Little v. Superior Court In and For County of Maricopa
| Citation | 180 Ariz. 328,884 P.2d 214 |
| Decision Date | 03 May 1994 |
| Docket Number | CA-SA,No. 1,1 |
| Parties | Billy Lee LITTLE, Jr., and Robert A. Hirschfeld, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Brian R. Hauser, a judge thereof, Respondent Judge, Lisa LITTLE, Real Party in Interest. 94-0045. |
| Court | Court of Appeals of Arizona |
In this special action, the Petitioners, Billy Little and his attorney Robert Hirschfeld, argue that the trial court abused its discretion when it found them in contempt of court for violating a preliminary injunction and when it ordered them to pay Lisa Little $9,350, as restitution. Contempt orders are not appealable but are reviewable in appropriate circumstances by special action. Riley v. Superior Court, 124 Ariz. 498, 499, 605 P.2d 900, 901 (App.1979). We accept jurisdiction because the issue presented has not been previously addressed, and because it is of general interest and importance.
Billy and Lisa Little sought a dissolution of their marriage. After the action was filed, the trial court issued a preliminary injunction, in accordance with Arizona Revised Statutes Annotated ("A.R.S.") section 25-315(A), enjoining both Billy and Lisa from "transferring, encumbering, concealing, selling or otherwise disposing of any of the joint, common or community property of the parties except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court." (Emphasis added.)
Billy Little acknowledged that he received and understood the injunction, but, on the advice of his attorney, Billy or someone acting on his behalf went to Glendale Community College, where Lisa Little attended school, took a 1993 Dodge van which Lisa had been driving, and left her with Billy's truck in its place. Lisa's attorney objected to Billy's selling the van. Nonetheless, Billy did sell it for about $5,000 less than its market value. He used the proceeds to pay his attorney's fees and to purchase a less expensive vehicle for himself. The court found Billy Little and Robert Hirschfeld in contempt of court for violating the preliminary injunction.
The Petitioners argue that the sale of the van did not violate the injunction because Billy used the proceeds for "necessities of life" which are exempted from the protection of the injunction. They assert that "legal services become a necessity of life for a respondent spouse who wishes to protect his or her rights afforded by law."
There are several reasons why the Petitioners' argument is not persuasive. We have recognized, in other contexts, that necessities of life include such things as food, clothing, shelter, medical care and transportation. State v. Morris, 173 Ariz. 14, 19, 839 P.2d 434, 439 (App.1992). They are necessities because they are commonly required by everyone for the basic sustenance of life. See Lentfoehr v. Lentfoehr, 134 Cal.App.2d Supp. 905, 286 P.2d 1019, 1021 (Cal.Super.1955). Attorney's fees are not normally thought of as being in the same elemental category.
Further, A.R.S. section 25-324 addresses the award of attorney's fees in domestic relations cases. It provides that the court may, from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount to the other party for attorney's fees for maintaining or defending any dissolution of marriage proceeding. The obvious purpose of the statute is to ensure that parties have the wherewithal to litigate the action. Garrett v. Garrett, 140 Ariz. 564, 569, 683 P.2d 1166, 1171 (App.1983). Another statute, A.R.S. section 25-315(E), provides that "[t]he court may also make temporary orders respecting the property of the parties, as may be necessary."
Certainly, the terms of A.R.S. sections 25-324 and 25-315(E), together with the power of the court under A.R.S. section 25-315(A)(1)(a) to alter the injunction entered at the outset of the dissolution action, are broad enough to allow the sale of community property to pay attorney's fees if the court deems it necessary to do so. Because the legislature provided a means for a party to seek leave to pay fees, it seems doubtful to us that it intended to include fees within the meaning of "necessities of life" which are not covered by the injunction. Billy's resort to self-help in the face of an adequate method of seeking the court's aid in hiring an attorney was a clear violation of the preliminary injunction.
We realize that in some jurisdictions, such as California 1 and Illinois, 2 parties to an action for dissolution may dispose of marital property for the purpose of paying attorney's fees. In both those states, however, the disposal of property to pay such fees is expressly excluded from the provisions of the restraining order which is entered at the commencement of a dissolution action. If the Arizona legislature had wanted to effect such a policy, it could easily have done so.
The Petitioners cite to a number of cases, arguing that legal services rendered to a wife are necessities for which a husband may be liable. Pelusio v. Pelusio, 130 N.J.Super. 538, 328 A.2d 10 (A.D.1974); Wolf v. Friedman, 20 Ohio St.2d 49, 253 N.E.2d 761 (1969); Citizens and Southern Nat'l Bank v. Orkin, 223 Ga. 385, 156 S.E.2d 86 (1967); Weiss v. Melnicove, 218 Md. 571, 147 A.2d 763 (1959); Read v. Read, 119 Colo. 278, 202 P.2d 953 (1949); Brook v. Morriss, Morriss & Boatwright, 212 S.W.2d 257 (Tex.Civ.App.1948); Stone v. Conkle, 31 Cal.App.2d 348, 88 P.2d 197 (1939); Elder v. Rosenwasser, 238 N.Y. 427, 144 N.E. 669 (1924); Conant v. Burnham, 133 Mass. 503 (1882); Morris v. Palmer, 39 N.H. 123 (1859). All of these cases, however, deal with the doctrine of necessities, i.e., the liability of a husband for debts incurred by a wife. None involves the ability of a spouse to dispose of community property and spend the money for legal services for himself despite an injunction forbidding the transfer of community property. The purpose of the doctrine of necessities is to ensure that spousal obligations are paid whereas the purpose of the injunction is to prevent the dissipation of community assets. The authorities cited fail to persuade us that the injunction does not extend to the sale of community assets to pay one's own attorney's fees.
The Petitioners also argue that some of the proceeds from the sale of the van were used to buy another car and that such is a necessity of life. While transportation is a necessity of life, Morris, 173 Ariz. at 19, 839 P.2d at 439, there is no...
To continue reading
Request your trial
-
Bd. of Overseers of Bar v. Libby, Docket No. Bar-19-3
...The only authority that the Board cites in support of this argument is from an intermediate appellate court in Arizona. Little v. Superior Court, 884 P.2d 214, 215-16 (Ariz. Ct. of Appeals, Div. One, Dept. C). The court does not find that case to be persuasive.10 Even in cases without minor......
-
Hirschfeld, Matter of
...for violating the terms of the preliminary injunction that is issued in every dissolution action. See Little v. Superior Court, 180 Ariz. 328, 331, 884 P.2d 214, 217 (App.1994). In yet another, he advised a client to sign a financial disclosure form attesting that no third party was holding......
-
Little v. Hauser
...Respondent Judge, Lisa LITTLE, Real Party in Interest. No. CV-94-0271-PR. Supreme Court of Arizona. Feb. 28, 1995. Prior report: 180 Ariz. 328, 884 P.2d 214. ORDER It appearing to the Court that the grant of review in this case was IT IS ORDERED that the order granting review is vacated. IT......