Flynn v. Rodrick ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
LOIS ANN FLYNN, Petitioner/Appellee,
v.
CHARLES DAVID RODRICK, Respondent/Appellant.
No. 1 CA-CV 14-0314 FC
FILED 10-8-2015
Appeal from the Superior Court in Maricopa County
No. FC2011-005859
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
Joe M. Romley, P.C., Phoenix
By Joe M. Romley
Counsel for Petitioner/Appellee
Charles David Rodrick, Scottsdale
Respondent/Appellant
FLYNN v. RODRICK
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which
Judge Andrew W. Gould and Judge Patricia K. Norris joined.
K E S S L E R, Presiding Judge:
¶1 Charles David Rodrick (“Husband”) appeals from the family
court’s judgment awarding Lois Ann Flynn (“Wife”) attorneys’ fees
pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-324(A) (Supp.
2015).1 For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Wife filed a petition for dissolution of marriage in November
2011. After multiple pretrial motions and discovery disputes, a two-day
trial was held in May 2013. The Decree of Dissolution, which was entered
in December 2013, awarded Wife child support and divided the parties’
community property and debts. The court also awarded Wife her
reasonable attorneys’ fees and costs based on a disparity in financial
resources:
THE COURT FINDS that there is a substantial disparity of
financial resources between the parties. Because of the
disparity [Husband] has considerably more resources
available to contribute toward [Wife’s] attorney fees and
costs.
....
IT IS THEREFORE ORDERED granting, in part, [Wife’s]
request for attorney fees and costs. The Court will award the
amount of those fees which, in equity, based upon the
disparity of financial resources between the parties, is
appropriate.
IT IS FURTHER ORDERED that [Husband] shall pay a portion
of [Wife’s] reasonable attorney fees and costs. Not later than
1 We cite to the current versions of statutes when no changes material to
this opinion have since occurred.
2
FLYNN v. RODRICK
Decision of the Court
December 9, 2013, counsel for [Wife] shall submit all
necessary and appropriate documentation to support an
application for a partial award of attorney fees and costs,
including a China Doll Affidavit and a form of order. By no
later than December 23, 2013, Father shall file any written
objection. The Court shall determine the award and enter
judgment upon review of the Affidavit as well as any
objections.
The court ultimately entered judgment in favor of Wife in the amount of
$50,000 plus interest.
3
FLYNN v. RODRICK
Decision of the Court
¶3 Husband timely appealed.2 We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1) (Supp. 2015).3
DISCUSSION
¶4 Husband argues the family court abused its discretion in
granting Wife’s request for attorneys’ fees and costs pursuant to A.R.S. §
25-324(A). Section 25-324(A) provides that the family court can award
attorneys’ fees after considering the parties’ financial resources and the
reasonableness of their positions during the proceedings. See Magee v.
Magee, 206 Ariz. 589, 591 n.1, ¶ 8 (App. 2004) (stating that reasonableness of
the parties’ positions and financial resources are two separate
considerations, “and an applicant need not show both a financial disparity
2 Wife states in her answering brief that she also filed a notice of appeal. We
have reviewed the record and could not find such a notice of appeal.
Accordingly, the only appeal before us is Husband’s appeal from the award
of attorneys’ fees and costs.
3 After the family court ruled on the issue of attorneys’ fees, Wife filed a
motion for new trial, a motion to alter or amend the decree, and a motion
for relief from the decree pursuant to Arizona Rule of Family Law
Procedure 85(C). Husband filed an appeal with this Court. In an unsigned
minute entry, the family court denied the motion for new trial and the
motion to alter or amend the decree. In November 2014, this Court stayed
Husband’s appeal pursuant to former ARCAP 9.1 and Eaton Fruit Co. v.
California Spray-Chemical Corp., 102 Ariz. 129, 130 (1967), and revested
jurisdiction in the family court for the purpose of permitting the family
court to consider an application by Wife for a signed order. See ARCAP
9(e)(2) (“[I]f a notice of appeal is filed during the pendency of [certain]
motion[s] . . . the appeal will be suspended until the last such motion is
decided.”). The family court issued a signed minute entry in November
2014 ruling on the pending motions. On appeal, Wife argues this appeal is
premature because the family court has not ruled upon or entered any order
with respect to the motion for relief from judgment pursuant to Rule 85(C).
In its minute entry, however, the family court stated that “[b]y this order,
the Court also intended to deny Mother’s various arguments for relief
under Rule 85(C), Arizona Rules of Family Law Procedure even though the
rule was not specifically named.” Because all of the pending motions have
been resolved, we have jurisdiction over this appeal. See ARCAP 9(c) (“A
notice of appeal . . . filed after the superior court announces an order or
other form of decision—but before entry of the resulting judgment that will
be appealable—is treated as filed on the date of, and after the entry of, the
judgment.”).
4
FLYNN v. RODRICK
Decision of the Court
and an unreasonable opponent in order to qualify for consideration for an
award”).
¶5 “[W]e review a [family] court’s award or denial of attorney[s’]
fees for an abuse of discretion.” Democratic Party of Pima Cnty. v. Ford, 228
Ariz. 545, 547, ¶ 6 (App. 2012). “To find an abuse of discretion, there must
either be no evidence to support the [family] court’s conclusion or the
reasons given by the court must be clearly untenable, legally incorrect, or
amount to a denial of justice.” Bogard v. Cannon & Wendt Elec. Co., 221 Ariz.
325, 335-36, ¶ 39 (App. 2009) (citation omitted). “When there is no request
for findings and the [family] court does not make specific findings of fact,
we must assume that the [family] court found every fact necessary to
support its [ruling] and must affirm if any reasonable construction of the
evidence justifies the decision.” Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13
(App. 2001) (last alteration in original) (internal quotation marks and
citations omitted).
I. The family court did not abuse its discretion by awarding Wife her
reasonable attorneys’ fees and costs.
¶6 Husband argues that the record does not support the family
court’s finding that a substantial disparity in financial resources existed
between the parties. To support his argument, Husband relies on his
testimony regarding his income and recent employment. Husband,
however, has not provided this Court with a transcript of the trial. “A
party is responsible for making certain the record on appeal contains all
transcripts or other documents necessary for us to consider the issues raised
on appeal. When a party fails to include necessary items, we assume they
would support the court’s findings and conclusions.” Baker v. Baker, 183
Ariz. 70, 73 (App. 1995) (internal citations omitted); see also ARCAP 11(b);
Kohler v. Kohler, 211 Ariz. 106, 108 n.1, ¶ 8 (App. 2005); Johnson v. Elson, 192
Ariz. 486, 489, ¶ 11 (App. 1998). Given this assumption, the court did not
err by finding that a financial disparity existed between the parties.
II. Wife’s application for attorneys’ fees and costs was reasonable.
¶7 Husband argues that Wife’s application for attorneys’ fees
was unreasonable. Although most of Husband’s brief addresses what
comprises an adequate fee request, we construe his arguments to be that
the billing statement was not sufficiently detailed, the billing rate was too
high, and the hours claimed were not reasonably expended given that Wife
was unsuccessful on various motions. We disagree with Husband’s
arguments.
5
FLYNN v. RODRICK
Decision of the Court
¶8 “In order for the court to make a determination that the hours
claimed are justified, the fee application must be in sufficient detail to
enable the court to assess the reasonableness of the time incurred.”
Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188 (App. 1983). Husband
argues that there are sections within the billing statement that do not
allocate time as required by China Doll. To support his argument, Husband
highlights one example, a time entry for 4.5 hours allocated to
“[p]reparation for and deposition examination of respondent.” Husband
claims that based on this designation, there is no way to tell how much time
was allocated to the preparation and how much to the deposition
examination. He further notes that the entry immediately prior for 3.5
hours was for work related to the exact same deposition. We disagree with
Husband’s characterization of the entries, and find that Wife’s fee affidavit,
as required by China Doll, disclosed “the type of legal services provided, the
date the service was provided, the attorney providing the service . . . and
the time spent in providing the service.” Id.
¶9 Husband also argues that the award was excessive because
not all of Wife’s motions before the family court were successful. He
specifically argues that “Wife filed numerous motions, including but not
limited to: Motion to Compel Discovery, Motion to Allow Additional Trial
Evidence, and Motion to Disqualify a Trial Judge for Cause,” and that
“these motions were unsuccessful, but incurred significant attorneys’ fees.”
To support his argument, Husband relies on China Doll, in which this Court
stated that “[w]here a party has achieved only partial or limited success . . .
it would be unreasonable to award compensation for all hours expended,
including time spent on the unsuccessful issues or claims.” Id. at 189.
However, in that same case, this Court also stated that “where a party has
accomplished the result sought in litigation, fees should be awarded for the
time spent even on unsuccessful legal theories.” Id. “The prevailing party
on appeal is ‘entitled to recover a reasonable attorneys’ fee for every item
of service which, at the time rendered, would have been undertaken by a
reasonable and prudent lawyer to advance or protect his client’s interest in
the pursuit’ of a successful appeal.” Id. at 188 (citation omitted). We find
no abuse of discretion in including these fees. Furthermore, even if this one
alleged deficiency had any merit, we note Wife asked for $85,725 in
attorneys’ fees and $3,875.66 in costs, and the family court limited that
award to $50,000. We will assume that any such alleged deficiency was
accounted for in the amount of fees the court denied.
¶10 Moreover, once a party establishes an entitlement to fees and
meets the minimum requirements in its application and affidavit, as Wife
did here, the burden shifts to the opposing party to demonstrate the
6
FLYNN v. RODRICK
Decision of the Court
impropriety or unreasonableness of the fee request. Nolan v. Starlight Pines
Homeowners Ass’n, 216 Ariz. 482, 491, ¶ 38 (App. 2007). “[A]n opposing
party does not meet [that] burden merely by asserting broad challenges to
the application. It is not enough . . . simply to state, for example, that the
hours claimed are excessive and the rates submitted too high.” Id. Because
the remainder of Husband’s arguments are broad in nature without any
challenge to specific items in the fee request, we find them to be
unpersuasive. Accordingly, we find no abuse of discretion in the family
court’s award of attorneys’ fees and costs to Wife.
CONCLUSION
¶11 For the foregoing reasons, we affirm.
:ama
7