Smith v. Smith
1 CA-CV 20-0589-FC
Ariz. Ct. App.Jul 1, 2021Background
- Parties divorced in 2014 and have three children; a December 2019 modification judgment set Mother as primary residential parent during the school year and awarded Father alternating weekend and summer parenting time.
- In March 2020 Mother filed a civil-contempt petition (ARFLP 91/92) alleging Father failed to return the children after his weekend time due to COVID-19 concerns and sought contempt relief plus attorney’s fees and costs.
- Father returned the children and provided make-up parenting time before an evidentiary hearing; the parties agreed the only unresolved issue was Mother’s request for attorney’s fees.
- The superior court set a paper-briefing schedule, invited any extenuating circumstances from Father, and later awarded the full amount of fees and costs Mother requested based on civil-contempt enforcement authority.
- Father appealed; the appellate court treated the filing as a special action (since civil-contempt orders generally are not appealable), accepted jurisdiction, and denied relief.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Authority to award attorney’s fees for enforcement of parenting-time orders | Fees are compensable under ARFLP 92 for costs incurred securing compliance | No underlying contempt adjudication or willful violation; no legal basis for fees | Trial court lawfully awarded fees under ARFLP 92; father failed to show non-willfulness |
| Whether an evidentiary hearing was required before awarding fees | Not required because parties resolved the factual dispute and agreed to decide fees on the papers | An evidentiary hearing was necessary to adjudicate contempt and willfulness | No hearing required where facts were resolved, father had notice, and offered no extenuating circumstances |
| Appealability / jurisdiction over fee award | N/A | Fee judgment is appealable under A.R.S. §12-120.21(A)(1) | Civil-contempt-based fee awards are generally not appealable; court treated the filing as a special action and accepted jurisdiction |
| Request for appellate attorney’s fees under A.R.S. §25-324 | Seeks appellate fees | Opposes | Denied appellate attorney’s fees; appellate taxable costs awarded on compliance with ARCAP 21 |
Key Cases Cited
- Schweiger v. China Doll Rest., Inc., 138 Ariz. 183 (App. 1983) (affidavit requirements for attorney-fee claims)
- United Farm Workers Nat’l Union v. Heggblade-Marguleas-Tenneco, Inc., 21 Ariz. App. 514 (App. 1974) (civil contempt may compensate a party for losses from noncompliance)
- In re Marriage of Chapman, 251 Ariz. 40 (App. 2021) (civil-contempt-based rulings are generally not appealable)
- Danielson v. Evans, 201 Ariz. 401 (App. 2001) (court may treat an appeal as a special action to preserve review)
- Stoddard v. Donahoe, 224 Ariz. 152 (App. 2010) (appellate standard for reviewing fee awards: abuse of discretion)
- Burke v. Ariz. State Ret. Sys., 206 Ariz. 269 (App. 2003) (legal basis for fee awards reviewed de novo)
- Ong Hing v. Thurston, 101 Ariz. 92 (1966) (notice and opportunity to be heard required in contempt proceedings)