Wellman v. Waits

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Matter of:

SUSAN WELLMAN, Petitioner/Appellant,

v.

GREG WAITS, Respondent/Appellee.

No. 1 CA-CV 17-0251 FC
FILED 3-1-2018

Appeal from the Superior Court in Maricopa County
No. FC 2015-093432
The Honorable James D. Smith, Judge

AFFIRMED IN PART; VACATED AND REMANDED IN PART

COUNSEL

Gillespie Shields Durrant & Goldfarb, Mesa
By Mark A. Shields
Counsel for Petitioner/Appellant

Berkshire Law Office, PLLC, Tempe
By Keith Berkshire, Erica L. Gadberry
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Maria Elena Cruz and Chief Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Susan Wellman (“Mother”) appeals the superior court’s order
awarding her less child support than she requested and denying her
request for attorneys’ fees. For the following reasons, we affirm the court’s
child support order but vacate the attorneys’ fees ruling and remand for
reconsideration of the reasonableness of Mother’s positions in this
litigation.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Mother and Greg Waits (“Father”) met and began dating in
1993. Around the time Mother became pregnant with D.W., Father and
Mother’s relationship ended. Mother gave birth to D.W. in June 1997, yet
neither Mother nor D.W. had contact with Father until 2013, when D.W.,
then age 16, began communicating with Father through social media.

¶3 In May 2015, shortly before D.W.’s 18th birthday, Mother filed
a pro per petition to establish paternity, legal decision-making, parenting
time, and support. She requested that Father pay $432,000 in child support.
Because Father allegedly was avoiding service, he was not served until
August 8, 2015; his counsel then filed a notice of appearance. Father
contested the petition, citing Arizona Revised Statutes (“A.R.S.”) section
25-809 and explaining he “was unaware that [Mother] and himself may
have had a child in common until recently,” and if he was determined to be
the father, that he pay child support “in an amount consistent with the
Arizona Child Support Guidelines until the child graduates from High
School or turns nineteen.” Mother then obtained counsel.

¶4 After settlement negotiations were unsuccessful, the case
proceeded to trial and the parties agreed the only issue for consideration
was child support because D.W. was no longer a minor. The court declared
Father’s paternity established and ordered him to pay $23,652 in past child
support. This amount was based on A.R.S. § 25-809, which the court
interpreted as allowing it to “limit the award of past support to the time

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from when Mother commenced the action until [D.W.] graduated from high
school,” or June 1, 2015 to May 31, 2016. The court denied each party’s
request for attorneys’ fees and costs, finding A.R.S. § 25-324(B) did not
apply, A.R.S. § 25-415 did not warrant the award of fees or costs, and the
“two factors in A.R.S. § 25-324 offset one another.” This timely appeal
followed.

DISCUSSION

A. Waiver

¶5 Although she did not raise the issue in the superior court,
Mother argues A.R.S. § 25-809(A) required the court to award her child
support for the three years preceding the filing of her petition and therefore
applied the wrong legal standard when it considered factors under A.R.S.
§ 25-809(B).1 As a general rule, we do not consider arguments not raised in
the superior court; the rule was “established for the purpose of orderly
administration and the attainment of justice.” Harris v. Cochise Health Sys.,
215 Ariz. 344, 349, ¶ 17 (App. 2007) (quoting Hawkins v. Allstate Ins. Co., 152
Ariz. 490, 503 (1987)). Considering “belatedly urged issues undermines
‘sound appellate practice,’ and violates the interests of the party against
whom the claim is newly asserted on appeal.” Id. (citation omitted)
(quoting Hawkins, 152 Ariz. at 503). We have discretion to consider new
arguments on appeal, but we “rarely” do so. Id.

¶6 In Harris, the appellee argued that most of the appellant’s
arguments were waived on appeal because the appellant was challenging
rulings “on grounds different than those it asserted” in the superior court.
Id. at ¶ 16. Although “conced[ing] to the trial court that the grievance
procedure was mandatory,” the appellant argued on appeal that “it had no
duty to exhaust administrative remedies because the grievance procedure

1 A.R.S. § 25-809(A) provides that the superior court, when parentage
is admitted or affirmatively decided “in an action instituted during the
child’s minority . . . shall direct, subject to applicable equitable defenses and
using a retroactive application of the current child support guidelines, the
amount, if any, the parties shall pay for the past support of the child and
the manner in which payment” is made. The court is prohibited from
ordering past support beyond “three years before the commencement of
the proceeding unless the court makes a written finding of good cause after
considering all relevant circumstances, including” those listed in the
statute. A.R.S. § 25-809(B)(1)-(3).

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set forth in statute, regulation and its contract, was permissive rather than
mandatory.” Id. at 349-50, ¶¶ 16, 18. We concluded that the argument was
waived because the appellant never gave the superior court the opportunity
to address its argument concerning a “permissive” grievance process. Id.
at 350, ¶ 18.

¶7 Here, like the appellant in Harris, Mother takes a different
position on appeal than she did in the superior court. She argues that A.R.S.
§ 25-809 is the governing law for her request for past child support despite
asserting in the joint pretrial statement that “A.R.S. § 25-320(C) is the
controlling case law in this matter.”2 She also asserts the court had no
discretion but to award three years of past child support under § 25-809
despite her counsel stating during closing arguments that “[t]he statute in
this matter allows the Court in its discretion to go back three years from the
[date of] service.” (Emphasis added.) And although Father stated in the
joint pretrial statement that § 25-809 was “more applicable” than § 25-320
because this was a “paternity case not a dissolution case,” he did not
suggest the superior court was required to award three years of past
support, but explained that both § 25-320 and § 25-809 “have virtually
identical rules for establishment of child support and the applicability, if
any, of past or retroactive child support.”

¶8 Simply stated, Mother did not advocate for the application of
A.R.S. § 25-809 in the superior court. She failed to argue that (1) the court
lacked discretion to refrain from awarding three years of past child support
and (2) the court could not consider all relevant circumstances when
deciding whether to award past support. Instead, as shown in the joint
pretrial statement, Mother pursued her case under A.R.S. § 25-320(C),
which allows the court to decline awarding three years of past child
support, retroactive from the date of filing, after considering the “relevant
circumstances.” And as recognized in a different context, Mother’s
statements in the joint pretrial statement governed how the case would

2 A.R.S. § 25-320(C) allows the court to “order child support
retroactively to the date of separation” when “the parties lived apart
before” a petition for child support is filed and when support has not
previously been ordered, but prohibits the court from awarding support
beyond “three years before the date of the filing.” In making its
determination, the “court must first consider all relevant circumstances,
including” those listed in the statute. A.R.S. § 25-320(C). If child support is
appropriate, “the court shall direct, using a retroactive application of the
child support guidelines, the amount that the parents must pay for the past
support of the child and the manner in which payments must be paid.” Id.

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proceed going forward. See Leathers v. Leathers, 216 Ariz. 374, 378, ¶ 19
(App. 2007) (“The pretrial statement controls the subsequent course of the
litigation.” (quoting Carlton v. Emhardt, 138 Ariz. 353, 355 (App. 1983))). She
does not direct us to any place in the record where she relied on different
authority. See ARCAP 13(a)(7)(B) (requiring appellant’s opening brief to
contain “references to the record on appeal where the particular issue was
raised and ruled on”). Thus, neither Father nor the superior court were
given the opportunity to address the position she now takes on appeal or
to correct the alleged defects in the court’s child support ruling. See Trantor
v. Fredrikson, 179 Ariz. 299, 300 (1994) (“Because a trial court and opposing
counsel should be afforded the opportunity to correct any asserted defects
before error may be raised on appeal, absent extraordinary circumstances,
errors not raised in the trial court cannot be raised on appeal.”).
Accordingly, Mother waived her arguments regarding A.R.S. § 25-809.3

B. Attorneys’ Fees

¶9 We review an award of attorneys’ fees for an abuse of
discretion. Mangan v. Mangan, 227 Ariz. 346, 352, ¶ 26 (App. 2011). “To
award attorneys’ fees under § 25-324, a court must consider the financial
positions of the parties, and the reasonableness of the positions each party
has taken throughout the proceedings.” Id. at 353, ¶ 27 (internal citation
and quotations omitted). “[A]n applicant need not show both a financial
disparity and an unreasonable opponent in order to qualify for
consideration for an award.” Magee v. Magee, 206 Ariz. 589, 591 n.1, ¶ 8
(App. 2004).

¶10 Mother argues the court abused its discretion in refusing to
award her attorneys’ fees because her “motivation for not filing the action
earlier is completely irrelevant” under A.R.S. § 25-324. Father counters that
“[w]hile Mother may or may not have been within her right to file when
she did, her motivation, and her refusal to accept her own settlement offer
was certainly unreasonable.”

¶11 Addressing the financial positions aspect of A.R.S. § 25-324,
the superior court found that “Father earns nearly five times what Mother
earns” and “has substantially more resources to contribute toward

3 Because we find the child support issues waived, we need not
address whether Father established equitable defenses or whether A.R.S.
§ 25-809(A)-(B) and A.R.S. § 25-320(C) violate the Equal Protection Clause
by allegedly treating married and unmarried parents differently.

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Mother’s expenses.” The court then considered the reasonableness factor,
finding as follows:

Mother likely acted unreasonably in this litigation. Mother
never suggested that Father evaded service or impeded her
ability to file a paternity action years ago. Instead, it appears
that Mother strategically waited until one week before the
child turned 18 years old to do so. Father’s conduct merits no
praise; he knew or should have known that [D.W.] was his
child but he did not contribute to her support. The Court
cannot, however, find authority suggesting that it was
Father’s obligation to commence a support action. In fact,
A.R.S. §§ 25-320(C) and 25-809(B) suggest the obligation is on
the parent seeking support to show that the other parent
impeded the process.

The Court also questions Mother’s reasonableness regarding
settlement. In July 2016, Mother demanded $65,000.00 to
settle the matter. [Ex. 32.] Father did not initially accept that
offer but in December 2016 agreed to pay Mother that sum by
February 2017 [Ex.19]. Mother declined.

¶12 Ultimately, finding the “two factors in A.R.S. § 25-324 offset
one another,” the court denied both parties’ requests for attorneys’ fees,
adding that “Father’s substantial financial resources favor an award for
Mother, but Mother’s conduct has been more unreasonable in comparison
to Father’s.”

¶13 Neither party disputes that Father earns five times more
income than Mother, Father has more resources to contribute toward
Mother’s expenses, and Mother’s settlement position—the withdrawal of
her settlement offer after Father’s acceptance—was unreasonable. See
Gutierrez v. Gutierrez, 193 Ariz. 343, 351, ¶ 34 (App. 1998) (“[W]e hold that
the trial court may consider a party’s settlement position in determining
reasonableness under A.R.S. section 25-324.”). Focusing on the superior
court’s other reasonableness considerations, the court erred when it
considered conduct that occurred before this case was filed or was
otherwise unrelated to the positions Mother took throughout the
proceedings. In addressing the reasonableness factor, the statute limits the
inquiry to the “reasonableness of the positions each party has taken
throughout the proceedings.” A.R.S. § 25-324(A). Accordingly, the order
regarding attorneys’ fees cannot stand. On remand, the court should
evaluate whether Mother’s legal positions in these proceedings are

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objectively reasonable. See Keefer v. Keefer, 225 Ariz. 437, 441–42, ¶¶ 16-17
(App. 2010) (considering a party’s conduct prior to the proceedings but only
insofar as it informed the court as to the reasonableness of the party’s legal
position); In re Marriage of Williams, 219 Ariz. 546, 548-49, ¶¶ 10, 12 (App.
2008) (explaining that A.R.S. § 25–324(A) “requires that the propriety of a
litigant’s legal position be evaluated by an objective standard of
reasonableness” and “contains no language suggesting that the
reasonableness of a litigant’s position should be assessed with reference to
a litigant’s intentions in taking that position”).4

CONCLUSION

¶14 We affirm the superior court’s judgment awarding Mother
child support, but vacate the court’s order declining to award either party
attorneys’ fees under A.R.S. § 25-324(A) and remand for reconsideration.
After consideration of the § 25-324 factors, we deny both parties’ requests
for attorneys’ fees incurred on appeal, but award Father his taxable costs
upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

4 Mother also cites Roden v. Roden, 190 Ariz. 407, 412 (App. 1997), for
the proposition that “[i]t is an abuse of discretion to deny attorneys’ fees to
the spouse who has substantially fewer resources, unless those resources
are clearly ample to pay the fees.” As we have explained, however, this is
an inaccurate statement of current law and litigants should be cautious
about using this reasoning. Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 7 (App.
2014). A disparity in income “alone does not mandate an award of fees,”
but the reasonableness of each party’s positions must also be considered.
Id. at ¶ 9.

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