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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KYLE DALE VANDEN BOSCH, Petitioner/Appellant-Cross Appellee,

v.

LINDSEY PARK VANDEN BOSCH, Respondent/Appellee-Cross Appellant.

No. 1 CA-CV 16-0484 FC

Appeal from the Superior Court in Maricopa County

No. FC2012-003520

The Honorable Carolyn K. Passamonte, Judge Pro Tempore

The Honorable Joseph P. Mikitish, Judge

AFFIRMED AS MODIFIED

COUNSEL

The Cavanagh Law Firm, P.A., Phoenix

By Helen R. Davis, Timea R. Hargesheimer

Counsel for Petitioner/Appellant-Cross Appellee

Dickinson Wright PLLC, Phoenix

By Marlene A. Pontrelli, James S. Rigberg

Counsel for Respondent/Appellee-Cross Appellant

FILED 11-30-2017
VANDEN BOSCH v. VANDEN BOSCH

Decision of the Court

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MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.

C R U Z, Judge:

¶1 Kyle Dale Vanden Bosch (“Father”) appeals the superior 

court’s denial of his motion for new trial and the suspension of the accrual 

of interest on an attorneys’ fees judgment against Lindsey Park Vanden 

Bosch (“Mother”). Mother has filed a cross-appeal challenging the 

lawfulness of the superior court’s alcohol-testing and treatment orders and 

the award of attorneys’ fees to Father. For the following reasons, we affirm 

the superior court’s award of attorneys’ fees as modified.

FACTUAL AND PROCEDURAL HISTORY1

¶2 Mother and Father divorced in Tennessee in 2011, and Mother 

registered the resulting judgment, divorce decree, and child-custody 

determination in Arizona in 2012.2 The decree granted Mother primary 

physical custody of Mother’s and Father’s three minor children

(“Children”).

¶3 Father retired in 2013 and moved to modify child support and 

parenting time so he could spend more time with the Children. The parties 

stipulated to equal parenting time later that year.

¶4 Approximately a year later, in May 2014, Father again moved 

to modify child support and parenting time. The parties reached a 

settlement in February 2015, but the superior court later set the settlement 

aside at the parties’ request. It set an evidentiary hearing to consider the 

merits of Father’s petition to modify child support and parenting time.

¶5 Following the three-day evidentiary hearing in April 2016, the 

superior court issued an order (“Order”) finding Mother’s actions and then-

 

1 We review the evidence in the light most favorable to upholding the 

superior court’s decision. Baker v. Meyer, 237 Ariz. 112, 113, ¶ 2 (App. 2015).

2 The state of Tennessee transferred jurisdiction of all further litigation 

to Arizona in July 2012.
VANDEN BOSCH v. VANDEN BOSCH

Decision of the Court

3

existing personal circumstances constituted a substantial and continuing 

change of circumstances sufficient to justify modifying the previous 

custody order. The court found evidence sufficient to establish a rebuttable 

presumption that sole or joint legal decision-making authority by Mother 

was not in the Children’s best interests under Arizona Revised Statutes 

(“A.R.S.”) section 25-403.04, and it found Mother failed to rebut the 

presumption. On that basis, the court ordered Mother to complete an 

intensive inpatient or residential alcohol treatment program; participate in 

the Family Assessment, Counseling, and Testing Court (“FACT Court”) 

program upon her completion of the inpatient program; continue random 

drug testing through TASC; and comply with all recommendations for 

treatment and care from the inpatient treatment program. Although the 

court found it was in the Children’s best interests for Mother and Father to 

share joint legal decision-making, it also found it was in their best interests 

on an interim basis to award Father sole legal decision-making until Mother 

complied with the treatment and testing orders. The court accordingly 

ordered that joint legal decision-making would resume after Mother 

satisfactorily completed the required testing and treatment.

¶6 Regarding parenting time, the superior court found that, 

notwithstanding its award of sole legal decision-making to Father, Mother 

was “entitled to reasonable parenting time to ensure that the minor 

Children have substantial, frequent, meaningful, and continuing contact 

with the parent unless the Court finds, after a hearing, that parenting time 

would endanger the Children’s physical, mental, moral, or emotional 

health.” The court accordingly devised a parenting plan (“Parenting Plan”) 

composed of several stages, in which Mother’s parenting time would 

increase as Mother completed the Order’s testing and treatment orders. 

The court explained the FACT Court would monitor Mother’s compliance, 

“enter orders allowing [Mother] to move between STAGES during 

[Mother’s] participation in FACT Court,” and “implement those parenting 

time STAGES established pursuant to this Order when [Mother] 

successfully participates in FACT Court.”

¶7 The superior court also granted Father’s request for attorneys’ 

fees, finding Mother acted unreasonably in the litigation pursuant to A.R.S. 

§ 25-324. It awarded Father 75% of his attorneys’ fees and costs incurred 

after the February 2015 mediation. Mother later objected to the fees request, 

requesting that any award be limited to the specific fees incurred in 

responding to the issues on which the court found Mother had taken 

unreasonable positions. She also contended the court should recognize that 

the February 2013 settlement agreement was set aside by stipulation and 

that Mother attempted to settle in November 2015. The court implicitly 
VANDEN BOSCH v. VANDEN BOSCH

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denied Mother’s objection by ordering Mother to pay Father the full 

amount he requested of $118,000 on or before January 15, 2017, after which 

interest would begin to accrue at the rate of 4.25% on all outstanding 

judgments until paid in full.

¶8 Father timely filed a motion for new trial, which the superior 

court denied.

¶9 Father and Mother timely appealed and cross-appealed.3 We 

have jurisdiction pursuant to A.R.S. § 12-2101(A)(2), (5)(a). See Natale v. 

Natale, 234 Ariz. 507, 511, ¶ 12 (App. 2014).

DISCUSSION

¶10 In his opening brief on appeal, Father challenged the 

Parenting Plan, arguing that the stages and any modifications of legal 

decision-making and parenting time were not in the Children’s best 

interests, impermissible under the law, and contrary to the court’s finding 

that sole decision-making was presumptive under A.R.S. § 25-403.04. He 

also argued oversight of the modification orders by the FACT Court was an 

impermissible abdication of the superior court’s responsibility to “exercise 

independent judgment” concerning the Children’s best interests. However, 

in subsequent briefing in this Court, both parties advise that the superior 

court has now ended the FACT Court’s involvement in parenting time in 

this case, and that the superior court judge currently assigned to the case 

has assumed more direct involvement in managing parenting time without 

requiring compliance with the graduated stages in the Parenting Plan. 

Therefore, Father’s challenges to the Parenting Plan are now moot, and we 

accordingly do not address them. See Cardoso v. Soldo, 230 Ariz. 614, 617, 

¶ 5 (App. 2012) (stating this Court generally dismisses an appeal as moot 

“when our action as a reviewing court will have no effect on the parties”). 

As Mother notes, the only non-moot issue left for disposition in Father’s 

appeal is his challenge to the court’s judgment deferring interest on the

award of attorneys’ fees.

 

3 Although the superior court certified the Order as final pursuant to 

Arizona Rule of Family Law Procedure (“Rule”) 81, the court did not enter 

a final judgment ordering fees until September 2, 2016, after Father and 

Mother had filed their notices of appeal and cross-appeal. The court then 

certified the fee order as a formal written order of the Court pursuant to 

Rule 81, and Mother and Father timely filed amended notices of appeal and 

cross-appeal.
VANDEN BOSCH v. VANDEN BOSCH

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¶11 In her cross-appeal, Mother initially challenged the evidence 

supporting the superior court’s orders for alcohol testing and treatment and 

argued the court abused its discretion by awarding Father his attorneys’

fees. However, in her reply brief, Mother states that in light of current 

developments in the superior court, the only issue remaining in her crossappeal is the reasonableness of the amount of fees awarded to Father.

I. Standard of Review

¶12 We review the superior court’s award of attorneys’ fees for an 

abuse of discretion. Clark v. Clark, 239 Ariz. 281, 282, ¶ 6 (App. 2016). A 

court commits an abuse of discretion when it “commits an error of law in 

the process of reaching a discretionary conclusion.” In re Marriage of 

Williams, 219 Ariz. 546, 548, ¶ 8 (App. 2008). “We review questions of law 

de novo.” Id.

II. Father’s Appeal

¶13 Father argues the superior court abused its discretion by

suspending accrual of interest on the judgment for attorneys’ fees. He 

argues the order deferring interest was erroneous as a matter of law.

¶14 Under A.R.S. § 25-324(A), the superior court has the power to 

order a party to pay attorneys’ fees “after considering the financial 

resources of both parties and the reasonableness of the positions each party 

has taken throughout the proceedings . . . .” “[T]he propriety of a litigant’s 

legal position [must] be evaluated by an objective standard of 

reasonableness.” Williams, 219 Ariz. at 548, ¶ 10. The superior court has 

broad discretion in determining attorneys’ fees. Clark, 239 Ariz. at 283, ¶ 8.

¶15 Here, the superior court’s order granting the attorneys’ fees 

award in favor of Father was reduced to a final judgment, subject to appeal 

under A.R.S. § 12-2101(A)(1).

¶16 The issue therefore is whether once the superior court enters 

a judgment for fees, that court has the power to defer interest on the 

judgment. The applicable statute, A.R.S. § 44-1201(B), provides that interest 

“shall be” paid “on any judgment” and does not allow for any exception. 

Further, a judgment must “state the applicable interest rate and it shall not 

change after it is entered.” A.R.S. § 44-1201(B). Consistent with the statute, 

this Court has held a spouse was entitled to receive interest on the principal 

balance from the date of the original decree, finding it inequitable to do 

otherwise because “[i]n the absence of a provision for interest on the 

deferred amount, appellant is forced to make an interest-free loan to 
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Decision of the Court

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appellee.” McCune v. McCune, 120 Ariz. 402, 404 (App. 1978). Mother cites 

no legal authorities to the contrary. Instead, she contends that an attorneys’

fees award is discretionary with the court, arguing the court’s discretion 

extends to determining the date upon which such an award will begin to 

bear interest. But, A.R.S. § 44-1201 allows no such discretion; under that 

provision, once a judgment is entered for fees, interest begins to accrue.

¶17 Father cites several cases that apply A.R.S. § 44-1201(B) by 

awarding post-judgment interest on community assets awarded to a 

spouse. See Koelsch v. Koelsch, 148 Ariz. 176, 184 (1986); Cockrill v. Cockrill, 

139 Ariz. 72, 75 (App. 1983); and McCune, 120 Ariz. at 404. Although 

Mother asserts these cases are inapplicable because they do not address a 

judgment for attorneys’ fees, these cases are at least informative, if not 

directly on point. Section 44-1201(B) mandates that interest will accrue at 

designated rates “on any judgment,” and a “judgment” may also include 

amounts awarded for attorneys’ fees. A.R.S. § 44-1201(B); Cuellar v. Vettorel, 

235 Ariz. 399, 403, ¶ 12 (App. 2014). Nothing in A.R.S. § 44-1201 indicates 

that it is inapplicable to a judgment for attorneys’ fees. In absence of 

statutory language or any supporting authority, we will not read such 

meaning into the statute.

¶18 Here, the superior court ordered “that [Mother] shall pay 

[Father] the amount of $118,000 on or before January 15, 2017,” and that 

“[a]fter that time, interest shall accrue at the rate of 4.25% on all outstanding 

amounts until paid in full.” The award effectively and impermissibly 

required Father to make an interest-free loan to Mother, and we conclude 

the court abused its discretion in suspending accrual of interest on the

award. The judgment is modified to provide interest on the attorneys’ fee 

award at the rate of 4.25% commencing from the date the judgment was

originally entered, September 7, 2016.

III. Mother’s Cross-Appeal

¶19 Mother argues the superior court abused its discretion in 

awarding Father fees unrelated to the unreasonable positions Mother took. 

She argues the court: (1) wrongfully based its award on Mother’s “entering 

into a mediated stipulation in early 2015, but then failing to follow through 

with the agreed-upon course of action” when the parties agreed to set aside 

the stipulation; and (2) failed to delineate how each of Mother’s 

unreasonable actions or positions led Father to incur any particular amount 

of attorneys’ fees.
VANDEN BOSCH v. VANDEN BOSCH

Decision of the Court

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¶20 As an initial matter, we reject Mother’s argument that, on this 

record, the superior court was required to delineate how each of Mother’s 

unreasonable actions or positions led Father to incur any particular amount 

of attorneys’ fees. A party may request the superior court to “make specific 

findings concerning the portions of any award of fees and expenses that are 

based on consideration of financial resources and that are based on 

consideration of reasonableness of positions.” A.R.S. § 25-324(A). The 

record does not reflect such a request by Mother. Section 25-324(A) does 

not require the superior court to specifically itemize the fees and costs 

incurred as Mother argues, MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 39 

(App. 2011), and Mother provides no legal authority to support her 

argument.

¶21 We also find no abuse of discretion in the superior court’s 

award of attorneys’ fees to Father. Here, the superior court expressly 

“consider[ed] the financial resources of both parties and the reasonableness 

of [their] positions . . . throughout the proceedings” as required by A.R.S. 

§ 25-324(A). Although Mother argues the court erred in basing its award 

on the parties’ stipulation to set aside the February 2015 agreement, 

substantial evidence supports the court’s remaining findings regarding 

Mother’s unreasonable positions leading up to and including the 

evidentiary hearing. In addition to finding Mother acted unreasonably by 

entering a mediated stipulation in early 2015 but then failing to follow 

through with the agreed-upon course of action, the court found Mother 

acted unreasonably by failing to provide accurate information to the courtappointed experts; filing motions regarding Father’s mental health and 

medical records before abandoning her position; and affirmatively

misleading the court. At the evidentiary hearing, both the court-appointed 

expert and Mother’s expert testified Mother had withheld or 

misrepresented information that would have been relevant to their 

assessments of Mother’s substance-use issues. Mother was required as a 

term of her probation to participate in a June 2014 substance-abuse 

assessment by Sage counseling, but the court-appointed expert noted 

records from that assessment showed Mother did not divulge information 

that would have led Mother to fall into a high-risk group for treatment.

Further, the expert noted in his reports that Mother denied statements she 

had made to him and which Mother’s expert had reported she had made to 

him, and she denied explanations she had previously given with regards to 

TASC testing. Because “the trial court is in the best position to observe and 

assess the conduct of the parties before it,” Mary Lou C. v. Ariz. Dep’t of Econ. 

Sec., 207 Ariz. 43, 47, ¶ 8 (App. 2004), we cannot say that the court clearly 

erred it when it awarded Father 75% of his attorneys’ fees and costs 

incurred after the February 2015 mediation.
VANDEN BOSCH v. VANDEN BOSCH

Decision of the Court

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IV. Attorneys’ Fees on Appeal

¶22 Both parties seek attorneys’ fees pursuant to A.R.S. § 25-324

and Arizona Rule of Civil Appellate Procedure 21. We decline to award 

fees to either party on appeal.

CONCLUSION

¶23 For the foregoing reasons, we affirm the superior court’s 

award of attorneys’ fees as modified to provide that interest on the award 

begin to accrue as of the date the judgment was entered.