Smith v. Frederick

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

DENNIS MICHAEL SMITH, Petitioner/Appellant,

v.

TRICIA ANN FREDERICK, Respondent/Appellee.

No. 1 CA-CV 13-0443
FILED 11-06-2014

Appeal from the Superior Court in Maricopa County
Nos. DR1994-001148, DR1996-010662 & DR1999-022098
(Consolidated)
The Honorable John R. Hannah, Jr., Judge

AFFIRMED

COUNSEL

Gillespie, Shields & Durrant, Phoenix
By DeeAn Gillespie Strub
Counsel for Petitioner/Appellant

Rowley Chapman & Barney, LTD, Mesa
By Paul S. Rowley, Nathaniel H. Wadsworth
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.

J O N E S, Judge:

¶1 Dennis Michael Smith (Father) appeals the trial court’s denial
of his motion for a new trial, in which he sought an evidentiary hearing to
determine whether counsel for Tricia Ann Frederick (Mother) should be
held jointly and severally liable for a fee award entered against Mother. For
the following reasons, we affirm the trial court’s ruling.

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother are the unmarried parents of a daughter
(Child), born in 1999. In January 2011, Father filed a petition to modify a
2008 parenting time and custody order, in which he and Mother shared
legal custody, he was the primary residential parent, and Mother had
scheduled parenting time.

¶3 In his petition, Father sought sole custody of Child, with
limited supervised parenting time to Mother until Child was “emotionally
stabilized.” Father argued that Mother previously obtained an order of
protection against him by “baselessly” alleging Father of sexual abuse on
the grounds that he had failed to protect the Child from being “groomed”
by a neighbor. The order was quashed forty-two days after it was issued,
but Father was denied access to Child during that time period. Father
asserted that, during the forty-two-day period, Mother emotionally
manipulated Child into hating Father. Father further alleged Mother had
made similar baseless accusations in the past.

¶4 Mother responded to Father’s petition, and filed a cross-
petition to modify parenting time and custody in which she sought sole
legal custody of Child with restricted access for Father. Mother noted that
the parenting coordinator had recommended that the parents explore
changing the existing custody and parenting arrangement in light of Child’s
age and “the ongoing circumstances of the parents.”

¶5 The trial court held a two-day hearing on the petitions, at
which the parenting coordinator, among others, testified. The court,

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thereafter, awarded sole legal custody to Father, and granted Mother
limited access to Child. In reaching its decision, the court noted that Child
Protective Services had found Mother emotionally abused Child by
coercing her to accuse Father of sexual abuse, sought to alienate Child from
Father, and falsely accused Father of sexual abuse and of driving while
intoxicated with Child in the vehicle.

¶6 The trial court then scheduled an evidentiary hearing on
Father’s request for attorneys’ fees against Mother and her attorney
pursuant to Arizona Revised Statutes (A.R.S.) sections 12-3491 and 25-324,
and Arizona Rule of Family Law Procedure 31.

¶7 Three weeks prior to the hearing, Father filed a memorandum
outlining the reasons Mother’s counsel should be held jointly and severally
liable for any fee award. Father alleged that counsel: (1) “made, and/or
allowed to be made, misrepresentations in this proceeding;” (2) failed “to
amend his pleadings when he learned of the false and unsubstantiated
allegations made by Mother;” and (3) filed “motions and other papers with
false allegations that he would have known were false had he conducted
any reasonable inquiry.” He further requested Mother’s counsel be
disqualified from representing her at the fees hearing because of the conflict
of interest created by the possibility they may be jointly and severally liable
for any fee award. Father also moved for the hearing to be reset so Mother
could retain new counsel.

¶8 The court denied Father’s requests to disqualify Mother’s
attorney and reset the hearing. In a detailed minute entry, the court noted
that disqualification should be granted only in extreme circumstances and
explained its reasoning for declining to do so in this instance:

The benefit to Father, from disqualification of Mother’s
counsel, does not outweigh the burden of delay and the risk
of unfairness to Mother. The reason is that Father is not likely
to prevail on his claim for a fee award against Mother’s
attorney. The law offers little support for such an award
under the circumstances of this case.

Section 12-349 applies only if a party brings a claim
without substantial justification or for harassment or delay, or

1 Absent material revisions since the relevant date, we cite to the
current version of a statute or rule unless otherwise stated.

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abuses the discovery process, or unreasonably expands or
delays the proceedings. The record does not support the
conclusion that Mother’s argument for sole custody was so
legally and factually unjustifiable that an attorney should be
personally liable for presenting her case. [The parenting
coordinator]’s testimony supported Mother’s position.
Although Mother’s counsel filed a lot of pleadings and raised
a lot of issues, it would be difficult to conclude that his tactics
unreasonably expanded the proceedings in light of the
extremely contentious nature of the underlying dispute.

[Arizona Rule of Family Law Procedure] 31 applies to
specific pleadings, and it is limited to the costs incurred as a
result of those pleadings. Neither Mother’s response to
Father’s petition nor Mother’s written closing argument,
taken as a whole, warrants sanctions. Closing arguments, in
particular, are often filled with hyperbole. Any request for
sanctions based on a particular filing during the litigation
(such as the drug testing request) should have been made at
the time of the filing.

The other sources of authority offered by Father do not
apply. A.R.S. section 25-324 does not authorize a fee award
against an attorney. Mangan v. Mangan, 227 Ariz. 346, 258 P.3d
164 (App. 2011) was decided under the Rules of Appellate
Procedure.

¶9 The trial court then went forward with the fees hearing, and
awarded fees to Father in the amount of $44,613.33 against Mother pursuant
to A.R.S. § 25-324; the court, however, denied Father’s request to hold
Mother’s counsel jointly and severally liable for the fee award.

¶10 Father then filed a motion for new trial on his claim for an
award of attorneys’ fees against Mother’s attorney. Father re-urged his
position regarding the alleged misconduct of Mother’s attorney. He also
argued that the parenting coordinator’s testimony should not shield
Mother’s counsel from being liable for fees, and that he should be permitted
to examine Mother’s counsel to determine what inquiries he made, if any,
before advancing Mother’s positions.

¶11 The trial court denied Father’s motion for new trial,
explaining:

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Although the Court shares many of the concerns
expressed about the burden this latest round of litigation has
placed on [Father] and its likely negative effect on the child,
the imposition of fees against the opposing party’s attorney
would be a bridge too far on this record. The evidence
presented at the hearing on attorney’s fees did not change the
Court’s conclusion that, in light of the testimony of [the
parenting coordinator], the position taken by counsel on
behalf of [Mother] was not “without substantial justification.”
A.R.S. § 12-349(A)(1). The accusations of sexual abuse against
[Father] came the closest to “unreasonably expand[ing] or
delay[ing] the proceeding,” A.R.S. § 12-349(A)(3), but in the
end it would not have been possible to untangle those
allegations from the rest of the facts, so that the only thing
counsel could reasonably have done was to refrain from
pushing those allegations at trial — which he did.

¶12 Father timely appealed from the denial of his motion for new
trial. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(a).

STANDARD OF REVIEW

¶13 We review a trial court’s decision denying a motion for new
trial for an abuse of discretion. Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d
1164, 1166 (App. 1996). We will reverse a trial court’s denial of a new trial
motion “only if it reflects a manifest abuse of discretion given the record
and circumstances of the case.” Id. (citing Blakely Oil, Inc. v. Wells Truckways,
Ltd., 83 Ariz. 274, 278, 320 P.2d 464, 466 (1958)). We also review all aspects
of a court’s decision related to sanctions under Arizona Rule of Family Law
Procedure 31 for an abuse of discretion. See James, Cooke & Hobson, Inc. v.
Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319, 868 P.2d 329, 332 (App.
1993) (considering Arizona Rule of Civil Procedure 11, on which Rule 31 is
predicated).2 We review the court’s application of A.R.S. § 12-349 de novo.
City of Casa Grande v. Ariz. Water Co., 199 Ariz. 547, 555, ¶ 27, 20 P.3d 590,
598 (App. 2001).

2 See Ariz. R. Fam. L.P. 31, Committee Comment.

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DISCUSSION

¶14 Father argues that Mother’s counsel was subject to sanctions
in the form of attorneys’ fees pursuant to Arizona Rule of Family Law
Procedure 31 and A.R.S. § 12-349,3 and that Father was entitled to an
evidentiary hearing to demonstrate the basis for finding Mother’s counsel
jointly and severally liable for the fee award. Father argues that the court
abused its discretion in denying him a new trial on this point.

¶15 Rule 31 is violated when a party or counsel files a pleading or
paper and knows or should know from reasonable inquiry that the claim or
defense is legally or factually groundless or when the paper filed is
intended to cause delay, harassment, or some other improper purpose.
Ariz. R. Fam. L.P. 31(a). Under A.R.S. § 12-349, as pertinent here, the court
must assess a sanction against an attorney or party if it finds by a
preponderance of the evidence that the attorney or party (1) brought or
defended a claim without substantial justification; (2) brought or defended
a claim solely or primarily for delay or harassment; or (3) unreasonably
expanded or delayed the proceedings. A.R.S. § 12-349(A)(1)-(3); Phx.
Newspapers, Inc. v. Dep’t of Corr., 188 Ariz. 237, 243-44, 934 P.2d 801, 807-08
(App. 1997) (holding preponderance of the evidence as the appropriate
standard under A.R.S. § 12-349). At the time of these proceedings, “without
substantial justification” meant that the claim or defense constituted

3 Father also contends that fees may be awarded jointly and severally
against Mother’s counsel under A.R.S. § 25-324. The language of the statute,
however, provides for no such relief. See Michael J. Jr. v. Michael J. Sr., 198
Ariz. 154, 157, ¶ 15, 7 P.3d 960, 963 (App. 2000) (stating we follow the plain
meaning of a statute where its language is unambiguous). The statute
authorizes or compels an award of fees by one “party” to “the other party.”
A.R.S. § 25-324(A)-(B). It makes no provision for a fee award against
counsel. Father’s reliance upon Mangan v. Mangan, 227 Ariz. 346, 258 P.3d
164 (App. 2011), and In re Marriage of Williams, 219 Ariz. 546, 200 P.3d 1043
(App. 2008), is misplaced. In Mangan, this Court awarded fees on appeal
against a mother under § 25-324, and held her appellate counsel joint and
severally liable under Arizona Rule of Civil Appellate Procedure 25, not
A.R.S. §25-324, because of counsel’s misrepresentation of the record and
counsel’s reliance on an unpublished decision on appeal. Mangan, 227 Ariz.
at 354, ¶ 32, 258 P.3d at 172. In Williams, the court did not consider whether
counsel should be jointly and severally liable for a fee award, and is not
applicable. Williams, 219 Ariz. at 547, ¶ 1, 200 P.3d at 1044.

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harassment, was groundless, and was not made in good faith. A.R.S. § 12-
349(F) (2011).4

¶16 Father argues he was entitled to an evidentiary hearing and
the trial court wrongly denied his request for one.5 Not so. Neither Rule
31 nor A.R.S. § 12-349 requires the court to conduct a hearing, and Father
has offered no authority that he was entitled to an evidentiary hearing
under these provisions. Father cites Ruesga v. Kindred Nursing Centers,
L.L.C., 215 Ariz. 589, 161 P.3d 1253 (App. 2007), and Brake Masters Systems,
Inc. v. Gabbay, 206 Ariz. 360, 78 P.3d 1081 (App. 2003), both of which concern
the appropriateness of evidentiary hearings in determining the existence or
terms of an arbitration agreement. Father does not explain how these cases
apply in light of his request for sanctions against an opposing party’s
attorney, and we do not find them instructive on the issue.

¶17 Under Rule 11, “the court’s inquiry into violations of the rule
should ordinarily be restricted to the record then before the court” and
“discovery directed to the signer’s conduct should be allowed only by leave
of court and should not be permitted in the absence of clear appearance of

4 Effective January 1, 2013, “without substantial justification” no
longer required a showing of “harassment.” A.R.S. § 12-349(F) (2014).

5 Father likens the hearing he seeks to a “culprit hearing” in the
context of Arizona Rule of Civil Procedure 37(b). Under that rule, a trial
court may conduct a “culprit hearing” to determine if a party, rather than
the party’s counsel, is responsible for a disclosure or discovery violation.
Marquez v. Ortega, 231 Ariz. 437, 444, ¶ 26, 296 P.3d 100, 107 (App. 2013).
The purpose of the hearing is to protect the party from a dispositive
sanction when the fault lies with counsel exclusively, id. (citing Lund v.
Donahoe, 227 Ariz. 572, 581, ¶¶ 33-34, 261 P.3d 456, 465 (App. 2011)), and to
ensure that the party against whom a sanction is imposed has received due
process. Id.; see Hammoudeh v. Jada, 222 Ariz. 570, 572, ¶ 6, 218 P.3d 1027,
1029 (App. 2009). A hearing in such cases may be necessary depending on
the circumstances in general, the severity of the sanctions, and the judge’s
participation in the proceedings, knowledge of the case, and need for
further inquiry. Marquez, 231 Ariz. at 444, ¶ 26, 296 P.3d at 107 (citing Lund,
227 Ariz. at 582, ¶ 37, 261 P.3d at 466). A hearing is not required, however,
when a determination can be made on the record. Hammoudeh, 222 Ariz. at
572, ¶ 7, 218 P.3d at 1029. The analogy to a “culprit hearing” is imprecise,
however, as in those instances it is the party against whom the sanctions
are levied that may request the hearing to excuse or justify his actions —
not the party requesting sanctions.

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abuse.” Ariz. R. Civ. P. 11(a), 1984 State Bar Committee Note. This Court
has recognized that the necessity of an evidentiary hearing on sanctions
depends upon the nature of the case, including the general circumstances,
the type and severity of sanctions under consideration, and the judge’s
participation in and knowledge of the case. Precision Components v.
Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 556-57, 880 P.2d
1098, 1102-03 (App. 1993).

¶18 The judge here was involved in this matter for more than a
year and presided over the trial on the cross-petitions for modification of
custody. The court’s specific findings following the hearing demonstrate it
was well aware of Mother’s various false accusations against Father.
Additionally, the record before the court contained the same information
that Father contends should have given notice to Mother’s counsel to
refrain from advancing certain positions. The court was sufficiently
informed to assess the propriety of Father’s position regarding fees, and
implicitly determined it did not require further inquiry into the matter to
reach its decision. See Precision Components, 179 Ariz. at 556, 880 P.2d at
1101 (“In many situations, . . . ‘the judge’s participation in the proceedings
provides him with full knowledge of the relevant facts and little further
inquiry will be necessary.’”) (quoting with approval 5A C. Wright and A.
Miller, Federal Practice and Procedure § 1337 at 128-29 (1990)).

¶19 After consideration of the evidence and the record, the trial
court determined an award of attorneys’ fees against Mother’s counsel was
unwarranted. Specifically, the court found the parenting coordinator’s
testimony supported Mother’s position and, therefore, her argument for
sole custody was not “without substantial justification.” Also, the trial
court found the evidence provided at the fees hearing did not demonstrate
counsel’s actions unnecessarily delayed or expanded the proceedings.
Consequently, the court concluded that Mother’s counsel should not be
liable for attorneys’ fees for presenting Mother’s case. Because Father has
not provided a transcript of the trial, we presume that the transcript would
substantiate the court’s findings and conclusions. See Baker v. Baker, 183
Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995) (noting where appellant fails to
ensure record on appeal contains necessary information, we presume the
missing information supports the court’s ruling).

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¶20 Upon this record, we find no abuse of discretion in the trial
court’s denial of Father’s request for an evidentiary hearing on his claim for
attorneys’ fees against Mother’s counsel.6

CONCLUSION

¶21 We find no basis to conclude Father was entitled to an
evidentiary hearing. Accordingly, we find no abuse of discretion in the trial
court’s denial of Father’s motion for new trial seeking such a hearing, and
affirm its ruling. Mother seeks an award of attorneys’ fees on appeal
pursuant to A.R.S. § 25-324; in our discretion, we deny her request.

:gsh

6 Because we find Father was not entitled to an evidentiary hearing on
his claim for joint and several attorneys’ fees against Mother and her
counsel, we need not reach the issue of whether the trial court erred by
finding Father’s request for the evidentiary hearing was untimely.

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