Tarascio v. Siebers ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
BILLIE TARASCIO,
Petitioner/Appellant,
v.
ANTHONY SIEBERS,
Respondent/Appellee.
No. 1 CA-CV 19-0654 FC
FILED 10-1-2020
Appeal from the Superior Court in Maricopa County
No. FC2017-095149
The Honorable Michael S. Mandell, Judge
AFFIRMED
COUNSEL
Modern Law, PLLC, Mesa
By Darin Robert Colburn
Counsel for Petitioner/Appellant
Anthony Siebers, Phoenix
Respondent/Appellee
TARASCIO v. SIEBERS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.
M O R S E, Judge:
¶1 Billie Tarascio ("Mother") appeals from an order in the decree
of dissolution awarding $15,000 in attorney fees and costs to Tony Siebers
("Father"). For the reasons below, we affirm the superior court's award of
attorney fees and costs to Father.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father had been married for almost fifteen years
when Mother filed a petition for legal separation in November 2017. The
superior court entered a decree of dissolution in May 2019.
¶3 At trial, the parties disputed the fair-market value of Mother's
law firm, Modern Law, PLLC ("Modern Law"). Mother's expert, Mr.
Kennedy, valued Modern Law at $298,000. In contrast, Father's expert, Mr.
Hughes, valued Modern Law at $849,000. The discrepancy resulted from
whether Mother's compensation was calculated based on salary
information for a practicing lawyer, as urged by Mother's expert, or salary
information for a CEO, as urged by Father's expert. Mr. Hughes supported
his contention by relying on several statements Mother made in 2018 while
being interviewed for various podcasts and an online article.
¶4 Mother filed a motion in limine to exclude Mr. Hughes'
testimony and requested a hearing to determine whether he was qualified
to testify as an expert witness. See Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993). Specifically, Mother alleged that "Mr. Hughes'
investigation of the facts was not thorough nor complete, his opinions
[were] not supported by reliable principles regarding business valuation,
including the determination of reasonable compensation, and he did not
reliably apply the principles and methods regarding business valuation to
the facts of this case."
¶5 After the Daubert hearing, the superior court denied Mother's
motion and concluded that "Father's expert Mark Hughes and his
determination of reasonable compensation for Mother, meet the minimum
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TARASCIO v. SIEBERS
Decision of the Court
qualification for an expert and expert opinion under Rules 702 and 703 of
the Arizona Rules of Evidence." Moreover, the court found that "the
opinion of Mr. Hughes as an expert witness on reasonable compensation is
the product of reliable principles and methods that were reliably applied to
the facts of this case."
¶6 In the decree of dissolution, the superior court noted various
problems with both experts' valuations of Modern Law. The court noted it
had determined that 2017 was the relevant timeframe for calculating
Mother's compensation and found that Mr. Hughes improperly relied on
evidence from 2018 to support his conclusion regarding Mother's salary.
The court also found problems with the valuation report prepared by
Mother's expert, Mr. Kennedy, and concluded that neither valuation was
accurate. Instead, the court found that "the true value [of Modern Law] lies
somewhere between the calculations by the two experts" and ordered the
parties to either agree on a valuation or to undergo a recalculation of the
value of the business.
¶7 Both Mother and Father petitioned the court for an award of
attorney fees and costs. The superior court determined there was a
"substantial disparity of financial resources between the parties" and that
"Mother ha[d] considerably more resources available to contribute toward
Father's attorneys' fees and costs." The court also found that both parties
had acted unreasonably during the litigation, noting that the two had failed
to attend mediation. Furthermore, the court found that Mother had acted
unreasonably in her Daubert challenge, which the court described as
"wholly unnecessary, a waste of the Court's time and caused Father to incur
needless additional attorneys' fees and expenses." The court further stated
that "Mr. Hughes was clearly qualified as an expert witness, having testified
as such multiple times in Maricopa County Superior Court." Ultimately,
the court granted Father's request for an award of attorney fees under
A.R.S. § 25-324(A) and ordered Mother to pay a portion of Father's
reasonable attorney fees and costs.
¶8 In July 2019, the superior court considered Mother's "Notice
of Non-Compliance and Petition for Enforcement and Civil Contempt"
("Contempt Petition"). Mother had filed the Contempt Petition in February
2019, three months before the court filed the decree of dissolution. The
court found that Father's alleged misconduct did not amount to contempt,
denied the Contempt Petition, but found that Father had acted
unreasonably. The court stated it would "consider the unreasonableness of
Father in its award of attorneys' fees to Father as part of the dissolution."
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TARASCIO v. SIEBERS
Decision of the Court
¶9 Father submitted to the court an application for attorney fees
and costs in the amount of $76,456.55. Mother objected to Father's
application. The court ultimately granted Father's application in the
amount of $15,000.
¶10 Mother timely appealed the award of attorney fees. We have
jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶11 Mother argues on appeal that: (1) the court was incorrect in
finding a financial disparity; (2) the court failed to consider Father's
unreasonable conduct properly; and (3) the court erred in finding Mother's
challenge to the expert testimony of Mr. Hughes and request for a Daubert
hearing was unreasonable.
¶12 We review an award of attorney fees for an abuse of
discretion. In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 26 (App. 2000)
(citing Hrudka v. Hrudka, 186 Ariz. 84, 94-95 (1995)). "An abuse of discretion
occurs when a court commits an error of law in the process of reaching a
discretionary conclusion." In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8
(App. 2008) (citing Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456 (1982)).
I. Financial Disparity.
¶13 First, Mother argues that the superior court abused its
discretion in finding a financial disparity. Under A.R.S. § 25-324(A), a trial
court may order one party to pay a "reasonable amount" of the other party's
legal costs and expenses after considering "the financial resources of both
parties and the reasonableness of the positions each party has taken
throughout the proceedings . . . ."
¶14 Mother does not dispute the superior court's finding that
Mother grossed approximately $21,275.08 per month, and Father grossed
$9,810 per month. She contends, however, that "a mere comparison of the
parties' monthly income alone does not provide a complete picture of [their]
financial circumstances." According to Mother, Father received some
$215,000 in additional funds consisting of equalization payments from
Mother, settlement proceeds, voluntary retirement distributions, child
support, childcare paid by mother, and child-related reimbursements.
However, the court heard testimony and received exhibits regarding these
additional sources of income and considered them before arriving at a
determination of the appropriate gross monthly income for each party. "On
appeal, we do not reweigh this evidence and will defer to the family court's
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Decision of the Court
resolution" of factual disputes. Lehn v. Al-Thanayyan, 246 Ariz. 277, 286, ¶
31 (App. 2019) (citing Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App.
1998)); see also Quijada v. Quijada, 246 Ariz. 217, 222, ¶ 16 (App. 2019)
(finding that reasonable evidence supported the family court based upon
evidence that the husband earned approximately twice of the wife's
monthly wage).
¶15 Moreover, we have held that trial courts are free to consider
several non-dispositive factors when determining financial disparity,
including "the relative financial disparity between the parties, the ability of
the parties to pay the fees, the ratio of fees owed to assets owed, and 'other
similar matters.'" Williams, 219 Ariz. at 550, ¶ 15 (quoting Magee v. Magee,
206 Ariz. 589, 592, ¶¶ 17-18 (App. 2004)). Courts are also free in this inquiry
to "determine how much weight to give each of these factors." Id.Accordingly, we do not find the superior court abused its discretion in
finding a financial disparity existed in favor of Father.
II. Consideration of Father's Unreasonable Conduct.
¶16 Mother also contends the superior court erred by awarding
Father attorney fees without first considering and ruling on her Contempt
Petition. She argues that the court may have never awarded Father attorney
fees had it reviewed her Contempt Petition before making its decision to
award fees.
¶17 Any problem with the timing of the court's consideration of
Mother's Contempt Petition is overstated. While the superior court found
that Father was entitled to an award of attorney fees prior to having ruled
on Mother's Contempt Petition, the court eventually reviewed the Contempt
Petition, found that Father's conduct was unreasonable, and stated that it
would consider Father's unreasonableness when determining the amount
of attorney fees and costs it would award Father. In the end, the superior
court heard and considered "the reasonableness of the positions each party
[had] taken throughout the proceedings" before ordering Mother to pay a
reasonable amount of Father's costs and expenses. See A.R.S. § 25-324(A).
Had Mother's Contempt Petition revealed conduct so egregious as to justify
a revocation of the court's initial determination to award Father attorney
fees, nothing in A.R.S. § 25-324 would have prevented the court from so
doing. See Preston v. Denkins, 94 Ariz. 214, 219 (1963) (noting the superior
court's "inherent power" to modify judgments until they are final). We do
not find that the court committed error in assessing the reasonableness of
Father's conduct throughout the proceedings.
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III. Reasonableness of Mother's Daubert Challenge.
¶18 Finally, Mother argues that the superior court abused its
discretion by finding her Daubert challenge unreasonable when awarding
Father attorney fees pursuant to A.R.S. § 25-324(A).
¶19 As found in A.R.S. § 25–324(A), "reasonableness" establishes
an objective standard by which courts are to evaluate the propriety of a
litigant's legal position. See Williams, 219 Ariz. at 548-49, ¶¶ 10-12. Here,
the superior court found Mother unreasonable after determining that her
Daubert challenge "was wholly unnecessary, a waste of the Court's time and
caused Father to incur needless additional attorneys' fees and expenses."
Mother argues that it was an abuse of discretion for the court to find that
her Daubert challenge was an objectively unreasonable legal position,
especially given the court's misgivings with assumptions relied upon by
Mr. Hughes in preparing his expert valuation of Modern Law.
¶20 As the appellant, Mother carries "an obligation to provide
transcripts and other documents necessary to consider the issues raised on
appeal." Myrick v. Maloney, 235 Ariz. 491, 495, ¶ 11 (App. 2014) (citing Baker
v. Baker, 183 Ariz. 70, 73 (App. 1995)). The record on appeal does not include
the transcript of the Daubert hearing. Without the transcript, "we assume
[it] would support the court's findings and conclusions," Baker, 183 Ariz. at
73, that Mother's Daubert challenge "was wholly unnecessary, a waste of the
Court's time and caused Father to incur needless additional attorneys' fees
and expenses."1
1 The court also noted that "Mr. Hughes was clearly qualified as an
expert witness, having testified as such multiple times in Maricopa County
Superior Court." In denying Mother's Daubert challenge, the superior court
did not mention or rely on Mr. Hughes' prior testimony as an expert. See
Englehart v. Jeep Corp. 122 Ariz. 256, 258 (1979) ("[T]he fact that a witness has
qualified as an expert on previous occasions does not make him any more
qualified to testify in the case at bar."). In light of the missing hearing
transcript, we presume that the superior court's mention of other cases in
which Mr. Hughes had testified was a somewhat inartful allusion to his
experience in valuating businesses in other divorce proceedings and
"whether the expertise of the witness is applicable to the subject about
which he offers to testify." Id.; see also United Cal. Bank v. Prudential Ins. Co.
of Am., 140 Ariz. 238, 308 (App. 1983) ("A trial judge's ruminations on the
record, even when incorrect, are an insufficient ground on appeal to set
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Decision of the Court
¶21 Accordingly, we do not find that Mother has met her burden
to demonstrate that the superior court abused its discretion when it found
her Daubert challenge unreasonable, and affirm Father's award of attorney
fees and costs.
CONCLUSION
¶22 The superior court's award of attorney fees and costs to Father
is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
aside the judgment entered in the trial court where there is sufficient
evidence in the record to support the findings of fact and the judgment.").
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