Opinion
No. 1 CA-CV 11-0123
01-19-2012
In re the Marriage of: DEBORAH K. DISCONT, Petitioner/Appellee, v. ALAN J. DISCONT, Respondent/Appellant.
The Murray Law Offices, PLC By Stanley D. Murray Attorneys for Petitioner/Appellee Simon Law Group PLLC By Craig J. Simon Jeffrey G. Pollitt PC By Jeffrey G. Pollitt Attorneys for Respondent/Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.34
MEMORANDUM DECISION
Not for Publication - (Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2009-005481
The Honorable Robert E. Miles, Judge
AFFIRMED
The Murray Law Offices, PLC
By Stanley D. Murray
Attorneys for Petitioner/Appellee
Scottsdale
Simon Law Group PLLC
By Craig J. Simon
Tempe
and
Jeffrey G. Pollitt PC
By Jeffrey G. Pollitt
Attorneys for Respondent/Appellant
Phoenix TIMMER, Judge
¶1 Alan J. Discont ("Husband") appeals the superior court's judgment awarding Deborah K. Discont ("Wife") $80,000 for attorney's fees incurred during their dissolution-of-marriage action. For the reasons that follow, we affirm.
BACKGROUND
¶2 Wife filed a petition for dissolution of marriage on September 11, 2009, after eight years of marriage to Husband. During the dissolution action, both parties paid their respective attorney's fees and costs out of a marital community bank account.
¶3 On June 24, 2010, the superior court entered a dissolution decree, which equitably divided the parties' community property, awarded Wife spousal maintenance, directed parental custody of the parties' two children, and ordered Husband to make monthly child support payments to Wife. The decree also awarded attorney's fees and costs to Wife pursuant to Arizona Revised Statutes ("A.R.S.") section 25-324 (Supp. 2010), but deferred deciding on the amount until after Wife filed a supporting affidavit. Wife filed an application and affidavit for attorney's fees and costs on July 7 requesting $121,476.31. The court entered judgment on September 23 awarding Wife $80,000 in fees "based on the substantial disparity in income between" Husband and Wife. This timely appeal followed.
DISCUSSION
¶4 Husband contends the superior court erred in awarding Wife any fees pursuant to A.R.S. § 25-324 because community funds had paid all her fees, so she did not owe her attorney anything at the time of the award. Consequently, Husband argues the award constituted a punitive action against him rather than a means of ensuring Wife had the ability to litigate. We review the court's award of attorney's fees for an abuse of discretion. Muchesko v. Muchesko, 191 Ariz. 265, 273, 955 P.2d 21, 29 (App. 1997).
Section 25-324, A.R.S., states in pertinent part:
The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending and proceeding under this chapter
. . . .
¶5 Husband relies primarily on this court's decision in Magee v. Magee, 206 Ariz. 589, 593, ¶ 18, 81 P.3d 1048, 1052 (App. 2004), to support his challenge. In Magee, this court addressed a husband's argument that A.R.S. § 25-324 does not authorize fees unless the recipient spouse shows she is unable to pay them. Id. at 590, ¶ 6, 81 P.3d at 1049. The court rejected this argument, noting nothing in the statutory text suggests this condition, and holding that eligibility for an award of fees under § 25-324 rests solely on a disparity in the parties' resources. Id. at 591, ¶¶ 8, 12, 81 P.3d at 1050. As
stated by the court, "[t]o qualify for consideration, a spouse must establish only some level of financial disparity; i.e., that he or she is financially poorer than the other spouse, not that he or she is actually poor . . . and it is not necessary to also inquire into whether the fee applicant is actually able to pay his or her own fees." Id. at 591-92, ¶ 12, 81 P.3d at 1050-51. The court additionally reasoned its holding is consistent with the principle underlying § 25-324, which is fulfillment of the duty of support every spouse owes to his or her marital partner. Id. at 592, ¶¶ 13-14, 81 P.3d at 1051.
¶6 Husband seizes on the Magee court's reference to spousal maintenance and asserts that because spousal maintenance is "conditioned on need," an obligation to pay an attorney must be a prerequisite for an award of fees under § 25-324. See A.R.S. § 25-319(A), (B) (2007); Rowe v. Rowe, 154 Ariz. 616, 621, 744 P.2d 717, 722 (App. 1987) ("A court first must determine, based upon A.R.S. § 25-319(A), that the spouse is entitled to maintenance. . . . A spouse capable of self-support is not entitled to spousal maintenance.") (citations omitted). We reject Husband's reading of Magee for two reasons.
¶7 First, although the Magee court stated its holding was consistent with fulfilling the duty of support, it did not interpret § 25-324 as requiring a spouse to prove entitlement to spousal maintenance in order to secure a fee award. Such a holding would be tantamount to inserting provisions into § 25-324 rather than divining legislative intent, which is our role in statutory interpretation. See City of Phoenix v. Superior Court, 139 Ariz. 175, 178, 677 P.2d 1283, 1286 (1984) (cardinal rule of statutory interpretation is to ascertain legislative intent).
Even assuming that need justifying spousal maintenance is required for the court to award fees pursuant to § 25-324, the record supports that Wife had such need. Specifically, the court awarded spousal maintenance based on a finding that Wife "meets the criteria set forth in A.R.S. § 25-319(A) . . . because she is unable, at this time, to be self-sufficient through appropriate employment."
¶8 Second, Husband's reading contradicts the holding in Magee, which explicitly stated that inability to pay (i.e., need) is not required for an award of fees pursuant to § 25-324; only a disparity in financial resources is required. Magee, 206 Ariz. at 593, ¶ 18, 81 P.3d at 1052.
¶9 Because Wife was not required to show an inability to pay her attorney to obtain a fee award, it logically follows she was not required to show she owed money to her attorney at the time of the fee award, as Husband implicitly contends. Phrased differently, Wife was not required to refrain from paying her attorney to maintain eligibility for an award of fees. She was only required to demonstrate a disparity in resources, which Husband admits exists.
¶10 Although the marital community paid Wife's fees during the litigation, the court's award of 65 percent of these fees did not constitute "additional sums" as Husband asserts. Had the community not paid the fees, those monies would have been available for division and distribution to the parties; thus, Wife experienced a loss in resources because community funds were used to pay the fees. Husband, a successful podiatrist, has an annual income ranging from $648,000 - $1,031,000, and has a greater ability to replenish his "share" of the community funds used to pay the awarded fees than Wife, who was last employed prior to their marriage. Reimbursing fees to Wife therefore fulfilled the purpose of § 25-324, which is "to provide a remedy for the party least able to pay." In re Marriage of Zale, 193 Ariz. 246, 251, ¶ 20, 972 P.2d 230, 235 (1999). The superior court did not abuse its discretion.
Husband cites three cases from this court that held the superior court appropriately denied fees under § 25-324 despite the existence of a disparity in financial resources. See In re Marriage of Robinson and Thiel, 201 Ariz. 328, 335, 35 P.3d 89, 96 (App. 2001); Rowe, 154 Ariz. at 622, 744 P.2d at 723 (App. 1987); Garrett v. Garrett, 140 Ariz. 564, 570, 683 P.2d 1166, 1172 (App. 1983). Each of these cases, however, turned on its unique facts; the question before us is whether the superior court erred based on the applicable law as applied to the facts of this case. As explained, we conclude it did not.
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ATTORNEY'S FEES ON APPEAL
¶11 Wife requests an award of attorney's fees incurred on appeal pursuant to A.R.S. § 25-324. Based on the post-decree allocation of resources and after considering the reasonableness of positions in this appeal, we decline to award attorney's fees to Wife, although as the prevailing party she is entitled to costs upon her compliance with Arizona Rule of Civil Appellate Procedure 21. A.R.S. § 12-341 (2003).
CONCLUSION
¶12 For the foregoing reasons, we affirm the superior court's award of attorney's fees.
____________
Ann A. Scott Timmer, Judge
CONCURRING: ____________
Patricia K. Norris, Presiding Judge
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Margaret H. Downie, Judge