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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   RODRIGO MUNOZ, Petitioner/Appellee,

                                           v.

                   NARDA ZEPEDA, Respondent/Appellant.

                            No. 1 CA-CV 19-0500 FC
                                 FILED 8-4-2020


           Appeal from the Superior Court in Maricopa County
                          No. FC2015-051627
          The Honorable Brian S. Rees, Judge Pro Tempore, Retired

                                    AFFIRMED


                                     COUNSEL

Morse Law Group, Phoenix
By Judith A. Morse
Counsel for Petitioner/Appellee

McCulloch Law Offices, Tempe
By Diane McCulloch
Counsel for Respondent/Appellant
                            MUNOZ v. ZEPEDA
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.


C A T T A N I, Judge:

¶1           Narda Zepeda (“Mother”) appeals the superior court’s denial
of an attorney’s fees award for her post-dissolution child support
proceedings. For reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2              Mother and Rodrigo Munoz (“Father”) were married for a
little over a year and a half before Father petitioned for dissolution in March
2015. They have one minor child together. In January 2018, the parties
finalized the dissolution through a consent decree. The parties agreed that
the child would reside primarily with Father and that Mother would pay
Father $248 per month in child support, consistent with the Arizona Child
Support Guidelines. They also agreed that Father would provide health
insurance for the child.

¶3           In August 2018, Father petitioned for an increase in child
support from $248 to $716 per month. The petition indicated that Father’s
income had decreased since the dissolution decree, that he began incurring
monthly childcare expenses, and that he had been providing insurance for
the child. In response, Mother cross-petitioned for a decrease in child
support from $248 to $82 per month. Mother’s cross-petition alleged that
both her and Father’s income increased since the dissolution decree and
asserted that even if Father’s income had decreased, the decrease was
voluntary. Mother further asserted that Father failed to provide any proof
of his purported childcare and insurance expenses and that she had been
paying for the child’s health insurance.

¶4              The superior court held three days of hearings, at which both
parties testified. The court thereafter determined that Father’s income had
not, in fact, decreased, that he had not consistently been paying for the
child’s health insurance, and that Mother had been providing health
insurance for the child. Accordingly, the court modified Mother’s monthly




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child support payment to $392 per month, and ordered Father to provide
health insurance.

¶5            Mother filed a motion for attorney’s fees, and Father failed to
respond timely. Having received no objection, the court granted Mother’s
request for fees. The same day the court awarded Mother fees, Father filed
a motion objecting to Mother’s request and requesting fees himself.

¶6            One week later, Father moved for relief from the order
awarding Mother fees, stating that his failure to file a timely response
resulted from an administrative error in his attorney’s office. The court
agreed to set aside Mother’s fee award, and after considering both parties’
requests for fees, declined to award fees to either party. The court opined
that “both parties were being less than candid and were fighting rather than
seeking to resolve their dispute” and that “the case had been significantly
over tried.” The court further noted that the amount each party incurred in
legal fees far exceeded the amount by which they stood to benefit by
prevailing in the litigation.

¶7            Mother timely appealed the order denying fees, and we have
jurisdiction under A.R.S. § 12-2101(A)(2).

                               DISCUSSION

I.     Motion for Relief.

¶8           As a threshold matter, Mother argues the superior court erred
by granting Father’s motion for relief from its order awarding her attorney’s
fees. We disagree.

¶9            Rule 85(b)(1) of the Arizona Rules of Family Law Procedure
grants the superior court discretion to relieve a party from an order for
“mistake, inadvertence, surprise, or excusable neglect.” “Neglect is
excusable when it is such as might be the act of a reasonably prudent person
in the same circumstances.” Ulibarri v. Gerstenberger, 178 Ariz. 151, 163
(App. 1993). We review the superior court’s grant of a motion for relief for
an abuse of discretion. Clark v. Kreamer, 243 Ariz. 272, 275, ¶ 10 (App. 2017).

¶10           Here, the superior court initially awarded Mother attorney’s
fees after Father failed to file a timely response. Father’s request for relief
included his counsel’s sworn statement that counsel timely prepared the
response and later discovered it was mixed up with another client’s
paperwork. This type of administrative error falls squarely within Rule
85(b)(1). See City of Phoenix v. Geyler, 144 Ariz. 323, 332 (1985) (finding


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excusable neglect where “the mistake . . . which led to the late filing of the
motion . . . was the type of clerical error which might be made by a
reasonably prudent person who attempted to handle the matter in a prompt
and diligent fashion”). The superior court determined that “[F]ather’s
attorney’s office staff mistake should not be the deciding factor here,” and
this decision was a sound exercise of the court’s discretion.1

II.    Fees Under A.R.S. § 25-324.

¶11           Mother argues the superior court erred by denying her
request for fees under A.R.S. § 25-324(A) and (B). We review the denial of
fees under § 25-324 for an abuse of discretion. Lehn v. Al-Thanayyan, 246
Ariz. 277, 286, ¶ 29 (App. 2019).

       A.     Fees Under A.R.S. § 25-324(A).

¶12           Under A.R.S. § 25-324(A), the superior court may order a
party to pay a reasonable amount of attorney’s fees “after considering the
financial resources of both parties and the reasonableness of the positions
each party has taken throughout the proceedings.”

              1.     Disparity in Financial Resources.

¶13          Mother challenges the superior court’s conclusion that
“[F]ather’s income is only marginally greater than [M]other’s,” so
“disparity is not a factor here.” She argues the court erred by only
considering the parties’ incomes, rather than their cumulative financial
resources.

¶14          Under § 25-324(A), a party moving for attorney’s fees must
show “that a relative financial disparity in income and/or assets exists
between the parties.” See Lehn, 246 Ariz. at 286, ¶ 30 (citation omitted). As
Mother’s reply brief points out, however, the superior court had “no
evidence of Mother’s financial resources except . . . her income.”

¶15           Mother argues that the superior court should have awarded
her attorney’s fees based on evidence that Father’s financial resources were
greater than hers. At the hearing, Mother presented evidence of Father’s

1      Mother also notes that the court acknowledged her request for the
attorney’s fees she incurred responding to Father’s untimely response but
did not address this request specifically. However, by acknowledging the
request for these particular fees and then denying fees to either party, the
court implicitly denied this request.


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financial resources, including testimony about Father’s cash savings,
proceeds from the sale of his business, and proceeds from the sale of his
house. But Mother does not meet her burden to show eligibility for an
award of fees by listing Father’s resources and merely stating that Father
did not present evidence of hers. And none of the cases Mother cites
support the notion that the non-moving party has an affirmative duty to
introduce evidence to disprove the moving party’s assertion of financial
disparity.

¶16           “[E]ligibility for consideration for an award has consistently
rested solely on a comparison of the parties’ resources.” Magee v. Magee, 206
Ariz. 589, 591, ¶ 12 (App. 2004) (emphasis added). Here, Mother is not
arguing that the court should have compared both parties’ financial
resources, but rather that the court should have compared Mother’s income
and the totality of Father’s financial resources. Section 25-324(A) does not
require the court to do so. The only comparative financial information the
court had before it was the parties’ incomes. And the court concluded that
“[F]ather’s income is only marginally greater than [M]other’s.” The court
did not abuse its discretion by doing so.

              2.     Reasonableness of Positions Taken.

¶17            Mother next argues the superior court abused its discretion
by failing to award her fees due to Father’s unreasonable conduct.

¶18           Even assuming that the evidence Mother cites shows that
Father acted unreasonably, § 25-324(A) provides that the court may award
fees after considering the reasonableness of both parties’ positions, not that
it must. Here, the superior court found that both parties had acted
unreasonably, and in an exercise of its discretion, chose not to award either
party fees. Mother does not cite to any authority showing that the court
erred by doing so, and we are aware of none.

¶19           For the first time in her reply brief, Mother relies on In re
Marriage of Williams, 219 Ariz. 546 (App. 2008), to argue that the court
applied the incorrect standard when considering her request. Although we
normally “will not consider arguments made for the first time in a reply
brief,” Austin v. Austin, 237 Ariz. 201, 204, ¶ 2 n.1 (App. 2015) (citation
omitted), we exercise our discretion to resolve the issue on its merits.

¶20           In Williams, the superior court looked to a unrepresented
party’s subjective intent to determine whether her positions throughout the
proceedings were reasonable. See 219 Ariz. at 548, ¶ 5. The superior court
opted not to award the opposing party fees after it concluded that the


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unrepresented party “took her positions in good faith and they were
reasonable for someone untrained in the law.” Id. On appeal, this court
reversed, concluding that “the legislature intended courts to assess the
reasonableness of a litigant’s position pursuant to § 25-324(A) by an
objective standard.” Id. at 549, ¶ 12.

¶21           Relying on this language, Mother argues the superior court
abused its discretion by considering her strategy of engaging in extensive
discovery to disprove the allegations in Father’s petition. The superior
court noted:

      One place where the case went off the rails was in discovery
      and disclosure. Mother sought to fight these issues for all the
      wrong reasons. It was obvious from the start that [F]ather’s
      case relied upon his testimony only and that he was not going
      to substantiate his claim. Accepting how difficult it is to go to
      trial worrying that the court may believe [F]ather and award
      his claim there is no choice but to try to find the smoking gun
      disproving it. At the same time, the issue is that the claim is
      unsupported or that [F]ather’s testimony alone is insufficient
      to move the needle. To repeatedly fight over the lack of
      disclosure misses the point.

¶22          Mother argues that it was the superior court’s duty to “assess
the reasonableness of the parties (legal) positions by an objective standard
and not by imposing how the court believed Mother conducted her case
and the discovery process.” We disagree with Mother’s characterization.

¶23            Unlike the superior court in Williams, the court’s
reasonableness analysis here did not consider whether Mother acted in
good faith, but rather whether her aggressive discovery strategy was
objectively reasonable under the circumstances. And Mother’s argument
that the court was limited to considering only her underlying legal position
is contrary to § 25-324’s text, which does not limit the court to only
considering legal arguments and instead allows the court to consider the
“positions each party has taken throughout the proceedings.” Mother has
not established an abuse of discretion.

      B.     Fees Under A.R.S. § 25-324(B).

¶24           Next, Mother argues that she was entitled to attorney’s fees
under A.R.S. § 25-324(B), which provides that the court “shall award . . .
attorney fees to the other party” if it determines that a “petition was not
grounded in fact or based on law.” Mother asserts that because the court


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recognized that “the case started with [F]ather making significant
unsupported claims,” it was required to award her fees.

¶25            But we do not read the court’s statement to mean that it
determined Father’s entire petition was not based in fact. Instead, as the
court noted, Father’s case relied primarily upon his testimony.
Accordingly, although Father’s claims may have been “overstated,” he did
change jobs (and, consequently, income) and incur new childcare expenses
after the original consent decree. Moreover, the court was “not persuaded
that [F]ather’s filing of this claim was done for any improper purpose.”

¶26           In sum, the superior court had the discretion to determine
whether Father’s claims were wholly groundless, and the court did not
abuse its discretion by determining the claims had some basis.

III.   Fees Under A.R.S. § 25-503.

¶27            Finally, Mother argues she was entitled to attorney’s fees
under A.R.S. § 25-503(E), which provides that an order modifying child
support “may include an award of attorney fees and court costs to the
prevailing party.” She asserts that the superior court should have awarded
her fees because she was the prevailing party in the superior court, and the
court erred by failing to specifically address § 25-503(E) in its ruling. We
review a denial of fees under § 25-503(E) for an abuse of discretion. See
Clark v. Clark, 239 Ariz. 281, 282, ¶¶ 6, 8 (App. 2016).

¶28           Section 25-503(E) does not entitle a prevailing party to an
award of attorney’s fees but instead permits the court to exercise discretion
to award fees to the prevailing party. Even assuming Mother was the
prevailing party in the superior court, the court’s ruling made clear that
based on the course of proceedings before it, it would not exercise its
discretion to award fees to either party.

¶29            Further, although the court did not cite to § 25-503(E)
specifically in its ruling, Mother included a citation to § 25-503(E) in her
motion for attorney’s fees, and the court’s order stated that “it considered
all of the claims and decide[d] to deny [fees] to either side.” The superior
court sufficiently addressed why it chose not to award attorney’s fees to
either side. Mother cites no authority to support her argument that it was
per se reversible error for the court not to specifically reference each statute
Mother cited, and we see no reason to impose this requirement.




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                             Decision of the Court

                                CONCLUSION

¶30            For the foregoing reasons, we affirm the superior court’s
order. On appeal, both parties request attorney’s fees under A.R.S. § 25-
324. Additionally, Mother requests fees under A.R.S. § 25-503, and Father
requests fees resulting from Mother’s failure to comply with ARCAP
13(a)(5). See Jhagroo v. City of Phoenix, 143 Ariz. 595, 598 (App. 1984). In the
exercise of our discretion, we decline to award attorney’s fees to either
party, but award Father his costs upon compliance with ARCAP 21.2




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




2      Judge McMurdie would award Father his reasonable attorney’s fees.


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