Botto v. Botto

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SUZETTE MARIE BOTTO, Petitioner/Appellant,
v.
ROBERT JOSEPH BOTTO, JR., Respondent/Appellee.
No. 1 CA-CV 16-0770 FC
FILED 4-5-2018
Appeal from the Superior Court in Maricopa County
No. DR1999-012392
The Honorable Pamela Hearn Svoboda, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Dickinson Wright PLLC, Phoenix
By Robert L. Schwartz, Marlene A. Pontrelli, Bradley A. Burns
Counsel for Petitioner/Appellant
Padish & Wells PLLC, Scottsdale
By James E. Padish
Counsel for Respondent/Appellee
BOTTO v. BOTTO
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge John C. Gemmill1 joined.
T H O M P S O N, Judge:
¶1 Suzette Marie Botto (mother) appeals from an order
dismissing her post-decree petition to enforce an obligation under the
parties’ stipulated property settlement agreement (PSA) and from the
award of attorneys’ fees to Robert Joseph Botto (father). For the reasons
stated below, we affirm the dismissal order but vacate the award of
attorneys’ fees.
FACTUAL AND PROCEDURAL HISTORY
¶2 The parties divorced in 2002 pursuant to a consent decree.
The parties contemporaneously entered into a PSA through which father
agreed to pay their child’s college tuition, room, board, expenses, and
provide a reasonable monthly allowance. The PSA was incorporated but
not merged into the decree. After the child was accepted to college and
father failed to confirm or otherwise assure mother that he would abide by
this agreement, mother filed a “petition for order to appear re: enforcement
of court order” asking the court to enforce the PSA and compel father to
pay the child’s college expenses and allowance.
¶3 Father moved to dismiss mother’s petition, arguing he made
all the tuition arrangements required by the PSA and that mother should
have brought her claims as a separate contract action according to Solomon
v. Findley, 167 Ariz. 409, 411-12 (1991). Father requested attorneys’ fees
“pursuant to A.R.S. § 25-324 and §12-341.0 [sic].”
¶4 The trial court agreed it did not have statutory authority to
enforce a contractual agreement to pay college expenses once the child
reached the age of majority, citing Solomon, id. As ordered by the court,
1 The Honorable John C. Gemmill, Retired Judge of the Court of Appeals,
Division One, has been authorized to sit in this matter pursuant to Article
6, Section 3, of the Arizona Constitution.
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father’s attorney submitted an affidavit in support of his claim for
attorneys’ fees. Father and his attorney entered into a flat fee agreement
for $2,700 to represent father in “a post-decree matter for enforcement of a
property agreement term.” Mother objected to the fee affidavit, stating it
did not provide sufficient detail to allow the court to determine whether the
flat fee was reasonable and because the court failed to find a disparity in
the parties’ financial resources. The court awarded father $2,700 without
further comment.
¶5 Mother filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (2017).
DISCUSSION
I. Enforcing the PSA
¶6 We review de novo an order dismissing a petition for lack of
jurisdiction. Mitchell v. Gamble, 207 Ariz. 364, 367, ¶ 6 (App. 2004).
“Although a trial court may consider and resolve jurisdictional fact
questions, when, as here, they are not intertwined with the merits of the
case, we review the court’s ultimate legal conclusion de novo.” Id.
¶7 Our Supreme Court has held that “a contract for post-
majority [child] support should be enforced in a separate contract action . .
. because the divorce court only has jurisdiction to enforce child support
provisions until the child reaches majority.” Solomon, 167 Ariz. at 412. Post-
majority support agreements are fully enforceable “as a contract claim.” Id.
¶8 Here, the PSA was incorporated rather than merged into the
decree and, therefore, retained its status as an enforceable contract. See
Chopin v. Chopin, 224 Ariz. 425, 427, ¶ 6 (App. 2010). Mother filed a petition
to enforce the order requiring father to pay college expenses. Although
mother did not specifically ask for a contempt finding, she asserted father
was in violation of the court order and PSA and asked the trial court to
compel father to comply with the existing orders. Mother’s petition failed to
allege a contract claim.
¶9 Mother argues the trial court erred in dismissing her petition
because it is a single court of unified jurisdiction with authority to consider
her contract claims. See Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102
(1995); Peterson v. Speakman, 49 Ariz. 342, 348 (1937); State v. Marks, 186 Ariz.
139, 142 (App. 1996). Mother correctly characterizes the superior court’s
unified jurisdiction. However, the court properly dismissed mother’s
petition because it failed to state a contract claim, not because mother filed
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her petition in the “wrong court.” See Gary Outdoor Adver. Co. v. Sun Lodge,
Inc., 133 Ariz. 240, 242 (1982) (“The trial court will be affirmed when it
reaches the correct conclusion even if it does so for an incorrect reason.”).
Mother sought to enforce the decree and PSA via an order to compel.
Pursuant to Solomon, mother was required to state a contract claim to
enforce father’s agreement to pay for post-majority college expenses.
Because mother’s petition did not state a contract claim, but asked the court
to compel compliance with a court order, the trial court properly dismissed
her petition.
¶10 Mother also contends the trial court erred in dismissing her
petition, instead of considering it as a contract claim, citing the
memorandum decision in Calcagno v. Ainbinder, 1 CA-CV 14-0623FC, 2016
WL 3264116 (Ariz. App. June 14, 2016).2 However, in Calcagno, the wife
initially sought to enforce the PSA by bringing a separate civil action. Id. at
*1, ¶ 3. The husband, in response, filed a motion to set aside the divorce
decree and PSA. Id. These two matters were consolidated before the family
court at the husband’s request. Id. at *2, ¶4. When the wife subsequently
asked the court to release proceeds from the sale of the parties’ residence,
the husband “challenged the family court’s jurisdiction to rule upon the
request in light of its prior practice of referring post-judgment collection
issues to the civil division.” Id. at *2, ¶ 6. The court sanctioned the husband
for this argument, and the appellate court similarly rejected it. Id. at *2, *3,
¶¶ 6, 9-11.
¶11 Calcagno is distinguishable because the wife initially filed a
separate contract action, which we presume raised an independent contract
claim. Additionally, in Calcagno, the husband asked to have the family
court hear the two matters and then challenged the court’s jurisdiction over
one of the claims. Id. at *2 ¶ 6. As we noted above, mother’s petition did
not raise a contract claim, but sought to compel compliance with the decree
and PSA.
¶12 Finally, mother argues the court had statutory authority to
enforce the decree and PSA pursuant to A.R.S. § 25-317(E) (2017), which
provides that the terms of a PSA “incorporated by reference in the decree
are enforceable by all remedies available for enforcement of a judgment,
including contempt.” However, an agreement to pay post-majority college
2 Mother appropriately cited this memorandum decision pursuant to
Arizona Supreme Court Rule 111(c)(1)(C) (2017) (allowing citation to
memorandum decision for persuasive value when no published opinion
adequately addresses the issue).
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expenses is not a child support order subject to contempt, but a separately
enforceable contract subject to contract remedies. Solomon, 167 Ariz. at 412.
Although section 25-317(E) authorizes the use of contempt remedies, it does
not authorize the use of contempt to enforce payment of one spouse’s debt
to the other. See Masta v. Lurie ex rel. Superior Court, 22 Ariz. App. 170, 171
(1974) (holding § 25-317(E) does not authorize contempt “to enforce the
payment of monetary sums ordered in the settlement of property rights.”);
Charles Marshall Smith & Irwin Cantor, Arizona Practice, Marriage
Dissolution Practice § 273, at 282 (2017) (“[P]ayment of one spouse’s debt to
the other, which is part of a property settlement, may not be enforced by
contempt.”).
¶13 Father’s obligation to pay the adult child’s college expenses is
not a support obligation, but a debt owed to mother and the child. Arizona
caselaw is clear that non-support payments due under property settlement
agreements cannot be enforced by contempt proceedings. See Danielson v.
Evans, 201 Ariz. 401, 411, ¶ 37 (App. 2001) (citing additional cases).
Therefore, the order dismissing mother’s petition is affirmed.
II. Attorneys’ Fee Award
¶14 The trial court awarded father $2,700 in attorneys’ fees.
Mother objected to father’s fee application because it did not provide
sufficient detail to determine whether the $2,700 flat fee was reasonable.
We review the award of attorneys’ fees for an abuse of discretion. Myrick
v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014).
¶15 The party seeking an award of attorneys’ fees must provide a
sufficient description or breakdown of the work performed, including an
affidavit indicating “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.” Schweiger v. China Doll Rest., Inc. 138 Ariz. 183, 188
(App. 1983) (citing Arizona Rule of Civil Appellate Procedure 21). Such
detail is necessary to allow the court to assess the reasonableness of the fee
request. Id.
¶16 The fee affidavit merely stated the scope of the agreement
generally as representation in the pending “post-decree matter for
enforcement of a property agreement term.” The reply provided a bit more
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detail3 but did not specify the amount of time spent or which attorney
performed the work listed. “It is insufficient to provide the court with
broad summaries of the work done and time incurred.” Schweiger, id.
Although father paid a flat fee, he still bears the burden of proving that the
amount sought is reasonable in relation to the work performed and the
result achieved. Id.; see also Geller v. Lesk, 230 Ariz. 624, 630, ¶ 18 (App. 2012),
disagreed with on other grounds in Am. Power Prod., Inc. v. CSK Auto, Inc., 242
Ariz. 364, 367-68 ¶¶ 13, 14 (2017). The application for attorneys’ fees did
not provide sufficient detail to satisfy the Schweiger requirements.
Accordingly, we vacate the award of attorneys’ fees to father.4
3The reply listed the following without specifying which attorneys or
paralegal performed the work:
•Attended the RMC conference
•Briefed and replied the prevailing motion to dismiss
•Fended off Wife’s ill-advised efforts to conduct discovery in
a case in which the Family Court lacks jurisdiction.
•Prepared and now replies to yet another baseless claim by
Wife regarding attorney’s fees.
4 Mother also contends the trial court failed to make any factual findings
supporting its fee award. However, the court is not obligated to make
findings of fact in the absence of a request. See Trantor v. Fredrikson, 179
Ariz. 299, 301 (1994); Myrick, 235 Ariz. at 494-95, ¶ 10 (citing MacMillan v.
Schwartz, 226 Ariz. 584, 592, ¶ 39 (App. 2011)). Mother did not request such
findings; therefore, we find no abuse of discretion.
Father requested fees pursuant to A.R.S. §§ 25-324 (2016) and
12-341.01 (2016). The trial court did not specify the statutory basis for its
award. Father cited only the statutes and failed to support his claim with
any evidence or argument. Mother contends the court abused its discretion
in awarding fees given this lack of evidence.
The party requesting attorneys’ fees bears the burden of
proving he is entitled to an award. See Woerth v. City of Flagstaff, 167 Ariz.
412, 419 (App. 1990). As it relates to A.R.S. § 25-324, a party cannot satisfy
this burden if he fails to provide the court with any information regarding
his financial resources. In Associated Indem. Corp. v. Warner, 143 Ariz. 567,
570 (1985), the supreme court listed several factors a court should consider
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ATTORNEYS’ FEES AND COSTS ON APPEAL
¶17 Both parties request an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. §§ 25-324 (2016) and 12-341.01 (2016). In the
exercise of our discretion, we decline to award attorneys’ fees to either
party.
CONCLUSION
¶18 We affirm the order dismissing mother’s petition to enforce
and vacate the award of attorneys’ fees to father.
AMY M. WOOD • Clerk of the Court
FILED: AA
when exercising its discretion to award fees under A.R.S. § 12-341.01.
Because father failed to offer any evidence or argument to support his fee
request under either statute, there was no basis for the award. On this
record, we cannot conclude the trial court properly exercised its discretion
in awarding attorneys’ fees to father.
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