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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
URSULA M. JOHNSTON, Petitioner/Appellant,
v.
JOHN D. JOHNSTON, Respondent/Appellee.
No. 1 CA-CV 16-0432 FC
FILED 6-1-2017
Appeal from the Superior Court in Maricopa County
No. FN2013-090099
The Honorable Stephen M. Hopkins, Judge
AFFIRMED
APPEARANCES
Ursula M. Johnston, Chandler
Petitioner/Appellant
MEMORANDUM DECISION
Chief Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined.
JOHNSTON v. JOHNSTON
Decision of the Court
B R O W N, Chief Judge:
¶1 Ursula Johnston (“Wife”) appeals the trial court’s judgment
awarding attorneys’ fees to her ex-husband, John Johnston (“Husband”), in
the amount of $4,456.16. For the following reasons, we affirm.
BACKGROUND
¶2 In a prior appeal, we affirmed the trial court’s denial of Wife’s
motion to set aside the decree of dissolution of the parties’ marriage, but
vacated Husband’s attorneys’ fees award and remanded for recalculation.
Johnston v. Johnston, No. 1 CA-CV 14-0451 FC, 2015 WL 4272813 *5, ¶ 17
(Ariz. App. July 16, 2015) (mem. decision). While that appeal was pending,
Husband filed a petition to enforce the decree and sought a contempt order
against Wife. After an evidentiary hearing, the court issued a substantive
ruling addressing sanctions and attorneys’ fees. After considering various
motions, the court entered a signed final order on September 29, 2015,
confirming the parties’ obligations under the decree, recalculating the fee
award previously remanded by this court, and awarding additional
attorneys’ fees to Husband.
¶3 Over the next several months, in numerous filings, Wife
contested issues that had been addressed in the September 29 order. In
response to one of Wife’s filings, Husband requested another award of
attorneys’ fees and to have Wife declared a vexatious litigant. In a
December 15, 2015 order, the trial court ruled that it “already addressed the
various issues raised by Wife multiple times, and the proper mechanism to
review those rulings was via appeal to the Arizona Court of Appeals. Since
no such appeal has been taken, Wife’s various motions are denied[.]” The
court awarded attorneys’ fees to Husband, in an amount to be determined,
finding that under Arizona Revised Statutes (“A.R.S.”) section 25-324(A)
Wife’s conduct in the litigation was not reasonable.
¶4 In a later minute entry, the court denied Husband’s vexatious
litigant request but again found that Wife had “acted unreasonably in this
litigation by continuing to seek modification of an Order which at this point
is not modifiable as a matter of law.” The court awarded Husband $4,456.16
(one-half of the amount requested) for attorneys’ fees he had incurred after
January 12, 2016. Wife timely appealed.
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JOHNSTON v. JOHNSTON
Decision of the Court
DISCUSSION
¶5 Although Wife makes many arguments about various post-
decree proceedings, the only issue she has properly raised in this appeal is
whether the trial court erred in awarding $4,456.16 in attorneys’ fees to
Husband. We therefore limit our analysis to that sole issue. We also note
that Husband did not file an answering brief and thus we could consider
such failure as a confession of reversible error. See Nydam v. Crawford, 181
Ariz. 101, 101 (App. 1994). “This doctrine is discretionary, however, and
we are reluctant to reverse based on an implied confession of error when,
as here, the trial court has correctly applied the law.” Id.
¶6 We will not disturb a trial court’s decision to award attorneys’
fees under A.R.S. § 25–324 absent an abuse of discretion. In re Marriage of
Berger, 140 Ariz. 156, 167 (App. 1983). Section 25–324(A) allows the trial
court, in dissolution matters, to award attorneys’ fees upon consideration
of “the financial resources of both parties and the reasonableness of the
positions each party has taken throughout the proceedings.” As the trial
court recognized, § 25-324(A) “requires that the propriety of a litigant’s
legal position be evaluated by an objective standard of reasonableness.” In
re Marriage of Williams, 219 Ariz. 546, 548, ¶ 10 (App. 2008). Whether a
litigant acted reasonably thus does not depend on the litigant’s intentions,
or whether the litigant is “unsophisticated in the law.” Id. at ¶¶ 12, 13.
¶7 In its minute entry awarding fees to Husband, the trial court
appropriately considered both factors outlined in A.R.S. § 25-324(A). The
court found there was a disparity of financial resources, but that “both
parties have resources to contribute to a fee award if appropriate.” The
court also found that Wife acted unreasonably in the litigation by
“continuing to seek modification” of prior rulings that could no longer be
changed because she failed to timely challenge those rulings by filing an
appeal. Wife argues nonetheless that as an unrepresented litigant, she did
not know she should have appealed prior orders issued in the case.
Litigants who choose to represent themselves, however, are held to the
same standards as attorneys in terms of complying with procedural rules.
In re Marriage of Williams, 219 Ariz. at 549, ¶ 13.
¶8 Contrary to Wife’s assertion, the trial court did not order Wife
to pay for opposing counsel’s “litigious” behavior. Her assertion
misconstrues the history of the several fee awards that have been issued
against her in this litigation. Although the $2,615 in attorneys’ fees that
were at issue in the first appeal were not initially reduced by the trial court,
the court later amended that order, finding that $1,722 was an appropriate
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JOHNSTON v. JOHNSTON
Decision of the Court
award. In addition, the judgment at issue here covers a different period
than the prior attorneys’ fee awards entered in favor of Husband and the
trial court awarded only half of the fees he requested. Thus, the record does
not support Wife’s suggestion that Husband’s counsel was being rewarded
for litigious behavior.
¶9 Finally, Wife argues that in the 2015 memorandum decision
this court held that she had acted reasonably and that Husband was not
entitled to any attorneys’ fees. Although our decision vacated the trial
court’s attorneys’ fee award, we remanded for recalculation of the amount,
and did not conclude that Wife acted reasonably. Instead, we stated that
“[w]e do not quarrel with the trial court’s finding that Wife took
unreasonable positions in this litigation.” Johnston, 1 CA-CV 14-0451 FC at
*5, ¶ 17 (emphasis added). Additionally, the 2015 memorandum decision
addressed only the December 20, 2013 attorneys’ fee award. Id.
¶10 As the trial court recognized, Wife was successful in
persuading the court that at least one asset had not been properly divided
between the parties. But Wife’s repeated unsuccessful attempts to
challenge other rulings that she had failed to timely appeal support the trial
court’s conclusion that Wife acted unreasonably.
CONCLUSION
¶11 Because the record demonstrates that the trial court did not
abuse its discretion in awarding attorneys’ fees to Husband, we affirm the
court’s judgment.
AMY M. WOOD • Clerk of the Court
FILED: AA
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