Opinion
No. 1 CA-CV 16-0120 FC
12-13-2016
In re the Marriage of: DENISE K. EKVALL, Petitioner/Appellee, v. DAVID D. ESTRADA, Respondent/Appellant.
COUNSEL Denise K. Ekvall, Gilbert Petitioner/Appellee Jones Skelton & Hochuli, P.L.C., Phoenix By Cory E. Tyszka Co-Counsel for Respondent/Appellant Walston Law Group, P.C., Mesa By Jennifer L. Walston Co-Counsel for Respondent/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
Nos. FC2001-009197, FC2001-093082 (Consolidated)
The Honorable Peter A. Thompson, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL Denise K. Ekvall, Gilbert
Petitioner/Appellee Jones Skelton & Hochuli, P.L.C., Phoenix
By Cory E. Tyszka
Co-Counsel for Respondent/Appellant Walston Law Group, P.C., Mesa
By Jennifer L. Walston
Co-Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Randall M. Howe and Judge Samuel A. Thumma joined. JONES, Judge:
¶1 David Estrada (Father) appeals the family court's orders modifying legal decision-making authority, parenting time, and child support for his only child with Denise Ekvall (Mother). For the following reasons, we vacate the child support order but affirm in all other respects.
Mother's answering brief does not comply with ARCAP 13(a)(7), (b)(1) (requiring an answering brief to contain the appellee's contentions "with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appell[ee] relies"). Although Father argues we should treat this deficiency as a confession of error, in our discretion, we decline to do so and address the substance of Father's appeal. See Hodai v. City of Tucson, 239 Ariz. 34, 45, ¶ 36 (App. 2016) (citing Savord v. Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014)).
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to upholding the family court's rulings. Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 522 n.1, ¶ 1 (App. 2007) (citing Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)).
¶2 Father and Mother were divorced in 2003 when their child (Child) was almost three years old. In 2010, the family court awarded sole legal decision-making authority and primary physical custody of Child to Mother and parenting time to Father every other weekend and Wednesday evenings. The court also terminated Father's child support obligation.
¶3 In July 2014, Mother filed a motion to terminate Father's parenting time claiming Child was "in fear of his life and feels hopeless" at Father's home because Father drives recklessly with Child in the vehicle after using medical marijuana. Child, then thirteen years old, fled Father's home from a second story window and called 9-1-1 to report his concerns. Based upon Mother's avowals, the family court entered an ex parte temporary order suspending Father's parenting time.
¶4 Following an evidentiary hearing in September 2014, the family court vacated the ex parte temporary order, appointed a best interests attorney (BIA) to investigate, and set a trial on Father's cross-petition and motion to hold Mother in contempt of the parenting time order. Much motion and petition practice followed.
¶5 In April 2015, after receiving additional evidence, the family court held Mother in contempt of the parenting time order, citing two specific occasions where Child ran away from Father's care and Mother actively concealed his whereabouts to prevent Father from exercising his parenting time. The court reserved the issue of sanctions for contempt until after the trial, noting "significant ongoing concerns with the child's mental or physical safety related to parenting time" that needed to be resolved in order to determine if a sanction was in Child's best interests.
¶6 A six-hour hearing on Father's petition for modification was held in August and November 2015. Before the hearing, Father timely requested findings of fact and conclusions of law. The parties were directed to submit written closing arguments. Thereafter, the family court took the matter under advisement, and, in January 2016, issued a detailed fifteen-page order denying Father's petition, affirming sole legal decision-making authority and primary physical custody to Mother, and suspending Father's parenting time pending Father's completion of therapeutic reunification services. Father timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1).
Absent material changes from the relevant date, we cite a statute's current version.
DISCUSSION
I. The Family Court's Authority to Award Mother Sole Decision-Making Authority
¶7 Father first argues the family court "did not have jurisdiction" to award Mother sole decision-making authority when she had not made a specific request for such relief. The relevant statute provides "[t]he court shall determine legal decision-making . . . in accordance with the best interests of the child" after considering all factors "relevant to the child's physical and emotional well-being." A.R.S. § 25-403(A). Because the best interests of the child are paramount, the family court is not constrained by the parties' requests in making decisions regarding decision-making authority and parenting time in accordance with a child's best interests. See Solomon v. Solomon, 5 Ariz. App. 352, 356 (1967) (citing Smith v. South, 283 P.2d 1073, 1075 (N.M. 1955), and Edington v. Edington, 176 P.2d 915, 917 (N.M. 1947)). The court acted within its authority in awarding Mother sole decision-making authority.
II. Due Process
A. Time Limits
¶8 Father argues he was denied due process because he "was prejudicially restricted on his time to present his case," and "[d]espite [his] good faith efforts to litigate his [p]etition in the time allotted," was simply unable to present documentary evidence, provide redirect testimony, or test Mother's credibility through cross-examination.
¶9 The family court is directed to "exercise reasonable control over the mode and order of examining witnesses and presenting evidence," Ariz. R. Evid. 611(a), and is expressly authorized to "impose reasonable time limits on the trial proceedings or portions thereof," Ariz. R. Fam. Law P. 77(B)(1). We review the family court's imposition of time limitations for an abuse of discretion. Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 13 (App. 2010) (citing Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 90-91, ¶¶ 29-30 (App. 1998)). To merit reversal, the complaining party "must show [he] incurred some harm as a result of the court's time limitations." Brown, 194 Ariz. at 91, ¶ 30 (citing Monotype Corp. v. Int'l Typeface Corp., 43 F.3d 443, 451 (9th Cir. 1994)); see also State v. Dunlap, 187 Ariz. 441, 450 (App. 1996) (holding "proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for . . . the prejudice") (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)).
¶10 In denying Father's request for additional time to present his case, the family court noted the trial was originally set for three hours, the parties were advised of the schedule, and neither party requested additional time. Nonetheless, the trial ultimately spanned several days "with the parties expanding their case to fit the time allowed." The court also noted the case had a lengthy procedural history and that the parties had participated in two other three-hour evidentiary hearings in the preceding six months that involved "the same nucleus of operative facts" and "many of the same and overlapping issues." Additionally, the court found Father had not engaged in effective time management and, had he done so, there was more than adequate time to present the relevant information. Father does not specifically address these findings or otherwise attempt to explain how his use of time was appropriate; he simply asserts, in conclusory fashion, that the time was inadequate. Deferring to the family court's undisputed findings regarding the conduct of trial, there is no basis upon which to find the court abused its discretion.
¶11 Nor has Father shown any prejudice from the denial of his request for additional time. Father appears to argue additional time would have allowed him time to: (1) further explain his use of medical marijuana, and (2) further test Mother's credibility. Father, however, has not shown that he was unable to explain and test these topics in the time allowed. And although Father contends resolution of the issues "revolved heavily on the credibility of the parties," the record reflects the family court's decision was guided by the parties' actions in addressing Child's concerns, and particularly, Father's disruption of Child's therapy — facts that were largely undisputed. The court had adequate opportunity to evaluate the credibility of the parties over the four days it took testimony and evidence on the underlying petitions.
B. Disclosure and Discovery
¶12 Father also argues he was deprived of due process based on the family court's rulings on his motions regarding discovery and disclosure. We review rulings on discovery and disclosure issues for an abuse of discretion. Bowen Prods., Inc. v. French, 231 Ariz. 424, 427, ¶ 9 (App. 2013) (citing Soto v. Brinkerhoff, 183 Ariz. 333, 335 (App. 1995)).
¶13 Father has not shown that the rulings on his motions to compel discovery responses and preclude evidence based on failure to timely disclose were in error. Indeed, he has not included the substance of his requests, nor identified the evidence or information he anticipated receiving in response, in the record on appeal. Without this information, Father cannot establish any prejudice. We find no error.
III. Legal Decision-Making Authority and Parenting Time
¶14 Father argues the family court abused its discretion in granting Mother sole decision-making authority and primary physical custody of Child. We review the court's orders on these issues for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013) (citing In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 2002)). We defer to the court's factual findings "unless clearly erroneous, giving due regard to the opportunity of the court to judge the credibility of witnesses." In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5 (App. 2000) (citing Ariz. R. Civ. P. 52(a), and In re Marriage of Berger, 140 Ariz. 156, 161 (App. 1983)).
¶15 Father first argues the family court improperly ignored evidence of Mother's systematic parental alienation. While not employing that specific phrase, the court's order recognizes that Father "won the battle" on the issue of Mother's interference with his relationship with Child. The order reflects the court was both aware of and concerned by Mother's behavior, referencing her misconduct almost twenty times and concluding Mother "leaves much to be desired in promoting Father's parenting time." This finding is not dispositive, as Father suggests, and does not relieve the court from its obligation to consider "all factors that are relevant to the child's physical and emotional well-being" in determining what is in the child's best interests. A.R.S. § 25-403(A) (emphasis added); Nold, 232 Ariz. at 273, ¶ 10 ("[I]f the best interests of the child trump the consequences ordinarily imposed for violations of the rules, then they should not be ignored" in favor of strict imposition of a discretionary doctrine.). The court's ultimate determination that Child's interests would nonetheless be better served remaining in Mother's care does not equate to ignorance of Mother's interference. Nor are we persuaded the court's order "sends the unacceptable message that others might, with impunity, engage in similar misconduct" to that of Mother here. Mother did not act with impunity; she was ordered to pay $7,675 as a sanction for her violation of the court's orders.
¶16 Father also argues the evidence does not support the family court's finding that Child was at a risk of self-harm if Father were awarded primary physical custody. We disagree. The evidence presented at trial reflects Father and Child have a poor relationship and Child has a significant history of running away or going missing "every time" Father attempted to pick him up for parenting time in the year prior to the trial. A mental health professional testified Child has inadequate coping skills, experiences severe anxiety at the thought of seeing Father, and has threatened suicide and self-harm at the thought of visiting with Father. Father characterized the suicidal ideation as "alleged" and suggested Mother coached Child to express those thoughts.
¶17 Although Father presented evidence to support his position, we defer to the family court to resolve conflicts in the evidence, see Reeck v. Mendoza, 232 Ariz. 299, 303, ¶ 14 (App. 2013) (citing Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 282, ¶ 12 (App. 2002)), and Father had an adequate opportunity in his written closing statement to argue, as he does now, that Child was "totally incredible" and the contrary evidence was "fleeting, conflicting, stale . . . and totally devoid of professional interpretation or insight." Father fails to address at all the harm that is likely to befall Child if he continues to engage in self-destructive activities in his attempts to run away from Father. Notwithstanding Father's arguments to the contrary, the record supports the family court's finding.
¶18 Father argues the family court did not make a meaningful finding regarding which parent was more likely to allow frequent and meaningful contact with the other parent. Although Father is correct that the court focused on the perceived barriers to Father's reunification with Child, the parents' feelings toward each other are addressed elsewhere. The court advised it was "not unaware of Mother's stonewalling efforts related to Father's parenting time." The court also noted Father "blames Mother and argues she has poisoned [Child] against [him]," will not support any plan that does not cut off all unsupervised contact with Mother, and "scuttle[d]" his opportunity to improve his relationship with Child "in favor of gathering ammunition against [Mother,] . . . completely disregard[ing] the impact of that decision on [Child]'s trust." When taken as a whole, these findings do not weigh in favor of either party. However, the court has fulfilled its duty to make them.
¶19 Father argues the family court erred by "plac[ing] so much emphasis on what the child preferred that all other evidence was given zero weight in the analysis" and by "defer[ring] total control of the situation" to what Father refers to as "a mentally unstable child who remains under the control of Mother, who is incapable of promoting a relationship between the child and father." But the court is required to consider the child's wishes. A.R.S. § 25-403(A)(4) ("If the child is of suitable age and maturity, [the court shall consider] the wishes of the child as to legal decision-making and parenting time."). Though Father suggests Child is not of "suitable . . . maturity" to provide input on the subject, the court found otherwise, specifically rejecting Father's contention that Mother controls Child and finding Child "has formed his own views."
¶20 The weight to be given to any particular factor varies on a case-by-case basis. The family court here did emphasize Child's wishes, as well as his reaction to prior attempts to have contact with Father forced upon him. Father has not persuaded us the court did so to the exclusion of the ten other factors discussed in its fifteen-page order. The court's findings need not be exhaustive or reference each and every fact presented to the court; they need only provide sufficient information to permit a meaningful review. See Reid v. Reid, 222 Ariz. 204, 209, ¶ 18 (App. 2009) (citations omitted). Contrary to Father's argument, the court was not "unconcerned with the origins of the child's strife" and did not ignore evidence that Mother was "totally incapable of" promoting a relationship with Father. The court simply disagreed with Father's position, stating unequivocally that it was "convinced that Mother has not caused the child's relationship with Father to deteriorate, that has been accomplished by Father" and taking note of Mother's recent efforts — despite her well-documented history of interference — in engaging Child in therapy designed to promote reunification with Father.
¶21 Moreover, the family court's reasoning for allocating decision-making authority and parenting time in alignment with Child's wishes is explained in detail, and we can find no fault in its reasoning:
Even though Mother is in contempt of court for not following parenting time orders, Father has demonstrated that he is not in a position to make decisions which will promote therapeutic reunification with [Child]. . . . The only hope for therapy to succeed is to allow [Child] to conclude that he wants back what he had with his Father only 18 to 24 months ago and to take time to make that happen. . . . In addition, Father does not accept [Child]'s threats of self-harm as a realistic possibility.Despite the oft-referenced concerns with Mother's behavior, the court also found Child has a strong relationship with Mother, she is protective of Child, and she "believes strongly" she is acting in Child's best interests. The court further determined Child was safe in Mother's home and she had made progress by engaging Child in therapy to promote reunification with Father. Father does not challenge these findings, and, in conjunction with the other factors discussed herein, they sufficiently support the court's orders granting Mother sole decision-making authority and primary physical custody of Child.
. . .
[C]hild is in a position well beyond simply not wanting to see his Father. He has run away, threatened suicide and made it clear to all who will listen that he will not follow the Court's orders if told he must live with Father. Rather than take that as a challenge to the Court's authority, the Court is focused on a change of heart for the child that will not risk self-harm or encourage running away.
The remaining facts and circumstances Father contends were omitted and thereby ignored are not material to the court's conclusions regarding Child's best interests, which, as the court noted, "focused on a change of heart for the child that will not risk self-harm or encourage running away." --------
IV. Restriction of Father's Parenting Time
¶22 Father also challenges, on various grounds, the family court's suspension of his parenting time pending completion of reunification therapy. These arguments are moot because the suspension was lifted, and the requirement for reunification therapy vacated shortly after the original ruling, and we do not address them. See Pointe Resorts, Inc. v. Culbertson, 158 Ariz. 137, 140-41 (1988) ("Generally the mootness doctrine requires that judicial opinions not be rendered concerning issues which no longer exist because of changes in the factual circumstances.") (citations omitted).
V. Child Support Order
¶23 Father argues the family court erred by modifying his child support obligation. We review a child support order for an abuse of discretion. Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994) (citing Berger, 140 Ariz. at 167). A trial court abuses that discretion if it modifies child support without providing the parties an opportunity to gather and present their evidence. Heidbreder v. Heidbreder, 230 Ariz. 377, 381, ¶ 14 (App. 2012) (citing Cook v. Losnegard, 228 Ariz. 202, 205-06, ¶¶ 13, 19-20 (App. 2011)).
¶24 Under these circumstances, entry of the modification order deprived Father of his due process right to adequate notice and a meaningful opportunity to be heard. See Wallace v. Shields, 175 Ariz. 166, 174 (App. 1992) (stating that due process requires "minimum notice requirements" and "an opportunity to be heard at a meaningful time in a meaningful manner") (citations omitted). Although not dispositive, see Heidbreder, 230 Ariz. at 380 n.1, ¶ 7, neither party requested modification of the child support order, addressed child support as an issue in a pretrial statement, or presented any evidence of income or expenses relevant to the child support calculation.
¶25 Moreover, because Father made a timely request for findings of fact and conclusions of law, we may not infer the family court made additional findings necessary to sustain its judgment. Elliot v. Elliot, 165 Ariz. 128, 135 (App. 1990). Of prominent concern here is the absence of a finding regarding the required showing of a substantial and continuing change of circumstances warranting modification. See A.R.S. § 25-503(E). Indeed, given the ultimate outcome — whereby the court affirmed the prior legal decision-making and parenting time order — it is unclear whether any such change occurred. Accordingly, the portion of the order modifying child support is vacated.
VI. Attorneys' Fees and Costs
¶26 Father argues the family court erred in denying his request for an award of attorneys' fees and costs pursuant to A.R.S. § 25-324(A). Here, the court found no significant disparity in the parties' financial resources and, "with the exception of the proceeding on contempt of court necessitated by Mother's unreasonable conduct," both parents advanced their positions in good faith. The court thus declined to award fees and costs to either party under A.R.S. § 25-324. We will not disturb an order declining a fee award under A.R.S. § 25-324 absent an abuse of discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011) (citing Berger, 140 Ariz. at 167).
¶27 Father argues it is a "logical fallacy" for the family court to find Mother in contempt of the parenting time order but then determine she acted reasonably in defending Father's petition for modification because his petition was based upon the contemptuous conduct. But if Father sought a remedy for Mother's misconduct in failing to honor the court-ordered parenting time, a motion for contempt would have sufficed, and this round of litigation would have ended in March 2015. Instead, Father petitioned for a radical, permanent change and engaged in a course of conduct designed to vilify Mother and likely to sabotage his relationship with Child — conduct the court ultimately determined was detrimental to Child's best interests and which continues into this appeal. Mother cannot be faulted for continuing to advance what she believed to be Child's best interests in maintaining the status quo and seeking therapy to mend Child and Father's broken relationship. Neither do Mother's purported discovery violations, ultimately determined to be harmless, see supra ¶¶ 12-13, warrant a finding that Mother acted unreasonably. Under these circumstances, we find no abuse of discretion.
CONCLUSION
¶28 The portion of the family court's order modifying Father's child support obligation is vacated. The remaining provisions regarding decision-making authority and parenting time are affirmed.
¶29 Father requests his attorneys' fees and costs on appeal pursuant to A.R.S. § 25-324(B) (providing for an award of attorneys' fees and costs against a party who advances a position not grounded in fact or law or for an improper purpose). Father has not demonstrated Mother acted unreasonably in contesting Father's appeal, and we decline to enter an award of fees and costs.