Thompson v. Thompson ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
JUSTIN WILLIAM THOMPSON, Petitioner/Appellee,
v.
ERIN BRIGHTWOOD THOMPSON, Respondent/Appellant.
No. 1 CA-CV 16-0777 FC
FILED 12-14-2017
Appeal from the Superior Court in Maricopa County
No. FC2015-072550
The Honorable J. Justin McGuire, Judge Pro Tempore
REVERSED AND REMANDED
APPEARANCES
Justin William Thompson, Canyon Lake, CA
Petitioner/Appellee
S. Alan Cook, PC, Phoenix, AZ
By Sharon Ottenberg
Counsel for Respondent/Appellant
THOMPSON v. THOMPSON
Decision of the Court
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
S W A N N, Judge:
¶1 The consent decree dissolving the marriage of Erin
Brightwood Thompson (“Mother”) and Justin William Thompson
(“Father”) required Father to pay spousal maintenance and to share the
costs of uninsured medical care for the parties’ minor children. Mother
petitioned the superior court for enforcement of the decree after Father
failed to fully pay spousal maintenance and refused to contribute to the cost
of uninsured naturopathic allergy tests for two of the children. The
superior court denied Mother’s petition.
¶2 We reverse and remand. The court had no discretion to
decline to enter judgment against Father for the spousal maintenance
arrears, and under the decree Father’s obligation to share medical costs
encompasses naturopathic care. We hold, however, that Mother cannot
transform these modest recoveries into a windfall award of attorney’s fees
on appeal.
FACTS AND PROCEDURAL HISTORY
¶3 Mother and Father’s consent decree granted the parties joint
legal decision-making authority with respect to their three minor children,
with Mother retaining final decision-making authority should the parties
not reach agreement. The consent decree further required Father to make
monthly payments of $300 in spousal maintenance and $888 in child
support. It allocated responsibility for medical expenses not covered by
insurance as follows:
Non-Covered Expenses. The parties shall divide in
proportion to income (Father 70% and Mother 30%) all
reasonable uncovered and/or uninsured medical, dental,
orthodontic, optical, prescription, and mental health care
expenses incurred for the benefit of the minor children,
including co-pays. Both parties shall be entitled to complete
information from any and all health care providers for the
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THOMPSON v. THOMPSON
Decision of the Court
minor children and to complete information from any and all
health insurance companies that provide health insurance for
the minor children.
¶4 Several months after entry of the consent decree, Mother
petitioned the court to order Father to pay approximately $418 in non-
covered expenses and $352 in past-due spousal maintenance. The non-
covered expenses arose from naturopathic allergy testing for the parties’
two older children (after the same tests came back positive for the youngest
child). The parties agreed that Father had paid his share for the youngest
child’s testing only. Father contended that the tests were not reimbursable
because they were performed by a naturopathic doctor. With respect to the
past-due spousal maintenance, Father asserted that the shortfall was merely
an artifact of the timing of the paychecks from which the spousal
maintenance payments were made. Father asserted that under his pay
structure he would be caught up on spousal maintenance by the end of the
calendar year.
¶5 The court denied Mother’s petition as to the allergy-test
expenses, finding that “[a] naturopathic physician is neither medical,
dental, orthodontic, optical, prescription, or mental health care” and that
the expenses therefore “do not fall under the scope of the Decree.” The
court then confirmed the spousal maintenance arrearage but held that “due
to the amount due and the ongoing accrual of interest [even without a
judgment], it is not appropriate for a judgment to be entered at this time.”
¶6 The court denied Mother’s motion for a new trial or amended
judgment under ARFLP 83. Mother timely appeals.
DISCUSSION
I. MOTHER IS ENTITLED TO A JUDGMENT FOR PAST-DUE
SPOUSAL MAINTENANCE.
¶7 Mother contends that the superior court erred by declining to
enter judgment against Father for the spousal maintenance arrearage. We
agree. The court had no discretion to decline to enter judgment based on
the relatively small amount of the arrearage. See Cooper v. Cooper, 167 Ariz.
482, 491 (App. 1990) (“If a party petitions the court for a written judgment
for the full amount of arrearages, the trial court has a mandatory duty to
enter such judgment.”). Mother was entitled to judgment against Father for
the arrearage amount.
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THOMPSON v. THOMPSON
Decision of the Court
II. FATHER WAS REQUIRED TO REIMBURSE MOTHER FOR HIS
SHARE OF THE ALLERGY-TEST EXPENSES.
¶8 Mother also challenges the superior court’s determination
that the costs of the allergy tests were not covered by the dissolution decree.
“A final judgment or decree is ‘an independent resolution by the court of
the issues before it and rightfully is regarded in that context and not
according to the negotiated intent of the parties.’” Cohen v. Frey, 215 Ariz.
62, 66, ¶ 10 (App. 2007) (quoting In re Marriage of Zale, 193 Ariz. 246, 249,
¶ 11 (1999)). We interpret decrees de novo. Palmer v. Palmer, 217 Ariz. 67,
69, ¶ 7 (App. 2007).
¶9 Father argued in the superior court that the decree’s “Non-
Covered Expenses” provision does not apply to the allergy tests because
the naturopathic doctor who performed the tests was “not a real doctor”
contracted with any medical insurance.1 But Father did not dispute
Mother’s evidence showing that the doctor was licensed to practice
naturopathic medicine in Arizona, and he expressly concedes as much on
appeal. A.R.S. § 32-1501(25) provides that “‘[n]aturopathic medicine’
means medicine as taught in approved schools of naturopathic medicine
and in clinical, internship, preceptorship and postdoctoral training
programs approved by the board and practiced by a recipient of a degree
of doctor of naturopathic medicine licensed pursuant to [Title 32, Chapter
14 of the Arizona Revised Statutes].” In view of Arizona’s recognition of
naturopathy as a medical practice, we conclude that it is included under the
decree’s broad command that the parties shall share the costs of “uninsured
medical . . . expenses.”
¶10 Father, citing Smith v. Smith, 133 Ariz. 384 (App. 1982),
contends that the allergy tests were not “medically necessary.” Smith is
distinguishable. In Smith, a mother sought reimbursement for orthodontic
expenses under a decree that obligated the father to pay “all medical bills
and dental bills incurred for the health and protection of [the] minor child.”
Id. at 384–86. We affirmed the superior court’s decision denying
reimbursement because the mother made “[n]o attempt . . . to show why
those expenses were necessary for [the minor child]’s health and protection,
1 Father also offers, for the first time on appeal, a letter from an
allergist to suggest that the tests at issue were “not medically recognized.”
We do not consider the letter. See Navajo Nation v. MacDonald, 180 Ariz. 539,
547 (App. 1994) (“[T]his court will not consider arguments raised for the
first time on appeal.”).
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THOMPSON v. THOMPSON
Decision of the Court
as opposed to cosmetic reasons.” Id. at 386. Here, unlike in Smith, the
decree did not require a showing that the allergy tests were necessary for
the health and protection of the minor children. Instead, Mother only
needed to show that the expenses she incurred were “reasonable.” What
little evidence there was regarding reasonableness supported Mother’s
position: Mother, who has final legal decision-making authority, wanted
the older children tested because the youngest child’s test results came back
positive, and Father presented no evidence to show that the costs of the tests
were unreasonable.
ATTORNEY’S FEES AND COSTS ON APPEAL
¶11 Mother, who is represented on appeal by pro bono counsel,
requests an award of attorney’s fees on appeal under A.R.S. § 25-324(A),
which provides that we may award fees after considering “the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings.” Neither parent took unreasonable
positions in this appeal and, having considered the relevant financial
evidence in the record, we decline to award attorney’s fees to Mother.
Mother is entitled to recover her costs incurred on appeal upon compliance
with ARCAP 21.
¶12 We note that pro bono representation does not preclude
recovery under § 25-324(A) for market-rate attorney’s fees. Thompson v.
Corry, 231 Ariz. 161, 164, 167, ¶¶ 8–10, 22 (App. 2012). But here, though
Mother’s positions had legal merit, the litigation of the issues she raised was
not economically efficient and cost far more than the amount at issue. There
are times when vindication of an important legal right or principal warrants
the award of fees even when the monetary value of a claim is small. This is
not such a time. This dispute was litigated through appeal over less than
$1,000, and no non-monetary interest was served.
CONCLUSION
¶13 We reverse the superior court’s rulings with directions to
enter judgment for Mother on the arrearage, order Father to reimburse
Mother for 70% of the allergy-test expenses, and award Mother costs and
interest as appropriate.
AMY M. WOOD • Clerk of the Court
FILED: AA
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