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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                  ELI FLECK,
                               Petitioner/Appellee,

                                        v.

                              BRITTNI ANTTI,
                             Respondent/Appellant.

                           No. 1 CA-CV 18-0408 FC
                                FILED 4-23-2019


           Appeal from the Superior Court in Maricopa County
                   No. FC2010-002034; FC2010-091969
                The Honorable Rodrick J. Coffey, Judge

                                  AFFIRMED


                               APPEARANCES

Brittni Antti, Mesa
Respondent/Appellant
                             FLECK v. ANTTI
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1            Brittni Antti ("Mother") appeals the superior court's award of
attorney's fees to Eli Fleck ("Father") after the court modified parenting time
with respect to the parties' child. For the following reasons, we affirm.1

             FACTS AND PROCEDURAL BACKGROUND

¶2            In February 2013, the superior court granted Father primary
physical custody of the child and Mother supervised visitation on alternate
weekends. It also ordered joint legal decision-making authority, with
Father having final decision-making authority.

¶3           In February 2017, Mother filed a petition to modify the
existing order, seeking "50/50 parenting time" and final decision-making
authority with respect to the child's medical and educational needs. In
Father's response, he offered to allow Mother "overnights on Saturdays"
and said he was open to "additional time for Mother" under certain
circumstances, but did not concede that Mother should have equal
parenting time.

¶4            In October 2017, the parties exchanged written settlement
proposals. Father offered a "5-2-2-5 parenting plan" that would divide
parenting time equally. He also proposed joint legal decision-making
authority with neither parent having final authority. Finally, Father
proposed that the child would remain in her current school and transition
to a middle school in a different school district. Mother rejected Father's
proposals. She proposed instead that parenting time be divided 60/40 in
her favor, that she be awarded final decision-making authority over "all
major decisions" concerning their daughter, and that the child attend a
middle school in her current school district. Mother also asked that Father's


1     Although Father did not file an answering brief, in our discretion,
we decline to consider his failure to do so as a confession of error. See
Cardoso v. Soldo, 230 Ariz. 614, 616, ¶ 4, n.1 (App. 2012).


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                           Decision of the Court

current wife be removed from the child's medical, dental and school
records, Mother be listed as the primary contact, and that Father's wife not
"be involved with child's daily activities, discipline, or any decisions
regarding minor child, without the prior written consent of Mother."
Mother further proposed that Father's wife "is to always, without exception,
be referred to as 'step mother.'"

¶5             In the absence of any agreement, Father moved to set a
hearing on Mother's petition but offered in the meantime to begin sharing
parenting time on a 50/50 basis. The court set an evidentiary hearing for
February 14, 2018. In his prehearing statement, Father asked the superior
court to award him "a reasonable portion" of his attorney's fees, asserting
Mother had been "extremely unreasonable throughout this entire
litigation." In particular, Father stated he had made "good faith efforts to
come to an agreement with Mother and implement an equal parenting time
schedule," but Mother had taken an unreasonable position by declining his
offer.

¶6            At the hearing, the court received exhibits reflecting the
parties' exchange of offers the prior October. After hearing the evidence,
the court issued a detailed order adopting a 50/50 parenting time schedule
and continued joint legal decision-making authority, giving Father final
authority. The court also addressed Mother's concerns regarding Father's
wife by ordering that both parties should ensure that the child does not
refer to any other person as "Mom/Mother" or "Dad/Father" and ordered
that each parent list the other parent as a primary contact person with
medical and education personnel.

¶7             Finally, the court granted Father's request for attorney's fees
under Arizona Revised Statutes ("A.R.S.") section 25-324 (2019).2 In
deciding to award fees, the court found that Father "has greater financial
resources, but Mother acted unreasonably" by refusing Father's offer of
50/50 parenting time during the October exchange, only to agree to equal
parenting time at the hearing. As the court pointed out, "had [Mother]
agreed to equal parenting time before the trial, Father would not have
incurred the attorneys' fees he incurred in going to trial." Father filed an
application seeking $10,475 in fees. Mother filed an objection, arguing she
initially had tried to mediate her requests in late 2016 and pointing out that
Father did not offer equal parenting time until his October 2017 settlement
proposal. She further contended that the proposal Father made then was

2      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                            Decision of the Court

contingent on her accepting other settlement terms. Ultimately, the court
awarded Father $4,000 in fees.

¶8            Mother filed two notices of appeal, the first after the superior
court's order on the merits, and a second after the court's award of
attorney's fees. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2019) and -2101(A)(2)
(2019).

                               DISCUSSION

¶9            Mother's brief addresses only the court's award of attorney's
fees. We review an award of attorney's fees for an abuse of discretion.
Murray v. Murray, 239 Ariz. 174, 179, ¶ 20 (App. 2016). Under § 25-324, a
court may award attorney's fees in modifying parenting time "after
considering the financial resources of both parties and the reasonableness
of the positions each party has taken throughout the proceedings."

¶10           In her petition to modify, Mother sought equal parenting
time. Nonetheless, she rejected equal parenting time when Father offered
it several months before the hearing, instead demanding that parenting
time be divided 60/40 in her favor. On appeal, Mother has not filed a copy
of the hearing transcript, so we must conclude that it supports the superior
court's finding that, after previously rejecting Father's 50/50 proposal, she
agreed at the hearing to accept equal parenting time. See Bryant v.
Thunderbird Academy, 103 Ariz. 247, 249 (1968).

¶11            Mother asserts she rejected Father's pretrial offer of equal
parenting time because she did not agree with other terms he proposed at
the same time. But Father's settlement proposal did not state that it must
be accepted in full, and the superior court was free to conclude that Mother
reasonably could have negotiated the other items individually. Likewise,
although Father initially opposed Mother's request for equal parenting
time, it is undisputed that several months before trial, he told her he would
agree to a 50/50 split and, at that point, rather than accept his concession of
what her petition had requested, Mother demanded even more parenting
time, without a legitimate basis. The court did not abuse its discretion by
concluding that the expense of trial could have been avoided had Mother
reasonably responded to Father's October 2017 proposal.

¶12            Rather than address the substantive basis for the court's
finding that   she took unreasonable positions in the litigation, Mother
argues the     court's reliance on the parties' compromise offer and
counteroffer   violated Arizona Rule of Evidence 408. Although that rule


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                             FLECK v. ANTTI
                            Decision of the Court

bars the use of settlement statements offered to prove or disprove a claim,
it does not apply when a court is determining the reasonableness of the
parties' positions under § 25-324. Gutierrez v. Gutierrez, 193 Ariz. 343, 351,
¶ 34 (App. 1998).

¶13             Mother also argues Father did not timely disclose his
witnesses and exhibits, including the pretrial settlement proposals. Mother
objected to Father's untimely disclosure, but the court did not rule on her
objection and admitted Father's exhibits, thereby implicitly denying her
objection. See Pearson v. Pearson, 190 Ariz. 231, 237 (App. 1997) (failure to
rule on a motion is implicit denial of the motion). In any event, Mother does
not suggest that she was prejudiced by Father's untimely disclosure, which
came just one day after the court's deadline and more than a month before
the hearing. Accordingly, we cannot conclude the court abused its
discretion in admitting the evidence. See State ex rel. Montgomery v. Miller,
234 Ariz. 289, 297, ¶ 15 (App. 2014) ("An appellate court 'will not disturb a
trial court's rulings on the admission . . . of evidence unless [the court] finds
a clear abuse of discretion and resulting prejudice.'" (quoting Lohmeier v.
Hammer, 214 Ariz. 57, 61, ¶ 7 (App. 2006))); see also Muscat by Berman v.
Creative Innervisions LLC, 244 Ariz. 194, 197, ¶ 7 (App. 2017) ("We will affirm
the court's disposition if it is correct for any reason.").

¶14           Mother also argues the award of attorney's fees was improper
because she prevailed on her petition to modify. A fees award under § 25-
324, however, does not turn on which party prevails on the merits of the
litigation. See Brietbart-Napp v. Napp, 216 Ariz. 74, 84, ¶ 39 (App. 2007).
Instead, the superior court only considers the parties' financial resources
and "the reasonableness of the positions each party has taken throughout
the proceedings." A.R.S. § 25-324(A).

¶15          Mother also argues she was deprived of a fair trial because in
the courtroom she discovered that someone had placed her exhibits in the
wrong order, but she does not explain how the arrangement of her exhibits
would have affected the outcome of the proceeding or the fees award.
Mother's other arguments do not address the reasonableness of her position
on parenting time or the propriety of the court's award of attorney's fees.




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                          FLECK v. ANTTI
                         Decision of the Court

                            CONCLUSION

¶16          For the foregoing reasons, we affirm the superior court's
award of $4,000 in attorney's fees to Father.




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




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