Stringer v. Stringer
1 CA-CV 16-0425-FC
| Ariz. Ct. App. | Dec 7, 2017Background
- Parties divorced after a 20-year marriage; original decree provided joint legal decision-making and equal parenting time for two children.
- Father voluntarily relinquished in-person parenting time in Oct 2014; in Jul 2015 he petitioned to reinstate original parenting time; Mother petitioned for sole legal decision-making.
- After a March 2016 hearing, the superior court awarded Mother sole legal decision-making and limited Father’s parenting time to one night per week for 2.5 hours; the court awarded Mother attorney’s fees and costs under A.R.S. § 25-324.
- Father later filed a child-support modification petition; after a May 2017 hearing the court found Father’s income was substantial and again awarded Mother fees; those findings showed a clear financial disparity.
- Father appealed only the March 2016 award of attorney’s fees; he argued the court lacked evidentiary support for income disparity and that Mother failed to comply with Rule 91(S).
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether court erred awarding attorney’s fees under A.R.S. § 25-324 without evidence of financial resources | Court had no admissible evidence of Father’s income at time of hearing; award improper | Mother’s pretrial statement and later affidavits supported disparity; Father did not contest income; later findings confirmed disparity | Affirmed: uncontested pretrial assertions and later detailed findings supplied reasonable basis; no prejudice shown |
| Whether Mother’s failure to serve an affidavit under Rule 91(S) invalidates fee award | Fee award should be vacated because Mother did not serve affidavit in modification proceeding | Mother filed affidavits (Sept 2015, Apr 2016) and court had them when awarding fees; Father waived the Rule 91(S) objection by not raising it below | Affirmed: argument waived and record contained affidavits by time of award |
| Whether Father is entitled to appellate fees | Father seeks fees on appeal given disparity and allegedly frivolous positions | Mother did not request appellate fees | Denied: court declines to award Father fees on appeal |
| Whether the reasonableness of parties’ litigation positions supported fee award | Father contends his positions were reasonable | Court found Father acted unreasonably (abandoning parenting, refusing testing/therapy, subpoenaing irrelevant records) | Affirmed: unreasonableness supported fee award under § 25-324 |
Key Cases Cited
- Mangan v. Mangan, 227 Ariz. 346 (App. 2011) (standard of review and factors under A.R.S. § 25-324)
- In re Marriage of Williams, 219 Ariz. 546 (App. 2008) (factors a court may consider when awarding fees under § 25-324)
- In re Marriage of Gibbs, 227 Ariz. 403 (App. 2011) (appellate deference where any reasonable basis exists for fee award)
- Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183 (Sup. Ct. 1983) (affidavit procedure for fee awards)
- Continental Lighting & Contracting, Inc. v. Premier Grading & Utilities, LLC, 227 Ariz. 382 (App. 2011) (rule that arguments not raised below are generally waived on appeal)
- City of Phoenix v. Superior Court (Rosen), 110 Ariz. 155 (Sup. Ct. 1973) (judicial notice of superior court records)