Miller v. Miller ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 the Matter of:
DANETTE MILLER, Petitioner/Appellant,
v.
THOMAS A. MILLER, Respondent/Appellee.
No. 1 CA-CV 14-0110 FC
FILED 4-16-2015
Appeal from the Superior Court in Maricopa County
No. FC2007-008371
The Honorable Veronica W. Brame, Judge Pro Tempore
AFFIRMED
COUNSEL
Danette Miller, Phoenix
Petitioner/Appellant
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.
MILLER v. MILLER
Decision of the Court
P O R T L E Y, Judge:
¶1 Danette Miller (“Mother”) appeals the denial of her request
for an award of attorneys’ fees. For the reasons stated below, we affirm the
order denying Mother’s fee request.
BACKGROUND
¶2 Thomas Miller (“Father”) was found in contempt of the
family court in 2012 for failing to comply with a support order. The court
ordered Father to pay his support obligation by February 1, 2012. When
Father failed to comply, he was again found in contempt and the court
instructed Mother to submit a fee affidavit. Following the court’s direction,
Mother submitted a motion for attorneys’ fees and fee affidavit without
objection by Father. Inexplicably, the court denied Mother’s fee request
without comment and Mother appealed from the denial of her fee request
(“2013 appeal”).
¶3 After considering the 2013 appeal, this court vacated the order
denying Mother fees and remanded the case to allow the court to “consider
what amount of fees and costs are reasonable for Mother’s attempts to
enforce the valid support orders.” Miller v. Miller, 1 CA-CV 12-0567/12-
0679 (consol.), 2013 WL5708197, at *3, ¶ 17 (July 25, 2013) (mem. decision).
On remand, Mother merely resubmitted her July 2012 affidavit for
attorneys’ fees, but this time Father responded.1 The court again denied
Mother’s request in a signed order.
¶4 Mother filed a timely notice of appeal. Father did not file an
answering brief. In the exercise of our discretion we decline to treat this as
a confession of error. See Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d
425, 425 (App. 1982) (“Although we may regard [the] failure to respond as
a confession of reversible error, we are not required to do so.”). We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1).2
1 There was some confusion on remand because the 2013 appeal involved
the remand of three different rulings: one by the commissioner (at issue in
this appeal) and two by the superior court judge (not at issue in this appeal).
See Miller, id. at *1, ¶¶ 2-5. Ultimately, the matters were resolved.
2 We cite to the current version of the statute unless otherwise noted.
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MILLER v. MILLER
Decision of the Court
DISCUSSION
¶5 We review the denial of attorneys’ fees for an abuse of
discretion. See Democratic Party of Pima Cnty. v. Ford, 228 Ariz. 545, 547, ¶ 6,
269 P.3d 721, 723 (App. 2012). The family court may award attorneys’ fees
and costs to one party after “considering the financial resources of both
parties and the reasonableness of the positions each party has taken
throughout the proceedings.” See A.R.S. § 25-324.
¶6 This court previously determined that it was an abuse of
discretion to deny Mother’s fee request in its entirety because “Mother’s
financial resources in 2012 were substantially less than Father’s” and the
record did not “indicate any position Mother took that warranted a
complete denial of her fees and costs.” Miller, 1 CA-CV 12-0567/12-0679, at
*2, 3, ¶¶ 13, 15. Mother contends the court failed to follow the mandate by
denying her fee request. We disagree. The mandate directed the court to
determine what amount of fees were reasonable for Mother’s attempts to
enforce the support orders. Id. at *3, ¶ 17. Although this court determined
Mother had substantially less financial resources than Father, the mandate
did not direct the court to award fees regardless of the reasonableness of
Mother’s positions. See, e.g., Cyprus Bagdad Copper Corp. v. Ariz. Dep’t of
Revenue, 196 Ariz. 5, 7, ¶ 7, 992 P.2d 5, 7 (App. 1999). The court had
discretion to consider the reasonableness of Mother’s fee request.
¶7 On remand, Father asserted that Mother is a paralegal and the
fee affidavit did not specify that her attorney, and not Mother, performed
the work billed. Father also alleged that unspecified entries included
inflated time. Father, however, did not make the objections when Mother
first requested fees in 2012. Because Mother only resubmitted her 2012
request on remand and did not add any additional information, Father’s
objections are untimely. Moreover, there is no indication that any fees for
paralegal services were billed in 2012 and the original fee affidavit stated
that Mother’s attorney billed $250 per hour.
¶8 This court instructed the court to “consider what amount of
fees and costs are reasonable for Mother’s attempts to enforce the valid
support order.” Miller, at *3, ¶ 17. On remand, the court listed several
pleadings considered in ruling on the mandate. Although those pleadings
were considered and ruled on when the court initially denied Mother’s fee
request in 2012, Mother’s fee request did not include charges for those
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MILLER v. MILLER
Decision of the Court
pleadings. Therefore, those pleadings are not relevant in determining the
reasonableness of Mother’s positions in the contempt proceedings.3
¶9 Mother has a right to enforce support orders and need not
wait months to do so. Nonetheless, the court implied that the filings in this
case are duplicative and needlessly contentious. We agree. Mother’s
amended motion for contempt sought relief on issues not before the court,
i.e., the foreign judgment, a new reimbursement request, and health
insurance coverage. The additional information needlessly confused the
record, expanded the issues, and increased the amount of time and
resources spent in the proceedings. The cited motions also requested the
same relief previously requested in other proceedings. For example,
Mother filed multiple pleadings seeking relief from Father’s failure to
comply with the court’s January 5, 2012 order: a pretrial statement filed
with the superior court judge on February 6, 2012; and the contempt
motions filed with the court on March 2, 2012 and May 21, 2012. It was
unreasonable for Mother to raise the same issue before two different judicial
officers, which also needlessly confused the proceedings and resulted in
duplicated efforts by the parties as well as court staff. The record supports
the court’s conclusion that Mother took unreasonable positions in her
contempt proceedings.4
¶10 We do not condone Father’s repeated failure to pay support
orders, which are enforceable by contempt proceedings. However, in her
attempt to enforce that obligation, Mother needlessly expanded and
3 Specifically, the following pleadings listed in the court’s order were not
included in Mother’s fee request: (1) Mother’s Affidavit of Attorneys’ Fees
and Costs filed March 20, 2012, and Father’s response thereto; Judge
Whitten’s denial of the same and Mother’s unsuccessful motion for
reconsideration; (2) Mother’s Objection to Filed Arrears Calculation filed
June 25, 2012; (3) Mother’s Affidavit of Non-Compliance and Request for
Arrest Warrant filed July 11, 2012; (4) Mother’s Supplemental Affidavit of
Non-Compliance and Request for Arrest Warrant filed August 2, 2012; and
(5) Father’s purge receipt filed July 27, 2012.
4 The court indicated that Mother’s motion for contempt was filed less than
a month after Judge Whitten entered judgment and requested relief for
Father’s failure to pay support for the single month of February 2012.
However, Mother’s motion for contempt argued that Father was in
contempt of the commissioner’s enforcement judgment/order filed January
10, 2012, and was not based on Judge Whitten’s February 10, 2012 judgment
(filed March 7, 2012).
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MILLER v. MILLER
Decision of the Court
confused the contempt proceedings. Therefore, the court did not abuse its
discretion in denying her request for attorneys’ fees.
ATTORNEYS’ FEES AND COSTS ON APPEAL
¶11 Mother requests an award of fees and costs on appeal
pursuant to A.R.S. § 25-324. Mother represented herself on appeal and,
therefore, is not entitled to attorneys’ fees. See Connor v. Cal-Az Props., Inc.,
137 Ariz. 53, 56, 668 P.2d 896, 899 (App. 1983) (recognizing that party filing
pro per cannot claim attorneys’ fees due to the absence of an attorney-client
relationship). We also deny Mother’s request for costs on appeal pursuant
to A.R.S. § 25-324(A) because she was not the successful party. A.R.S. § 12-
342(A) (authorizing award of costs to successful party on appeal).
CONCLUSION
¶12 We affirm the order denying Mother’s July 2012 request for
attorneys’ fees and costs.
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