§ 8.3.1 DISCRETION IN ATTORNEYS' FEES AWARDS

• Jurisdiction: Arizona

§ 8.3.1 Discretion in Attorneys' Fees Awards

Generally, an award of attorneys' fees under A.R.S. § 25-324 is within the sound discretion of the court. Mori v. Mori, 124 Ariz. 193, 199, 603 P.2d 85, 91 (1979); Myrick v. Maloney,235 Ariz. 491, 333 P.3d 818 (App. 2014) (trial court did not abuse its discretion in denying mother's request for attorneys' fees; resource disparity is but one factor to be considered by the court under A.R.S. § 25-324); Engel v. Landman, 221 Ariz. 504, 212 P.3d 842 (App. 2009) (trial court did not abuse its discretion in denying father's requested attorneys' fees where both parties took reasonable and unreasonable positions).

However, that discretion is not unlimited. See Breithart-Napp v. Napp, 216 Ariz. 74, 84 ¶ 39, 163 P.3d 1024, 1034 (App. 2007) (trial court abused discretion in awarding attorneys' fees in dissolution when record contained inadequate financial information for both parties); Kohler v. Kohler,211 Ariz. 106, 107, ¶ 2, 118 P.3d 621, 622 (App. 2005) (abuse of discretion may occur when court commits error of law in process of exercising discretion). In determining a reasonable fee, the trial court may draw upon its knowledge of the case and experience. Baum v. Baum, 120 Ariz. 140, 146, 581 P.2d 604, 610 (App. 1978). In Gerow v. Covill, 192 Ariz. 9, 960 P.2d 55 (App. 1998), the court held that the husband was not entitled to a fee award based on financial resources when he did not provide information about the resources of the parties.

The court has discretion to award attorneys' fees to a party under A.R.S. § 25-324 when the other party has substantially greater income. SeeRinegar v. Rinegar, 231 Ariz. 85, 290 P.3d 1208 (App. 2012) (family court did not abuse its discretion in awarding husband a portion of his attorneys' fees based on the financial disparity between the parties as wife's annual income was more than twice husband's).

In In re Marriage of Gibbs, 227 Ariz. 403, 258 P.3d 221 (App. 2011), a post-decree child support case, the father claimed the trial court erred in ordering him to pay half of the mother's attorneys' fees "based solely on the parties' disparity in incomes." The court of appeals found no abuse of discretion, reasoning as follows:

Further, 'an award of fees can be appropriate simply because an income disparity exists, and it is not necessary to also inquire into whether the fee applicant is actually able to pay his or her own fees' The court, therefore, did not err in awarding attorney...