NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

In re the Matter of:

DENNIS MICHAEL SMITH, Petitioner/Appellant,

v.

TRICIA ANN FREDERICK, Respondent/Appellee.

No. 1 CA-CV 13-0443

Appeal from the Superior Court in Maricopa County

Nos. DR1994-001148, DR1996-010662 & DR1999-022098

(Consolidated)

The Honorable John R. Hannah, Jr., Judge

AFFIRMED

COUNSEL

Gillespie, Shields & Durrant, Phoenix

By DeeAn Gillespie Strub

Counsel for Petitioner/Appellant

Rowley Chapman & Barney, LTD, Mesa

By Paul S. Rowley, Nathaniel H. Wadsworth

Counsel for Respondent/Appellee
SMITH v. FREDERICK

Decision of the Court

2

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.

J O N E S, Judge:

¶1 Dennis Michael Smith (Father) appeals the trial court’s denial 

of his motion for a new trial, in which he sought an evidentiary hearing to 

determine whether counsel for Tricia Ann Frederick (Mother) should be 

held jointly and severally liable for a fee award entered against Mother. For 

the following reasons, we affirm the trial court’s ruling. 

FACTS AND PROCEDURAL HISTORY

¶2 Father and Mother are the unmarried parents of a daughter 

(Child), born in 1999. In January 2011, Father filed a petition to modify a 

2008 parenting time and custody order, in which he and Mother shared 

legal custody, he was the primary residential parent, and Mother had

scheduled parenting time. 

¶3 In his petition, Father sought sole custody of Child, with 

limited supervised parenting time to Mother until Child was “emotionally 

stabilized.” Father argued that Mother previously obtained an order of 

protection against him by “baselessly” alleging Father of sexual abuse on 

the grounds that he had failed to protect the Child from being “groomed”

by a neighbor. The order was quashed forty-two days after it was issued, 

but Father was denied access to Child during that time period. Father 

asserted that, during the forty-two-day period, Mother emotionally 

manipulated Child into hating Father. Father further alleged Mother had 

made similar baseless accusations in the past. 

¶4 Mother responded to Father’s petition, and filed a crosspetition to modify parenting time and custody in which she sought sole 

legal custody of Child with restricted access for Father. Mother noted that

the parenting coordinator had recommended that the parents explore 

changing the existing custody and parenting arrangement in light of Child’s 

age and “the ongoing circumstances of the parents.”

¶5 The trial court held a two-day hearing on the petitions, at 

which the parenting coordinator, among others, testified. The court, 
SMITH v. FREDERICK

Decision of the Court

3

thereafter, awarded sole legal custody to Father, and granted Mother 

limited access to Child. In reaching its decision, the court noted that Child 

Protective Services had found Mother emotionally abused Child by 

coercing her to accuse Father of sexual abuse, sought to alienate Child from 

Father, and falsely accused Father of sexual abuse and of driving while 

intoxicated with Child in the vehicle. 

¶6 The trial court then scheduled an evidentiary hearing on 

Father’s request for attorneys’ fees against Mother and her attorney

pursuant to Arizona Revised Statutes (A.R.S.) sections 12-3491 and 25-324, 

and Arizona Rule of Family Law Procedure 31. 

¶7 Three weeks prior to the hearing, Father filed a memorandum 

outlining the reasons Mother’s counsel should be held jointly and severally 

liable for any fee award. Father alleged that counsel: (1) “made, and/or 

allowed to be made, misrepresentations in this proceeding;” (2) failed “to 

amend his pleadings when he learned of the false and unsubstantiated 

allegations made by Mother;” and (3) filed “motions and other papers with

false allegations that he would have known were false had he conducted 

any reasonable inquiry.” He further requested Mother’s counsel be

disqualified from representing her at the fees hearing because of the conflict 

of interest created by the possibility they may be jointly and severally liable

for any fee award. Father also moved for the hearing to be reset so Mother 

could retain new counsel. 

¶8 The court denied Father’s requests to disqualify Mother’s 

attorney and reset the hearing. In a detailed minute entry, the court noted 

that disqualification should be granted only in extreme circumstances and 

explained its reasoning for declining to do so in this instance:

The benefit to Father, from disqualification of Mother’s 

counsel, does not outweigh the burden of delay and the risk 

of unfairness to Mother. The reason is that Father is not likely 

to prevail on his claim for a fee award against Mother’s 

attorney. The law offers little support for such an award 

under the circumstances of this case. 

Section 12-349 applies only if a party brings a claim 

without substantial justification or for harassment or delay, or 

 

1 Absent material revisions since the relevant date, we cite to the 

current version of a statute or rule unless otherwise stated. 
SMITH v. FREDERICK

Decision of the Court

4

abuses the discovery process, or unreasonably expands or 

delays the proceedings. The record does not support the 

conclusion that Mother’s argument for sole custody was so 

legally and factually unjustifiable that an attorney should be 

personally liable for presenting her case. [The parenting 

coordinator]’s testimony supported Mother’s position. 

Although Mother’s counsel filed a lot of pleadings and raised 

a lot of issues, it would be difficult to conclude that his tactics 

unreasonably expanded the proceedings in light of the 

extremely contentious nature of the underlying dispute. 

[Arizona Rule of Family Law Procedure] 31 applies to 

specific pleadings, and it is limited to the costs incurred as a 

result of those pleadings. Neither Mother’s response to 

Father’s petition nor Mother’s written closing argument, 

taken as a whole, warrants sanctions. Closing arguments, in 

particular, are often filled with hyperbole. Any request for 

sanctions based on a particular filing during the litigation 

(such as the drug testing request) should have been made at 

the time of the filing. 

The other sources of authority offered by Father do not 

apply. A.R.S. section 25-324 does not authorize a fee award 

against an attorney. Mangan v. Mangan, 227 Ariz. 346, 258 P.3d 

164 (App. 2011) was decided under the Rules of Appellate 

Procedure. 

¶9 The trial court then went forward with the fees hearing, and 

awarded fees to Father in the amount of $44,613.33 against Mother pursuant 

to A.R.S. § 25-324; the court, however, denied Father’s request to hold 

Mother’s counsel jointly and severally liable for the fee award. 

¶10 Father then filed a motion for new trial on his claim for an 

award of attorneys’ fees against Mother’s attorney. Father re-urged his 

position regarding the alleged misconduct of Mother’s attorney. He also 

argued that the parenting coordinator’s testimony should not shield 

Mother’s counsel from being liable for fees, and that he should be permitted 

to examine Mother’s counsel to determine what inquiries he made, if any, 

before advancing Mother’s positions. 

¶11 The trial court denied Father’s motion for new trial, 

explaining: 
SMITH v. FREDERICK

Decision of the Court

5

Although the Court shares many of the concerns 

expressed about the burden this latest round of litigation has 

placed on [Father] and its likely negative effect on the child, 

the imposition of fees against the opposing party’s attorney 

would be a bridge too far on this record. The evidence 

presented at the hearing on attorney’s fees did not change the 

Court’s conclusion that, in light of the testimony of [the 

parenting coordinator], the position taken by counsel on 

behalf of [Mother] was not “without substantial justification.” 

A.R.S. § 12-349(A)(1). The accusations of sexual abuse against 

[Father] came the closest to “unreasonably expand[ing] or 

delay[ing] the proceeding,” A.R.S. § 12-349(A)(3), but in the 

end it would not have been possible to untangle those 

allegations from the rest of the facts, so that the only thing 

counsel could reasonably have done was to refrain from 

pushing those allegations at trial — which he did.

¶12 Father timely appealed from the denial of his motion for new 

trial. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(5)(a). 

STANDARD OF REVIEW

¶13 We review a trial court’s decision denying a motion for new 

trial for an abuse of discretion. Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 

1164, 1166 (App. 1996). We will reverse a trial court’s denial of a new trial 

motion “only if it reflects a manifest abuse of discretion given the record 

and circumstances of the case.” Id. (citing Blakely Oil, Inc. v. Wells Truckways, 

Ltd., 83 Ariz. 274, 278, 320 P.2d 464, 466 (1958)). We also review all aspects 

of a court’s decision related to sanctions under Arizona Rule of Family Law 

Procedure 31 for an abuse of discretion. See James, Cooke & Hobson, Inc. v. 

Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319, 868 P.2d 329, 332 (App. 

1993) (considering Arizona Rule of Civil Procedure 11, on which Rule 31 is 

predicated).2 We review the court’s application of A.R.S. § 12-349 de novo. 

City of Casa Grande v. Ariz. Water Co., 199 Ariz. 547, 555, ¶ 27, 20 P.3d 590, 

598 (App. 2001). 

 

2 See Ariz. R. Fam. L.P. 31, Committee Comment. 
SMITH v. FREDERICK

Decision of the Court

6

DISCUSSION

¶14 Father argues that Mother’s counsel was subject to sanctions 

in the form of attorneys’ fees pursuant to Arizona Rule of Family Law 

Procedure 31 and A.R.S. § 12-349,

3 and that Father was entitled to an 

evidentiary hearing to demonstrate the basis for finding Mother’s counsel

jointly and severally liable for the fee award. Father argues that the court 

abused its discretion in denying him a new trial on this point. 

¶15 Rule 31 is violated when a party or counsel files a pleading or 

paper and knows or should know from reasonable inquiry that the claim or 

defense is legally or factually groundless or when the paper filed is 

intended to cause delay, harassment, or some other improper purpose. 

Ariz. R. Fam. L.P. 31(a). Under A.R.S. § 12-349, as pertinent here, the court 

must assess a sanction against an attorney or party if it finds by a 

preponderance of the evidence that the attorney or party (1) brought or 

defended a claim without substantial justification; (2) brought or defended 

a claim solely or primarily for delay or harassment; or (3) unreasonably 

expanded or delayed the proceedings. A.R.S. § 12-349(A)(1)-(3); Phx.

Newspapers, Inc. v. Dep’t of Corr., 188 Ariz. 237, 243-44, 934 P.2d 801, 807-08 

(App. 1997) (holding preponderance of the evidence as the appropriate 

standard under A.R.S. § 12-349). At the time of these proceedings, “without 

substantial justification” meant that the claim or defense constituted 

 

3 Father also contends that fees may be awarded jointly and severally 

against Mother’s counsel under A.R.S. § 25-324. The language of the statute, 

however, provides for no such relief. See Michael J. Jr. v. Michael J. Sr., 198 

Ariz. 154, 157, ¶ 15, 7 P.3d 960, 963 (App. 2000) (stating we follow the plain 

meaning of a statute where its language is unambiguous). The statute 

authorizes or compels an award of fees by one “party” to “the other party.” 

A.R.S. § 25-324(A)-(B). It makes no provision for a fee award against 

counsel. Father’s reliance upon Mangan v. Mangan, 227 Ariz. 346, 258 P.3d 

164 (App. 2011), and In re Marriage of Williams, 219 Ariz. 546, 200 P.3d 1043 

(App. 2008), is misplaced. In Mangan, this Court awarded fees on appeal 

against a mother under § 25-324, and held her appellate counsel joint and 

severally liable under Arizona Rule of Civil Appellate Procedure 25, not 

A.R.S. §25-324, because of counsel’s misrepresentation of the record and 

counsel’s reliance on an unpublished decision on appeal. Mangan, 227 Ariz. 

at 354, ¶ 32, 258 P.3d at 172. In Williams, the court did not consider whether 

counsel should be jointly and severally liable for a fee award, and is not 

applicable. Williams, 219 Ariz. at 547, ¶ 1, 200 P.3d at 1044.
SMITH v. FREDERICK

Decision of the Court

7

harassment, was groundless, and was not made in good faith. A.R.S. § 12-

349(F) (2011).

4

¶16 Father argues he was entitled to an evidentiary hearing and 

the trial court wrongly denied his request for one.5 Not so. Neither Rule 

31 nor A.R.S. § 12-349 requires the court to conduct a hearing, and Father 

has offered no authority that he was entitled to an evidentiary hearing

under these provisions. Father cites Ruesga v. Kindred Nursing Centers, 

L.L.C., 215 Ariz. 589, 161 P.3d 1253 (App. 2007), and Brake Masters Systems, 

Inc. v. Gabbay, 206 Ariz. 360, 78 P.3d 1081 (App. 2003), both of which concern 

the appropriateness of evidentiary hearings in determining the existence or 

terms of an arbitration agreement. Father does not explain how these cases 

apply in light of his request for sanctions against an opposing party’s 

attorney, and we do not find them instructive on the issue.

¶17 Under Rule 11, “the court’s inquiry into violations of the rule 

should ordinarily be restricted to the record then before the court” and 

“discovery directed to the signer’s conduct should be allowed only by leave 

of court and should not be permitted in the absence of clear appearance of 

 

4 Effective January 1, 2013, “without substantial justification” no 

longer required a showing of “harassment.” A.R.S. § 12-349(F) (2014). 

5 Father likens the hearing he seeks to a “culprit hearing” in the 

context of Arizona Rule of Civil Procedure 37(b). Under that rule, a trial 

court may conduct a “culprit hearing” to determine if a party, rather than 

the party’s counsel, is responsible for a disclosure or discovery violation. 

Marquez v. Ortega, 231 Ariz. 437, 444, ¶ 26, 296 P.3d 100, 107 (App. 2013). 

The purpose of the hearing is to protect the party from a dispositive 

sanction when the fault lies with counsel exclusively, id. (citing Lund v. 

Donahoe, 227 Ariz. 572, 581, ¶¶ 33-34, 261 P.3d 456, 465 (App. 2011)), and to 

ensure that the party against whom a sanction is imposed has received due 

process. Id.; see Hammoudeh v. Jada, 222 Ariz. 570, 572, ¶ 6, 218 P.3d 1027, 

1029 (App. 2009). A hearing in such cases may be necessary depending on 

the circumstances in general, the severity of the sanctions, and the judge’s 

participation in the proceedings, knowledge of the case, and need for 

further inquiry. Marquez, 231 Ariz. at 444, ¶ 26, 296 P.3d at 107 (citing Lund, 

227 Ariz. at 582, ¶ 37, 261 P.3d at 466). A hearing is not required, however, 

when a determination can be made on the record. Hammoudeh, 222 Ariz. at 

572, ¶ 7, 218 P.3d at 1029. The analogy to a “culprit hearing” is imprecise, 

however, as in those instances it is the party against whom the sanctions 

are levied that may request the hearing to excuse or justify his actions —

not the party requesting sanctions. 
SMITH v. FREDERICK

Decision of the Court

8

abuse.” Ariz. R. Civ. P. 11(a), 1984 State Bar Committee Note. This Court 

has recognized that the necessity of an evidentiary hearing on sanctions 

depends upon the nature of the case, including the general circumstances, 

the type and severity of sanctions under consideration, and the judge’s 

participation in and knowledge of the case. Precision Components v. 

Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 556-57, 880 P.2d 

1098, 1102-03 (App. 1993). 

¶18 The judge here was involved in this matter for more than a 

year and presided over the trial on the cross-petitions for modification of 

custody. The court’s specific findings following the hearing demonstrate it

was well aware of Mother’s various false accusations against Father.

Additionally, the record before the court contained the same information 

that Father contends should have given notice to Mother’s counsel to 

refrain from advancing certain positions. The court was sufficiently 

informed to assess the propriety of Father’s position regarding fees, and 

implicitly determined it did not require further inquiry into the matter to 

reach its decision. See Precision Components, 179 Ariz. at 556, 880 P.2d at 

1101 (“In many situations, . . . ‘the judge’s participation in the proceedings 

provides him with full knowledge of the relevant facts and little further 

inquiry will be necessary.’”) (quoting with approval 5A C. Wright and A. 

Miller, Federal Practice and Procedure § 1337 at 128-29 (1990)). 

¶19 After consideration of the evidence and the record, the trial 

court determined an award of attorneys’ fees against Mother’s counsel was 

unwarranted. Specifically, the court found the parenting coordinator’s

testimony supported Mother’s position and, therefore, her argument for 

sole custody was not “without substantial justification.” Also, the trial 

court found the evidence provided at the fees hearing did not demonstrate 

counsel’s actions unnecessarily delayed or expanded the proceedings. 

Consequently, the court concluded that Mother’s counsel should not be 

liable for attorneys’ fees for presenting Mother’s case. Because Father has 

not provided a transcript of the trial, we presume that the transcript would 

substantiate the court’s findings and conclusions. See Baker v. Baker, 183 

Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995) (noting where appellant fails to 

ensure record on appeal contains necessary information, we presume the 

missing information supports the court’s ruling). 
SMITH v. FREDERICK

Decision of the Court

9

¶20 Upon this record, we find no abuse of discretion in the trial 

court’s denial of Father’s request for an evidentiary hearing on his claim for

attorneys’ fees against Mother’s counsel.6 

CONCLUSION 

¶21 We find no basis to conclude Father was entitled to an 

evidentiary hearing. Accordingly, we find no abuse of discretion in the trial 

court’s denial of Father’s motion for new trial seeking such a hearing, and 

affirm its ruling. Mother seeks an award of attorneys’ fees on appeal 

pursuant to A.R.S. § 25-324; in our discretion, we deny her request. 

 

6 Because we find Father was not entitled to an evidentiary hearing on 

his claim for joint and several attorneys’ fees against Mother and her 

counsel, we need not reach the issue of whether the trial court erred by 

finding Father’s request for the evidentiary hearing was untimely.