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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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:
ELIZABETH ANN HOFSTETTER, Petitioner/Appellant,
v.
MICHAEL PAUL HOFSTETTER, Respondent/Appellee.
_______________________
BETH JO ZEITZER, Real Estate Special Commissioner, Appellee.
No. 1 CA-CV 25-0833 FC
FILED 08-31-2026
Appeal from the Superior Court in Maricopa County No. FN2022-050635
The Honorable Cassie Bray Woo, Judge
AFFIRMED
APPEARANCES
The Law Office of Carrie M. Wilcox PLLC, Phoenix By Carrie M. Wilcox Counsel for Petitioner/Appellant
Michael Paul Hofstetter, Phoenix Respondent/Appellee
Nach, Rodgers, Hilkert & Santilli, Phoenix By Stuart B. Rodgers Counsel for Appellee Real Estate Special Commissioner
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered Court’s decision in which Presiding Judge Daniel J. Kiley and Judge Cynthia J. Bailey joined.
W I L L I A M S, Judge:
¶1 Elizabeth Ann Hofstetter (“Wife”) appeals the award of attorneys’ fees to Beth Jo Zeitzer, a Real Estate Special Commissioner (the “RESC”) appointed to sell the marital home as part of Wife and Michael Paul Hofstetter’s (“Husband”) dissolution of marriage. Discerning no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In February 2024, Husband and Wife divorced. As part of the dissolution decree, the superior court ordered Husband to refinance the mortgage on the marital home—but if he could not, it was to be sold. Husband never refinanced the home, so the court appointed a RESC to sell it (“appointment order”). See Ariz. R. Fam. Law P. 95(g) (court may appoint a RESC to assist “in dividing and disposing of community real property”). The appointment order set forth certain terms including, as relevant here, that the home be maintained in a “market-ready condition” and that it be accessible for showings. To that end, the order also directed the parties to give the RESC a key “within 48 hours of request,” “permit placement of a lockbox,” and allow the RESC access to the home “for a minimum of five hours daily.”
¶3 Wife promptly moved the superior court to vacate those terms and instead adopt Wife’s suggested terms. But the RESC objected, claiming Wife’s terms were too restrictive and interfered with the RESC’s duties. Husband also objected. The court denied Wife’s motion, as well as her subsequent motion for reconsideration.
¶4 A month later, the RESC, through her attorney, provided a written update of concerns to the superior court. The RESC reported that Wife would only meet after business hours, would not allow photos of the home other than to document specific damage, and had yet to provide keys to the home or allow a lockbox. The RESC asked the court to order Wife to comply and requested a hearing and attorneys’ fees as a sanction if Wife
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failed to do so. The court scheduled a status conference in May 2024, and ordered Wife to hand over the keys within two days and maintain the home in show-ready condition (the “May order”).
¶5 Wife’s attorney appeared on her behalf at the status conference. And by the time the hearing began, Wife had turned over the key to the home and agreed to sign the listing agreement.
¶6 In June 2024, the superior court held an evidentiary hearing to address Wife’s petition for contempt against Husband for his failure to satisfy various financial obligations related to the home. The court denied Wife’s request for attorneys’ fees at that hearing, finding Wife unreasonably delayed the listing and sale of the home and “repeatedly object[ed]” to the stipulated RESC.
¶7 In September 2024, the RESC petitioned for an order to show cause (“OSC”) based, in part, on Wife’s failure to comply with the May order to maintain the home in show-ready condition. The RESC requested sanctions and attorneys’ fees. With her motion, the RESC included correspondence with Wife and Wife’s attorney disputing the terms of the May order. The court scheduled an evidentiary hearing to address the RESC’s OSC petition. Separately, Husband petitioned for contempt alleging, among other things, that Wife failed to comply with orders regarding the sale of the home and delayed the sales process. The court scheduled a separate hearing on Husband’s petition.
¶8 At the evidentiary hearing on the RESC’s petition, the parties agreed: (1) to specific terms for pricing and showing times, (2) that the RESC could file an application for attorneys’ fees pursuant to China Doll 1 , and (3) that the superior court would decide the reasonableness of the RESC’s attorneys’ fees, including the apportionment between Husband and Wife. The court endorsed the parties’ prepared order, which also stated that the RESC’s attorneys’ fees “shall be paid” from the home’s sale proceeds, but the parties would be liable for any shortfall. By the next status conference, the parties were compliant with the stipulated order. Wife raised no objection to the RESC appearing with counsel or when the RESC’s attorney stated his intent to seek attorneys’ fees after the home sold.
¶9 Shortly after the home sold, the RESC filed an application for attorneys’ fees requesting $10,919 in fees and $474.82 in costs. The RESC also filed an emergency application for the superior court to order the title
1 Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183 (App. 1983).
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company to hold back $16,000 from the sale proceeds until the court had a chance to rule on the fee application. The court granted the hold back request. Wife objected to the fee application and moved to set aside the hold back order. In both pleadings, Wife argued for the first time that the court lacked any authority to award fees to the RESC. Wife also requested a hearing.
¶10 The superior court rejected Wife’s contention that it lacked authority to award attorneys’ fees to the RESC. The court noted that the appointment order required the parties to cooperate with the RESC and authorized sanctions for any noncompliance or unreasonable conduct. Moreover, the court concluded that the parties stipulated the RESC could apply for attorneys’ fees and the court would determine the reasonableness of them. The court found that this stipulation waived any challenge to the court’s authority to award attorneys’ fees to the RESC because it resolved the RESC’s OSC petition, which also requested fees. The court also found that Wife was not entitled to a hearing on sanctions because the prior hearings and pleadings showed Wife’s unreasonableness. The court denied Wife’s subsequent motion to alter or amend these orders.
¶11 Before the superior court signed an appealable order, the title company moved to intervene and interplead the funds. The court denied the motion but ordered the title company to release the funds to the RESC, which it did. Wife timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(2).
DISCUSSION
I. The Appeal is not Moot.
¶12 The RESC argues that this appeal is moot because: (1) the title company already released the funds to her, (2) she was discharged, and (3) Wife did not post a supersedeas bond. A moot case is one asking the court to decide “an abstract question which does not arise upon existing facts or rights” or one where the decision would not affect the parties. Freeman v. Wintroath Pumps-Div. of Worthington Corp., 13 Ariz. App. 182, 183 (1970); Vinson v. Marton & Assocs., 159 Ariz. 1, 4 (App. 1988).
¶13 The failure to post a supersedeas bond does not moot the appeal. Hall v. World Sav. & Loan Ass’n, 189 Ariz. 495, 504 (App. 1997) (rejecting argument that failing to file supersedeas bond bars relief); Freeman, 13 Ariz. App. at 183 (same). Nor does the fact that the RESC was paid render the appeal moot or deprive Wife of her right to appeal. Id. (holding payment of a judgment does not render the appeal moot). The
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failure to post a bond and the payment of the judgment would only make recovery harder for Wife should she prevail. Id.
II. The Superior Court Did Not Err in Awarding Attorneys’ Fees as a Contempt Sanction.
¶14 We review an award of attorneys’ fees as a contempt sanction for an abuse of discretion. Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 9 (App. 2010). But whether the superior court had legal authority to award fees in the first instance is a question of law we review de novo. Kaufmann v. Cruikshank, 222 Ariz. 488, 488–89, ¶ 1 (App. 2009). We review the denial of Wife’s motion to alter or amend under an abuse of discretion standard. Wisniewski v. Dolecka, 251 Ariz. 240, 241, ¶ 5 (App. 2021).
¶15 Wife contends the superior court lacked authority to award attorneys’ fees to the court-appointed RESC. An award of attorneys’ fees must be based on a contract, statute, or court rule. Kaufmann, 222 Ariz. at 490, ¶ 7. The court based the fee award on Wife’s violation of the appointment order, finding Wife’s conduct constituted contempt under Arizona Rule of Family Law Procedure (“Rule”) 92. We agree that the court properly relied on Rule 92 and its inherent contempt powers to authorize the fee award.
¶16 Under Rule 92, the superior court may sanction a party for failing to comply with a court order. Ariz. R. Fam. Law P. 92(a)(1). Those sanctions may include an award of attorneys’ fees. Ariz. R. Fam. Law P. 92(e)(2). Rule 92(e)(2) grants the court wide latitude in determining appropriate sanctions and does not preclude an award of attorneys’ fees to a court-appointed special commissioner. See Berry v. 352 E. Virginia, L.L.C., 228 Ariz. 9, 15, ¶ 31 (App. 2011). Moreover, the appointment order authorized an award of attorneys’ fees and an order “holding [the] disobedient party liable for the [RESC]’s time and costs incurred in obtaining compliance and/or requesting a hearing with the Court.” Thus, Wife had notice that the court may award attorneys’ fees to the RESC as a potential sanction.
¶17 The appointment order required the parties to cooperate with the RESC by signing necessary documents, providing access, and facilitating showings. Because Wife had not complied with the appointment order, the court granted the RESC’s request for a hearing in May. Wife eventually agreed to hand over a key and sign the listing agreement at the May hearing. The May order also required Wife to maintain the home in show-ready condition from nine a.m. to four p.m. every day.
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¶18 Wife disputed the terms of the showing requirements. The RESC asked Wife to abide by the May order and their subsequent agreement to show the home from nine a.m. to four p.m. on weekdays and from noon to four p.m. on weekends with two hours’ notice. But Wife demanded that showings take place from three to eight p.m. Monday, Tuesday, and Friday, and four to nine p.m. on Wednesday and Thursdays with four hours’ notice. Wife also refused to vacate the home for showings. Again, the RESC could not compel Wife’s compliance on her own and requested court intervention, this time by filing an OSC petition. At the time set for an evidentiary hearing on the RESC’s OSC petition, the parties entered a stipulated agreement and the court issued an order reflecting that agreement to resolve the OSC petition. Wife agreed to longer showing times and shorter notice period.
¶19 On appeal, Wife misstates the record. The superior court set the October evidentiary hearing in response to the RESC’s OSC petition, for which Wife agreed to accept service. The court also set forth written findings about Wife’s contemptuous conduct. Thus, we reject Wife’s contention that these procedural requirements were not met. See Ariz. R. Fam. Law P. 92(b), (e).
¶20 Even if the OSC petition did not expressly request a contempt sanction or cite Rule 92, the superior court has inherent authority to impose contempt sanctions for a party who fails to comply with its orders. Owen v. City Ct. of Tucson, 123 Ariz. 267, 269 (1979) (holding courts have inherent powers “as are necessary to the ordinary and efficient exercise of jurisdiction[,]” including the power of contempt); see also Green v. Lisa Frank, Inc., 221 Ariz. 138, 152, ¶ 37 (App. 2009) (holding court has “inherent authority to sanction parties for failing to comply with its orders”). Thus, the court had authority to impose attorneys’ fees as a contempt sanction for Wife’s failure to comply with the appointment and May orders.
III. The Stipulated Order Reserved Only Objections to the Amount and Allocation of Attorneys’ Fees.
¶21 The RESC’s OSC petition requested attorneys’ fees as provided in the appointment order. To resolve the OSC petition, the parties agreed to several terms related to the sale of the home. They also agreed: (1) the RESC “may file an Application for and Affidavit on attorney fees pursuant to China Doll as and for the [RESC’s] attorney fees”; (2) the parties may respond and the court would “determine the reasonableness of the fees and the apportionment of the attorney fees between Husband and Wife”; and (3) the RESC’s fees “shall be paid” from the sale proceeds, but the
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parties would be liable for any shortfall. We agree with the superior court’s finding that the stipulation waived Wife’s claim that the RESC was not legally entitled to an award of attorneys’ fees.
¶22 Wife argues that if she intended to waive objections to the authority to award fees, then there would be no reason for a fee application and response. We disagree. The RESC was still required to show the reasonableness and amount of the fee request. Although the parties reserved their right to respond, the only issues they left for the superior court to decide were the reasonableness of the fee request and the allocation. This reservation of specific issues suggests that the parties waived the right to raise other issues in their responses. See Est. of Tovrea v. Nolan, 173 Ariz. 568, 573 (App. 1992) (applying the doctrine of expressio unius est exclusio alterius, i.e., “the statement of one exception implicitly denies the existence of other unstated exceptions,” in a contract case). That is, the stipulated order implies the parties agreed that the RESC was entitled to attorneys’ fees in an amount to be determined once she filed an application. They reserved the right to object to the reasonableness and the allocation of the fees only.
¶23 “[P]arties are bound by their stipulation unless relieved therefrom by the court.” Pulliam v. Pulliam, 139 Ariz. 343, 345 (App. 1984). Stipulations are favored by courts “because they reduce the time of trial and narrow the issues.” Id. (emphasis added). The stipulated order did just that. It determined the RESC was entitled to fees but preserved the right to challenge the reasonableness of the fee request and the allocation between the parties. Wife has shown no grounds to relieve her of this agreement.
IV. Wife Waived Her Right to a Hearing on the RESC’s Fee Application.
¶24 Finally, Wife argues that due process obligated the superior court to hold an evidentiary hearing before ordering sanctions. Due process requires notice and a meaningful opportunity to be heard in person “whenever resolution of a material contested issue hinges on credibility.” Volk v. Brame, 235 Ariz. 462, 466, ¶ 14 (App. 2014). But Wife waived her right to challenge the factual basis of her contemptuous conduct by stipulating that the RESC was entitled to attorneys’ fees in an amount to be determined. See supra, ¶¶ 21–23. Wife could contest the amount requested in the RESC’s fee application and the allocation of the fees between her and Husband. She did neither in response to the RESC’s fee request. Therefore, she also waived these objections.
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V. Attorneys’ Fees and Costs on Appeal
¶25 The RESC requests attorneys’ fees as a sanction under Arizona Rule of Civil Appellate Procedure (“ARCAP”) 25. ARCAP 25 authorizes sanctions if an appeal is frivolous or filed solely for the purpose of delay. We cannot say the appeal was filed solely for delay because the RESC’s attorneys’ fees have been paid. But the appeal was frivolous. Wife’s interpretation of the stipulated order was not supported by any reasonable legal theory. See Matter of Levine, 174 Ariz. 146, 153 (1993) (holding that, for purposes of ARCAP 25, an appeal is frivolous if it raises issues that are not supported by any reasonable legal theory or presents arguments about which no reasonable attorneys could differ). She sought to raise issues waived in the stipulated order. Additionally, on appeal, Wife claimed she was entitled to an award of attorneys’ fees based on statutes she previously argued did not apply, e.g., A.R.S. §§ 25-324, 12-341.01. The RESC is entitled to an award of attorneys’ fees and costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶26 We affirm the award of attorneys’ fees to the RESC and grant the RESC’s request for attorneys’ fees and costs on appeal.
MATTHEW J. MARTIN • Clerk of the Court FILED: JR