Moreno v. Silva

296 P.3d 91, 231 Ariz. 428

• Court: Court of Appeals of Arizona
• Decided: January 24, 2013
• Docket: No. 1 CA-CV 11-0385
• Status: Published

Opinions

OPINION

GEMMILL, Judge.

¶ 1 Rosa Martinez (“Grandmother”) appeals the family court’s order denying her petition for visitation with her grandchildren. In a separate memorandum decision issued contemporaneously with this opinion, we affirm the family court’s ruling denying Grandmother any court-ordered visitation. In this opinion, we conclude that Brenda Moreno (“Mother”) is entitled to an award of attorneys’ fees on appeal against Grandmother. Only our resolution of Mother’s request for attorneys’ fees warrants publication. See ARCAP 28(g); Ariz. R. Sup.Ct. 111(h).

AWARD OF ATTORNEYS’ FEES ON APPEAL

¶ 2 Arizona Rule of Civil Appellate Procedure (“ARCAP”) 21(c)(1) was amended effective January 1, 2012, to provide in pertinent part:

A claim for allowance of attorneys’ fees shall be made in the briefs on appeal or by written motion filed and served before oral argument or submission of the appeal.... All claims for attorneys’ fees must specifically state the statute, rule, decisional law, contract, or other provision authorizing an award of attorneys’ fees.

(Emphasis added.) In Mother’s answering brief filed on January 7, 2012, she requested an award of attorneys’ fees on appeal, but she did not expressly include “25-324” — the numeric designation of the applicable Arizona Revised Statutes (“A.R.S.”) section. We conclude, however, that that Mother has “specifically stated” A.R.S. § 25-324 (Supp.2011) by presenting her request for an award of fees in the precise operative language of the statute.

¶ 3 Section 25-324(A) provides in pertinent part:

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 or chapter 4, article 1 of this title.

(Emphasis added.) Mother, in her answering brief, requested that we enter an award of attorneys’ fees in her favor after considering “(1) her financial resources and (2) the reasonableness of the positions each party has taken throughout the proceedings.” (Emphasis added.) Because this request states the precise language of A.R.S. § 25-324, Mother has complied with ARCAP 21(c)(1). We respectfully disagree with our dissenting colleague’s view that ARCAP 21(c)(1) requires a bluebook citation even though the brief otherwise “specifically states” the statutory basis for fees.¹

¶ 4 In accordance with A.R.S. § 25-324, we have considered the reasonableness of the positions taken on appeal. Because Grandmother’s groundless arguments have forced Mother to incur significant expense in defending this appeal, we will award Mother an amount of reasonable attorneys’ fees and costs upon her compliance with ARCAP 21(c).

CONCLUSION

¶ 5 We affirm the family court’s ruling denying Grandmother’s petition for visitation, and we award Mother reasonable attorneys’ fees and costs on appeal, to be paid by Grandmother, Rosa Martinez.

CONCURRING: PETER B. SWANN, Judge.

1 . We also note that our dissenting colleague, in footnote 3, infra, references this writer’s dissent in Ezell v. Quon, 224 Ariz. 532, 233 P.3d 645 (App.2010), but does not fully describe the Ezell dissent. It is true that the Ezell dissent pointed out that ARCAP 21(c)(1) should be amended to eliminate a “trap for the unwaiy.” Id. at 540-41 n. 4, ¶ 40, 233 P.3d at 653-54 n. 4. This goal has been accomplished by the recent amendment of Rule 21 (c). The Ezell dissent, however, also asserted that this court retained discretion to consider an award of attorneys' fees when "the legal basis for the request of fees is abundantly clear and readily ascertainable.” Id. at 541, ¶ 44, 233 P.3d at 654. Here, the legal basis for Mother’s request for an award of fees on appeal is quite clear because it was presented in the exact language of the statute, Mother specifically cited § 25-324 when requesting fees in family court, and § 25-324 is generally applicable in family court appeals.