                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                              In re the Marriage of:

            JEANEEN MCGEE fka MORRIS, Petitioner/Appellee,

                                         v.

             JAMES BERTRAM MORRIS, Respondent/Appellant.

                            No. 1 CA-CV 15-0843 FC
                                FILED 3-14-2017


            Appeal from the Superior Court in Maricopa County
                           No. FN2007-051749
              The Honorable Jennifer C. Ryan-Touhill, Judge

                             APPEAL DISMISSED


                                    COUNSEL

Jennings, Haug & Cunningham, L.L.P., Phoenix
By John R. Cunningham, Edward Rubacha
Counsel for Petitioner/Appellee

Rose Law Group PC, Scottsdale
By Kaine R. Fisher
Counsel for Respondent/Appellant
                           MCGEE v. MORRIS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1           James Bertram Morris (“Husband”) appeals from a post-
decree order awarding attorneys’ fees to Jeaneen McGee, formerly known
as Morris (“Wife”). For the reasons stated below, we dismiss Husband’s
appeal.

                FACTS AND PROCEDURAL HISTORY

¶2            Pursuant to the parties’ 2009 consent decree of dissolution
and property settlement agreement (“PSA”), Husband was to pay Wife
$2,500 per month in spousal maintenance. The PSA also included a
provision regarding the “Cadence Lawsuit,” which stated the community
may have a related legal malpractice claim against the “Cadence” attorneys
and that the parties would share equally the net recovery of the “Cadence”
and “related lawsuits.” Ultimately, the parties settled the legal malpractice
claim arising out of the “Cadence Lawsuit.”

¶3             Shortly after the decree was entered, Wife filed two separate
petitions for contempt, alleging that Husband failed to pay spousal
maintenance and attorneys’ fees. In both proceedings, the court ordered
Husband to provide specific financial documents and pay Wife’s attorneys’
fees and spousal maintenance pursuant to the decree and PSA. Husband
failed to appear and was found in contempt after the second hearing, and a
civil arrest warrant was issued. Wife filed a third petition for contempt and
enforcement, arguing Husband still had not complied with prior court
orders.      After much litigation, including Husband’s unsuccessful
interpleader action in Nevada federal district court, the trial court
scheduled a status conference. Husband filed for bankruptcy in California




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                           Decision of the Court

shortly before the status conference, however, so all family court
proceedings were stayed.1

¶4             On the day the bankruptcy stay was lifted, Husband filed a
petition to modify his spousal maintenance obligation. Wife responded
that Husband had not yet purged the earlier contempt order and, therefore,
the family court should not hear his petition to modify. Among other
pleadings, Wife also filed a petition for order to show cause regarding the
disbursement of the malpractice settlement funds pursuant to the PSA. The
court addressed both matters at a single show cause hearing and set both
issues for trial on the same date. Before trial commenced, the parties filed
cross motions for summary judgment regarding distribution of the
malpractice settlement funds.

¶5              We do not have the transcript from the September 21, 2015
trial, but the record indicates that Husband was not represented at that time
and did not appear.2 The court took the matters under advisement and
ordered Wife’s counsel to submit an attorneys’ fees affidavit and proposed
form of order.

¶6            In her post-hearing submissions, Wife sought to recover the
attorneys’ fees she incurred responding to Husband’s petition to modify
spousal maintenance as well as other post-decree litigation pending before
the family court, including “the closely related and substantially
intertwined bankruptcy action . . . .” Husband did not file any written
objection or response. The court denied Husband’s petition to modify
spousal maintenance and awarded Wife all the attorneys’ fees she
requested, totaling $97,727.50, plus $915.56 in costs.




1     Before the stay, Husband was also ordered to provide financial
discovery or face monetary or procedural sanctions.

2     The October 8, 2015 minute entry states the court held a trial on
Husband’s petition to modify. The court’s orders and ultimate signed
judgment do not reflect that the court addressed Wife’s petition or the cross
motions for summary judgment regarding the malpractice settlement. The
record available to us does not indicate the family court has ruled on these
matters. We express no opinion as to the merits of these issues.



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                            Decision of the Court

¶7          Husband filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1)
(2016).3

                                  ANALYSIS

¶8             Husband argues the trial court erred by awarding Wife
attorneys’ fees related to the bankruptcy proceedings and the malpractice
settlement disbursement proceedings that are still pending. The court
awarded Wife fees pursuant to A.R.S. § 25-324 (Supp. 2016). Interpretation
of this statute is a question of law we review de novo, but the amount of fees
awarded is a discretionary ruling subject to an abuse of discretion standard
of review on appeal. See Thompson v. Corry, 231 Ariz. 161, 163, ¶ 4, 291 P.3d
358, 360 (App. 2012).

       I.     Dismissal of the Appeal as a Result of Husband’s Unclean Hands

¶9             As a preliminary matter, Wife asks this court to dismiss the
appeal in light of Husband’s unclean hands and continued contempt of the
family court’s orders. In support of her position, Wife relies on Stewart v.
Stewart, 91 Ariz. 356, 372 P.2d 697 (1962), in which the Arizona Supreme
Court conditionally dismissed an appeal from a default decree of
dissolution and order that the husband pay the wife’s attorneys’ fees. In
Stewart, the trial court found the husband in contempt of court for failing to
pay interim spousal support and attorneys’ fees and issued an arrest
warrant. Id. at 357, 372 P.2d at 698. When the husband failed to appear at
trial, the court entered a default decree and awarded attorneys’ fees to the
wife. Id. at 357-58, 372 P.2d at 698. The husband did not comply with any
trial court orders, but appealed the denial of a jury trial. Id. at 358, 372 P.2d
at 698-99.

¶10           On appeal, the supreme court recognized that appellate
courts have discretion to dismiss an appeal depending on the facts of each
case and concluded that dismissal was appropriate based on the husband’s
“flagrant and contumacious disregard” of trial court orders. Id. at 357-58,
372 P.2d at 698-99. Stewart concluded, “‘[t]he husband cannot, with any
propriety, ask this court to hear his claims and thereafter render him
assistance, while he stands in an attitude of complete contempt to any and
all legal orders and processes of the courts of this state, which he seeks to
avoid through the intervention of an appeal to this tribunal.’” Id. at 360, 372


3      Absent material revision after the relevant date, we cite the current
version of statutes.


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                             Decision of the Court

P.2d at 700 (quoting Rude v. Rude, 314 P.2d 226, 230 (Cal. Dist. Ct. App.
1957)). The court held the discretionary decision to dismiss an appeal was
not a denial of due process, but “a ‘reasonable’ method of ‘. . . sustaining
effectiveness of a state’s judicial process . . . .’” Stewart, 91 Ariz. at 358, 372
P.2d at 699 (quoting Nat’l Union of Marine Cooks & Stewards v. Arnold, 348
U.S. 37, 45 (1954) (omissions in original)). Dismissal is an appropriate
exercise of the “court’s inherent power to ignore the demands of litigants
who persist in defying the legal orders and processes . . . .” 17 Am. Jur. 2d
Contempt § 197 (2017); see also 4 C.J.S. Appeal and Error § 268 (2017) (same).

¶11           We have held that dismissing an appeal for an appellant’s
contumacious conduct is a discretionary decision “similar in nature to a
decision in equity.” In re Marriage of Margain & Ruiz-Bours, 239 Ariz. 369,
373, ¶ 18, 372 P.3d 313, 317 (App. 2016). In Margain, the mother sought to
dismiss the father’s appeal in a custody dispute, arguing the father was in
contempt for failing to return the child following his parenting time in
Mexico. Id. at 372, ¶ 14, 372 P.3d at 316. This court recognized that it had
discretion to dismiss an appeal based on an appellant’s unclean hands as
an exercise of its contempt powers, but in that case, declined to dismiss the
father’s appeal because the mother had previously absconded with the
child from Mexico to Arizona. Id. at 373-74, ¶¶ 17, 19-20, 372 P.3d at 317-
18. Applying the “‘cardinal rule of equity that he who comes into a court
of equity seeking equitable relief must come with clean hands[,]’” the court
denied the mother’s motion to dismiss the appeal. Id. (quoting MacRae v.
MacRae, 57 Ariz. 157, 161, 112 P.2d 213, 215 (1941)).

¶12            Other jurisdictions also recognize this principle and have
dismissed appeals by parties who have defied trial court orders. See, e.g.,
In re Marriage of Hofer, 145 Cal. Rptr. 3d 697, 700-01 (Cal. Ct. App. 2012)
(holding the appellate court may stay or dismiss the appeal of a party who
has refused to obey lower court orders under the “disentitlement
doctrine”); Schmidt v. Schmidt, 610 A.2d 1374, 1376-77 (Del. 1992)
(dismissing an appeal where the appellant was in contempt for refusing to
deposit the full amount of funds ordered into an escrow account); Slowinski
v. Sweeney, 117 So. 3d 73, 77-79 (Fla. Dist. Ct. App. 2013) (holding a party
could not intervene in a paternity action where that party defied an order
to relinquish custody of the child); Prevenas v. Prevenas, 227 N.W.2d 29, 29-
30 (Neb. 1975) (conditionally dismissing an appeal due to the appellant’s
failure to make child support payments); Scelba v. Scelba, 535 S.E.2d 668, 671
(S.C. Ct. App. 2000) (applying a similar “fugitive disentitlement doctrine”
as an exercise of inherent contempt power to dismiss the appeal of a fugitive
appellant where the fugitive status was connected to the appellate process
being sought); Hentsch Henchoz & Cie v. Gubbay, 97 P.3d 1283, 1287, ¶¶ 16-


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                           Decision of the Court

17 (Utah 2004) (holding an appellate court may dismiss an appeal where
the appellant has “willfully disobeyed” a lower court order in the same
action even without a formal finding of contempt); R.D. Hursh, Annotation,
Dismissal of Appeals for Appellant’s Failure to Obey Court Order, 49 A.L.R.2d
1425, § 2[b] (2017) (citing additional cases).

¶13           Husband argues Stewart does not permit dismissal where the
appellant could not in good faith reasonably comply with the order or when
compliance would substantially prejudice the appellant’s rights. In Stewart,
there was no question as to the husband’s ability to comply with the court
order; therefore, the court expressly declined to address whether dismissal
would be proper in such circumstances. Stewart, 91 Ariz. at 360, 372 P.2d at
700. Husband claims he is unable to comply with the nearly $100,000
judgment. However, the relevant inquiry is Husband’s ability to comply
with the contempt order; his ability to comply with the attorneys’ fee
judgment is immaterial. It is Husband’s purposeful and contumacious
conduct that compels the denial of appellate relief here.

¶14           Husband was found in contempt for failing to pay spousal
maintenance and attorneys’ fees, and failing to guarantee his support
obligation with an appropriate life insurance policy. He was also ordered
to provide financial discovery. On appeal, Husband does not claim he has
satisfied any of these orders and has not offered any evidence that he
purged the contempt finding or that the outstanding arrest warrant has
been quashed. The family court’s finding that there was no change in
Husband’s financial circumstances warranting a reduction of spousal
maintenance and the bankruptcy court’s rulings regarding Husband’s
assets suggest Husband could reasonably comply with his support
obligations and other pending court orders.

¶15           Husband has not come to this court with clean hands.
Husband has disregarded his court-ordered support obligations and prior
orders to pay Wife’s attorneys’ fees, has ignored the contempt order, and
has evaded the arrest warrant. Instead of complying, Husband later
petitioned to reduce his support obligation, failed to appear at the hearing
on his petition, and now seeks this court’s assistance in reducing the
amount of attorneys’ fees awarded to Wife following those proceedings.
We find Husband’s contumacious conduct sufficiently connected to the
award of attorneys’ fees on appeal to warrant dismissal of this appeal. See
Smith v. Neely, 93 Ariz. 291, 293, 380 P.2d 148, 149 (1963) (holding the
doctrine of unclean hands requires that the unconscionable conduct relate
to the claim being barred).



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                           Decision of the Court

      II.    Attorneys’ Fees and Costs on Appeal

¶16            Both parties request an award of attorneys’ fees and costs on
appeal pursuant to A.R.S. § 25-324. We lack recent information regarding
the parties’ financial resources, but find that Husband’s appeal in the face
of his contumacious conduct was unreasonable. We exercise our discretion
to award Wife her reasonable attorneys’ fees on appeal and, as the
successful party on appeal, her costs. See A.R.S. § 12-342 (2016).

                             CONCLUSION

¶17           The appeal is dismissed. Wife is awarded her reasonable
attorneys’ fees and costs on appeal subject to compliance with Arizona Rule
of Civil Appellate Procedure 21.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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