Boyilla v. Boyilla ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SAILAJA BOYILLA, Petitioner/Appellant,
v.
NANDA KISHORE BOYILLA, Respondent/Appellee.
No. 1 CA-CV 17-0017 FC
FILED 12-5-2017
Appeal from the Superior Court in Maricopa County
No. FC2015-052551
The Honorable Jennifer C. Ryan-Touhill, Judge
AFFIRMED
COUNSEL
Sailaja Boyilla, Scottsdale
Petitioner/Appellant
Berkshire Law Office, PLLC, Phoenix
By Keith Berkshire, Maxwell Mahoney
Counsel for Respondent/Appellee
BOYILLA v. BOYILLA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
W I N T H R O P, Presiding Judge:
¶1 Sailaja Boyilla (“Wife”) appeals the family court’s order
awarding attorneys’ fees to Nanda Kishore Boyilla (“Husband”). For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On June 6, 2016, the family court entered a decree of
dissolution, and ruled that the parties’ marital residence be sold, but
allowed Wife to “remain in the residence until August 1, 2016 or until the
house sells, whichever occurs first.” The court also appointed a real estate
commissioner to facilitate the sale of the residence. Mother subsequently
moved the court to set a supersedeas bond and temporarily stay
enforcement of the judgment to sell the marital residence. The family court
denied Wife’s motion.
¶3 On September 22, 2016, Husband moved for sanctions and
attorneys’ fees pursuant to Arizona Revised Statutes (“A.R.S.”) section 25-
324 based on Wife’s failure to vacate the marital residence. Following a
show cause hearing on September 27, the court found Wife was in indirect
civil contempt for failing to vacate the marital residence on August 1, 2016,
and for failing to cooperate with the court-appointed real estate
commissioner. The court set September 30 as the new last day to vacate and
imposed a monetary sanction for each day Wife remained in the house from
September 27 until September 30, 2016. As an additional sanction, the court
ordered Wife to reimburse Husband and the real estate commissioner for
their attorneys’ fees in the contempt proceeding. The court also ordered
Wife to pay attorneys’ fees Husband incurred in the dispute over the
marital residence from June 6, 2016, through September 27, 2016. After
considering Husband’s fee application, the court entered its final order on
November 18, 2016, awarding $4,633.50 in attorneys’ fees to Husband. Wife
timely appealed from that order.
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BOYILLA v. BOYILLA
Decision of the Court
¶4 The parties’ marital residence sold in February 2017, and
following the sale, Husband requested the family court release the sale
proceeds. The court granted Husband’s request and ordered the proceeds
be released, and awarded Husband reasonable attorneys’ fees and costs
associated with his request.
¶5 We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2016) and 12-
2101(A)(1) (2016).
ANALYSIS
¶6 Wife filed a notice of appeal from the family court’s entry of
attorneys’ fees in favor of Husband on November 18, 2016; however, on
appeal, she raises additional issues, such as the court’s denial of her motion
to set a supersedeas bond, the finding of indirect civil contempt, and the
order to vacate the marital residence. As discussed below, these additional
issues are not properly before us in this appeal from the separate order
awarding attorneys’ fees.
I. Supersedeas Bond
¶7 On appeal Wife argues the family court improperly denied
her request to set a supersedeas bond that would have allowed her to
temporarily stay in the marital residence. Review of a lower court’s ruling
on a request for a supersedeas bond should be sought by way of a special
action.1 City Ctr. Exec. Plaza, LLC v. Jantzen, 237 Ariz. 37, 39, ¶ 2 (App. 2015),
review denied (July 30, 2015). See also Bobrow v. Herrod, 239 Ariz. 180, 182,
¶ 6 (App. 2016), review denied (July 13, 2016) (finding that challenges to
supersedeas bonds should be brought by special action); accord AOR Direct
L.L.C. v. Bustamante, 240 Ariz. 433, 435, ¶ 2 (App. 2016). Accordingly, we
1 For the same reasons, we decline to address Wife’s argument that the
court erred by finding her in indirect civil contempt. See Berry v. Superior
Court (Desert Holding & Inv.), 163 Ariz. 507, 508 (App. 1989) (finding this
court has no subject matter jurisdiction over an appeal from a civil contempt
order). See also BMO Harris Bank Nat’l Ass’n v. Bluff, 229 Ariz. 511, 513, ¶ 5
(App. 2012) (finding that a challenge to a civil contempt order should be
made by special action); accord Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 7
(App. 2010).
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BOYILLA v. BOYILLA
Decision of the Court
decline in this appeal to address Wife’s argument that the court erred by
denying her request for a supersedeas bond.2
II. Release of Proceeds from Sale of Marital Residence
¶8 Wife argues the family court improperly denied her request
to stay release to Husband of the proceeds from the sale of the marital
residence. This issue, however, is moot.
¶9 We generally refrain from deciding issues which will have no
“practical effect in settling the rights of litigants.” Kondaur Capital Corp. v.
Pinal Cty., 235 Ariz. 189, 193, ¶ 8 (App. 2014) (quoting Progressive Specialty
Ins. Co. v. Farmers Ins. Co. of Ariz., 143 Ariz. 547, 548 (App. 1985)). We may,
however, choose to resolve “issues that have become moot ‘if there is either
an issue of great public importance or an issue capable of repetition yet
evading review.’” Id. (quoting Bank of N.Y. Mellon v. De Meo, 227 Ariz. 192,
194, ¶ 8 (App. 2011) (citation omitted)). Matters of great public importance
are those that have a “broad public impact beyond resolution of the specific
case.” Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 6 (App. 2012).
¶10 On March 29, 2017, the family court denied Wife’s request and
ordered the title company holding the sale proceeds to immediately
distribute the proceeds. Wife could have sought special action relief from
that order, but did not. In the meantime, the title company’s distribution of
the sales proceeds per the family court’s order rendered Wife’s request to
stay moot. Further, nothing in Wife’s appeal, nor in the record, suggests
that a greater public interest would be served by addressing this issue. To
the contrary, Wife’s argument stems from the specific facts of this case.3
III. Citation to the Record and Law
¶11 Husband contends Wife’s appeal should be dismissed
because her opening brief failed to cite to the record or relevant legal
authority, and she failed to provide transcripts of relevant proceedings. See
Melissa W. v. Dep’t of Child Safety, 238 Ariz. 115, 117-18, ¶ 9 (App. 2015)
(finding a party may waive an argument on appeal by failing to cite relevant
legal authority as required by ARCAP 13(a)(7)). Additionally, Wife was
2 Further, Wife’s request that the court set a supersedeas bond is moot
because the marital residence has been sold.
3 Further, to the extent Wife appeals the family court’s order that she
vacate the marital residence, that argument is also moot because Wife has
vacated the residence, and the residence has been sold.
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BOYILLA v. BOYILLA
Decision of the Court
obligated to ensure the record on appeal contained all transcripts and
documents necessary for this court to consider the issues raised. See
ARCAP 11(c)(1)(A) (stating appellant is responsible for ordering all
relevant transcripts). If a party fails to order relevant transcripts, “we
assume the missing portions of the record would support the trial court’s
findings and conclusions.” State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz.
27, 30, ¶ 16 (App. 2003).
¶12 Although Wife’s reply brief included some citations to the
record, she failed to cite any relevant legal authority in support of her
arguments. Wife also did not provide a transcript of the relevant hearings
to aid our review of her appeal. Nonetheless, we decline to dismiss the
appeal outright due to the lack of transcripts and Wife’s failure to cite legal
authority, but will address the remaining issues with the presumption that
the missing record would support the family court’s rulings, and apply
waiver where warranted. See Melissa W., 238 Ariz. at 117-18, ¶ 9.
IV. Family Court’s Award of Attorneys’ Fees
¶13 We review an award of attorneys’ fees under A.R.S. § 25-324
for an abuse of discretion. Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 35
(App. 2007). Under A.R.S. § 25-324 a court must consider “the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings.” A.R.S. § 25-324 (2017). In
Husband’s request for attorneys’ fees he argued Wife’s positions were
unreasonable throughout the case and subsequently provided an affidavit
detailing the attorneys’ fees he incurred. The family court granted
Husband’s request, and awarded him $4,633.50 in attorneys’ fees.
Reasonable evidence in the record supports the court’s order, and we
conclude the court did not abuse its discretion in awarding fees.
V. Costs and Attorneys’ Fees on Appeal
¶14 Husband requests costs and reasonable attorneys’ fees on
appeal pursuant to A.R.S. § 25-324, contending Wife continues to take
unreasonable positions on appeal. Although most of the issues Wife raised
on appeal are moot, in the exercise of our discretion we deny Husband’s
request for attorneys’ fees; however, as the successful party on appeal, we
award Husband his taxable costs to be determined after compliance with
Rule 21, ARCAP.
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BOYILLA v. BOYILLA
Decision of the Court
CONCLUSION
¶15 The family court’s award of attorneys’ fees in favor of
Husband is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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