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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
DENISE K. EKVALL, Petitioner/Appellee,
v.
DAVID D. ESTRADA, Respondent/Appellant.
No. 1 CA-CV 14-0011
FILED 2-19-2015
Appeal from the Superior Court in Maricopa County
No. FC2001-009197, FC2001-093082
(Consolidated)
The Honorable John R. Hannah, Jr., Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED
COUNSEL
Denise K. Ekvall, Gilbert
Petitioner/Appellee In Propria Persona
J. Robert Walston, PC, Mesa
By J. Robert Walston
Counsel for Respondent/Appellant
EKVALL v. ESTRADA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Randall M. Howe joined.
D O W N I E, Judge:
¶1 David Estrada (“Father”) appeals from a post-decree
judgment in favor of Denise Ekvall (“Mother”) for reimbursement of
uninsured healthcare expenses and unpaid attorneys’ fees. For the
following reasons, we affirm in part and vacate in part. We remand to the
superior court for entry of a revised judgment regarding healthcare
expenses.
FACTS AND PROCEDURAL HISTORY
¶2 The parties divorced in 2003. In 2007, the superior court
issued an order that, among other things, held the parties equally
responsible for uninsured healthcare expenses for their child. The 2007
order stated:
The parties shall account to one another for the child’s
uncovered healthcare expenses in accordance with Section
9.A of the Arizona Child Support Guidelines, which provides
that a party seeking reimbursement for uninsured medical,
dental, or vision costs shall make request for reimbursement
to the other party within 180 days after the date the services
occur and shall provide receipts or other evidence of
payments actually made upon request of the other party.
See Ariz. Rev. Stat. (“A.R.S.”) § 25-320 app. § 9(A) (“Guidelines”). The 2007
order also directed Father to pay Mother “the amount of $3,000.00 to defray
a portion of [her] reasonable attorney’s fees and costs incurred in this
matter.”
¶3 In 2010, the superior court issued additional post-decree
orders, stating, in relevant part:
All medical, dental and orthodontia expenses incurred for the
health and protection of the child not covered by insurance
shall be paid 42% by Father and 58% by Mother. The party
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EKVALL v. ESTRADA
Decision of the Court
who incurs the cost of unreimbursed medical expenses shall
provide a copy of the invoice or receipt to the other party
within 30 days of the event; the other party shall reimburse
his or her share of the cost within 30 days of receiving the
invoice or receipt.
¶4 In 2013, Mother filed a motion requesting a hearing
regarding, inter alia, “Payment of Medical Bills” and “Attorney Fees.” She
stated Father had failed to reimburse her for medical expenses or pay the
attorneys’ fees awarded in 2007.
¶5 After an evidentiary hearing, the superior court ruled Father
owed Mother $497.80 as his share of unreimbursed healthcare expenses,
and, after off-setting amounts Mother owed Father, entered judgment
against Father for $444.40. The court also ordered Father to pay $420.88
directly to a hospital for his share of a balance owed to that facility. The
court entered judgment against Father for the $3000 in fees awarded in
2007, plus prejudgment interest of $828.75. The court subsequently denied
Father’s motion for reconsideration/new trial, and Father filed a timely
notice of appeal. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1),
(5)(a).
DISCUSSION
I. Uninsured Healthcare Expenses
¶6 The 2007 and 2010 court orders dictate how the parties were
required to handle reimbursement requests. As of 2007, Mother was to
present reimbursement requests to Father in accordance with the
Guidelines, which direct the party seeking reimbursement to make a
request within 180 days of the date the service was provided. The
Guidelines do not state that the request must be in writing. Only upon
request is the party seeking reimbursement required to provide invoices or
receipts to the other parent. Therefore, for expenses incurred while the 2007
order was in effect, Mother was only required to make a verbal request for
reimbursement within 180 days. As of May 24, 2010, however, Mother was
required to send a copy of an invoice or receipt to Father within 30 days of
the expense being incurred.
¶7 Mother asked the superior court to order Father to pay his
share of sixteen separate claims. For identification purposes, we refer to
these claims as follows:
1. Mercy Gilbert
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EKVALL v. ESTRADA
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2. EVP
3. EVP
4. Hrasky
5. Banner/UrgentCare
6. Walmart
7. SMI Imaging
8. Catholic Healthcare
9. Jafari
10. Gilbert Hospital
11. Blackwell
12. All About Kids
13. Minute Clinic
14. Walgreens
15. EVP
16. EVP
¶8 The superior court did not award reimbursement for claims 3
and 13, so we do not discuss them further. As for the remaining claims, we
review the evidence in the light most favorable to sustaining the superior
court’s ruling. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676,
679 (App. 1998).
¶9 The rulings regarding reimbursement requests made
pursuant to the 2007 order relied on Mother’s testimony, which the court
specifically found credible. Although Father offered contradictory
testimony, the court found that he in fact knew “for the most part” about
verbal reimbursement requests made by Mother. The credibility of a
witness is for the trier of fact to determine, not the appellate court. State v.
Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991). We therefore
affirm the reimbursement order relating to claims 4, 5, 9, 10, and 12.
¶10 As for claim 1, the superior court found it “clear” that Father
was “well aware of” and timely notified of the hospital bill. The record
supports that determination. Mother testified she had been sending the
hospital bill to Father “on a regular basis since May of 2011, when it
happened.” Mother’s inability to pay the bill in full does not vitiate Father’s
duty to pay his share to the healthcare provider or collection agency, as the
court directed. Cf. Guidelines § 9(A) (“The parent responsible for payment
or reimbursement must pay his or her share, as ordered by the court, or
make acceptable payment arrangements with the provider or person
entitled to reimbursement. . . .”).
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EKVALL v. ESTRADA
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¶11 Regarding claims 2 and 11, some of the claimed expenses
were subject to the 2007 order, and some were subject to the 2010 order. As
for claim 2, we affirm the order that Father pay his share of expenses
incurred on January 9, 2010. However, the record does not support a
reimbursement order as to the other five medical appointments included in
claim 2 because Mother did not establish compliance with the 2010 order.
As for claim 11, we also affirm the reimbursement order in part. Father is
responsible for paying his proportionate share of $147. However, Mother
did not testify she provided timely notice of the remaining $172 under the
terms of the 2010 order. Father is therefore not responsible for reimbursing
that expense.
¶12 The record is devoid of competent evidence that Mother
complied with the 2010 order regarding reimbursement requests 6, 7, 8, 14,
15, or 16. We therefore vacate the order to the extent it ordered Father to
reimburse Mother for those claims. Contrary to Mother’s suggestion at the
evidentiary hearing, it was not sufficient that Father attended some of the
appointments in question.
¶13 Father contends Mother did not prove she actually paid
certain claims, so they should not have been included in the reimbursement
order. However, Mother testified she paid all claims in full except claim 1.
The court acted within its discretion as fact-finder by accepting Mother’s
testimony in this regard.
II. Attorneys’ Fee Judgment and Prejudgment Interest
¶14 Father argues the superior court lacked subject matter
jurisdiction to order him to pay the attorneys’ fees awarded in 2007 because
that award was an expired judgment. Father raised this argument for the
first time in his motion for reconsideration/new trial. The superior court
ruled:
[Father] did not raise the judgment-expiration defense at the
hearing. It is not clear that the 2007 order was in fact a
judgment, but even if it was [Father] waived the issue by not
timely asserting it.
¶15 Although subject matter jurisdiction may be challenged at
any time, see Health for Life Brands, Inc. v. Powley, 203 Ariz. 536, 538, ¶¶ 11-
12, 57 P.3d 726, 728 (App. 2002), Father’s argument does not implicate
subject matter jurisdiction. Subject matter jurisdiction means the power to
hear and determine a general class of cases to which a particular proceeding
belongs. State ex rel. Milstead v. Melvin, 140 Ariz. 402, 404, 682 P.2d 407, 409
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EKVALL v. ESTRADA
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(1984). The superior court clearly had the power to hear and determine the
parties’ obligations under prior orders. Whether the 2007 fee award
remained valid was not a jurisdictional issue, but a legal issue the court
could have decided had it been timely raised. The superior court properly
ruled that Father waived this argument by failing to timely raise it. See
Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, 138, 235 P.3d 285, 291
(App. 2010) (issue waived when first raised in motion for reconsideration);
Conant v. Whitney, 190 Ariz. 290, 293-94, 947 P.2d 864, 867-68 (App. 1997)
(issue waived when first raised in motion for new trial).
¶16 Father also challenges the award of prejudgment interest on
the 2007 fee award. Whether a party is entitled to prejudgment interest is a
question of law we review de novo. Berry v. 352 E. Virginia, L.L.C., 228 Ariz.
9, 13, ¶ 18, 261 P.3d 784, 788 (App. 2011). An application for attorneys’ fees
is liquidated once the superior court enters an order awarding fees. Flood
Control Dist. v. Paloma Inv. Ltd. P’ship, 230 Ariz. 29, 49, ¶ 80, 279 P.3d 1191,
1211 (App. 2012). Thus, once the 2007 order awarding Mother $3000 in fees
was issued, the amount became liquidated. The court appropriately
awarded interest on that sum from the date of the 2007 award. See A.R.S. §
44-1201(A).
¶17 Finally, Father contends Mother did not establish that he
failed to pay the $3000 fee award. However, Mother’s motion expressly
asked the court to enforce the 2007 award and her pretrial statement sought
payment of that award. Additionally, Mother testified that Father was
ordered to pay the $3000 in 2007 and that the award had been discussed but
not resolved in the 2010 proceedings. The court dictated its order, including
the fee judgment, at the end of the hearing, and Father voiced no objection.
We affirm the judgment against Father for $3000 in attorneys’ fees, as well
as the interest awarded on that amount.
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CONCLUSION
¶18 For the reasons stated, we affirm in part and vacate in part the
order regarding health care expense reimbursements and remand with
instructions to issue a revised judgment consistent with this decision. We
affirm the judgment against Father for attorneys’ fees and prejudgment
interest. In the exercise of our discretion, we deny Father’s request for an
award of attorneys’ fees on appeal pursuant to A.R.S. § 25-324. Both parties
have partially prevailed on appeal, so we make no award of appellate costs.
:ama
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