Haddad v. Geegieh

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MUNA HADDAD, Petitioner/Appellee,
v.
SHEBLI R. GEEGIEH, Respondent/Appellant.
STATE OF ARIZONA ex rel. DEPARTMENT OF ECONOMIC SECURITY,
Intervenor/Appellee.
No. 1 CA-CV 15-0834 FC
FILED 12-22-2016
Appeal from the Superior Court in Maricopa County
No. FC2012-007413
No. FC2012-094018 (consolidated)
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL
Wees Law Firm LLC, Phoenix
By James F. Wees
Counsel for Petitioner/Appellee
Shebli R. Geegieh, Chandler
Respondent/Appellant
HADDAD v. GEEGIEH
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.
K E S S L E R, Judge:
¶1 Shebli Geegieh (“Geegieh”) appeals from the superior court’s
denial of his motion to terminate spousal maintenance. He argues that his
due process rights were violated, the evidence does not support the court’s
findings that there was insufficient evidence to show significant and
continuous changes to terminate spousal maintenance, and attorney’s fees
should not have been awarded against him. For the following reasons, we
affirm the superior court’s judgment.
FACTUAL AND PROCEDURAL HISTORY
¶2 Muna Haddad (“Haddad”) and Geegieh were married in
2010. Both Haddad and Geegieh filed for divorce in 2012 and the two cases
were consolidated. They have two children, born in 2011 and 2013.
¶3 In 2013, the court dissolved the marriage. Haddad was
awarded $2000 a month in spousal maintenance for thirty-six months,
commencing May 1, 2013. Haddad and Geegieh were awarded joint
physical and legal custody of their two children. Geegieh was ordered to
pay $380 monthly in child support. Haddad was awarded attorney’s fees
and costs.
¶4 Geegieh filed petitions to modify spousal maintenance in
January and March 2014, which were dismissed. In 2015, Geegieh moved to
terminate spousal maintenance alleging Haddad’s new employment
provided her with the financial resources to meet her needs independently.
The superior court found Geegieh had not proved a substantial and
continuing change in Haddad’s ability to meet her reasonable needs
independently and denied Geegieh’s motion. Haddad was awarded
additional attorney’s fees, in part because the superior court found
Geegieh’s conduct in the litigation to be harassing and vexatious. Because
of Geegieh’s excessive number of filings, the superior court also ordered
that Geegieh must seek the court’s permission before filing any other
motions or requests. Geegieh did not seek to file any further motions or
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Decision of the Court
requests from the order denying his motion to terminate spousal
maintenance.
¶5 Geegieh timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-120.21(A)(1) (2016).1
DISCUSSION
I. Standard of Review
¶6 We view the facts in the light most favorable to upholding the
superior court’s judgment and will not set it aside unless it is clearly
erroneous. In re Marriage of Foster, 240 Ariz. 99, 99, ¶ 2 (App. 2016) (citation
omitted); Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9 (App. 2012) (citations
omitted). Spousal support obligations may be “terminated only on a
showing of changed circumstances that are substantial and continuing.”
A.R.S. § 25-327(A) (Supp. 2015). “The decision as to the sufficiency of
changed circumstances to support a modification lies within the sound
discretion of the trial court and will not be disturbed on appeal unless it is
abused.” Fletcher v. Fletcher, 137 Ariz. 497, 497 (App. 1983) (citation
omitted). The burden of showing changed circumstances is on the spouse
seeking modification or termination. Scott v. Scott, 121 Ariz. 492, 494 (1979)
(citation omitted). We review the award of attorney’s fees in divorce
proceedings for an abuse of discretion. Murray v. Murray, 239 Ariz. 174, 179,
¶ 20 (App. 2016) (citation omitted).
II. Due Process
¶7 Geegieh asserts his due process rights were violated by (1) not
allowing him two hours instead of the ninety minutes allotted for the
evidentiary hearing on his motion; (2) not permitting him to cross-examine
Haddad; and (3) ordering him to not file any motions without permission
of the court.
¶8 First, the superior court’s scheduling order states that
Each party presumptively will be allowed half of the available
time to present all direct, cross and redirect examination and
any argument. . . . The parties are expected to complete the
trial in the allotted time. If a party believes that more trial time
is needed, he or she must file a motion at least 30 days before
1 We cite to the current version of statutes unless changes material to
this decision have occurred.
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HADDAD v. GEEGIEH
Decision of the Court
the trial setting forth good cause to enlarge the trial time.
Failure to timely file such a motion will be deemed a waiver
of any argument that more trial time is needed.
(emphasis in original). Although Geegieh filed nine motions and replies in
the three months between the scheduling order and the hearing, including
his third motion for sanctions, and orally moved on the day of trial for
additional time when it became obvious he did not have the time he wanted
to put on his case, none of the motions included a request to enlarge the
trial time. Geegieh thus waived any argument that he needed more time.
¶9 As to Geegieh’s second argument, he is correct that he was
not able to cross-examine Haddad. However, the superior court warned
Geegieh at the end of his testimony that he only had two minutes of his
allotted time remaining and informed him he could save it until the end.
Knowing that, Geegieh made the tactical decision to continue testifying,
rather than cross-examine Haddad. The scheduling order put all parties on
notice that they would be allowed half of the allotted time to conduct all
examinations, including cross-examinations. Geegieh’s due process rights
were not violated simply because he managed his time poorly.
¶10 Finally, Geegieh’s claim that the superior court violated his
rights “by ordering him not to file anything with the [c]ourt of any kind”
must fail for at least three reasons.2 First, the order did not prohibit him
from filing motions or requests, but merely required him to receive the
court’s prior permission to do so. Given the ample evidence that Geegieh’s
numerous motions constituted “harassing, vexatious litigation,” the court
did not abuse its discretion by requiring Geegieh to seek permission before
filing a motion. Contrary to Geegieh’s assertions, this did not deny him “the
right to obtain any relief.” Second, the order operated prospectively and did
not affect the judgment from which Geegieh is appealing. Third, Geegieh’s
argument the order prevented him from filing a motion for a new trial or
2 In placing restrictions on future filings, a court must satisfy due
process by (1) affording the party notice and an opportunity to oppose the
order; (2) creating an adequate record for appellate review; (3) making
substantive findings as to the frivolous or harassing nature of the litigant’s
actions; and (4) “narrowly tailor[ing the order] to closely fit the specific vice
encountered.” Madison v. Groseth, 230 Ariz. 8, 14, ¶ 18 (App. 2012) (citation
omitted). The court adequately addressed all but the first principle, as it
failed to provide Geegieh notice it was considering such an order. However,
this error is not reversible because Geegieh never sought to file anything
else below relating to this appeal.
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for other relief from the order denying his motion to terminate spousal
maintenance is not supported by the record. He did not seek the court’s
permission to file such a motion and does not present any factual or legal
basis that would have supported a request for such relief. See State v. Kaiser,
109 Ariz. 244, 246 (1973) (citations omitted) (“As a general rule evidence
cannot be reviewed on appeal in the absence of an offer of proof showing
that the excluded evidence would be admissible and relevant.”). We
therefore reject Geegieh’s assertions.
III. Misstatement of Facts/Insufficiency of Evidence
¶11 Although his brief is hardly a model of clarity, we understand
Geegieh’s argument on this issue to be that there was insufficient evidence
to support the ruling. We disagree.
¶12 Many of the facts Geegieh argues the superior court
“misstated” are either irrelevant to the decision or of such minor difference
as to be immaterial. For example, Geegieh challenges the superior court’s
calculations regarding Haddad’s take-home pay. The superior court found
Haddad is unable to meet her reasonable needs on a net take-home pay of
$1600 per month. Geegieh asserts Haddad’s net pay is $1851.52 a month
because voluntary deductions, such as retirement savings or life insurance,
should not be included. Even assuming Geegieh’s calculation is correct, the
difference of $251.52 per month is not so great as to constitute an abuse of
discretion.
¶13 Geegieh asserts that Haddad’s new employment is a
substantial and continuous change in circumstances warranting
termination of spousal maintenance.3 Since the original decree, Geegieh’s
income has increased by at least $11,000,4 and while Haddad now earns
approximately $26,000 annually, her expenses have also increased because
she now has a higher rent payment and childcare costs. Although Haddad
was not working at the time of the decree, the court properly found her net
3 Geegieh also argues that the superior court included factors in its
ruling contrary to A.R.S. § 25-501(A) (Supp. 2015). However, that statute
deals with the obligation of parents to provide for their minor children.
A.R.S. § 25-501(A). Modification of spousal maintenance is provided for in
A.R.S. §§ 25-319(B) and 25-327(A).
4 Geegieh refused to provide his 2014 tax returns, despite repeated
requests. A 2015 paystub indicated he earned nearly $120,000 and Haddad
introduced evidence that he earned approximately $158,000.
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HADDAD v. GEEGIEH
Decision of the Court
take-home pay is now actually less than zero because of new rent and
childcare obligations.5 Given the great disparity in incomes and Haddad’s
increased expenses, the court did not abuse its discretion in finding the
changes were not sufficiently substantial or continuous to merit
modification.
IV. Attorney’s Fees
¶14 Geegieh asserts the superior court erred in awarding Haddad
her attorney’s fees and costs. Geegieh claims the court should not have
found he acted unreasonably, found a disparity in income, or allowed fees
for the settlement offer sent by Haddad’s counsel. We disagree.
¶15 The superior court awarded attorney’s fees under A.R.S. § 25-
324(A)-(B) (Supp. 2015). Section 25-324(A) allows the court to award fees
“after considering the financial resources of both parties and the
reasonableness of the positions each party has taken throughout the
proceedings.” A.R.S. § 25-324(A). While the primary purpose of the statute
is to “provide a remedy for the party least able to pay,” Bell-Kilbourn v. Bell-
Kilbourn, 216 Ariz. 521, 524, ¶ 13 (App. 2007), the court can award fees based
on either factor, Magee v. Magee, 206 Ariz. 589, 591 n.1, ¶ 8 (App. 2004)
(citation omitted) (“[A]n applicant need not show both a financial disparity
and an unreasonable opponent in order to qualify for consideration for an
award” under A.R.S. § 25-324(A)); Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 9
(App. 2014) (citations omitted) (holding that although the court must
consider both reasonableness and financial disparity, the court has
discretion to award fees on either factor).
¶16 The superior court did not err in awarding fees. First, there is
a great financial disparity between Haddad’s and Geegieh’s incomes.
Geegieh does not dispute that he currently makes more than $100,000
annually, whereas Haddad makes less than $30,000 a year. Substantial
evidence supports the court’s finding.
¶17 Second, the superior court found that Geegieh had acted
unreasonably in the litigation. Geegieh argues he was not unreasonable for
filing for termination of maintenance after Haddad had begun working.
While the filing of a third petition to modify spousal maintenance might
5 Haddad testified and the court found that her rent is $1100 a month
and she pays $770 a month for childcare. Haddad testified she earns
approximately $1600 a month. The court therefore reasonably found that
Haddad was running approximately a $270 monthly deficit.
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HADDAD v. GEEGIEH
Decision of the Court
not, in itself, be unreasonable, Geegieh’s conduct relating to the petition and
since the filing of the original divorce decree can only be described as
harassing and vexatious. Geegieh has filed over sixty motions with the trial
court in the four years since the filing of the original decree, as well as a
previous appeal to this court, which he voluntarily dismissed. In the three
months between filing the termination petition and the hearing alone, he
filed nine motions, including three motions to compel and two sanctions
motions. The superior court correctly determined that “[n]one of these
motions were necessary or reasonable.”
¶18 Finally, Geegieh’s claim that Haddad’s counsel was
attempting “to breed fees instead of reducing the litigation” by sending
Geegieh an email making a settlement offer cannot survive even the most
minimal scrutiny. Geegieh filed motions at a rate of nearly three to one over
Haddad. Haddad is now responsible for over $15,000 in fees because of
Geegieh’s repetitive and unreasonable filings. We are unpersuaded that
Geegieh should not be responsible for any attorney’s fees merely because
he objects to Haddad’s counsel sending a single email. In any event, that
email, suggesting a possible settlement Haddad had not yet approved of,
actually sought to open a discussion toward resolving the interminable
litigation fostered by Geegieh. Awarding fees for the costs related to that
email was not erroneous.
CONCLUSION
¶19 For the foregoing reasons, we affirm the superior court’s
order. Pursuant to A.R.S. § 25-324(A)-(B), we will award Haddad
reasonable attorney’s fees and taxable costs on appeal upon timely
compliance with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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