Mother Awarded Attorney Fees in AZ Child Support Modification Case

Categories: Child Support

Arizona attorney fee award case summary.

Richard Clark v. Ann Clark

The children’s mother was awarded her attorney fees in this Arizona post-decree child support modification case. The father petitioned to modify the monthly child support amount, which the court did. But he was also assessed the mother’s attorney fees and costs. Father filed a timely appeal on grounds the court had no discretion to make the attorney fee award under Arizona law. The appeal discussed two Arizona family law statutes with apparently conflicting fee award provisions. Affirmed.

Child Support Modified for Substantial, Continuing Change of Circumstances

The child support order originated in December 2012 when the parties’ default decree of divorce was entered by the judge of the Superior Court of Maricopa County. The mother was granted primary physical custody* and, starting January 1, 2013, the father was ordered to pay $1,013.48 in monthly child support.

After moving to New York for work-related reasons in 2013, the father found new employment that September. In March 2014, he filed a post-decree petition requesting child support be modified, reduced, on grounds that he was earning less at his current job than previously and, therefore, a “substantial and continuing change in circumstances” had occurred.

The court granted father’s request and modified the child support order. The monthly amount was reduced to $619.04 effective September 1, 2014. However, he was found to be in arrears on his child support payments. The court entered a judgment of more than $20,000.00 to the mother. Lastly, the court found the father had “taken unreasonable positions” on issues throughout the litigation. The mother’s request for attorney fees and costs was granted. The father appealed the attorney fee award assessed against him.

The issue on appeal was whether the fee award was within the court’s discretion. The Court of Appeals compared two seemingly conflicting Arizona family law statutes allowing for attorney fee awards. The two key statutes were analyzed and harmonized, no error at trial occurred, and the trial court’s attorney fee award was affirmed.

[*Note: On January 1, 2013, Arizona custody was delineated as legal decision-making and parenting time. See Arizona Child Custody Essentials, What Every Parent Needs to Know.]

Judicial Discretion to Award Attorney Fees in Child Support Case

In father’s appeal, he argued the trial court erred by awarding the mother her attorney fees and costs under ARS § 25-324(A). That the court lacked authority to make the award because the mother was not the prevailing party. His argument was based on ARS § 25-503(E). Because he was the prevailing party in the child support modification, only he could be awarded attorney fees and court costs. Alternatively, the father argued his litigation tactics were not unreasonable and that the trial court erred in awarding attorney fees and costs to the mother under ARS § 25-324(A).

AZ Law Harmonized, No Error in Attorney Fee Award

The Court of Appeals reviewed the trial court’s final order, applying an abuse of discretion standard. Several statutes in Arizona family law provide for attorney fees and “related statutes must be interpreted consistently and harmoniously with one another.” (Citing In re Stephanie N., 210 Ariz. 317, 320 (Ct. App. 2005).) The statutes must be read together, harmonizing pertinent provisions. These are the two attorney fee award provisions (emphasis added):

ARS § 25-503(E):

Any order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing … The order of modification or termination may include an award of attorney fees and court costs to the prevailing party.

ARS § 25-324(A):

The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending any proceeding under this Chapter [3] or Chapter 4, Article 1 of this Title. On request of a party or another court of competent jurisdiction, the court shall make specific findings concerning the portions of any award of fees and expenses that are based on consideration of financial resources and that are based on consideration of reasonableness of positions. The court may make these findings before, during or after the issuance of a fee award.

Attorney Fee Awards Are Discretionary with the Judge

The word “may” in both statutes above generally connotes discretion. This means the judge had authority, and broad discretion, to order the father to pay the mother’s attorney fees. The trial court did not err by refusing to award husband his attorney fees and costs under ARS § 25-503(E). Furthermore, ARS § 25-503(E) did not limit the judge’s authority to award fees to the mother under a different statute – that is, under ARS § 25-324(A). According to the Court of Appeals, ARS § 25-503(E) “does not prohibit the court from awarding fees to the non-prevailing party if another statute [ARS § 25-324(A)] authorizes such an award.” When read together, no conflict exists between these two Arizona statutes. Nor are they mutually exclusive in that only one statute or the other applies.

When both statutes apply, as they do here, then it is within the court’s discretion to award attorney fees for any of the following reasons:

  1. Financial disparity between the parties. ARS § 25-234(A).
  2. Unreasonable conduct or unreasonable positions taken by a party. ARS § 25-324(A).
  3. Which party prevailed in the litigation. ARS § 25-503(E).

At trial, the judge made specific findings of no financial disparity between the former spouses, and that the father had acted unreasonably by “knowingly failing to pay child support as ordered in lieu of filing a petition for modification, and by expecting that Mother would independently support and care for the two children.” The trial court also found that the father caused all litigation relevant to the modification by “either not taking responsibility in the initial default dissolution or not abiding by the order.”

Holding there was no abuse of discretion or reversible error, the attorney fee award was affirmed.

Clark v. Clark, 1 CA-CV 15-0068 FC (March 3, 2016)

For precise language, read the court’s original opinion. Legal citations omitted.

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