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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SUZETTE MARIE BOTTO, Petitioner/Appellant,

v.

ROBERT JOSEPH BOTTO, JR., Respondent/Appellee.

No. 1 CA-CV 16-0770 FC

Appeal from the Superior Court in Maricopa County

No. DR1999-012392

The Honorable Pamela Hearn Svoboda, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Dickinson Wright PLLC, Phoenix

By Robert L. Schwartz, Marlene A. Pontrelli, Bradley A. Burns

Counsel for Petitioner/Appellant

Padish & Wells PLLC, Scottsdale

By James E. Padish

Counsel for Respondent/Appellee

FILED 4-5-2018
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MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge John C. Gemmill1 joined.

T H O M P S O N, Judge:

¶1 Suzette Marie Botto (mother) appeals from an order 

dismissing her post-decree petition to enforce an obligation under the 

parties’ stipulated property settlement agreement (PSA) and from the 

award of attorneys’ fees to Robert Joseph Botto (father). For the reasons 

stated below, we affirm the dismissal order but vacate the award of 

attorneys’ fees.

FACTUAL AND PROCEDURAL HISTORY

¶2 The parties divorced in 2002 pursuant to a consent decree. 

The parties contemporaneously entered into a PSA through which father 

agreed to pay their child’s college tuition, room, board, expenses, and 

provide a reasonable monthly allowance. The PSA was incorporated but

not merged into the decree. After the child was accepted to college and 

father failed to confirm or otherwise assure mother that he would abide by 

this agreement, mother filed a “petition for order to appear re: enforcement 

of court order” asking the court to enforce the PSA and compel father to 

pay the child’s college expenses and allowance. 

¶3 Father moved to dismiss mother’s petition, arguing he made 

all the tuition arrangements required by the PSA and that mother should 

have brought her claims as a separate contract action according to Solomon 

v. Findley, 167 Ariz. 409, 411-12 (1991). Father requested attorneys’ fees 

“pursuant to A.R.S. § 25-324 and §12-341.0 [sic].” 

¶4 The trial court agreed it did not have statutory authority to 

enforce a contractual agreement to pay college expenses once the child 

reached the age of majority, citing Solomon, id. As ordered by the court, 

 

1 The Honorable John C. Gemmill, Retired Judge of the Court of Appeals, 

Division One, has been authorized to sit in this matter pursuant to Article 

6, Section 3, of the Arizona Constitution.
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father’s attorney submitted an affidavit in support of his claim for 

attorneys’ fees. Father and his attorney entered into a flat fee agreement 

for $2,700 to represent father in “a post-decree matter for enforcement of a 

property agreement term.” Mother objected to the fee affidavit, stating it 

did not provide sufficient detail to allow the court to determine whether the 

flat fee was reasonable and because the court failed to find a disparity in 

the parties’ financial resources. The court awarded father $2,700 without 

further comment. 

¶5 Mother filed a timely notice of appeal. We have jurisdiction 

pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1) (2017).

DISCUSSION

I. Enforcing the PSA

¶6 We review de novo an order dismissing a petition for lack of 

jurisdiction. Mitchell v. Gamble, 207 Ariz. 364, 367, ¶ 6 (App. 2004). 

“Although a trial court may consider and resolve jurisdictional fact 

questions, when, as here, they are not intertwined with the merits of the 

case, we review the court’s ultimate legal conclusion de novo.” Id.

¶7 Our Supreme Court has held that “a contract for postmajority [child] support should be enforced in a separate contract action . . 

. because the divorce court only has jurisdiction to enforce child support 

provisions until the child reaches majority.” Solomon, 167 Ariz. at 412. Postmajority support agreements are fully enforceable “as a contract claim.” Id.

¶8 Here, the PSA was incorporated rather than merged into the 

decree and, therefore, retained its status as an enforceable contract. See 

Chopin v. Chopin, 224 Ariz. 425, 427, ¶ 6 (App. 2010). Mother filed a petition 

to enforce the order requiring father to pay college expenses. Although 

mother did not specifically ask for a contempt finding, she asserted father 

was in violation of the court order and PSA and asked the trial court to 

compel father to comply with the existing orders. Mother’s petition failed to 

allege a contract claim.

¶9 Mother argues the trial court erred in dismissing her petition 

because it is a single court of unified jurisdiction with authority to consider 

her contract claims. See Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 102 

(1995); Peterson v. Speakman, 49 Ariz. 342, 348 (1937); State v. Marks, 186 Ariz. 

139, 142 (App. 1996). Mother correctly characterizes the superior court’s 

unified jurisdiction. However, the court properly dismissed mother’s

petition because it failed to state a contract claim, not because mother filed 
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her petition in the “wrong court.” See Gary Outdoor Adver. Co. v. Sun Lodge, 

Inc., 133 Ariz. 240, 242 (1982) (“The trial court will be affirmed when it 

reaches the correct conclusion even if it does so for an incorrect reason.”). 

Mother sought to enforce the decree and PSA via an order to compel. 

Pursuant to Solomon, mother was required to state a contract claim to 

enforce father’s agreement to pay for post-majority college expenses.

Because mother’s petition did not state a contract claim, but asked the court 

to compel compliance with a court order, the trial court properly dismissed 

her petition. 

¶10 Mother also contends the trial court erred in dismissing her 

petition, instead of considering it as a contract claim, citing the 

memorandum decision in Calcagno v. Ainbinder, 1 CA-CV 14-0623FC, 2016 

WL 3264116 (Ariz. App. June 14, 2016).

2 However, in Calcagno, the wife 

initially sought to enforce the PSA by bringing a separate civil action. Id. at 

*1, ¶ 3. The husband, in response, filed a motion to set aside the divorce 

decree and PSA. Id. These two matters were consolidated before the family 

court at the husband’s request. Id. at *2, ¶4. When the wife subsequently 

asked the court to release proceeds from the sale of the parties’ residence, 

the husband “challenged the family court’s jurisdiction to rule upon the 

request in light of its prior practice of referring post-judgment collection 

issues to the civil division.” Id. at *2, ¶ 6. The court sanctioned the husband 

for this argument, and the appellate court similarly rejected it. Id. at *2, *3, 

¶¶ 6, 9-11. 

¶11 Calcagno is distinguishable because the wife initially filed a 

separate contract action, which we presume raised an independent contract 

claim. Additionally, in Calcagno, the husband asked to have the family 

court hear the two matters and then challenged the court’s jurisdiction over 

one of the claims. Id. at *2 ¶ 6. As we noted above, mother’s petition did 

not raise a contract claim, but sought to compel compliance with the decree 

and PSA. 

¶12 Finally, mother argues the court had statutory authority to 

enforce the decree and PSA pursuant to A.R.S. § 25-317(E) (2017), which 

provides that the terms of a PSA “incorporated by reference in the decree 

are enforceable by all remedies available for enforcement of a judgment, 

including contempt.” However, an agreement to pay post-majority college 

 

2 Mother appropriately cited this memorandum decision pursuant to 

Arizona Supreme Court Rule 111(c)(1)(C) (2017) (allowing citation to 

memorandum decision for persuasive value when no published opinion 

adequately addresses the issue).
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expenses is not a child support order subject to contempt, but a separately 

enforceable contract subject to contract remedies. Solomon, 167 Ariz. at 412. 

Although section 25-317(E) authorizes the use of contempt remedies, it does 

not authorize the use of contempt to enforce payment of one spouse’s debt 

to the other. See Masta v. Lurie ex rel. Superior Court, 22 Ariz. App. 170, 171 

(1974) (holding § 25-317(E) does not authorize contempt “to enforce the 

payment of monetary sums ordered in the settlement of property rights.”); 

Charles Marshall Smith & Irwin Cantor, Arizona Practice, Marriage 

Dissolution Practice § 273, at 282 (2017) (“[P]ayment of one spouse’s debt to 

the other, which is part of a property settlement, may not be enforced by 

contempt.”). 

¶13 Father’s obligation to pay the adult child’s college expenses is 

not a support obligation, but a debt owed to mother and the child. Arizona 

caselaw is clear that non-support payments due under property settlement 

agreements cannot be enforced by contempt proceedings. See Danielson v. 

Evans, 201 Ariz. 401, 411, ¶ 37 (App. 2001) (citing additional cases). 

Therefore, the order dismissing mother’s petition is affirmed. 

II. Attorneys’ Fee Award

¶14 The trial court awarded father $2,700 in attorneys’ fees. 

Mother objected to father’s fee application because it did not provide 

sufficient detail to determine whether the $2,700 flat fee was reasonable. 

We review the award of attorneys’ fees for an abuse of discretion. Myrick 

v. Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014).

¶15 The party seeking an award of attorneys’ fees must provide a 

sufficient description or breakdown of the work performed, including an 

affidavit indicating “the type of legal services provided, the date the service 

was provided, the attorney providing the service . . . , and the time spent in 

providing the service.” Schweiger v. China Doll Rest., Inc. 138 Ariz. 183, 188 

(App. 1983) (citing Arizona Rule of Civil Appellate Procedure 21). Such 

detail is necessary to allow the court to assess the reasonableness of the fee 

request. Id.

¶16 The fee affidavit merely stated the scope of the agreement 

generally as representation in the pending “post-decree matter for 

enforcement of a property agreement term.” The reply provided a bit more 
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detail3 but did not specify the amount of time spent or which attorney 

performed the work listed. “It is insufficient to provide the court with 

broad summaries of the work done and time incurred.” Schweiger, id. 

Although father paid a flat fee, he still bears the burden of proving that the 

amount sought is reasonable in relation to the work performed and the 

result achieved. Id.; see also Geller v. Lesk, 230 Ariz. 624, 630, ¶ 18 (App. 2012), 

disagreed with on other grounds in Am. Power Prod., Inc. v. CSK Auto, Inc., 242 

Ariz. 364, 367-68 ¶¶ 13, 14 (2017). The application for attorneys’ fees did 

not provide sufficient detail to satisfy the Schweiger requirements. 

Accordingly, we vacate the award of attorneys’ fees to father.4 

 

3 The reply listed the following without specifying which attorneys or 

paralegal performed the work: 

•Attended the RMC conference

•Briefed and replied the prevailing motion to dismiss

•Fended off Wife’s ill-advised efforts to conduct discovery in 

a case in which the Family Court lacks jurisdiction.

•Prepared and now replies to yet another baseless claim by 

Wife regarding attorney’s fees.

4 Mother also contends the trial court failed to make any factual findings 

supporting its fee award. However, the court is not obligated to make 

findings of fact in the absence of a request. See Trantor v. Fredrikson, 179 

Ariz. 299, 301 (1994); Myrick, 235 Ariz. at 494-95, ¶ 10 (citing MacMillan v. 

Schwartz, 226 Ariz. 584, 592, ¶ 39 (App. 2011)). Mother did not request such 

findings; therefore, we find no abuse of discretion.

Father requested fees pursuant to A.R.S. §§ 25-324 (2016) and 

12-341.01 (2016). The trial court did not specify the statutory basis for its 

award. Father cited only the statutes and failed to support his claim with 

any evidence or argument. Mother contends the court abused its discretion 

in awarding fees given this lack of evidence. 

The party requesting attorneys’ fees bears the burden of 

proving he is entitled to an award. See Woerth v. City of Flagstaff, 167 Ariz. 

412, 419 (App. 1990). As it relates to A.R.S. § 25-324, a party cannot satisfy 

this burden if he fails to provide the court with any information regarding 

his financial resources. In Associated Indem. Corp. v. Warner, 143 Ariz. 567, 

570 (1985), the supreme court listed several factors a court should consider 
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ATTORNEYS’ FEES AND COSTS ON APPEAL

¶17 Both parties request an award of attorneys’ fees and costs on 

appeal pursuant to A.R.S. §§ 25-324 (2016) and 12-341.01 (2016). In the 

exercise of our discretion, we decline to award attorneys’ fees to either 

party. 

CONCLUSION

¶18 We affirm the order dismissing mother’s petition to enforce

and vacate the award of attorneys’ fees to father.

 

when exercising its discretion to award fees under A.R.S. § 12-341.01. 

Because father failed to offer any evidence or argument to support his fee 

request under either statute, there was no basis for the award. On this 

record, we cannot conclude the trial court properly exercised its discretion 

in awarding attorneys’ fees to father.