                           NOTICE: NOT FOR PUBLICATION.
 UNDER   ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                    AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
                ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                               In re the Matter of:

                 JOHNNIE F. TEAMER, Petitioner/Appellant,

                                        v.

                    PAUL DANIELLS, Respondent/Appellee.

                             No. 1 CA-CV 13-0226
                              FILED 2-27-2014


            Appeal from the Superior Court in Maricopa County
                           No. FC2011-090644
                The Honorable Benjamin R. Norris, Judge

                                  VACATED


                                   COUNSEL

Jones Skelton & Hochuli, PLC, Phoenix
By Eileen Dennis GilBride
Counsel for Petitioner/Appellant

The Murray Law Offices PC, Phoenix
By Stanley D. Murray
Counsel for Respondent/Appellee
                         TEAMER v. DANIELLS
                          Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1            Johnnie F. Teamer (“Mother”) appeals from a $10,000 award
of attorneys’ fees to Paul Daniells (“Father”). We hold that the evidence
does not support the trial court’s finding that Mother acted unreasonably
and vacate the fee award. Further, we remand for the trial court to
consider whether Mother should be awarded her reasonable attorneys’
fees.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            The parties were married in 1996 and have one child, born in
1997. The parties have lived in Arizona since 2005. Since March 2010,
Father lived primarily in Pennsylvania for work and came home to
Arizona every two to three weeks. Prior to the filing of this dissolution
action, the family planned to move to Pennsylvania and had enrolled the
child in school there. Shortly before the move, the parties separated.
Father continued living in Pennsylvania and visited the child in Arizona.

¶3            Mother filed a dissolution petition in July 2011. Initially,
both parties wanted the child to live with them. The parties eventually
agreed to joint legal custody, but were unable to agree to a parenting time
schedule. At the hearing to determine temporary parenting time, Father
agreed the child should remain in Arizona until she finished high school,
but the parties were otherwise unable to reach any agreement regarding
parenting time. The trial court ordered equal parenting time, consisting of
alternating weeks between the parents in Arizona. Ultimately, the parties
agreed to make this parenting time order permanent.

¶4             The court held a trial on the remaining property and spousal
maintenance issues. Despite finding that Father had considerably more
financial resources than Mother, the trial court concluded that Father was
entitled to a $10,000 attorneys’ fee award based on Mother’s unreasonable
conduct.




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                           TEAMER v. DANIELLS
                            Decision of the Court

¶5            Mother filed a timely notice of appeal from the attorneys’ fee
award. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1) (Supp. 2013).

                               DISCUSSION

¶6            A trial court may award reasonable attorneys’ fees to a party
“after considering the financial resources of both parties and the
reasonableness of the positions each party has taken throughout the
proceedings[.]” A.R.S § 25-324(A) (Supp. 2013). We will not disturb an
award of attorneys’ fees absent an abuse of discretion. MacMillan v.
Schwartz, 226 Ariz. 584, 592, ¶ 36, 250 P.3d 1213, 1221 (App. 2011). “[An]
appellate court may find an abuse of discretion if the record fails to
provide substantial evidence to support the trial court’s finding.” Grant v.
Ariz. Public Service Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982); see also
Marina P. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 326, 330, ¶ 25, 152 P.3d 1209,
1213 (App. 2007) (holding that findings not adequately supported by the
record are clearly erroneous).

¶7             The court concluded that Mother acted unreasonably by (1)
taking community funds without regard to the effect on Father; (2)
seeking “sole custody of the child when there was clearly no basis for
making such a request”; and (3) “seeking to unreasonably limit Father’s
parenting time.”1      The trial court noted Father’s greater financial
resources, but concluded Mother’s conduct justified an award of
attorneys’ fees to Father. Mother contends the evidence does not support
the court’s finding that she acted unreasonably.

I.            Use of Community Funds

¶8             Mother withdrew $8,000 in community funds from a joint
business account two days before she filed the petition for dissolution.
Father testified that a portion of that money was set aside to pay business
taxes. Mother testified that she withdrew these funds from the joint
account because she didn’t know what would happen after she filed for


1      Father contends Mother acted unreasonably in a recent
modification proceeding. However, we do not consider evidence that was
not presented to the trial court when it considered its ruling. See Brookover
v. Roberts Enters., Inc., 215 Ariz. 52, 57 n.1, ¶ 16, 156 P.3d 1157, 1162 n.1
(App. 2007). Accordingly, we will not consider Mother’s conduct after the
ruling on appeal.



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                         TEAMER v. DANIELLS
                          Decision of the Court

divorce. Mother stated that she only spent the funds on living expenses
before the temporary support orders took effect.

¶9            The reasonableness of a party’s position is evaluated using
an objective standard; not by considering the party’s subjective intent. In
re Marriage of Williams, 219 Ariz. 546, 548, ¶ 10, 200 P.3d 1043, 1045 (App.
2008). At the time she withdrew the funds, Mother had no other money or
income. Although Father argues that Mother did not need these funds
because he paid her bills, the record does not establish whether Father
paid anything other than Mother’s rent in the three-and-a-half months
before the temporary support orders were entered. 2

¶10            These funds were in a joint account. Pursuant to A.R.S.
section 25-214(C) (2007), Mother had an equal right to manage, control, or
dispose of community property before service of the petition for
dissolution. It was not objectively unreasonable for Mother to withdraw
funds from a joint account to use for living expenses when facing an
uncertain financial future. Although Mother did not consult Father before
making this withdrawal, there was no evidence the community incurred
any penalties or fees for unpaid taxes or other bills as a result of this
withdrawal.3 Additionally, Mother was ordered to reimburse Father one-
half of these funds. See A.R.S. § 25-318(C) (Supp. 2013) (authorizing court
to consider a spouse’s “excessive or abnormal expenditures, destruction,
concealment or fraudulent disposition of community, joint tenancy and
other property held in common”). Therefore, the community was not
financially harmed by this withdrawal.

¶11            The evidence does not support the finding that Mother acted
unreasonably by withdrawing community funds immediately before
filing her petition.

II.          Mother’s Sole Custody Request



2      Father testified that he paid Mother $74,000 since “the start of this
action[,]” but did not specify how much, if any, was paid prior to the
entry of support orders. Father testified that he paid an occasional $50
insurance co-pay “even though [he was] giving [Mother] $1,000 a month.”
Father also paid $10,000 for Mother’s moving expenses.

3      There was no evidence that any bills other than the retainer check
to Father’s attorney were affected by this withdrawal.



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                         TEAMER v. DANIELLS
                          Decision of the Court

¶12            Initially, Mother sought sole legal custody and both parties
requested primary physical custody of the child.4 Father sought to have
the child live with him in Pennsylvania and enroll in school as the parties
had anticipated prior to the divorce. Mother opposed the child living in
Pennsylvania, and sought a temporary award of primary physical custody
with Father having reasonable parenting time. Just before the temporary
orders hearing, Father changed his position and asked to have the child
live with him in Pennsylvania after she finished the current school year in
Arizona. Because Father had arranged to work in Arizona part-time, he
sought equal parenting time in Arizona. At the temporary orders hearing,
the parties agreed to joint legal custody on a temporary basis, but did not
reach an agreement regarding parenting time.

¶13           At a second hearing on temporary parenting time orders,
Father again changed his position and now agreed that the child should
remain in Arizona until she graduated. Father still sought equal parenting
in Arizona. Mother requested that Father have parenting time Thursday
through Sunday every other week. The temporary order awarded the
parties equal parenting time in Arizona on an alternating week schedule.
In a subsequent mediation, the parties agreed to make this temporary
order permanent.

¶14           The trial court found Mother unreasonably “asked for sole
custody when there was clearly no basis for making such a request[.]”
In regard to Mother seeking sole legal custody, we note that by the time of
the first temporary orders hearing, the parties had agreed to joint legal
custody. Although Mother never explained the basis for her initial
request for sole legal custody, the parties reached an agreement regarding
legal custody early in the proceedings. We see nothing unreasonable in
this conduct. Compare, e.g., Mangan v. Mangan, 227 Ariz. 346, 352-53, 258
P.3d 164, 170-71 (App. 2011) (affirming award of fees against parent who
withheld children from the other parent, breached agreements, and
obtained a baseless order of protection).

¶15           In regard to Mother’s request for primary physical custody,
or parenting time, Mother never sought to deny Father physical custody
of the child. Although Mother did not agree to the equal parenting time

4     To clarify, we use the term “parenting time” to refer to physical
custody. See A.R.S. § 25-402(4) (2007) (defining parenting time as the
physical placement of the child). Pursuant to A.R.S. § 25-402(5), “sole
custody” refers to one parent having “legal custody.”



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                         TEAMER v. DANIELLS
                          Decision of the Court

Father proposed, Mother’s proposal of four days every other week was
not objectively unreasonable.       The record indicated that this was
somewhat consistent with the amount of time Father had been spending
with the child since the parties’ separation when Father was commuting
long distances. The parties’ positions were not significantly far apart. The
trial court even commended the parties on their ability to work together to
resolve some issues and not fight over everything.

¶16         We conclude the evidence does not support the finding that
Mother took unreasonable positions regarding custody.

III.         Limitation of Father’s Parenting Time

¶17           The trial court found that Mother sought to unreasonably
limit Father’s parenting time, but did not specify how. Father contends
there were several instances where Mother sought to unreasonably limit
Father’s parenting time. Mother disputes some of these instances, but we
“defer to the trial court’s determination of witnesses’ credibility and the
weight to give conflicting evidence.” See Gutierrez v. Gutierrez, 193 Ariz.
343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998).

¶18            Father testified that one weekend his parenting time was
limited because he was told the child had a birthday party to attend, when
in fact the child had actually gone shopping with a friend. Father also
testified that another weekend, Mother told him he could not see the child
due to some critical appointment, but Mother refused to tell him what that
appointment was. Mother points out that this conduct violated no
parenting time orders; however, at that time, there were no such orders in
effect.

¶19           Father sought court intervention when Mother refused to
consent to Father taking the child to England if he was also taking his
significant other. Father filed a motion to permit the travel, and the court
conducted a brief emergency hearing. Mother contends that her objection
was reasonable and very little court time was spent on this issue. The trial
court did not enter an order precluding contact between the child and
either party’s significant other, but strongly advised against such contact,
especially overnight.

¶20          Finally, Father testified that Mother served the petition for
dissolution and preliminary injunction just days before he and the child
were scheduled to return to Pennsylvania as planned. Father contends
this prevented the child from starting school in Pennsylvania and
thwarted the family plan to move. Mother disputed that the family still


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                          TEAMER v. DANIELLS
                           Decision of the Court

planned to move once the parties decided to separate and, therefore, the
timing of her filing was not unreasonable.

¶21           On appeal, we “view the evidence in the light most
favorable to support the decision.” Mitchell v. Mitchell, 152 Ariz. 317, 323,
732 P.2d 208, 214 (1987). Thus, we accept that Mother engaged in these
behaviors.     Nonetheless, we cannot conclude this conduct was
unreasonable or that it supports a $10,000 attorneys’ fee judgment.

¶22          The trial court’s ruling regarding Father’s request to travel,
cautioned against the very contact Father sought. Although not the
outright ban Mother sought, this does not support a finding that Mother’s
objections were unreasonable. The timing of Mother’s petition for
dissolution, which sought to keep the child in Arizona, was not
unreasonable in light of the parties’ long distance living arrangements at
the time. This leaves the two weekend incidents in support of the $10,000
fee award. Although we do not condone Mother’s conduct, these two
events are not unusual in family law litigation and do not justify a $10,000
attorneys’ fee award to Father, the party with far greater financial
resources. The award of attorneys’ fees is not supported by the evidence
of Mother’s minimally unreasonable conduct.

¶23           We conclude that the evidence does not support the trial
court’s finding that Mother’s conduct was unreasonable. See Marina P.,
214 Ariz. at 330, ¶ 25, 152 P.3d at 1213. Therefore, the trial court abused its
discretion in awarding attorneys’ fees to Father. See Grant, 133 Ariz. at
456, 652 P.2d at 529. Accordingly, we vacate the fee award.

                    ATTORNEYS’ FEES ON APPEAL

¶24           Both parties seek an award of attorneys’ fees on appeal
pursuant to A.R.S. § 25-324. Neither party took unreasonable positions on
appeal. However, the most recent child support order from April 2013
shows that although Father’s income has decreased, he still earns
significantly more than Mother. Accordingly, we award Mother her
reasonable attorneys’ fees on appeal upon compliance with ARCAP 21.

                              CONCLUSION

¶25           We conclude that the trial court abused its discretion in
awarding attorneys’ fees to Father and vacate the fee award. As a result,
we remand the matter to the trial court with directions to consider
whether Mother should be awarded her reasonable attorneys’ fees given
the financial disparity of the parties. Additionally, we award Mother her


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                        TEAMER v. DANIELLS
                         Decision of the Court

reasonable attorneys’ fees on appeal in an amount to be determined upon
compliance with ARCAP 21.




                                :mjt




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