Clark v. Clark

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
ANN D. CLARK, Petitioner/Appellee,
v.
RICHARD A. CLARK, Respondent/Appellant.
No. 1 CA-CV 15-0068 FC
FILED 03-22-2016
Appeal from the Superior Court in Maricopa County
No. FC2012-093630
The Honorable Bethany G. Hicks, Judge (Retired)
AFFIRMED
COUNSEL
By Scott L. Patterson, Tempe
Counsel for Petitioner-Appellee
Johnson Hendrickson & Lallis, PLLC, Mesa
By David Johnson
Counsel for Respondent-Appellant
OPINION
Judge John C. Gemmill delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
G E M M I L L, Judge:
CLARK v. CLARK
Opinion of the Court
¶1 Richard Clark (“Father”) appeals the family court’s order
modifying child support and awarding attorney fees to Ann Clark
(“Mother”). Because only our resolution of the attorney fees issue merits
publication, we have addressed Father’s other issues in a separate
memorandum decision issued contemporaneously with this opinion. See
ARCAP 28(c); Ariz. R. Sup. Ct. 111(h). For the reasons set forth in the
accompanying memorandum decision and in this opinion, we affirm.
BACKGROUND
¶2 In 2012, Mother filed a petition for dissolution of her marriage
to Father. A default decree was entered against Father in December 2012,
along with a child support order and parenting plan concerning the
couple’s two children. Primary physical custody of the children was
awarded to Mother, and Father was ordered to pay $1,013.48 in monthly
child support, starting January 1, 2013.
¶3 After the divorce, Father relocated to New York to seek
employment and found a job in September 2013. In March 2014, Father
filed a petition to modify his child support obligation, alleging he was
earning $3,464 per month and his relocation and new employment
constituted a substantial and continuing change in circumstances. After a
hearing, the family court decreased Father’s monthly child support
obligation to $619.04, effective September 1, 2014. The family court ordered
that Father be allowed to claim one of the children as a dependent on his
income taxes two out of every three tax years, conditioned upon payment
in full of all current support obligations and arrearage payments. The court
also found that Father had failed to make required child support payments
and entered judgment for more than $20,000 in arrearages due Mother.
Finally, the court awarded Mother her attorney fees and costs, finding that
Father had taken unreasonable positions throughout the litigation.
¶4 Father timely appeals, and we have jurisdiction under Article
6, Section 9 of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(5).
ATTORNEY FEES ANALYSIS
¶5 In its order modifying child support, the family court granted
Mother’s request for attorney fees under A.R.S. § 25-324(A), finding that no
meaningful financial disparity existed between the parties and that Father
acted unreasonably during the litigation. In Father’s motion for new trial,
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CLARK v. CLARK
Opinion of the Court
he argued the fee award to Mother violated A.R.S. § 25-503(E), which
provides:
Any order for child support may be modified or terminated
on a showing of changed circumstance that is substantial and
continuing . . . . The order of modification or termination may
include an award of attorney fees and court costs to the
prevailing party.
(Emphasis added.)
¶6 Father contends the family court did not have discretion to
award Mother her attorney fees under A.R.S. § 25-503(E) because Father
was the prevailing party in the litigation. Father also argues the court erred
under A.R.S. § 25-324(A) when it found that he acted unreasonably in the
litigation. We review de novo issues of statutory interpretation, City of
Phoenix v. Harnish, 214 Ariz. 158, 161, ¶ 6 (App. 2006), and apply an abuse
of discretion standard to the family court’s factual analysis underlying an
attorney fees award, see Breitbart-Napp v. Napp, 216 Ariz. 74, 83, ¶ 35 (App.
2007).
¶7 Father contends he was the “prevailing party” in the
modification proceedings because the family court substantially reduced
his monthly child support obligation. We note, however, that Mother cross-
petitioned and received a judgment against Father for child support
arrearages. The family court did not make a specific finding of which party
prevailed and such a determination is not necessary to resolve the issue
here. Even assuming Father was the “prevailing party” on his petition to
reduce child support, we nonetheless reject his position that A.R.S. § 25-
503(E) prevents the family court from awarding fees to the non-prevailing
party.
¶8 The use of the word “may” in A.R.S. § 25-503(E) provides the
family court broad discretion to decide whether to award attorney fees to
the prevailing party on a request to modify child support. See Alejandro v.
Harrison, 223 Ariz. 21, 24, ¶ 10 (App. 2009) (recognizing that a statute’s use
of “may” when describing the court’s authority generally connotes
discretion). And, contrary to Father’s argument, the statute does not
prohibit the court from awarding fees to the non-prevailing party if another
statute authorizes such an award.
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CLARK v. CLARK
Opinion of the Court
¶9 Section 25-503(E) is not the only statute that may authorize an
award of attorney fees in proceedings such as these. As explained in the
Child Support Guidelines issued by the Arizona Supreme Court, post-
decree petitions for modification of child support orders may arise under
both Chapter 3 and Chapter 5 of A.R.S. Title 25, governing Marital and
Family Relations:
Pursuant to Arizona Revised Statutes Sections 25-327
[Chapter 3] and 25-503 [Chapter 5], either parent or the state
Title IV-D agency may ask the court to modify a child support
order upon a showing of a substantial and continuing change
of circumstances.
A.R.S. § 25-320 app. § 24(A) (“Guidelines”) (emphasis added). Accordingly,
the family court may award fees to either party in such cases not only under
Chapter 5, see A.R.S. § 25-503(E), but also under Chapter 3, see A.R.S. § 25-
324(A). Chapter 3 provides for an award of fees as follows:
The court from time to time, after considering the financial
resources of both parties and the reasonableness of the
positions each party has taken throughout the proceedings,
may order a party to pay a reasonable amount to the other
party for the costs and expenses of maintaining or
defending any proceeding under this chapter [3] or chapter 4,
article 1 of this title.
A.R.S. § 25-324(A) (emphasis added). “We must consider all pertinent
statutory provisions in reaching a decision” and “related statutes must be
interpreted consistently and harmoniously with one another.” In re
Stephanie N., 210 Ariz. 317, 320, ¶ 17 (App. 2005); see also State v. Cid, 181
Ariz. 496, 499–500 (App. 1995) (statutes in pari materia are read together
and harmonized to avoid rendering any word, clause or sentence
superfluous or void).
¶10 Sections 25-324(A) and 25-503(E), read together, do not
conflict, and we need not evaluate whether one supersedes the other. Cf.
State v. Jones, 235 Ariz. 501, 503, ¶ 8 (2014) (explaining that conflicting
statutes cannot be harmonized). Understood together, §§ 25-324(A) and 25-
503(E) offer the family court distinct — but not mutually exclusive —
options for awarding attorney fees to the parties. When both statutes apply,
the family court may award attorney fees based on any one or more of the
listed statutory factors, including (1) financial disparity between the parties,
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CLARK v. CLARK
Opinion of the Court
A.R.S. § 25-324(A); (2) unreasonable conduct or unreasonable positions by
a party, id.; or (3) which party prevailed in the litigation, A.R.S. § 25-503(E).
¶11 Here, the family court concluded that there was no substantial
disparity in the parents’ incomes, but made specific findings that Father
acted unreasonably during the proceedings by knowingly failing to pay
child support as ordered in lieu of filing a petition for modification, and by
expecting that Mother would independently support and care for the two
children. The court also found that “[a]ll of the litigation” relevant to the
petition was “caused by Father either not taking responsibility in the initial
default dissolution or not abiding by the order.”
¶12 No legal error occurred when the family court awarded
attorney fees to Mother under § 25-324(A), even if we assume she was not
the prevailing party. And because the evidence presented during the
hearing supports the family court’s award of fees to Mother, no abuse of
discretion occurred.
CONCLUSION
¶13 We conclude there is no reversible error in the family court’s
order. For these reasons and for those set forth in the accompanying
memorandum decision, we affirm.
¶14 Both Father and Mother request awards of attorney fees on
appeal. Father’s request is based on A.R.S. §§ 25-324 and 25-503(E), and
Mother’s request is based on § 25-324. We have considered the relevant
criteria under both statutes, and in our discretion we decline to award fees
to either party. As the prevailing party on appeal, Mother is entitled to an
award of taxable costs contingent upon her compliance with Arizona Rule
of Civil Appellate Procedure 21.
:RT
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