In re the Marriage Of: Robert S. Livermore
| Decision Date | 22 June 2010 |
| Docket Number | 1 CA-CV 09-0512 |
| Parties | IN RE THE MARRIAGE OF: ROBERT S. LIVERMORE, JR., Petitioner/Appellee, v. CHERYL LIVERMORE, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
MEMORANDUM DECISIONNot for Publication-Rule 28, Arizona Rules of Civil Procedure
Appeal from the Superior Court in Maricopa County Cause No. FC2007-053992 The Honorable Linda H. Miles, Judge
Jaburg & Wilk PC
By Kathi M. Sandweiss And Roger L. Cohen Attorneys for Petitioner/Appellee
Phoenix
Joseph C. Richter PC
By Joseph C. Richter Attorneys for Respondent/Appellant
OROZCO, Judge ¶1 Cheryl Livermore (Wife) appeals the family court's denial of her motion for new trial. For the reasons that follow, we affirm the judgment of the family court.
¶2 Robert S. Livermore, Jr. (Husband) and Wife were married in 1988.1 Husband filed a petition for dissolution of marriage on November 26, 2007. Both parties retained attorneys. Counsel for Wife sought permission, and was ultimately allowed, to withdraw because Wife had "fail[ed] to abide by the contract terms" regarding the representation.2
¶3 Both parties filed motions for temporary orders. The family court ordered Husband to pay Wife $1000 per month in temporary spousal maintenance. In a February 5, 2008 minute entry, the family court also ordered the sale of a horse trailer, with the sales proceeds to be held in an interest bearing accountuntil the parties agreed which debts should be paid. The family court set the matter for a June 25, 2008 trial. On May 6, 2008, after Wife's counsel withdrew, the family court continued trial until September 9, 2008, to allow Wife to retain counsel.
¶4 In a proposed stipulation, Husband offered to borrow $15,000 from his 401(k) account and lend those funds to Wife for purposes of retaining an attorney. Wife refused the terms of Husband's stipulation and on June 4, 2008, she filed a motion requesting funds to retain an attorney. Husband filed a letter with the court to enter an order as "follow-up" to the court's February 5, 2008 order regarding the sale of the horse trailer as Husband alleged Wife was hindering the sale. In its June 4, 2008 minute entry addressing both issues, the court denied Wife's motion to provide her with attorney fees based on the fact that it ordered the immediate sale of the horse trailer "which would make monies available to both parties for attorney's fees." On August 12, 2008, Husband filed an emergency motion seeking to approve the sale of the horse trailer based on his assertion that Wife would not approve the sale. The court approved the sale of the horse trailer the same day.
¶5 Based on Wife's allegation that she had not received "all" of the funds from the sale of the horse trailer and because the attorneys with whom she consulted needed additional time to prepare for trial, Wife moved for a continuance on August 22, 2008. The family court denied Wife's request to continue and trial began on September 9, 2008. Although the trial was originally scheduled for one-half day, the family court continued the matter for another day "[i]n fairness to [Wife]" because she was not given as much time as Husband was. Wife called no witnesses, did not prepare or present any exhibits and generally presented no evidence.
¶6 The decree was filed on November 13, 2008. Despite the fact that the family court noted Wife had "taken unreasonable positions... which have significantly increased [Husband's] attorney's fees," the court ordered each party to pay his or her own attorney fees and costs. On November 25, 2008, Wife moved for a new trial. After considering Wife's motion, Husband's response and Wife's reply, the family court denied Wife's request.
¶7 Wife timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101.B (2003).
¶8 Wife raises various issues on appeal: (1) whether the family court abused its discretion by denying Wife's request for attorney fees during the proceedings so she could obtain counsel and by denying her request for a continuance of the trial date; (2) whether the family court erred in awarding spousal maintenance that was only approximately one-third of the amountsuggested by the Arizona guidelines; (3) whether the amount of spousal maintenance was based on incorrect facts and therefore not supported by the record; (4) whether the family court erred in holding Wife in contempt for exercising a civil standby on September 5, 2008; and (5) whether the trial court erred in permitting Wife's former attorney's paralegal to testify at trial on behalf of Husband.
¶9 A family court has broad discretion in determining whether to grant or deny a motion for a new trial and its decision will not be disturbed absent an abuse of that discretion. Pullen v. Pullen, 223 Ariz. 293, _, 1 10, 222 P.3d 909, 912 (App. 2009). A family court abuses its discretion if, in reaching its determination, it misapplies the law. Fuentes v. Fuentes, 209 Ariz. 51, 56, 1 23, 97 P.3d 876, 881 (App. 2004). The burden is on the party seeking to overturn the family court's decision to show the court abused its discretion. Pullen, 223 Ariz. at _____, 1 10, 222 P.3d at 912.
¶10 Wife contends the family court erred by not granting her money pursuant to A.R.S. § 25-324 (Supp. 2009)3 for attorney fees so she could retain an attorney for trial. Wife also arguesthat the family court erred by denying her motion to continue the matter to allow Wife to obtain community funds to retain counsel.
¶11 On appeal, we review a family court's decision whether to award attorney fees for an abuse of discretion. In re Marriage of Williams, 219 Ariz. 546, 548, 1 8, 200 P.3d 1043, 1045 (App. 2008).
¶12 At the trial, J.T., a friend of Wife's, testified that he loaned Wife $14,000 specifically for attorney fees and bail. J.T. also testified that he gave Wife a second check in the amount of $26,000 to deposit into her account "to show that she had funds so that she could actually get an apartment." J.T. testified that in total, he had loaned Wife $40,000 and none of the money had been repaid. On cross examination, Wife did not contest that J.T. had loaned her $40,000. Instead, Wife questioned J.T. about why the promissory note was for $19,000 and he had only given her $14,000. Wife never explained why these funds were not used to retain an attorney.
¶13 In a letter to Wife dated May 20, 2008, Husband offered to loan her $15,000 from his company 401(k) plan to help pay her attorney fees. This loan was conditioned on stipulations regarding the use of the proceeds from the sale of the horse trailer to pay certain debts. Because Wife did not agree to theterms of the loan from Husband, no money was borrowed from Husband's 401(k).
¶14 On June 4, 2008, Wife filed an emergency motion requesting Husband be required to provide immediate funding for an attorney for Wife. She requested funds to pay for an attorney because "Wife's previous legal counsel withdrew representation due to Wife's inability to pay." In a letter to the court dated June 4, 2008, Husband requested approval to transport the horse trailer to a dealer in California for sale, alleging Wife was not cooperating. In a June 4, 2008 minute entry, the family court ordered Husband to take the horse trailer to California to sell it to "make monies available to both parties for attorney's fees." Because the court ordered the trailer sold, it denied Wife's motion. After an emergency request by Husband to approve the sale because Wife allegedly would not sign the paperwork, the court signed an order on August 12, 2008 permitting the sale of the horse trailer for $30,000 with the proceeds to be distributed equally between Husband and Wife. At trial, Wife presented no evidence as to how much of the money she had received or when she received the money and did not dispute that she delayed the sale of the horse trailer.
¶15 Husband also testified that Wife withdrew all the money in the parties' joint checking accounts, except $1.96, after Husband filed the petition for dissolution. Wife did not disputeshe took monies from the joint accounts nor did she explain why these funds were unavailable for her use to retain an attorney.
¶16 Based on these circumstances, we determine the family court did not abuse its discretion in denying Wife's request to provide fees for her to retain counsel at trial.
¶17 Wife contends that the family court erred when it denied her motion to continue trial to allow her additional time to retain counsel. A trial court has broad discretion in determining whether to grant a motion to continue, and we will not disturb its decision absent an abuse of discretion. Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 431, 438, 868 P.2d 1014, 1021 (App. 1993), vacated on other grounds, 180 Ariz. 148, 882 P.2d 1274 (1994). The Arizona Rules of Family Law Procedure state that "[w]hen an action has been set for trial, hearing or conference on a specified date by order of the court, no continuance of the trial, hearing or conference shall be granted except upon written motion setting forth sufficient grounds and good cause." Ariz. R. Fam. Law P. 77.C.1.
¶18 The family court set the matter for trial on June 25, 2008. On May 6, 2008, the court permitted Wife's counsel to withdraw and ordered that the trial be continued until September 9, 2008 "[t]o enable [Wife] to obtain new counsel." On August 22, 2008, Wife filed an expedited motion to continue trial for"no less than" 120 days because she had not "received all of the funds" from the sale of the horse trailer and was still unrepresented by counsel. Wife indicated that...
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