                               IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      QUENTIN BARRY MYRICK,
                        Petitioner/Appellee,

                                   v.

                       VICTORIA K. MALONEY,
                        Respondent/Appellant.

                       No. 2 CA-CV 2014-0019
                        Filed August 29, 2014


          Appeal from the Superior Court in Pima County
                         No. SP20030562
        The Honorable Dean Christoffel, Judge Pro Tempore

                            AFFIRMED


                             COUNSEL

The Reyna Law Firm, P.C., Tucson
By Ron Reyna
Counsel for Petitioner/Appellee

Pahl & Associates, Tucson
By Danette R. Pahl
Counsel for Respondent/Appellant


                             OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Miller and Judge Espinosa concurred.
                       MYRICK v. MALONEY
                        Opinion of the Court

E C K E R S T R O M, Chief Judge:

¶1           Appellant Victoria Maloney appeals the denial of her
request for attorney fees in a proceeding to modify parenting time
and child support.1 We affirm for the reasons that follow, and we
issue an opinion to remove possible confusion regarding fees in this
context. See Ariz. R. Sup. Ct. 111(a), (b) (publication appropriate to
clarify law or call attention to laws generally overlooked).

                Factual and Procedural Background

¶2           The current proceedings began in June 2013 when
appellee Quentin Myrick filed a petition to modify parenting time
pursuant to A.R.S. § 25-403. Maloney filed a response that included
a petition to modify child support pursuant to A.R.S. §§ 25-327 and
25-403.09. In her filing, she requested an award of attorney fees,
citing A.R.S. §§ 25-324(A) and 25-403.08 as grounds for the award.

¶3            Maloney has not provided this court with the transcript
of the hearing on the petitions, but the trial court’s minute entry
indicates it addressed the topic of attorney fees at that hearing. The
court granted Maloney leave to file an affidavit supporting her
request, and in that affidavit she sought nearly $5,800. Maloney
argued she was entitled to the award because she had “substantially
fewer resources to pay her attorney’s fees,” with Myrick earning “in
excess of $7,000 per month” while she was “a full-time student”
with a monthly income of only $1,350. Myrick opposed the request
on the ground that Maloney’s unreasonable positions had
necessitated the proceedings.



      1 While  Maloney technically sought both attorney fees and
costs, which are generally distinct items, see Spanier v. U.S. Fid. &
Guar. Co., 127 Ariz. 589, 598, 623 P.2d 19, 28 (App. 1980), we refer to
them collectively as “attorney fees” or “fees” in this opinion, both
for ease of reference and because the actual attorney fees here
represented the bulk of the claimed expenses. See A.R.S. § 25-324(C)
(including “attorney fees” among “costs and expenses” recoverable
under domestic relations statute).


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                      MYRICK v. MALONEY
                       Opinion of the Court

¶4           Maloney did not ask the trial court to make findings of
fact and conclusions of law, as permitted by Rule 82(A), Ariz. R.
Fam. Law P., and she did not file a reply to Myrick’s objection. In a
signed ruling entered in November 2013, the court denied
Maloney’s request without making any express findings. This
appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1) and 12-2101(A)(2).

                            Discussion

¶5          Maloney contends the trial court abused its discretion
by denying her request for fees. In reviewing the court’s ruling, we
examine the separate statutes on which the request was based.

Section 25-324

¶6         A party in a proceeding to modify parenting time or
child support may recover fees under § 25-324(A). The statute
provides:

                   The court from time to time, after
            considering the financial resources of both
            parties and the reasonableness of the
            positions each party has taken throughout
            the proceedings, may order a party to pay a
            reasonable amount to the other party for
            the costs and expenses of maintaining or
            defending any proceeding under [A.R.S.
            §§ 25-301 through 25-381.24] or [A.R.S.
            §§ 25-401 through 25-415]. On request of a
            party or another court of competent
            jurisdiction, the court shall make specific
            findings concerning the portions of any
            award of fees and expenses that are based
            on consideration of financial resources and
            that are based on consideration of
            reasonableness of positions. The court may
            make these findings before, during or after
            the issuance of a fee award.



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                       MYRICK v. MALONEY
                        Opinion of the Court

§ 25-324(A). We review a trial court’s ruling on a fee request under
§ 25-324(A) for an abuse of discretion. Mangan v. Mangan, 227 Ariz.
346, ¶ 26, 258 P.3d 164, 170 (App. 2011).

¶7            As she did below, Maloney suggests she is entitled to an
award of attorney fees because of the disparity in the parties’
incomes. In support of her argument, she relies on this court’s
statement that “‘[i]t is an abuse of discretion to deny attorney’s fees
to the [party] who has substantially fewer resources, unless those
resources are clearly ample to pay the fees.’” In re Marriage of
Robinson & Thiel, 201 Ariz. 328, ¶ 21, 35 P.3d 89, 96 (App. 2001),
quoting Roden v. Roden, 190 Ariz. 407, 412, 949 P.2d 67, 72 (App.
1997). This statement, however, does not accurately reflect our
current law. Our disposition in Robinson made it unnecessary to
clarify or amplify the point, as we could affirm the trial court there
even assuming arguendo that the statement was true. See id. ¶¶ 20-
22. For that reason, we have since cautioned litigants against taking
our reasoning in that case out of context. See Magee v. Magee, 206
Ariz. 589, ¶¶ 15-16, 81 P.3d 1048, 1051 (App. 2004) (“It is important
to note . . . that the Robinson court was reviewing for an abuse of
discretion, not establishing predicate statutory eligibility.”).

¶8           When Robinson repeated the above quotation from
Roden, we did not expressly note that Roden had addressed a prior
version of § 25-324. See Robinson, 201 Ariz. 328, ¶¶ 21-22, 35 P.3d at
96; Roden, 190 Ariz. at 412, 949 P.2d at 72, quoting 1973 Ariz. Sess.
Laws, ch. 139, § 2. An amendment in 1996 added the reasonableness
of the parties’ positions as a second factor to consider when
determining whether to award fees. 1996 Ariz. Sess. Laws, ch. 145,
§ 9. Roden was thus partly superseded by this amendment, as were a
number of other cases stating that the parties’ financial resources are
the exclusive or predominant consideration for such an award. E.g.,
Pearson v. Pearson, 190 Ariz. 231, 236-37, 946 P.2d 1291, 1296-97 (App.
1997) (“‘[T]he focus [is] on the parties’ relative abilities to pay the
fees incurred’ in accord with . . . section 25-324.”), quoting Hrudka v.
Hrudka, 186 Ariz. 84, 94-95, 919 P.2d 179, 189-90 (App. 1995); Burnette
v. Bender, 184 Ariz. 301, 305, 90 P.2d 1086, 1090 (App. 1995) (“‘Under
§ 25-324, the court’s sole consideration relates to the parties’
financial resources.’”), quoting Rowe v. Rowe, 154 Ariz. 616, 622, 744


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                        MYRICK v. MALONEY
                         Opinion of the Court

P.2d 717, 723 (App. 1987); Standage v. Standage, 147 Ariz. 473, 477-78,
711 P.2d 612, 616-17 (App. 1985) (“The sole consideration for the
awarding of attorney’s fees is the ‘financial resources’ of the
parties.”).

¶9           As we explained in Magee, § 25-324 does not require “a
showing of actual inability to pay as a predicate” for an award; “all a
[party] need show is that a relative financial disparity in income
and/or assets exists between the [parties].” 206 Ariz. 589, ¶ 1, 81
P.3d at 1048. But such a disparity alone does not mandate an award
of fees. “[T]he reasonableness of the positions each party has taken”
is an additional consideration under the current statute. § 25-324(A);
see Mangan, 227 Ariz. 346, ¶ 27, 258 P.3d at 171; Gutierrez v. Gutierrez,
193 Ariz. 343, ¶ 34, 972 P.2d 676, 684 (App. 1998). And, as the plain
language of § 25-324(A) makes clear, a trial court has the discretion
to deny a fee request even after considering both statutory factors.
See § 25-324(A) (“[t]he court from time to time . . . may order” one
party to pay a reasonable amount toward the attorney fees of the
other) (emphasis added); Alley v. Stevens, 209 Ariz. 426, ¶ 12, 104
P.3d 157, 160 (App. 2004) (noting “court may . . . award one party
attorney’s fees, but . . . is not required to do so”).

¶10          On the question of reasonableness, Maloney complains
that “the trial court made no findings whatsoever to support its
decision not to award fees.” She specifically contends that “[i]t was
an abuse of discretion for the trial court to deny [her] request for
attorney’s fees and costs . . . where there were no findings to support
a ruling that [she] behaved in an unreasonable manner that
prolonged the litigation.” We reject this argument. “There is no
obligation for the trial court to make findings of fact under . . . § 25-
324” in the absence of a request. MacMillan v. Schwartz, 226 Ariz.
584, ¶ 39, 250 P.3d 1213, 1221 (App. 2011). Furthermore, a party
cannot challenge the lack of findings when none have been
requested. See id.; see also Trantor v. Fredrikson, 179 Ariz. 299, 301, 878
P.2d 657, 659 (1994); In re Marriage of Pownall, 197 Ariz. 577, ¶ 27, 5
P.3d 911, 917 (App. 2000). Assuming, without deciding, that this
court could direct the trial court to make specific findings under
§ 25-324(A), we would decline to do so in the interest of procedural
regularity.


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                       MYRICK v. MALONEY
                        Opinion of the Court

¶11          “[T]he general law in Arizona [is] that a party must
timely present h[er] legal theories to the trial court so as to give [it]
an opportunity to rule properly.” Payne v. Payne, 12 Ariz. App. 434,
435, 471 P.2d 319, 320 (1970). An appellant also has an obligation to
provide transcripts and other documents necessary to consider the
issues raised on appeal. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764,
767 (App. 1995). We presume the items not included in the
appellate record support a trial court’s ruling. Id. Here, in the
absence of a transcript of the hearing or a responsive filing to
Myrick’s objection to the requested fees, there is no indication
Maloney presented a counterargument to the trial court regarding
the reasonableness of her positions in the proceedings. Accordingly,
we find the issue waived below. Cf. Calpine Constr. Fin. Co. v. Ariz.
Dep’t of Rev., 221 Ariz. 244, ¶ 30, 211 P.3d 1228, 1234 (App. 2009)
(finding waiver based on failure to respond in trial court).

¶12           An appellant carries the burden of showing the trial
court erred. Guard v. Maricopa County, 14 Ariz. App. 187, 188-89, 481
P.2d 873, 874-75 (1971). On the record before us, and given the
arguments presented on appeal, we have no basis to conclude the
court abused its discretion by denying fees under § 25-324(A). Cf.
Solove v. Solove, 12 Ariz. App. 203, 205, 469 P.2d 95, 97 (1970)
(upholding denial of fees when record gave “no indication that the
trial court abused its discretion”).

Section 25-403.08

¶13          Maloney also sought fees under § 25-403.08, which
provides as follows:

                    A. In a proceeding regarding sole
             or joint legal decision-making or parenting
             time, either party may request attorney
             fees, costs and expert witness fees to enable
             the party with insufficient resources to
             obtain adequate legal representation and to
             prepare evidence for the hearing.

                   B. If the court finds there is a
             financial disparity between the parties, the


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                       MYRICK v. MALONEY
                        Opinion of the Court

            court may order payment of reasonable
            fees, expenses and costs to allow adequate
            preparation.

We have discovered no published case that discusses this statute as
it is currently codified. In Higgins v. Higgins, we cited the
predecessor statute as an alternative basis for an award of appellate
attorney fees. 194 Ariz. 266, ¶ 30 & n.4, 981 P.2d 134, 141 & n.4
(App. 1999). This citation was unnecessary to our decision,
however, and unaccompanied by any statutory analysis. We
therefore regard this portion of Higgins as dicta, and we decline to
follow it here.

¶14          By the terms of the statute, § 25-403.08 authorizes
temporary orders to facilitate a proceeding. See A.R.S. § 25-404(A)
(“A party to a legal decision-making and parenting time proceeding
may move for a temporary order.”); Ariz. R. Fam. Law P. 47(A)(4)
(establishing procedure for temporary orders regarding fees and
expenses). The plain language of the statute indicates that it allows
certain disadvantaged parties to secure attorney fees, costs, and
expert witness fees “to allow adequate preparation.” § 25-403.08(B).
The statute does not apply to final fee determinations. See Ariz. R.
Fam. Law. P. 78(D). Rather, it is designed to enable a party to
“obtain adequate legal representation and to prepare evidence for
the hearing.” § 25-403.08(A). Accordingly, if a trial court denies a
request under this statute, then special action relief may be
appropriate, for there is often no “adequate remedy by appeal”
when a disadvantaged party is improperly denied the means of
adequate preparation, especially if the party lacks the resources
needed to retain counsel or develop an evidentiary record. Ariz. R.
P. Spec. Actions 1(a).

¶15           Here, however, Maloney obtained legal representation
and was able to prepare for the hearings without any facilitating
orders being issued under § 25-403.08. She never sought a
temporary or pre-judgment order for attorney fees, nor did she
comply with the procedural requirements for such an order under
Rule 47. Instead, she attempted to employ § 25-403.08 as an
alternative ground to recover her fees in the final judgment, after the
trial court had addressed the merits of the cause. Because this is not

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                       MYRICK v. MALONEY
                        Opinion of the Court

the purpose of the statute, the court did not err by declining to
award fees under this provision.

Appellate Fees

¶16           Both parties request an award of fees on appeal
pursuant to § 25-324(A). After considering the reasonableness of the
parties’ positions, as well as their respective financial resources and
the significant disparity between them, we decline to grant either
request in the exercise of our discretion. See Fry v. Garcia, 213 Ariz.
70, ¶ 14, 138 P.3d 1197, 1200-01 (App. 2006).

                             Disposition

¶17         For the foregoing reasons, the judgment is affirmed.




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