Goodard v. Goodard

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
TIFFANY LYNN GOODARD, Petitioner/Appellee,
v.
FRANK L. GOODARD, JR., Respondent/Appellant.
No. 1 CA-CV 20-0658 FC
FILED 10-26-2021
Appeal from the Superior Court in Maricopa County
No. FC2017-051703
The Honorable Jacki Ireland, Judge Pro Tempore
AFFIRMED
COUNSEL
Corl Law Practice, PLLC, Maricopa
By Robert D. Corl
Counsel for Petitioner/Appellee
Frank L. Goodard, Jr., Gaffney, South Carolina
Respondent/Appellant
GOODARD v. GOODARD
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Jennifer M. Perkins joined.
C R U Z, Judge:
¶1 Frank L. Goodard, Jr. (“Father”) appeals from the superior
court’s order awarding Tiffany Lynn Goodard (“Mother”) her attorneys’
fees and costs following a hearing on Father’s motion to enforce parenting
time and Mother’s petition to modify parenting time. For the following
reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother filed for dissolution after fourteen years of marriage
and two children, both of whom are minors. Mother alleged Father
committed acts of domestic violence against her and the children.
Following dissolution proceedings, the court entered its decree, awarding
Mother sole legal decision-making authority over both children. Mother
was also named as the primary custodial parent, though Father was
awarded unsupervised parenting time one weekend per month. Father
was also ordered to pay $812 per month in child support.
¶3 About a year later, Father filed a petition to enforce his
parenting time, arguing Mother was not complying with the parenting time
order and was withholding the children from him. Mother then filed for
emergency temporary orders and a petition to modify parenting time.
Mother sought to suspend Father’s unsupervised parenting time, arguing
the acts of domestic violence between the parties had “intensified” over the
past few months. Mother alleged the children were suffering from PTSD
due to Father’s actions, and neither child wanted to have visitation with
Father. Mother requested the court suspend Father’s parenting time until
the parties successfully completed a reunification program and Father
could demonstrate contact with his children would not harm them.
¶4 The court held a hearing on Mother’s motion for temporary
orders, and suspended Father’s parenting time until a hearing could be held
on Father’s petition to enforce parenting time and Mother’s petition to
modify parenting time. The court also appointed a court advisor to
2
GOODARD v. GOODARD
Decision of the Court
investigate the allegations of abuse against the children and make
recommendations to the court.
¶5 At a hearing on the parties’ petitions, the court heard
testimony from both parents, as well as the children’s therapist. Father did
not admit or deny the domestic-violence allegations, and admitted he
suffered from alcoholism. Based on the evidence presented, the court found
that “unrestricted parenting time by Father would endanger the children’s
physical, mental, moral or emotional [health],” and that “Father has shown
no proof of successful treatment for his alcohol abuse or for domestic
violence.” The court denied Father’s petition to enforce parenting time.
The court ordered that Father have no parenting time until he submitted
clean alcohol testing results for four months, engaged in a substance abuse
program, completed a twenty-six week domestic-violence program, and
completed a parenting class. After completion of these requirements,
Father could then engage with a therapeutic interventionist “to aid him in
establishing a healthy relationship with the children.”
¶6 The court awarded Mother her attorneys’ fees and costs under
Arizona Revised Statutes (“A.R.S.”) section 25-324, finding Father acted
unreasonably throughout litigation, and his petition to enforce parenting
time was not filed in good faith. The court directed Mother to “submit all
necessary and appropriate documentation to support an application for an
award of attorney fees and costs, including a China Doll Affidavit and a
form of order.” The court stated if Mother failed to submit the
documentation by September 25, 2020, “no fees or costs will be awarded.”
¶7 Mother filed her application for attorneys’ fees and
supporting documentation before the court’s deadline but failed to include
a form of order. Father filed an objection to the application for attorneys’
fees, arguing the fee application was deficient and Mother failed to include
a form of order as directed by the court. Mother subsequently provided the
court with an untimely form of order, and on October 21, 2020, the court
awarded Mother $10,000 in attorneys’ fees and $200 in costs.
¶8 On the same day, Father filed a motion for reconsideration
and a notice of appeal from the court’s order awarding attorneys’ fees and
costs. The superior court denied Father’s motion for reconsideration.1
1 Because Father filed a notice of appeal prior to the superior court
ruling on his motion for reconsideration, the superior court lacked
3
GOODARD v. GOODARD
Decision of the Court
DISCUSSION
I. Jurisdiction
¶9 In his opening brief, Father attempts to appeal multiple
orders and rulings, including (1) the superior court’s order awarding
attorneys’ fees and costs; (2) the denial of his motion for reconsideration; (3)
the denials of two contempt motions; (4) the denial of his objection to a
ruling ordering him to pay for part of his children’s medical expenses; and
(5) the superior court’s order modifying parenting time. However, Father’s
notice of appeal only stated he was appealing the October 21, 2020 order
awarding attorneys’ fees and costs. We lack jurisdiction to consider matters
not contained in Father’s notice of appeal. Lee v. Lee, 133 Ariz. 118, 124
(App. 1982) (“In the absence of a timely notice of appeal following entry of
the order sought to be appealed, we are without jurisdiction to determine
the propriety of the order sought to be appealed.”).
¶10 Notwithstanding Father’s defective notice of appeal, his
appeal is untimely as to the court’s order modifying parenting time; the
court’s order was filed September 3, 2020, and Father filed his notice of
appeal over two months later on November 12, 2020. See ARCAP 9(a) (“To
appeal a judgment, a party must file a notice of appeal under Rule 8 no later
than 30 days after entry of the judgment from which the appeal is taken
. . . .”).2 The remaining orders are not appealable. See A.R.S. § 12-2101(A);
see also In re Marriage of Dorman, 198 Ariz. 298, 300, ¶ 3 (App. 2000) (the
denial of a motion for reconsideration may be appealable under A.R.S. § 12-
2101(A)(2) as a special order after judgment, but only if it raises “different
issues than those that would be raised by appealing the underlying
judgment.”); Green v. Lisa Frank, Inc., 221 Ariz. 138, 145, ¶ 13 (App. 2009)
jurisdiction to rule on this motion. See City of Phoenix v. Leroy’s Liquors, Inc.,
177 Ariz. 375, 381 (App. 1993) (when a party files a notice of appeal before
superior court has an opportunity to rule on motion for reconsideration,
court is divested of jurisdiction). Therefore, the ruling is without effect.
2 Yee v. Yee, 251 Ariz. 71, 74-75, ¶ 12 (App. 2021) holds that Ariz. R.
Fam. Law P. (“Rule”) 78(b) does not apply to post-decree orders, and thus,
ordinarily, the modification order would not have been appealable until the
attorneys’ fees issue was resolved. However, the modification order in this
case pre-dates Yee, and the order included Rule 78(b) language, making it
immediately appealable at the time it was issued.
4
GOODARD v. GOODARD
Decision of the Court
(contempt rulings are not appealable and only reviewable by special
action).
¶11 We lack jurisdiction to address Father’s arguments regarding
the above-mentioned rulings and orders. Accordingly, we discuss only his
arguments concerning the attorneys’ fees and costs order. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
II. Order for Attorneys’ Fees and Costs
¶12 We review the superior court’s award of attorneys’ fees for an
abuse of discretion. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265,
¶ 18, (App. 2004). An abuse of discretion occurs if there is no evidence to
support the court’s decision or the court commits an error of law. Charles I.
Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17 (App. 2006).
¶13 Father first argues the superior court erred in awarding
attorneys’ fees and costs because Mother submitted a form of order after
the court’s deadline. However, the court has the discretion to consider
untimely filings and to extend its own deadlines. See State v. Zimmerman,
166 Ariz. 325, 328 (App. 1990). The superior court did not err in accepting
the untimely form of order.
¶14 Father also argues Mother’s China Doll affidavit was
inadequate. Father does not expand on this argument, and he fails to
explain how the affidavit did not meet the requirements pursuant to
Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183 (App. 1983). China Doll
requires counsel to prepare an affidavit indicating “the type of legal
services provided, the date the service was provided, the attorney
providing the service (if more than one attorney was involved in the appeal)
and the time spent in providing the service.” Id. at 188. Mother’s counsel
complied with these requirements. Father fails to specify which time
entries are improper. We find no error.
¶15 China Doll also states that “the fee application must be in
sufficient detail to enable the court to assess the reasonableness of the time
incurred.” Id. In the affidavit, Mother’s counsel noted that some “billing
statements may have been redacted to protect attorney-client privilege,”
and if required by the court, counsel would provide “the full bills [to] be
reviewed in camera by the [c]ourt.” Father argues counsel “should have
provided the detailed billing to [him] instead of hiding it via in camera
review.” However, time entries for email or phone conversations between
Mother and her counsel are protected by attorney-client privilege, and
Mother’s counsel was not required to disclose to Father the details of such
5
GOODARD v. GOODARD
Decision of the Court
conversations. See Burch & Cracchiolo, P.A. v. Myers, 237 Ariz. 369, 374, ¶ 17
(App. 2015) (“The attorney-client privilege safeguards the communication
between the attorney and client made in the course of the attorney’s
professional employment.”) (internal quotation marks and citation
omitted). The affidavit contained sufficient information to support the time
Mother’s counsel billed. We find no error.
¶16 Finally, Father argues the attorneys’ fees and costs order is a
violation of his and his children’s “inherent and indefeasible rights,
privileges, and immunities secured by the Federal and State Constitutions,”
and “the order is a direct result of state action against a Fit Parent.”
However, the court has wide discretion to award attorneys’ fees in family
law proceedings, and the court can award attorneys’ fees against even “fit
parents.” See Orfaly, 209 Ariz. at 265, ¶ 18 (noting the court’s discretion in
attorneys’ fee awards); A.R.S. § 25-324 (listing the factors the court
considers when deciding to award attorneys’ fees, which does not include
“parental fitness”). Father fails to explain how his and his children’s
constitutional rights have been violated. We find no error.
CONCLUSION
¶17 For the foregoing reasons, we affirm. Mother requests her
attorneys’ fees and costs on appeal. Father, who is self-represented, also
requests we award him fees and costs incurred on appeal. After
considering the financial resources of the parties and the reasonableness of
the positions on appeal, in the exercise of our discretion, we deny Father his
request. See A.R.S. § 25-324(A). We award Mother her reasonable
attorneys’ fees and costs upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: JT
6