Rychlik v. Sodergren

Background

The parties divorced in 2011 and shared equal parenting time and joint legal decision-making of their four children. In 2012, Father relocated to Virginia and asked the family court to allow him to relocate the children. The family court denied Father’s request and modified parenting time to create a schedule suitable for the distance between the parents. It allowed Father to exercise parenting time during extended school breaks and whenever he visited the Phoenix area.

Not long after that was resolved, Mother notified Father that she intended to relocate to Illinois. Father filed an emergency petition for temporary orders without notice where he requested that the children relocate to Virginia and asked for Mother’s parenting time to be supervised. After a brief evidentiary hearing, the court granted his request pending another, fuller evidentiary hearing.

After the second evidentiary hearing, the court denied the emergency motion and awarded Mother $57,294 in attorney’s fees and costs. The court signed its fee award as a final order pursuant to Rule 78(b).

Father filed a notice of appeal, which the Court of Appeals deemed premature because it considered the fees award part of the temporary orders and temporary orders cannot be appealed.

The family court case continued and after Mother withdrew her request to relocate the children to Illinois, Father filed a motion for summary judgment regarding his petition to prevent relocation. The court granted Father’s motion and entered an order to prohibit Mother from relocating the children to Illinois. It also awarded attorney’s fees to Father in the amount of $17,181.10.

Since the motion for summary judgment resolved the remaining issues, the Court of Appeals reinstated Father’s appeal of the fees and costs originally awarded to Mother.

Temporary Orders Generally

Pursuant to Rule 47(j)(1), “[t]emporary orders signed by the court and filed by the clerk are enforceable as final orders but terminate and are unenforceable upon dismissal of the action, or following entry of a final decree, judgment, or order, unless that final decree, judgment, or order provides otherwise.”

This means that temporary orders ordinarily end automatically when final orders are entered. Father argued that this meant the family court’s initial fee award was void, since it was entered as part of the court’s temporary orders.

The Court of Appeals rejected this argument and pointed to the family court’s Rule 78(b) language to indicate its intent that its fees award be a permanent order. The family court’s minute entry explicitly characterized its legal decision-making, parenting time, and child support orders as temporary orders. It did not include the same qualifier for its fee award.

Fee Application and Affidavit

When attorney’s fees are awarded in family court, the attorney usually is required to file a formal application for fees and an affidavit that includes the attorney and staff billable rates, an itemized list of billable time, and a description of each task. This is often referred to as a China Doll affidavit — its name derived from the Schweiger v. China Doll Restaurant, Inc. case where the Court of Appeals provided the process for fee applications.

Once that is filed, the party ordered to pay fees typically is given an opportunity to file an objection. Here, Father argued that the application included charges for services unrelated to the proceedings, exorbitant hourly rates, and “block-billing.” Block-billing refers to billable time entries that include a number of tasks bundled together. It is problematic because true block-billing makes it difficult or even impossible for courts to evaluate the reasonableness of any time entries if it is unable to determine how much time was devoted to a specific task.

The Court of Appeals rejected Father’s argument and deferred to the family court’s discretionary determination that the fee application and affidavit sufficiently conformed to applicable standards. The Court of Appeals noted that the hourly rates in this case — $400 and $325 for the attorneys, $150 for the paralegal — were consistent with local rates and that the complexity of the temporary orders justified the $57,294 the family court awarded.

Sanctions

Father separately requested sanctions against Mother for failure to comply with the Court of Appeals’ order to file status reports regarding the status of her pending bankruptcy proceedings. Because Mother failed to comply, Father incurred costs to file the report. The Court of Appeals awarded those fees to Father as a sanction against Mother pursuant to its inherent power to “impose sanctions on an attorney or a party for a violation” of its orders pursuant to Arizona Rule of Civil Appellate Procedure 25.

Full decision