Kostadinova v. Stephens
| Decision Date | 15 March 2018 |
| Docket Number | No. 1 CA-CV 17-0099 FC,1 CA-CV 17-0099 FC |
| Parties | In re the Matter Of: SLAVA KOSTADINOVA, Petitioner, v. BRYAN M. STEPHENS, Respondent/Appellee. KRISTIN ROEBUCK-BETHELL, Appellant. |
| Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Stephen M. Hopkins, Judge
AFFIRMED
Horne Slaton, PLLC, Scottsdale
By Sandra L. Slaton
Counsel for Appellant
Ryan Rapp & Underwood, P.L.C., Phoenix
By Terrie S. Rendler
Counsel for Respondent/Appellee
Judge Paul J. McMurdie delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell joined.
¶1 Attorney Kristin Roebuck-Bethell ("Counsel") appeals the superior court's award of attorney's fees and costs to Bryan M. Stephens ("Father") as a sanction for having unreasonably defended against Father's request to have his address protected from disclosure. For the following reasons, we affirm.
¶2 Several months after Slava Kostadinova ("Mother") filed her petition for paternity in March 2013, the parties reached a temporary agreement under Arizona Rule of Family Law Procedure 69. The parties agreed, inter alia, to joint legal decision-making, initial parenting time, and to exchange their infant child at a police station. No residential addresses were revealed in the agreement, although Father agreed to "exercise his parenting time primarily at his residence." The parties agreed to communicate exclusively by email, except for texting each other's cell phones in case of an emergency.
¶3 After the temporary agreement was entered, Mother accused Father of sexual misconduct in Texas involving his ex-wife and step-daughter. Mother alleged the incident was investigated by the Texas Department of Family and Protective Services ("DFPS"). A search of DFPS's records revealed no evidence that Father had been investigated, charged, or arrested for any such abuse in Texas. Father's ex-wife submitted a letter, and later an affidavit, stating that Father had never abused her or her daughter. Mother then alleged Father had been arrested in Sweden for touching an under-aged girl. However, no evidence supporting the allegation was found through a record-search by Swedish authorities. Mother hired a private investigator, who reported no criminal records for Father other than speeding tickets. In a Comprehensive Family Assessment report filed with the court in July 2015, Dr. Korsten determined Mother'sallegations were unfounded.1 Mother did not provide any evidence supporting her allegations, and would not change her position when presented with substantial evidence refuting them.
¶4 In the spring of 2014, Father relocated his residence. Father did not disclose his new address to Mother allegedly for safety concerns for his new family. After protracted mediation, the parties reached a global Rule 69 settlement agreement in 2015, which provided: "Each parent shall notify the other of a changed address and/or phone number, within ten (10) days of such change." On March 4, 2016, the court appointed parenting coordinator, Dr. Weinstock, recommended "both parents share information as to where [their child] will be staying overnight during each parent's standard parenting time."
¶5 On May 26, 2016, Counsel sent an email to Father's counsel, in which she requested Father provide his new address to Mother. The next day, Father's counsel filed a motion arguing that the disclosure of Father's home address should abide resolution in an upcoming trial. On June 20, 2016, the superior court ordered Father to disclose his address or file a request for protected address under Arizona Rule of Family Law Procedure 7. On June 21, 2016, the court granted Father's Motion for Partial Summary Judgment, finding the parties' settlement agreement valid and binding as of December 28, 2015 ("2015 Settlement Agreement"). The court ordered that Mother could file an objection to Father's request for an award of attorney's fees and costs based on the unreasonableness of Mother's position by July 15, 2016.2 On July 6, 2016, Father filed for a protectedaddress under Rule 7, stating he feared Mother would reveal his address to his former business associates, who would harm him or his new family. In Mother's response to the motion ("Response"), filed on July 25, 2016, Counsel argued Mother was entitled to know Father's address and would keep Father's address confidential. Mother did not dispute that Father's business associates would potentially harm Father or his family if his address was disclosed to them. Counsel stated, "Mother has done nothing vindictive in this case." (Emphasis added.) On August 5, 2016, the court found "Mother acted unreasonably in the litigation from December 28, 2015," because she "continued to try to impose additional terms after a binding contract was reached between the parties," and awarded Father his reasonable attorney's fees and costs. On August 10, 2016, the superior court granted Father's request for a protected address and suggested Father file a memorandum on sanctioning Counsel for the Response pursuant to Arizona Rule of Family Law Procedure 31 ("August Order"). After the parties briefed the issue, the court sanctioned Counsel and found her positions "objectively unreasonable" on September 28, 2016 ("September Order").
¶6 Counsel moved for a new trial, which the court denied. The court then entered a judgment for attorney's fees and costs against Counsel in the total amount of $5737. Counsel timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and -2101(A)(1).
¶7 Counsel argues the superior court erred by (1) failing to make specific findings regarding elements necessary to sanction Counsel pursuant to Arizona Rule of Family Law Procedure 31 ("Rule 31"); (2) sanctioning Counsel without holding a requested evidentiary hearing; and (3) awarding sanctions unrelated to Counsel's Response.
¶8 We review the superior court's rulings on a motion for sanctions for abuse of discretion, Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377, 410, ¶ 113 (App. 2012), and "[t]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason," Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013) (alteration in original) (quotation omitted). We are bound by the superior court's findings of fact, "unless they are clearly erroneous or unsupported by any credible evidence." Lund v. Donahoe, 227 Ariz. 572, 578-79, ¶ 19 (App. 2011).
¶9 Because Rule 31 is substantially similar to Arizona Rule of Civil Procedure 11 ("Rule 11"), the legal precedents interpreting Rule 11 apply to our analysis under Rule 31. See In re Marriage of Dougall, 234 Ariz. 2, 6, ¶ 9, n.5 (App. 2013) ("Wherever the language in [the Arizona Rules of Family Law Procedure] is substantially the same as the language in other statewide rules, the case law interpreting that language will apply to these rules.") (alteration in original) (quoting Ariz. R. Fam. Law P. 1 cmt.); see also Ariz. R. Fam. Law P. 31 cmt. (Rule 31 is "based on Rule 11, Arizona Rules of Civil Procedure").
¶10 The purpose of Rule 11, and by extension Rule 31, is "to discourage wasteful, costly litigation battles by mandatory sanctions where the position of the lawyer will not support a sound basis in law or fact justifying the position asserted." Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489, 497 (App. 1990) (emphasis added).3 When imposing sanctions, a superior court applies an objective reasonableness standard, Cal X-Tra, 229 Ariz. at 410, ¶ 113, of "what a professional, competent attorney would do in similar circumstances," Linder v. Brown & Herrick, 189 Ariz. 398, 407 (App. 1997).
¶11 Counsel argues the superior court abused its discretion by failing to make specific findings regarding elements necessary to sanction Counsel under Rule 31.
¶12 Regarding factual contentions, Rule 31 requires a document certified by counsel be "well grounded in fact," while Rule 11 requires it to have "evidentiary support." See Ariz. R. Fam. Law P. 31(A); Ariz. R. Civ. P.11(b)(3). Although we recognize these two propositions may have different meanings in some situations, we find the requirements substantially similar for the purposes of our decision and will apply legal precedent interpreting either rule. See In re Marriage of Dougall, 234 Ariz. at 6, ¶ 9, n.5. Both rules equally authorize the court to sanction counsel for certifying a document interposed "for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Ariz. R. Fam. Law P. 31(A); Ariz. R. Civ. P. 11(b)(1).
¶13 "The trial court must make specific findings to justify its conclusion that a party's claims or defenses are frivolous." Smith, 166 Ariz. at 497 (quoting State v. Richey, 160 Ariz. 564, 565 (1989)). The reasonableness of a factual inquiry depends on the totality of the circumstances, which may change as the case progresses. See Boone v. Superior Court, 145 Ariz. 235, 241 (1985); Wright v. Hills, 161 Ariz. 583, 590 (App. 1989) (), overruled on other grounds as recognized by James, Cooke & Hobson, Inc., 177 Ariz. 316.
¶14 The superior court provided several reasons for imposing Rule 31 sanctions for Counsel's Response. First, the court explained Counsel...
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