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In re Van Valen

Court of Appeals of Arizona, First Division, Department D

October 29, 2013

In re the Matter of: BARBARA J. VAN VALEN, Petitioner/Appellant,
v.
GLENN MIDDLETON, Respondent/Appellee.

Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure

Appeal from the Superior Court in Maricopa County Cause Nos. FN2010-092107, FN2010-092712 (Consolidated) The Honorable John R. Hannah, Jr., Judge

Barbara J. Van Valen Glendale Petitioner/Appellant In Propria Persona

Glenn Middleton Charlotte, NC Respondent/Appellee In Propria Persona

MEMORANDUM DECISION

MICHAEL J. BROWN, Judge

¶1 Barbara J. Van Valen ("Wife") challenges the amount of attorneys' fees the trial court awarded her in this dissolution action. We conclude that the amount awarded was within the trial court's discretion and we therefore affirm.

BACKGROUND

¶2 In July 2011, the parties entered into a settlement agreement in their dissolution case. The parties placed the basic terms of the agreement on the record in the trial court, which approved the agreement and directed that a "consent decree"[1] be submitted within thirty days. As part of the agreement, Glenn Middleton ("Husband") agreed to pay Wife $28, 000 cash for her share of the community 401(k) account by September 1, 2011. The parties also agreed each of them would pay their own attorneys' fees incurred to date, but if one party believed the other's unreasonableness caused otherwise unnecessary fees, that party could request an award from the court. In addition, Husband's attorney agreed to draft a consent decree.

¶3 Instead of submitting a consent decree reflecting the settlement agreement, Husband filed a motion to modify the agreement because he was unable to obtain a loan against the 401(k) account to pay Wife $28, 000 cash. In response, Wife lodged a "Partial Settlement Agreement" and requested an award of attorneys' fees, arguing that Husband's failure to abide by and draft the consent decree caused her to incur $12, 237.50 in additional attorneys' fees.

¶4 The trial court denied Husband's motion to modify, finding the settlement agreement did not specify that the cash payment to Wife was contingent on Husband obtaining a loan from the parties' 401(k) account. Husband objected to Wife's Partial Settlement Agreement and lodged his own, which stated that Wife would receive $28, 000 by dividing the 401(k) account instead of cash. Husband also argued Wife was not entitled to attorneys' fees for drafting her own proposed agreement and sought fees himself.

¶5 At a status conference to address these issues, the court signed Wife's partial settlement agreement and noted that the $28, 000 cash payment was now a separate issue because Husband did not have the funds to pay as required by the agreement. Husband proposed allocating $45, 000 of the parties' 401(k) to Wife to cover any fees or taxes Wife would incur so she could withdraw $28, 000 cash immediately upon division of the 401(k) account pursuant to a qualified domestic relations order ("QDRO"). The court noted that Wife should consider this proposal in order to "mitigate her damages" or consider the consequences that may fall to her if she refused. The court ordered Wife to submit a consent decree, deferred ruling on Wife's request for attorneys' fees, and denied Wife's requests to appoint a QDRO attorney and fees to prepare a QDRO.

¶6 Both parties submitted QDROs for the court to sign. Although Wife's attorney moved to withdraw, she submitted a consent decree over Wife's objection. The court signed this consent decree as well as the QDRO Husband submitted. The court granted Wife's pending request for attorneys' fees based on Husband's unreasonable claim that he was not obligated to comply with the parties' settlement agreement that he pay $28, 000 cash to Wife. However, the court reserved ruling on the amount of the fee award until Wife's former attorney submitted a fee affidavit.

¶7 After receiving Wife's fee application for $15, 611.63, Husband's objection, and Wife's reply, the court awarded Wife $2100 in attorneys' fees. Wife ...


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