Rychlik v. Sodergren ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
DANIEL RYCHLIK, Petitioner/Appellant,
v.
GABRIELLE ANN SODERGREN, Respondent/Appellee.
_____________________________
PARKER SCHWARTZ, PLLC, Intervenor/Appellee.
No. 1 CA-CV 15-0630 FC
FILED 3-19-2020
Appeal from the Superior Court in Maricopa County
No. FC2011-090965
The Honorable Joseph Sciarrotta, Judge (Retired)
AFFIRMED
COUNSEL
Katz & Bloom, P.L.C., Phoenix
By Jay R. Bloom
Counsel for Petitioner/Appellant
The Law Offices of Kyle A. Kinney, Scottsdale
By Kyle A. Kinney
Counsel for Respondent/Appellee
Parker Schwartz, PLLC, Phoenix
By Iva S. Hirsch and Lawrence D. Hirsch
Counsel for Intervenor/Appellee
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Chief Judge Peter B. Swann joined.
C R U Z, Judge:
Daniel Rychlik (“Father”) appeals from the superior court’s
judgment for attorneys’ fees and costs entered on July 23, 2015.
Additionally, Father seeks to impose sanctions on Gabrielle Ann Sodergren
(“Mother”) for her failure to comply with court orders. For the following
reasons, we affirm the award of attorneys’ fees and costs to Mother, and we
impose sanctions on Mother for her failure to comply with court orders.
FACTS AND PROCEDURAL HISTORY
Father and Mother divorced, and a Decree of Dissolution was
entered in December 2011, awarding the parties joint legal custody of their
four minor children. The parents were awarded equal parenting time.
The following year, Father relocated to Virginia and sought to
relocate the children. Mother objected, and the court ultimately denied
Father’s request to relocate the children. Given Father’s relocation, the
court modified the parties’ parenting-time schedule so that the children
primarily resided with Mother in Arizona, but winter break, spring break,
summer break, and other holidays were divided between Father and
Mother. Father was also allowed “liberal parenting time” when he was in
the Phoenix area.
Shortly after, Mother notified Father that she wished to
relocate with the children to Illinois. Father filed a Petition to Prevent
Relocation, requesting in part that the court prohibit the children from
relocating to Illinois and that it order the children relocate to Virginia.
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One year later, and prior to disposition of Father’s petition,
Father filed an Emergency Petition for Temporary Orders Without Notice
Re: Legal Decision Making and Parenting Time. Father incorporated by
reference the allegations contained in his Petition to Prevent Relocation and
further requested sole legal decision-making authority, relocation of the
children to Virginia, and a temporary order designating Father as the
primary residential parent and granting Mother supervised parenting time.
The court held an initial hearing and granted Father’s request for temporary
orders, allowing the children to relocate to Virginia until an extended
evidentiary hearing was held.
Following the evidentiary hearing, the court denied Father’s
Emergency Petition for Temporary Orders. Although the court identified
the April 2015 minute entry as temporary orders and ordered further
proceedings to occur, it issued the orders in a signed minute entry with a
certification of finality pursuant to Arizona Rule of Family Law Procedure
(“Rule”) 78(b). In the order, the court additionally granted Mother’s
requested attorneys’ fees and costs, directing her to submit a proper
application. The court subsequently entered a signed judgment in July 2015
awarding Mother $57,294 in attorneys’ fees and costs.
Father filed a Notice of Appeal, appealing the judgment for
attorneys’ fees and costs awarded to Mother. This court dismissed the
appeal as premature, finding the order underlying the attorneys’ fees and
costs judgment was a temporary order and thus not final and appealable.
Mother withdrew her request to relocate the children to
Illinois and Father filed a Motion for Summary Judgment Re: Petition to
Prevent Relocation. On September 25, 2015, the court issued an order
granting Father’s Motion for Summary Judgment and prohibiting Mother
from relocating the children to Illinois as requested in Father’s Petition to
Prevent Relocation (“the September 2015 order”). The court additionally
entered a signed judgment awarding Father $17,181.10 in attorneys’ fees
and costs.
After Father’s Motion for Summary Judgment was granted,
we reinstated Father’s appeal1 from the judgment for attorneys’ fees and
costs awarded to Mother, the April 2015 temporary orders, and held
1 This appeal was automatically stayed from December 15, 2016, until
July 9, 2019, due to Mother’s bankruptcy proceedings. Following the stay,
Parker Schwartz, PLLC intervened as the real party in interest.
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Father’s Notice of Appeal became effective the date his Petition to Prevent
Relocation was resolved. See ARCAP 9(c).
DISCUSSION
I. Jurisdiction
This court has an independent duty to consider whether it has
jurisdiction over an appeal and, if it does not, we must dismiss the appeal.
Baker v. Bradley, 231 Ariz. 475, 478-79, ¶ 8 (App. 2013). Our jurisdiction is
limited by statute, and we do not have authority to consider an appeal over
which we do not have jurisdiction. Id.
When Father first filed his appeal regarding the award of
attorneys’ fees and costs, we found that the April 2015 order was a
temporary order and thus not final and appealable, because the matter of
his Petition to Prevent Relocation had not yet been ruled on. We relied then,
as we do now, on Villares v. Pineda, 217 Ariz. 623, 624-25, ¶¶ 10-11 (App.
2008), for the proposition that temporary orders are not appealable because
they are preparatory in nature.
The fact that the superior court included Rule 78(b) language
in its April 2015 orders does not change the result here, because the issues
Father raised in his Petition to Prevent Relocation and his Emergency
Petition for Temporary Orders were not clearly separate and distinct from
one another. See Cont’l Cas. v. Superior Court, 130 Ariz. 189, 191 (1981)
(discussing the appropriateness of including Rule 54(b) language when
there are multiple claims). Insofar as issues regarding relocation were
concerned, the April 2015 orders were temporary in nature. Once the court
ruled on Father’s Petition to Prevent Relocation, his appeal was reinstated.
We now have jurisdiction to address this appeal pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(2).
II. The April 2015 Judgment of Attorneys’ Fees and Costs
Father argues that the judgment awarding attorneys’ fees and
costs to Mother following the temporary orders hearing is void because it
was superseded by the final judgment of attorneys’ fees and costs to Father.
“Temporary orders signed by the court and filed by the clerk
are enforceable as final orders but terminate and are unenforceable upon
dismissal of the action, or following entry of a final decree, judgment, or
order, unless that final decree, judgment, or order provides otherwise.”
Ariz. R. Fam. Law P. 47(j)(1) (emphasis added); see also A.R.S. § 25-315(F).
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The court’s orders bearing upon issues of legal decision-
making authority, parenting time and support, were temporary in nature
and the court’s signed minute entry so reflects. In fact, in its signed minute
entry the court explicitly and exclusively identified those three issues as the
ones to be decided on a temporary basis. The court stated, “Temporary
Orders are entered on an interim basis to provide for the orderly
administration of issues bearing upon legal decision-making, parenting
time and support.”
Attorneys’ fees and costs ordered in the April 2015 orders,
however, were not identified therein as one of the issues decided on a
temporary basis, and nothing in that order, or subsequent thereto, suggests
otherwise. To the contrary, the superior court, by identifying the issues that
were decided on a temporary basis, also identified its orders regarding
attorneys’ fees and costs as permanent. In addition, the court’s use of Rule
78(b) language further supports the proposition that it intended to give
finality to a portion of the April 2015 orders. The facts of this case fall
squarely within the exception recognized in Rule 47(j)(1), allowing the court
to provide that certain orders contained in an otherwise temporary ruling
remain in effect beyond entry of a subsequent final decree, judgement, or
other order. Ariz. R. Fam. Law P. 47(j)(1). The April 2015 orders awarding
Mother her attorneys’ fees and costs were not superseded by the September
2015 orders disposing of Father’s Petition to Prevent Relocation.
III. Mother’s Attorneys’ Fees and Costs Application and Affidavit
Father argues that the superior court abused its discretion by
awarding Mother attorneys’ fees and costs based on an application and
affidavit that failed to meet applicable standards. Father argues the
application included impermissible billing for services not relevant to the
proceedings at issue, high billing rates, and “block-billing.” “When
reviewing a discretionary award of attorneys’ fees, this Court will reverse
only for an abuse of discretion.” Phoenix Newspapers, Inc. v. Dep’t of Corr.,
188 Ariz. 237, 243 (App. 1997). “[W]e defer to the court’s factual findings
so long as there is competent evidence to support them.” Quijada v. Quijada,
246 Ariz. 217, 222, ¶ 13 (App. 2019).
The superior court awarded attorneys’ fees and costs to
Mother pursuant to A.R.S. § 25-324. Section 25-324(A) permits an award of
fees and costs if appropriate “after considering the financial resources of
both parties and the reasonableness of the positions each party has taken
throughout the proceedings.” The superior court awarded attorneys’ fees
and costs of $57,294 to Mother based on both substantial disparity of
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financial resources and the unreasonableness of Father’s positions. The trial
court made detailed findings supporting its conclusion that Father acted
unreasonably in the litigation associated with the Emergency Petition for
Temporary Orders, and the record supports those findings.
Mother was charged for the work of three attorneys,
including one who represented Mother in a limited-scope capacity: Iva
Hirsch, Mark Candioto, and Steven Feola. A paralegal also billed Mother
for work completed. Although Father claims Mark Candioto is a paralegal,
he is a licensed Arizona attorney. Iva Hirsch charged Mother at the rate of
$400 per hour, Mark Candioto charged at $325 per hour, and Steven Feola
entered into a flat fee arrangement of $6,000 with Mother. The paralegal,
Andrea Marshall, completed work at the rate of $150 per hour. Father fails
to explain how these rates are unreasonable and “exorbitant” compared to
customary billing rates in the community. See Schweiger v. China Doll Rest.,
Inc., 138 Ariz. 183, 187-88 (App. 1983).
Additionally, Mother’s time reports include the tasks
completed, the attorney that completed the tasks, the date the tasks were
completed, and the amount of time spent on the tasks. While Father
contends the billing sheets and time reports suffer from numerous
deficiencies, such as “block-billing,” inclusion of “unnecessary motions,”
“vague” descriptions of tasks, or multiple entries for the same task, even if
this were true, this does not demonstrate the court abused its discretion.
See RS Indus., Inc. v. Candrian, 240 Ariz. 132, 138, ¶ 21 (App. 2016) (finding
that though it may be better practice to avoid block-billing, “no Arizona
authority holds that a court abuses its discretion by awarding fees that have
been block-billed”); see also Schweiger, 138 Ariz. at 188 (finding that there is
sufficient detail in a billing report if counsel indicates “the type of legal
services provided, the date the service was provided, the attorney
providing the service . . . and the time spent in providing the service”).
Father also does not clearly identify each of the tasks he believes to be
unreasonable, too vague, unnecessary, or duplicative.
Finally, the temporary orders hearing in this case was
complex and required many hours of work in preparation for it. The
hearing was held approximately nine months from the date of the parties’
July 2014 stipulation (at issue in the temporary orders proceedings) and
involved litigation over the results of a mental health examination of
Mother and on whether Mother should maintain custody of her children or
whether the children should be relocated out of state and into Father’s
custody. At least four medical experts were retained and opined on the
issue of Mother’s parenting abilities. A parenting coordinator was
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appointed. Both parties filed multiple motions, notices, and requests
related to, and leading up to, the temporary orders hearing. Accordingly,
we find no abuse of the court’s discretion. See Medlin v. Medlin, 194 Ariz.
306, 309, ¶ 17 (App. 1999).
IV. Sanctions Request
Father additionally requests sanctions be imposed upon
Mother for her failure to comply with this court’s orders. During the stay
of this appeal, this court ordered Mother to file status reports concerning
her bankruptcy proceedings. Mother failed to comply with two orders
directing her to file the status reports, and this court ordered Father to file
a status report and to advise the court whether to impose sanctions against
Mother. Father filed the status report and a request for sanctions, and
Mother did not file a response.
Under Arizona Rule of Civil Appellate Procedure 25, this
court “may impose sanctions on an attorney or a party for a violation” of
this court’s rules. In the exercise of our discretion, this court grants Father’s
request and imposes sanctions on Mother in the amount of Father’s
attorneys’ fees and costs incurred in filing the bankruptcy status report,
filed July 23, 2018.
CONCLUSION
For the foregoing reasons, we affirm the award of attorneys’
fees and costs to Mother. Both parties request their attorneys’ fees and costs
on appeal. In the exercise of our discretion, we decline both parties’
requests, though as an imposition of sanctions against Mother, pursuant to
Arizona Rule of Civil Appellate Procedure 25, we award Father his
attorneys’ fees and costs incurred in filing the bankruptcy status report
Mother was originally ordered to file.
AMY M. WOOD • Clerk of the Court
FILED: AA
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