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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JONAH SHACKNAI, Petitioner/Appellant,

v.

DINA MARIE SHACKNAI, Respondent/Appellee.

No. 1 CA-CV 13-0555 FC

Appeal from the Superior Court in Maricopa County

No. FC2008-008253

The Honorable James T. Blomo, Judge

AFFIRMED

COUNSEL

The Cavanagh Law Firm, P.A., Phoenix

By Christina S. Hamilton, William F. Begley

Counsel for Petitioner/Appellant

Owens & Perkins, P.C., Scottsdale

By Max Nicholas Hanson, Michelle J. Perkins

Counsel for Respondent/Appellee
SHACKNAI v. SHACKNAI

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2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.

W I N T H R O P, Judge:

¶1 Petitioner/appellant, Jonah Shacknai (“Husband”), appeals 

the family court’s award of attorneys’ fees to respondent/appellee, Dina 

Marie Shacknai (“Wife”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On October 9, 2009, Husband and Wife were divorced 

pursuant to a consent decree.1 At that time, they entered a property 

settlement agreement (“PSA”), which contemplated the creation of two 

trusts for Wife’s benefit. The “Incentive Trust” was intended to hold stock 

shares, and the “Coronado Trust” was intended to hold real property in 

Coronado, California. The PSA further provided the parties would engage 

their own professionals and be responsible for their own costs related to the 

creation of the trusts, and Wife would draft the initial documents, to be 

reviewed by Husband.

¶3 On April 3, 2012, the parties stipulated that, if good faith 

efforts did not result in an agreement on the trust terms by May 15, 2012, 

either party could petition the court to conduct a hearing at which the court 

would determine the terms of the trust.

¶4 On July 11, 2012, Wife filed an Expedited Application/Motion 

to Set Trust Issues for Hearing. The court held a telephonic conference on 

September 20, 2012, at which Wife suggested the parties submit their 

positions to the court in writing and have the court rule on the matters still 

in dispute. Husband expressed a preference to proceed by mediation, but 

 

1 In October 2009, the family court issued an order sealing the file in 

this case pursuant to the parties’ stipulation. See Ariz. R. Fam. Law P. 13(D); 

Ariz. R. Sup. Ct. 123(b)(2), (c)(1), (d). On appeal, this court granted 

Husband’s motion to maintain the sealed status of the case file, despite 

Wife’s argument to the contrary. This decision contains only the details 

deemed necessary by this court for resolution of Husband’s appeal.
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agreed to submit the matter to the court. The parties agreed to file a single 

document presenting their respective positions in the nature of a joint 

pretrial statement.

¶5 The parties’ Joint Pre-Trial Statement and Argument 

Regarding Trust Issues for Court’s Determination (“Joint Pretrial 

Statement”) noted “counsel agreed to submit a black-lined Brief/Pre-Trial 

Statement to the Court with each party’s argument brief limited to ten (10) 

pages. The Court shall then rule based on the submissions without further 

argument or hearing unless otherwise determined by the Court.” The 

document identified four issues for the court’s determination: (1) a dispute 

regarding language in the Incentive Trust, (2) a dispute regarding language 

in the Coronado Trust, (3) a dispute on the choice of trustee, and (4) a 

dispute regarding “[w]hether one party should pay the other party’s 

attorneys’ fees and costs.” Counsel for each party signed the document.

¶6 In her argument for attorneys’ fees, Wife maintained that, 

although Husband’s net worth was not revealed in the divorce pursuant to 

a premarital agreement, Husband nevertheless had substantial assets and 

income, was the founder and CEO of a large pharmaceutical company, and 

would receive sizeable profits from the pending sale of that company. She 

attached documents printed from financial, business, and newspaper 

websites to support her statements.2 Wife argued that, in comparison, she 

recently obtained her doctorate in psychology, was working part-time, and 

had considerably less income and assets. Wife also argued Husband had 

taken unreasonable positions in the creation of the trusts. She argued she 

had retained California counsel to draft the trust agreements because the 

real property was located in California and she knew Husband held assets 

in trusts in California. She further argued Husband’s counsel had indicated 

the trusts would be California trusts. Wife asserted Husband rejected the 

drafts of the California trusts after months of intensive work and insisted 

the trusts be Arizona trusts, requiring Wife to hire new trust counsel in 

Arizona. She also argued Husband was unreasonable in his refusal to 

accept working drafts for discussion, insisting Wife approve all documents 

before submitting them to Husband and refrain from making any changes 

once given to Husband for review.

¶7 Husband argued Wife unreasonably delayed the drafting of 

the trusts and then took positions inconsistent with the terms of the PSA.

Husband also advised the court that, pursuant to the consent decree, Wife 

 

2 Husband did not move to strike or otherwise challenge the 

admissibility or veracity of these documents.
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had received a debt-free home, cash, and stock, and would receive 

additional assets under the trusts. Husband sought an award of fees of 

$27,270 for his divorce counsel and $110,940 for his trust counsel for the 

three years after entry of the consent decree.

¶8 The court ruled in favor of Wife regarding the disputed 

language in the Incentive Trust and the choice of trustee, and in favor of 

Husband regarding the disputed language in the Coronado Trust. With 

respect to attorneys’ fees, the court found a substantial disparity of financial 

resources between the parties and that Husband had considerably more 

resources available to contribute to Wife’s fees and costs. The court further 

found Husband had acted unreasonably in the litigation. Wife sought an 

award of $182,794.51 for fees and costs incurred in creating the trusts, 

including fees for divorce and trust counsel. The court awarded Wife 

$84,000 in fees and costs.

¶9 Husband filed a motion for new trial, arguing the court lacked 

sufficient evidence on which to base its decision on disparity of financial 

resources or reasonableness of positions, and that he was denied due 

process because the court did not conduct a hearing and he had no 

opportunity to respond to Wife’s statements. Husband further argued the 

award did not comply with Rule 91, Ariz. R. Fam. Law P., because neither 

party had submitted the required Affidavit of Financial Information 

(“AFI”). He also argued the award did not comply with Arizona Revised

Statutes (“A.R.S.”) section 25-324 (Supp. 2014) because the court awarded 

fees incurred outside the “proceedings,” and violated the PSA, which

provided the parties would bear their own fees with respect to the trusts.

Alternatively, Husband requested that the court make specific findings as 

to the unreasonable positions it believed he had taken in the litigation. The 

court denied Husband’s motion for new trial without explanation, and 

Husband appealed. This court has jurisdiction pursuant to A.R.S. § 12-

2101(A)(2) and (5)(a) (Supp. 2014).

ANALYSIS

¶10 Husband asserts several arguments against the family court’s 

award of attorneys’ fees to Wife under A.R.S. § 25-324. Whether to award 

fees pursuant to § 25-324 and the amount to be awarded is within the 

discretion of the family court. Roden v. Roden, 190 Ariz. 407, 412, 949 P.2d 

67, 72 (App. 1997), superseded in part by statute as stated in Myrick v. Maloney, 

235 Ariz. 491, 494, ¶ 8, 333 P.3d 818, 821 (App. 2014). We will not disturb 

the court’s award of fees absent an abuse of discretion. MacMillan v. 

Schwartz, 226 Ariz. 584, 592, ¶ 36, 250 P.3d 1213, 1221 (App. 2011).
SHACKNAI v. SHACKNAI

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I. Was the Fee Award Erroneous for Noncompliance with Rule 91(S)?

¶11 Husband argues the family court lacked jurisdiction or legal 

authority to enter an award because Wife failed to comply with Rule 91(S), 

Ariz. R. Fam. Law P. Rule 91(S) requires that a party seeking attorneys’ fees 

submit an AFI, which must be served on the opposing party with a blank 

form for the other party to complete. Although Wife did not comply with 

the rule, the court did not lack jurisdiction or the legal authority to award 

fees.

¶12 Subject matter jurisdiction is the right of a court to exercise 

power over a certain class of cases. Lee v. Lee, 133 Ariz. 118, 125, 649 P.2d 

997, 1004 (App. 1982) (citations omitted). Divorce is a statutory action, and 

the family court has only the authority given it by statute. Hunt v. Hunt, 22 

Ariz. App. 554, 556, 529 P.2d 708, 710 (1974). By statute, the court has 

original jurisdiction over all matters related to marriage dissolution, 

including any award of attorneys’ fees. A.R.S. §§ 25-311(A) (2007), -324.

¶13 Rule 91(S) requires the filing of an AFI; however, we see 

nothing in the rule, and Husband has directed us to nothing, suggesting

noncompliance with Rule 91(S) divests the family court of jurisdiction to 

consider an attorneys’ fees request.

¶14 Further, by himself seeking fees without filing an AFI and by 

proceeding without objecting to Wife’s failure to supply an AFI, Husband 

has waived any objection. See State ex rel. Horne v. Campos, 226 Ariz. 424, 

429-30, ¶ 21, 250 P.3d 201, 206-07 (App. 2011) (“[A]ny litigant . . . can waive 

by conduct its right to object to an adverse party’s failure to comply with 

statutory, constitutional, contractual, and procedural requirements.”

(citations omitted)). The parties’ Joint Pretrial Statement expressly 

provides: “The Court shall then rule [on the specified issues, including fees] 

based on the submissions without further argument or hearing unless 

otherwise determined by the Court.” By agreeing to submit the Joint 

Pretrial Statement to the family court for a decision, Husband waived his 

right to object to Wife’s failure to comply with the procedural requirements 

of Rule 91(S).

II. Was the Fee Award Erroneous for Lack of an Evidentiary Hearing?

¶15 Husband also argues the family court abused its discretion by 

awarding fees without conducting an evidentiary hearing. We conclude 

Husband has waived any right to an evidentiary hearing.
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¶16 Parties may enter stipulations regarding statutory and 

constitutional rights, as well as evidentiary matters. See Rich Hardware Co., 

Crunden-Martin Mfg. Co. v. Christy, 22 Ariz. 254, 260, 196 P. 454, 456 (1921); 

Pulliam v. Pulliam, 139 Ariz. 343, 345, 678 P.2d 528, 530 (App. 1984). Such 

stipulations are generally binding on the parties. Rich Hardware, 22 Ariz. at 

260, 196 P. at 456; Pulliam, 139 Ariz. at 345, 678 P.2d at 530.

¶17 Husband denies he agreed to waive his right to an evidentiary 

hearing on the matter of attorneys’ fees. Again, the language of the Joint 

Pretrial Statement refutes Husband’s claim. As we have noted, the Joint 

Pretrial Statement expressly provides that the court “shall” rule on the 

issues specified in the statement based on the parties’ submissions without 

further argument or hearing unless otherwise determined by the court.

Whether attorneys’ fees should be awarded was expressly identified as one 

of the issues to be decided by the court. Husband used three of the ten 

pages allowed for his brief to argue Wife had taken unreasonable positions 

and had resources to pay attorneys’ fees, and Husband even sought an

award of fees for himself. He did not, even in the alternative, argue the 

court lacked evidence to make a fee award, nor did he request an 

evidentiary hearing.

¶18 Husband clearly stipulated to have the question of attorneys’ 

fees decided by the court based on the information provided by each party 

without an additional evidentiary hearing. Husband cannot agree to a 

certain procedure, fail to preserve any objection, actively participate, seek 

relief for himself, and then claim error in the process when the court acts in 

accordance with the parties’ agreement but rules against Husband. See

Thorn v. Thorn, 235 Ariz. 216, 224, ¶ 35, 330 P.3d 973, 981 (App. 2014) (stating 

that the appellant could not persuade the court to follow a certain approach,

and then argue on appeal that approach was erroneous).

¶19 Husband cites Volk v. Brame, 235 Ariz. 462, 333 P.3d 789 (App. 

2014), in support of his argument that he was entitled to an evidentiary 

hearing and the court could not simply rely on the submitted documents. 

In Volk, the family court allotted fifteen minutes for a hearing, refused to 

increase the allotted time despite requests first from Father and then from 

Mother prior to the hearing and from Mother at the outset of the hearing,

3

allowed counsel for Father and then Mother to briefly argue, directed the 

parties to submit documents, refused to allow testimony, prevented Father 

from disputing or clarifying any evidence submitted by Mother, and told 

 

3 The hearing did ultimately last thirty-one minutes. Volk, 235 Ariz. at 

466, ¶ 11, 333 P.3d at 793.
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the parties it would make a decision based on the documents submitted. 

Volk, 235 Ariz. at 465-66, ¶¶ 4-11, 333 P.3d at 792-93. This court held that, 

when a court is addressing a disputed issue requiring an assessment of 

credibility, due process requires the court to afford the parties an 

opportunity to present sworn testimony. Id. at 464, ¶¶ 1-2, 333 P.3d at 791. 

The court may not rely solely on avowals of counsel. Id. at ¶ 1.

¶20 Unlike in Volk, however, the parties here agreed to submit the 

matter to the court for determination based on the submissions. Although 

it recommended caution in doing so, Volk acknowledged parties could 

stipulate to proceed without an evidentiary hearing. Id. at 470, ¶ 23, 333 

P.3d at 797.

¶21 The parties here agreed to proceed without an evidentiary 

hearing unless the court found one necessary. Having stipulated to the

procedure followed by the court, Husband cannot now claim the procedure 

was in error.

III. Did the PSA Preclude an Award of Fees?

¶22 Husband argues that the PSA provided the parties would 

bear their own fees related to the dissolution and establishment of the 

trusts, the PSA was incorporated into the decree, the court was bound by 

the agreement, and therefore the court lacked jurisdiction to enter an award 

of attorneys’ fees in favor of Wife. Husband is mistaken.

¶23 Arizona courts have held that the family court’s authority to 

award fees pursuant to A.R.S. § 25-324 is not abrogated or limited by an 

agreement between the parties. See Edsall v. Superior Court, 143 Ariz. 240, 

248-49, 693 P.2d 895, 903-04 (1984), superseded in part by statutory amendment 

to A.R.S. § 25-324(A); Atkinson v. Atkinson, 2 Ariz. App. 1, 4, 405 P.2d 919, 

922 (1965). The family court was not precluded by the terms of the PSA 

from entering an award of attorneys’ fees.

IV. Did the Fee Award Exceed the Parameters of A.R.S. § 25-324?

¶24 Husband argues the court awarded fees beyond those 

authorized by A.R.S. § 25-324. We disagree.

¶25 The family court, “after considering the financial resources of 

both parties and the reasonableness of the positions each party has taken 

throughout the proceedings,” may enter an award of attorneys’ fees “for 

the costs and expenses of maintaining or defending any proceeding” under 

the statutes governing marital dissolution and child custody. A.R.S. § 25-
SHACKNAI v. SHACKNAI

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324(A). “[C]osts and expenses may include attorney fees, deposition costs 

and other reasonable expenses as the court finds necessary to the full and 

proper presentation of the action . . . .” A.R.S. § 25-324(C).

¶26 Husband argues the “proceedings” related to the trusts began

when Wife filed her motion to set a hearing on the trust issues in July 2012. 

Until that time, he argues, the parties had by agreement negotiated with the 

intent to resolve the trust issues between themselves, without court 

involvement, and with each party paying his or her own professional fees. 

Husband contends any fees or expenses incurred before Wife filed her 

motion, including the fees of Wife’s trust counsel, may not be awarded 

under the statute, and the court therefore erred by including such fees in its 

award.

¶27 Husband’s argument is undercut by his having taken a 

contrary position when presenting the matter to the family court. In the 

Joint Pretrial Statement, Husband argued Wife had taken unreasonable 

positions and unreasonably delayed for the three years they negotiated the 

trust terms after entry of the consent decree. Husband advised the court:

Husband has incurred attorneys’ fees and costs with counsel 

undersigned of $27,270.00 during that period of time; and has 

incurred attorneys’ fees of $110,940.00 during that period of 

time with trust counsel . . . . Husband requests that Wife be 

ordered to pay his attorneys[‘] fees and costs that have 

generated as a result of trying to document the trust because 

Wife’s positions have been unreasonable and have 

unnecessarily increased the cost of the litigation.

Husband attached billing statements dating from October 2009. Wife

similarly argued Husband was unreasonable during the negotiation of the 

terms of the trust and sought fees incurred in the creation of the trust for 

her divorce counsel and trust counsel for the three-year negotiation period. 

Husband now argues that, under the statute, the court could not make an 

award to Wife of fees incurred by her trust counsel or fees incurred before 

July 2012, despite the fact that Husband requested such relief for himself.

¶28 Even if A.R.S. § 25-324 could be construed as Husband 

suggests, in this case Husband submitted the issue to the court seeking the 

relief he now complains was improper, thereby implicitly advising the 

court that such an award was permissible under the statute. If the court 

erred, the error was invited by Husband (as well as Wife). See Schlecht v. 

Schiel, 76 Ariz. 214, 220, 262 P.2d 252, 256 (1953) (“By the rule of invited 
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error, one who deliberately leads the court to take certain action may not 

upon appeal assign that action as error.”), abrogated in part on other grounds 

as recognized in A Tumbling-T Ranches v. Paloma Inv. Ltd. P’ship, 197 Ariz. 545, 

552, ¶ 23, 5 P.3d 259, 266 (App. 2000). Husband’s position in the family 

court reflected an acknowledgement or understanding that the concept of 

“proceedings” was broad enough to include all of the activities and events 

concerning the development and resolution of the trust issues, and was not 

so narrowly understood by the parties as Husband now argues.

4

V. Was the Fee Award an Abuse of Discretion?

¶29 Husband argues that, even if the court could award fees based 

on the record before it, the court abused its discretion in doing so, and he 

argues the award should be vacated or reduced to cover only a portion of 

those fees incurred after July 2012. The family court may award attorneys’ 

fees after considering the financial resources of the parties and the 

reasonableness of the positions the parties have taken. A.R.S. § 25-324(A). 

The purpose of the statute is to provide a remedy for the party least able to 

pay. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524, ¶ 13, 169 P.3d 111, 114 

(App. 2007). Relative financial disparity between the parties, not an 

inability to pay, determines eligibility for a fee award. Magee v. Magee, 206 

Ariz. 589, 593, ¶ 18, 81 P.3d 1048, 1052 (App. 2004). Either disparity of 

income or unreasonable conduct can support an award of fees. Mangan v. 

Mangan, 227 Ariz. 346, 353 n.13, ¶ 27, 258 P.3d 164, 171 n.13 (App. 2011).

We will not disturb the court’s decision to award attorneys’ fees under 

A.R.S. § 25-324 absent an abuse of discretion. MacMillan, 226 Ariz. at 592, 

¶ 36, 250 P.3d at 1221.

¶30 The record supports the court’s finding of a disparity of 

income, which supports the court’s fee award. A 2009 Child Support 

Worksheet and Husband’s January 2009 AFI show Husband had an 

estimated gross monthly income of $175,142, while Wife had an estimated 

gross monthly income of $3,000. Wife also submitted copies of news articles 

reporting Securities and Exchange Commission filings showing that, in 

August 2010, Husband sold 400,000 shares of the company of which he was 

CEO for more than $10,600,000, and that he still had 870,000 shares after the 

sale. A printout of a profile by Forbes magazine listed Husband’s salary for 

 

4 The applicable legal precept here may be summarized by the ancient 

rule of “sauce for goose.” See AMERCO v. Shoen, 184 Ariz. 150, 164 n.16, 

907 P.2d 536, 550 n.16 (App. 1995) (“The Oxford English Dictionary 128 

(1933) cites Collier 2d Def. Short View 37 (1700) as its earliest source for the 

proverb, ‘What’s sauce for the goose is sauce for the gander.’”).
SHACKNAI v. SHACKNAI

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2011 as $1,181,000 and estimated total compensation for that year as 

$19,636,817. A September 2012 article indicated the company would be sold 

for $2.6 billion, resulting in a return for Husband of $41,000,000 based on 

his stock shares and ignoring his existing stock options. Wife asserted she 

earned approximately $18,000 per year and declared her own net worth to 

be “approximately $1,900,000 in an investment account and the Arizona 

residence in which she resides.” Husband pointed out that, pursuant to the 

consent decree, Wife received her home debt-free and a cash payment of 

$2,900,000, she had already received stock valued at more than $1,000,000, 

and she could potentially receive another $6,200,000 in assets through the 

trusts. Although Wife is certainly not without resources, Husband clearly 

has substantially more financial resources available.

¶31 Husband argues both parties are multi-millionaires, but he

does not dispute that a relative disparity exists. Further, although more 

recent AFIs are generally required, see, e.g., Breitbart-Napp v. Napp, 216 Ariz.

74, 84, ¶¶ 38-39, 163 P.3d 1024, 1034 (App. 2007) (finding a three-year-old 

AFI for Wife and eight-month-old AFI for Husband were by themselves 

“inadequate” to support an award of fees), the family court needs only 

“competent” evidence to support an award of attorneys’ fees. Badertscher 

v. Badertscher, 10 Ariz. App. 501, 506, 460 P.2d 37, 42 (1969) (citation 

omitted), abrogated by statute on other grounds as recognized in Bryan v. Bryan, 

132 Ariz. 353, 357 n.4, 645 P.2d 1267, 1271 n.4 (App. 1982), disapproved by 

Finck v. O’Toole, 179 Ariz. 404, 406-07, 880 P.2d 624, 626-27 (1994). Given the 

unique circumstances under which the parties presented this matter to the 

court for decision - specifically, their agreement to allow the court to decide 

the fee issue based on the parties’ submissions - the submissions were 

adequate to support the court’s fee award.

5

¶32 Husband argues any award should be limited to the time 

period after July 2012, when Wife filed her motion to set a hearing on the 

trust issues. This is essentially a reiteration of Husband’s earlier argument 

that the “proceedings” for purposes of A.R.S. § 25-324 did not begin until 

 

5 As we have recognized, the family court also found Husband acted 

unreasonably in the litigation. Husband argues that no basis exists for this 

finding, but we need not and do not address Husband’s argument because 

the extreme disparity in the parties’ incomes alone supports the court’s 

award of fees in this case. See Mangan, 227 Ariz. at 353 n.13, ¶ 27, 258 P.3d 

at 171 n.13; MacMillan, 226 Ariz. at 592, ¶ 37, 250 P.3d at 1221 (recognizing 

that, although the family court may consider whether a party has adopted 

unreasonable positions, “the intent of A.R.S. § 25-324 is to assure a remedy 

for the party least able to pay”).
SHACKNAI v. SHACKNAI

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Wife filed her motion. We have already rejected this argument.

Accordingly, we find no abuse of discretion in the award of attorneys’ fees 

to Wife.

VI. Should This Court Award Attorneys’ Fees on Appeal?

¶33 Wife requests an award of costs and attorneys’ fees on appeal. 

We award Wife her taxable costs incurred on appeal. Further, because 

Husband has taken unreasonable positions on appeal by claiming errors in 

the procedure to which he agreed in the family court, we award Wife an 

amount of reasonable attorneys’ fees to be determined upon compliance 

with Rule 21, ARCAP.

CONCLUSION

¶34 The family court’s award of attorneys’ fees to Wife is 

affirmed.