and unable to
work.” Further, it found Wife was not eligible for spousal maintenance and
did not act in good faith by selling the fifth-wheel trailer without the court’s
permission. It then ordered Wife to pay Husband’s attorneys’ fees and
costs.
¶6 Within a week of the trial, the superior court held a hearing
on the order to show cause set against Mr. Nemiro. It noted Mr. Nemiro
failed to appear in court on four separate occasions, and it found he had
willfully violated at least two direct orders to appear without legal cause
and was in violation of Rule 92. The court further noted Mr. Nemiro was
given adequate notice of the proceedings, found he had violated the April
2017 order to appear, and issued a civil arrest warrant pursuant to Rule 92.
The court also set Mr. Nemiro’s bond at $10,000, ordering that if he posted
the bond, “the funds shall be transferrable to Respondent” in partial
satisfaction of Husband’s attorneys’ fees. After Mr. Nemiro was arrested
and brought before the court, the court amended its order to state that the
bond paid by Mr. Nemiro “shall be held by the Clerk of Court until further
order of this Court.” Though Husband subsequently moved for an award
of attorneys’ fees against Mr. Nemiro and requested the $10,000 bond
posted on Mr. Nemiro’s behalf be relinquished to Husband, the court
denied the motion.
¶7 Wife timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(1).
DISCUSSION
¶8 Wife argues the superior court abused its discretion by: (1)
denying her requested spousal maintenance; (2) ordering her to pay $17,700
in attorneys’ fees to Husband; and (3) failing to order attorneys’ fees and
sanctions against her former counsel, Mr. Nemiro.
I. Spousal Maintenance
¶9 Wife argues the superior court abused its discretion by
finding she was not entitled to spousal maintenance. We disagree.
¶10 We review an award of spousal maintenance for an abuse of
discretion. Leathers v. Leathers, 216 Ariz. 374, 376, ¶ 9 (App. 2007). “An
abuse of discretion exists when the record, viewed in the light most
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favorable to upholding the trial court’s decision, is devoid of competent
evidence to support the decision.” State ex rel. Dep’t of Econ. Sec. v. Burton,
205 Ariz. 27, 30, ¶ 14 (App. 2003). We “may infer from any judgment the
findings necessary to sustain it if such additional findings do not conflict
with express findings and are reasonably supported by the evidence.”
Thomas v. Thomas, 142 Ariz. 386, 390 (App. 1984) (quotations omitted). We
defer to the superior court’s determination of witnesses’ credibility and the
weight to give to conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343,
347, ¶ 13 (App. 1998).
¶11 The superior court may grant an order for spousal
maintenance if it finds that the spouse seeking maintenance: (1) “[l]acks
sufficient property, including property apportioned to the spouse, to
provide for that spouse’s reasonable needs”; (2) “[i]s unable to be self-
sufficient through appropriate employment . . . or lacks earning ability in
the labor market adequate to be self-sufficient”; (3) “[c]ontributed to the
educational opportunities of the other spouse”; or (4) “[h]ad a marriage of
long duration and is of an age that may preclude the possibility of gaining
employment adequate to be self-sufficient.” A.R.S. § 25-319(A). The court
may take into consideration a party’s misrepresentation of income and
attempt to conceal assets when awarding spousal maintenance. Thomas, 142
Ariz. at 392.
¶12 Sufficient evidence supports the superior court’s credibility
determination and finding that Wife was not eligible for spousal
maintenance. Although Wife stated she did not have enough assets to
provide for her reasonable needs, she was apportioned half of Husband’s
401(k), valued at $142,000, as well as half of his pension, and, at Husband’s
request, she was not apportioned any of the community debt. Husband, on
the other hand, assumed all the community debt, including all debts
incurred by Wife since the date of the parties’ separation, and the obligation
to provide the Qualified Domestic Relations Orders to divide his 401(k) and
pension account. Additionally, Wife was awarded use of the fifth-wheel
trailer pursuant to the court’s temporary orders and the court found she
sold it for her sole financial benefit without the court’s permission prior to
the dissolution of the marriage. The superior court accordingly did not
abuse its discretion by implicitly finding Wife did not “lack[] sufficient
property, including property apportioned to her, to provide for her
reasonable needs” pursuant to A.R.S. § 25-319(A)(1).
¶13 Additionally, sufficient evidence supports the superior
court’s implicit findings that Wife was neither “unable to be self-sufficient
through appropriate employment” nor “of an age that may preclude the
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possibility of gaining employment adequate to be self-sufficient” pursuant
to A.R.S. § 25-319(A)(2), (4). Although Wife presented evidence of her age
of 53, she presented no evidence indicating that age may preclude the
possibility of gaining employment. Cf. Helland v. Helland, 236 Ariz. 197, 202,
¶¶ 26-27 (App. 2014) (affirming trial court’s award of spousal maintenance
where spouse presented opinion evidence showing it was unlikely she
would be able to return to work within three to five years).
¶14 With regards to her health, Wife produced a medical record
ostensibly showing her loss of hearing, and her daughter testified that she
was fifty-percent deaf in one ear. The daughter also testified, however, that
the instances in which Wife was not able to hear her were limited and,
despite Wife’s hearing difficulties, “the message and the conversation can
definitely be done.” Furthermore, although Wife provided a medical
record addressing her other health concerns, Brothers testified that he and
Wife had devised a plan to make Wife seem disabled by selectively
producing Wife’s medical records and by having Wife not work until after
the conclusion of the divorce proceedings. He also stated that, based upon
what he saw during the six-month period in which Wife lived with him, he
believed Wife could work full-time. Paige also testified she knew Wife to
be a healthy individual who could do many physically-rigorous tasks, and
she believed Wife was fully able to support herself and work outside the
home. Finally, Paige stated Wife had worked at a department drugstore
during the divorce proceedings but quit after a couple of weeks “because
she felt like it was too rinky-dink for her.” This evidence supports the
court’s implicit finding that Wife was not “unable to be self-sufficient
through appropriate employment” or “of an age that may preclude the
possibility of gaining employment adequate to be self-sufficient” pursuant
to A.R.S. § 25-319(A)(2), (4).
¶15 Finally, sufficient evidence supports the superior court’s
implicit finding that Wife did not contribute to Husband’s educational
opportunities so as to qualify for spousal maintenance. Wife admitted
Husband had only attended one credit to finish his bachelor’s degree
during their marriage and that he did not incur any additional debt by
doing so. Additionally, Husband testified he worked full-time while
attending the course and did not take any time off. Although Wife argues
she paid for Husband’s student loan debt that he obtained before marriage
with her 401(k) from before the marriage, she testified she did so in order
for the couple to qualify for financing of the marital home, a community
obligation and asset. In light of all the evidence presented, the court did
not abuse its discretion by denying Wife spousal maintenance.
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II. Attorneys’ Fees
¶16 The superior court has discretion to award attorneys’ fees,
and we will not disturb the award absent an abuse of discretion. Gutierrez,
193 Ariz. at 351, ¶ 32. The court may award fees “after considering the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings[.]” A.R.S. § 25-324(A).1
¶17 Sufficient evidence supports the superior court’s implicit
finding that the parties’ financial resources and Wife’s unreasonable
positions at trial were considered. The court awarded Wife her portion of
Husband’s 401(k), half of his pension, and zero debt, while Husband was
apportioned all of the community debt, including some of the debt Wife
incurred after the commencement of the dissolution proceedings, and a
home with no equity. The court also implicitly found Wife had acted in bad
faith by selling the fifth-wheel trailer without the court’s permission. The
evidence shows the court also found Brothers and Wife had created a
“scheme” to make Wife appear disabled, including misrepresenting Wife’s
medical history and failing to work during the divorce proceedings despite
having the ability to do so. We accordingly find no abuse of discretion.
III. Sanctions
¶18 Wife argues the superior court erred by failing to sanction her
counsel for his failure to appear. We review the imposition of sanctions for
an abuse of discretion. Hmielewski v. Maricopa Cty., 192 Ariz. 1, 4, ¶ 13 (App.
1997).
¶19 The superior court has “the inherent power to sanction bad
faith conduct during litigation independent of the authority granted by
[Arizona Rule of Civil Procedure] 11.” Id. at ¶ 14. “The rules of conduct for
attorneys contained in the Rules of the Arizona Supreme Court also provide
a legal basis for impositions of sanctions against attorneys.” Id.
Additionally, the court may, as necessary, rely on its contempt powers to
address lawyer misconduct, such as the failure to attend a previously-
scheduled court hearing. “Failure of counsel to be present [for a hearing]
as required by the court may constitute both a breach of professional duty
and a disruption of the judicial process punishable as criminal contempt.”
1 Although the superior court awarded fees pursuant to A.R.S. § 12-
349, this appears to be scrivener’s error. Regardless, the error is harmless
because the record indicates sufficient support for the award of attorneys’
fees to Husband under A.R.S. § 25-324.
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Hamilton v. Mun. Court of the City of Mesa, 163 Ariz. 374, 377 (App. 1989).
But there is no legal authority, and Wife cites to none, which supports the
proposition that a court abuses its discretion by failing to exercise its
powers against her counsel.
¶20 Although the superior court initially incorrectly relied on
Rule 92 to impose sanctions against Mother’s counsel,2 it later clarified that
it did not look to Wife’s counsel to pay Husband’s attorneys’ fees and costs
as a sanction. Instead, it bifurcated the proceedings regarding the parties’
divorce and Wife’s counsel, and it amended its earlier order to indicate that
the bond paid by Wife’s counsel would be held by the clerk of court until
further order of the court. The superior court enjoys broad discretion in
determining the most appropriate manner in which to address the
unprofessional conduct of the attorneys who appear before it. Hmielewski,
192 Ariz. at 4, ¶¶ 13-14. Because of this discretion, the court’s correction to
its earlier order, and the court’s independent basis for awarding attorneys’
fees and costs against Wife separate and apart from Mr. Nemiro’s
unprofessional conduct, supra ¶¶ 16-17, we conclude the court did not
abuse its discretion by failing to order Wife’s counsel to pay Husband’s
attorneys’ fees and costs as a sanction.
IV. Attorneys’ Fees on Appeal
¶21 Both parties request attorneys’ fees and costs on appeal. We
decline to award fees to either party.
CONCLUSION
¶22 For the foregoing reasons, we affirm the court’s orders.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 We assume without deciding that Rule 92 is applicable only to
parties to an action, not to legal counsel. See Hmielewski, 192 Ariz. at 4, ¶ 14
(providing the Rules of the Arizona Supreme Court provide a legal basis
for sanctions against attorneys in addition to Arizona Rule of Civil
Procedure 11).
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