                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 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 Marriage of:

                 DAN LEE JACOBSON, Petitioner/Appellee,

                                        v.

        PENNY JACOBSON-BOETTCHER, Respondent/Appellant.

                             No. 1 CA-CV 13-0656
                              FILED 11-4-2014


           Appeal from the Superior Court in Maricopa County
                          No. FC2012-094816
               The Honorable Benjamin R. Norris, Judge

                                  AFFIRMED


                                   COUNSEL

Law Office of John R. Gaertner, P.C., Scottsdale
By John R. Gaertner, Jr.
Counsel for Petitioner/Appellee

Harmon Law Office, Phoenix
By Emile Harmon
Counsel for Respondent/Appellant
                 JACOBSON v. JACOBSON-BOETTCHER
                        Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Jon W. Thompson and Judge Kent E. Cattani joined.


K E S S L E R, Judge:

¶1           Penny Jacobson-Boettcher (“Mother”) appeals the trial court’s
order denying her request for attorneys’ fees and costs pursuant to Arizona
Revised Statutes (“A.R.S.”) section 25-324(A) (Supp. 2013). For the
following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             Mother and Dan Lee Jacobson (“Father”) were married in
1995. The couple divorced, and a Decree of Dissolution of Marriage was
entered in the Iowa District Court in January 1998. The decree ordered
Father to pay $350 per month in child support and fifty percent of the child’s
medical premiums and expenses. In November 1998, the parties filed a
joint stipulation to suspend Father’s child support obligation until either
party petitioned for the support to resume.

¶3            In 2012, Mother registered the foreign decree and joint
stipulation in the Maricopa County Superior Court, and filed a petition to
modify and enforce Father’s child support obligation. Following an
evidentiary hearing, the court ordered Father to pay $1205.30 in monthly
child support from November 2012 through June 2013, when the child
turned eighteen.

¶4            Mother filed an opening brief with the trial court identifying
three additional issues remaining to be resolved: (1) Mother’s request for
the child support to be retroactive, (2) Mother’s claim for reimbursement of
medical premiums and costs, and (3) Mother’s claim that Father should be
required to contribute to their child’s college expenses. Mother’s requests
for retroactive child support and undefined college expenses were denied.
The court found that Mother’s request for reimbursement of medical
premiums and costs was not barred, but ordered Mother to provide exact
calculations and supporting documentation to confirm the total amount
owed. After reviewing Mother’s records, Father filed a response agreeing
to pay the amount requested.



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                 JACOBSON v. JACOBSON-BOETTCHER
                        Decision of the Court

¶5            In May 2013, Mother filed a petition for contempt and
enforcement of child support. The petition was discussed during a
telephonic status conference, and the trial court found the petition to be
resolved.

¶6           Mother moved for attorneys’ fees pursuant to A.R.S. §§ 25-324
and 12-349 (Supp. 2013). She argued for fees based on the disparity in their
incomes and Father’s unreasonable position and actions. The trial court
denied Mother’s motion. Mother timely appealed. We have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2013).

                               DISCUSSION

¶7             Mother argues the trial court abused its discretion in denying
her request for attorneys’ fees and costs pursuant to A.R.S. § 25-324(A).
Section 25-324(A) provides that the trial court can award attorneys’ fees
after considering the parties’ financial resources and the reasonableness of
their positions during the proceedings. See Magee v. Magee, 206 Ariz. 589,
591 n.1, ¶ 8, 81 P.3d 1048, 1050 n.1 (App. 2004) (stating that reasonableness
of the parties’ positions and financial resources are two separate
considerations, “and an applicant need not show both a financial disparity
and an unreasonable opponent in order to qualify for consideration for an
award”).

¶8              “[W]e review a trial court’s award or denial of attorney[s’]
fees for an abuse of discretion.” Democratic Party of Pima Cnty. v. Ford, 228
Ariz. 545, 547, ¶ 6, 269 P.3d 721, 723 (App. 2012); see also Hrudka v. Hrudka,
186 Ariz. 84, 94-95, 919 P.2d 179, 189-90 (App. 1995) (“The decision whether
to award attorneys’ fees lies within the trial court’s sound discretion.”). “To
find an abuse of discretion, there must either be no evidence to support the
[trial] court’s conclusion or the reasons given by the court must be clearly
untenable, legally incorrect, or amount to a denial of justice.” Bogard v.
Cannon & Wendt Elec. Co., 221 Ariz. 325, 335-36, ¶ 39, 212 P.3d 17, 27-28
(App. 2009) (alteration in original) (citation omitted). “When there is no
request for findings and the trial court does not make specific findings of
fact, we must assume that the trial court found every fact necessary to
support its [ruling] and must affirm if any reasonable construction of the
evidence justifies the decision.” Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13,
29 P.3d 870, 873 (App. 2001) (alteration in original) (internal quotation
marks and citations omitted).

¶9            Mother first argues she was entitled to attorneys’ fees because
of the disparity in income between the parties. Based on the child support



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                 JACOBSON v. JACOBSON-BOETTCHER
                        Decision of the Court

worksheets submitted in the proceedings below, Father’s gross monthly
income was $11,900 and Mother’s was $5333.34. The existence of a disparity
in income, however, is only a “benchmark for eligibility,” and the trial court
must consider all relevant factors before granting an award of fees. Magee,
206 Ariz. at 593, ¶ 18, 81 P.3d at 1052 (“If the trial court finds such a
disparity, it is then authorized to undertake its discretionary function of
determining whether an award is appropriate.”). Here, it was well within
the trial court’s discretion to find that Mother, notwithstanding the
disparity in income, has the financial resources to pay for her own
attorneys’ fees. Therefore, based on the record, the trial court did not abuse
its discretion in denying Mother’s request for fees based on disparity in
income. Moreover, in considering all of the relevant factors, the court can
deny a request for an award of attorneys’ fees if the person seeking fees
acted unreasonably in the litigation. As discussed below, the court did not
abuse its discretion in denying fees if it did so because Mother took
unreasonable positions in the litigation or because it concluded Father took
reasonable positions. See Myrick v. Maloney, 235 Ariz. 491, 495, ¶ 9, 333 P.3d
818, 822 (App. 2014) (“[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. 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.” (citations
omitted)).

¶10            Mother next argues she was entitled to attorneys’ fees because
Father’s position below was unreasonable. See In re Marriage of Williams,
219 Ariz. 546, 549, ¶ 12, 200 P.3d 1043, 1046 (App. 2008) (concluding that
the “legislature intended courts to assess the reasonableness of a litigant’s
position pursuant to § 25-324(A) by an objective standard”). We disagree.
First, Father’s position that retroactive child support was unwarranted is
supported by the joint stipulation filed in November 1998. The court agreed
with Father on this issue. Second, although Mother argues that Father
forced her to incur an inordinate amount of fees before agreeing to
reimburse her for past medical premiums and costs, the requirement for
documentation, and its specificity, was in fact ordered by the court,
supporting the view that Father’s position was reasonable:

       IT IS ORDERED that within thirty (30) days of the date of
       this order, Mother shall file and serve an affidavit setting forth
       her step-by-step, exact calculation of how much she believes
       Father owes for insurance premiums and uncovered medical
       expenses under this Court’s ruling above. Mother is to attach
       copies of all documents that she believes support her


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                 JACOBSON v. JACOBSON-BOETTCHER
                        Decision of the Court

       calculation to her affidavit, and her affidavit is to specifically
       reference each specific document and explain how that
       document support[s] her calculation, i.e. Mother is not to
       simply attach all her documents to her affidavit and invite
       Father and the Court to determine how they relate to her
       calculation of Father’s alleged liability.

Third, Mother provides no legal authority to support her claim that Father’s
failure to try and settle this amount out of court constitutes a per se
unreasonable position. Accordingly, we find the trial court did not abuse
its discretion in denying fees based on the reasonableness or
unreasonableness of the parties’ positions.

¶11            Finally, Mother argues the trial court erred in failing to award
fees and costs when Mother was forced to incur them to obtain Father’s
compliance with court orders. Mother claims she “was forced to incur
attorney[s’] fees solely due to [Father’s] behavior in failing to pay the
insurance premiums and uncovered expenses as ordered.” We disagree.
In May 2013, Mother filed a petition for contempt and enforcement, stating
that Father was already in arrears. During a telephonic status conference,
the trial court found the petition to be resolved. Mother has not provided
us with a transcript or any alternative record of what occurred during that
conference. “When a party fails to include necessary items, we assume they
would support the court’s findings and conclusions.” Baker v. Baker, 183
Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). “Because the trial court is in the
best position to observe and assess the conduct of the parties before it,”
MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 38, 250 P.3d 1213, 1221 (App.
2011), and given the broad discretion vested in the trial court, we cannot
say from the record before us that the court erred in denying fees related to
Father’s alleged noncompliance.

                               CONCLUSION

¶12           For the foregoing reasons, we affirm. Both parties request
their attorneys’ fees on appeal pursuant to A.R.S. § 25-324. In the exercise
of our discretion, we decline to award fees on appeal. We award Father his
costs on appeal subject to timely compliance with Arizona Rule of Civil
Appellate Procedure 21.




                                     :11/04/2014



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