Valenzuela v. Luna ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
OSCAR JAVIER VALENZUELA, Petitioner/Appellant,
v.
STEPHANIE LUNA, Respondent/Appellee.
No. 1 CA-CV 15-0473 FC
FILED 2-11-2016
Appeal from the Superior Court in Yuma County
No. S1400DO201200556
The Honorable Maria Elena Cruz, Judge
AFFIRMED
COUNSEL
Clark & Associates, Yuma
By A. James Clark
Counsel for Petitioner/Appellant
Mary Katherine Boyte, P.C., Yuma
By Mary K. Boyte Henderson
Counsel for Respondent/Appellee
VALENZUELA v. LUNA
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 This appeal arises out of an order awarding $880 in attorneys’
fees to respondent/appellee, Stephanie Luna. On appeal,
petitioner/appellant, Oscar Valenzuela, first argues the superior court
failed to make specific findings pursuant to Arizona Revised Statutes
(“A.R.S.”) section 25-324 (Supp. 2015) to justify the fee award. 1 We reject
this argument.
¶2 Under A.R.S. § 25-324(A), the superior court is required to
“make specific findings concerning the portions of any award of fees” if
requested by a party. Here, Valenzuela did not make such a request.
Accordingly, there was “no obligation for the [superior] court to make
findings of fact under . . . § 25-324.” Myrick v. Maloney, 235 Ariz. 491, 495, ¶
10, 333 P.3d 818, 822 (App. 2014) (quoting MacMillan v. Schwartz, 226 Ariz.
584, 592, ¶ 39, 250 P.3d 1213, 1221 (App. 2011)). Nevertheless, as discussed
in more detail below, the superior court did make specific findings
concerning the fee award.
¶3 Next, Valenzuela argues the superior court abused its
discretion in awarding fees because it did not have “adequate facts.” In
awarding fees, the superior court found “[a] great deal of litigation could
have been avoided by the use of effective and timely communication, the
lack of such was to the detriment of [Luna].” Luna presented adequate facts
supporting this finding, however, and, thus, we cannot say the superior
court abused its discretion in awarding fees. See MacMillan, 226 Ariz. at
592, ¶ 38, 250 P.3d at 1221 (“Substantial evidence” must support the
superior court’s award of attorneys’ fees under A.R.S. § 25-324); Myrick, 235
Ariz. at 494, ¶ 6, 333 P.3d at 821 (“We review a trial court’s ruling on a fee
1In her answering brief, Luna argues the fee award is
governed by A.R.S. § 25-503 (Supp. 2015), and A.R.S. § 25-324 is
inapplicable. For purposes of this appeal, we have assumed, without
deciding, that A.R.S. § 25-324 applies.
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VALENZUELA v. LUNA
Decision of the Court
request under § 25-324(A) for an abuse of discretion.”) (citing Mangan v.
Mangan, 227 Ariz. 346, 352, ¶ 26, 258 P.3d 164, 170 (App. 2011)).
¶4 In June 2013, the superior court found the parties were the
parents of a child and ordered Valenzuela to pay child support to Luna by
wage assignment “through the Arizona Support Payment Clearinghouse.”
The child died on July 28, 2014. Subsequently, the superior court
terminated “current” child support effective August 1, 2014, but ordered
the income withholding order to “remain in effect until such time as the
amounts due in relation to the [c]ourt’s prior [o]rders have been paid in
full.” The superior court also ordered Valenzuela to pay $935 in attorneys’
fees.
¶5 On February 4, 2015, Luna’s counsel served a writ of
garnishment on Yuma attorney, A. James Clark, alleging that Valenzuela
then owed $10,123.88 (plus interest), which included unpaid child support
and the award of attorneys’ fees, and that Clark was holding monies on
behalf of Valenzuela. In his answer, Clark, as garnishee, acknowledged he
was holding $10,123.88 in his trust account. 2 On Luna’s application, the
superior court entered a garnishment judgment awarding her the amount
sought.
¶6 Instead of complying with the garnishment judgment, 17
days after Clark answered the writ of garnishment, Valenzuela, now
represented by Clark, objected to the form of the garnishment judgment
and moved to set aside or amend the garnishment judgment and to
terminate the income withholding order (“combined filings”). In doing so,
Valenzuela did not serve Luna with an order to appear in violation of
Arizona Rule of Family Law Procedure 91. See Ariz. R. Fam. Law. P.
(“ARFLP”) 91(H) (party seeking post-judgment relief shall serve an order
to appear on the opposing party). Nevertheless, the superior court issued
an order granting Valenzuela’s requested relief (“set-aside order”).
Unfortunately, the set-aside order did not require Clark to pay funds into
the Clearinghouse, as previously ordered, nor did it take into account
payments Valenzuela had made into the Clearinghouse after the child’s
death. Ultimately, after Luna’s counsel responded to the combined filings
and expended significant legal effort, Valenzuela paid the arrearage to the
Clearinghouse and the attorneys’ fees to Luna.
¶7 Before Valenzuela’s payments, however, the superior court
realized it should not have entered the set-aside order because Valenzuela
2Clarkwas holding this amount on Valenzuela’s behalf from
a payment received for a wrongful death claim concerning the child.
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VALENZUELA v. LUNA
Decision of the Court
had failed to comply with ARFLP 91, and also because it had not considered
Luna’s response to the combined filings. Accordingly, the superior court
set a hearing in the matter.
¶8 At the hearing, Luna requested additional attorneys’ fees,
arguing her counsel had attempted to resolve the outstanding issues
through unanswered communications with Valenzuela’s counsel. In
support of her argument, Luna’s counsel read portions of a letter into the
record which Luna’s counsel had sent to Valenzuela’s counsel. In the letter,
Luna’s counsel offered “to reduce the amount of funds received under the
garnishment judgment to the same amount [Valenzuela] claimed was
[then] owed, to take specific action to preserve funds, to prevent any
possible overpayment by [Valenzuela], and to not disburse any funds until
the parties were in agreement as to the amount owed.” Given this offer, the
superior court agreed “that a great deal of the litigation . . . could have been
avoided had there been better communication between counsel,” which
“was to the detriment of [Luna].” Accordingly, the superior court granted
Luna $880 in attorneys’ fees. Based on this record, the superior court did
not abuse its discretion in awarding fees.
¶9 For the foregoing reasons, we affirm the superior court’s
award of attorneys’ fees to Luna. We also grant Luna’s request for
attorneys’ fees and costs on appeal contingent upon her compliance with
Arizona Rule of Civil Appellate Procedure 21.
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