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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

           LINDA JEAN HARNISH CLARK, Petitioner/Appellee,

                                        v.

            EDWARD WAYNE CLARK, Respondent/Appellant.

                           No. 1 CA-CV 14-0370 FC
                               FILED 4-5-2016


           Appeal from the Superior Court in Maricopa County
                          No. FC2011-090967
                The Honorable Timothy J. Ryan, Judge

                                  AFFIRMED


                                   COUNSEL

Bishop Law Office, PC, Phoenix and Tempe
By Daniel P. Beeks, William D. Bishop
Counsel for Petitioner/Appellee

Edward Wayne Clark, Mesa
Respondent/Appellant
                            CLARK v. CLARK
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in
which Judge Lawrence F. Winthrop and Judge Donn Kessler joined.


S W A N N, Judge:

¶1            Edward Wayne Clark (“Husband”) appeals from the
superior court’s post-decree ruling awarding attorney’s fees and costs to
Linda Jean Harnish Clark (“Wife”) under A.R.S. § 25-324(A). The superior
court found that the award was warranted based on a disparity in the
parties’ financial resources and on unreasonable positions that Husband
had taken in the litigation. The record is sufficient to support the court’s
findings. We therefore affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Husband and Wife divorced after a lengthy marriage. In
2013, the superior court awarded approximately $109,000 in attorney’s
fees and costs to Wife, finding that “Husband has substantially greater
financial resources compared to Wife” and “has taken patently
unreasonable positions, driving up the cost of litigation, particularly in the
post-trial proceedings.” Husband appealed, and we ultimately affirmed
the award in Clark v. Clark, 1 CA-CV 13-0252 FC, 2015 WL 2448844, at *8,
¶¶ 32-33 (Ariz. App. April 30, 2015) (mem. decision).

¶3            While the appeal was pending, Husband filed a petition to
modify child support. The superior court deemed the petition premature
because the issue of Husband’s income was on appeal.

¶4            Husband then moved for relief from judgment regarding the
division of real property. At oral argument on that motion, the superior
court denied Husband’s oral request for reconsideration of the petition to
modify child support. The court denied Husband’s motion for relief from
judgment (a ruling that we later affirmed in Clark v. Clark, 1 CA-CV 14-
0293 FC, 2015 WL 2381297 (Ariz. App. May 12, 2015) (mem. decision)),
and permitted Wife to file an application for attorney’s fees and costs.

¶5           Wife applied under A.R.S. § 25-324 for $52,522.49 in
attorney’s fees and costs incurred since the initial fee award. Over




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                             CLARK v. CLARK
                            Decision of the Court
Husband’s objection, the court entered judgment in Wife’s favor for the
full amount she requested, finding:

       Husband has taken, and continues to take, unreasonable
       positions during the course of this post-decree litigation.
       The Court further finds that Husband has been less than
       candid with the Court. The Court further finds that
       Husband’s pattern and practice of litigation is done with the
       intent to escalate litigation costs for [Wife]. The Court
       further finds that the work expended by counsel to be
       reasonably calculated to provide thorough competent
       representation. The Court further finds the hourly rate to be
       reasonable. The Court further finds that the judgment
       entered below is related to issues of support, and therefore
       subject to the contempt authority of the Court.

¶6            Husband filed a motion to amend the judgment, requesting
that the court make specific findings under A.R.S. § 25-324(A). Wife filed
proposed findings, which Husband opposed. The court adopted Wife’s
proposed findings in their entirety and denied Husband’s motion for
amendment as moot. Husband appeals.

                               DISCUSSION

¶7            We review an award of attorney’s fees under A.R.S. § 25–324
for an abuse of discretion. Rinegar v. Rinegar, 231 Ariz. 85, 90, ¶ 22 (App.
2012). We view the record in the light most favorable to upholding the
award, and will affirm if any reasonable evidence in the record supports
the superior court’s decision. Mitchell v. Mitchell, 152 Ariz. 317, 323 (1987).
We must accept the superior court’s factual findings unless they are
clearly erroneous or unsupported by any credible evidence. See Imperial
Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 72 (App. 1986).

¶8            A.R.S. § 25-324(A) provides that the court may award
reasonable attorney’s fees “after considering the financial resources of
both parties and the reasonableness of the positions each party has taken
throughout the proceedings.” Fees may be awarded based on either the
disparity of the parties’ financial resources or the reasonableness of their
positions. Magee v. Magee, 206 Ariz. 589, 591 n.1, ¶ 8 (App. 2004).
Husband contends that fees were not warranted on either ground. We
hold that the record supports the court’s findings with respect to both
grounds.




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                            Decision of the Court
I. FINANCIAL DISPARITY

¶9            Disparity in income may support an attorney’s fees award
even if the party against whom fees are sought has taken reasonable
positions in the litigation. In re Marriage of Pownall, 197 Ariz. 577, 583, ¶ 29
(App. 2000). When considering parties’ financial resources for purposes
of A.R.S. § 25-324(A), “the court is obligated to consider factors such as the
degree of the resource disparity between the parties, the ratio of the fees
owed to the assets and/or income of each party, and other similar
matters.” Magee, 206 Ariz. at 592, ¶ 17. The “relative financial disparity
between the parties is the benchmark for eligibility.” Id. at 593, ¶ 18. The
court determines the weight to attribute to each of the factors. In re
Marriage of Williams, 219 Ariz. 546, 550, ¶ 15 (App. 2008).

¶10           Here, the superior court stated that it had considered the
financial resources of each party, and found that “Husband has
substantially greater financial resources, earnings, and earning potential
compared to Wife.” The court further found that Husband had not paid
Wife any funds ordered by previous judgments (excepting child support
and spousal maintenance) and that Wife had been “forced to spend the
amounts she received for spousal maintenance to pay her attorneys
during the post-trial proceedings, which has also caused Wife to incur
significant credit card debt. Husband’s refusal to pay these amounts to
Wife has compounded the disparity in financial resources between the
parties.” The court noted that it would have awarded Wife all of her
requested fees based on income disparity even if Husband had acted
reasonably.

¶11           Husband’s own contemporaneous child support worksheet
showed that Husband’s monthly income was $11,189 and Wife’s monthly
income was $4,291. Even after adjusting both incomes to reflect the $3,000
per month spousal maintenance paid to Wife, Husband’s monthly income
was still greater than Wife’s. In the abstract, we would not necessarily
uphold an award of fees of this magnitude based solely on an income
disparity in this range. But because the court found that Wife’s spousal
maintenance award was going directly to pay her attorneys to redress
Husband’s non-payment of court-ordered judgments, including the
substantial initial fee award, we hold that the record supports the court’s
ruling.

II. REASONABLENESS OF POSITIONS

¶12           A.R.S. “§ 25-324(A) requires that the propriety of a litigant’s
legal position be evaluated by an objective standard of reasonableness.”


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                           Decision of the Court
Williams, 219 Ariz. at 548, ¶ 10.       The abuse of discretion standard
acknowledges the superior court’s opportunity to observe whether the
parties’ positions were reasonable. See Graville v. Dodge, 195 Ariz. 119, 131,
¶ 56 (App. 1999).

¶13          The superior court found that Wife had not taken any
unreasonable positions, but that Husband had taken unreasonable post-
decree positions and that his “pattern and practice of litigation is done
with the intent to escalate litigation costs for Wife.” The superior court
then found twenty specific post-decree positions taken by Husband that
were unreasonable. The court noted that it would have awarded Wife all
of her requested fees based on Husband’s unreasonable positions even if
there had been no financial disparity.

¶14           The record supports the court’s findings. The superior court
was in the best position to observe the reasonableness of the parties’
conduct throughout the litigation, and we cannot say the court abused its
discretion by concluding that Husband acted unreasonably and that Wife
did not.

                              CONCLUSION

¶15          For the foregoing reasons, we affirm. In exercise of our
discretion, we deny Wife’s request for attorney’s fees on appeal. We
award Wife costs on appeal upon her compliance with ARCAP 21.




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