Opinion
No. 1 CA-CV 18-0205 FC
06-13-2019
In re the Matter of: COBY KENNETH KEMPTON, Petitioner/Appellee, v. GWENDELYN NICOLE CHAPPELL, Respondent/Appellant.
COUNSEL The Sampair Group, P.L.L.C., Glendale By Patrick S. Sampair Counsel for Petitioner/Appellee Gwendelyn Nicole Chappell, Prescott 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
No. FC2016-050262
The Honorable Joseph C. Kreamer, Judge
AFFIRMED
COUNSEL The Sampair Group, P.L.L.C., Glendale
By Patrick S. Sampair
Counsel for Petitioner/Appellee Gwendelyn Nicole Chappell, Prescott
Respondent/Appellant
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge Jon W. Thompson joined. JONES, Judge:
¶1 Gwendelyn Chappell (Mother) appeals the family court's orders: awarding Coby Kempton (Father) sole legal decision-making authority for their minor child (Child); granting Mother supervised parenting time; awarding Father child support; requiring Mother to undergo a psychological evaluation; and awarding Father a portion of his attorneys' fees. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2016, Father petitioned to establish paternity, legal decision-making, parenting time, and child support for Child. Mother did not appear for the return hearing, and the family court entered temporary orders awarding Father sole legal decision-making authority and sole physical custody and granting Mother supervised parenting time. Father then amended his petition and moved for a warrant to take physical custody of Child, alleging Mother had absconded with Child.
We view the evidence in the light most favorable to supporting the family court's decision below. Rinegar v. Rinegar, 231 Ariz. 85, 90, ¶ 20 (App. 2012) (quoting Johnson v. Johnson, 131 Ariz. 38, 44 (1981)).
¶3 In September 2016, Mother filed an emergency motion for temporary orders, advising that she had relocated to Florida with Child shortly before Father filed his petition. Mother alleged Father had threatened her with physical violence and had mental health, alcohol, and substance abuse issues. Later that month, the parties agreed to temporary orders awarding them joint legal decision-making authority, supervised parenting time and random drug testing for Father, and appointment of a specific court-appointed advisor (CAA). An evidentiary hearing was scheduled for November.
¶4 Mother moved unsuccessfully to continue the evidentiary hearing and then failed to appear. Thereafter, the family court entered a modified temporary order (the 2016 Order) to provide for joint legal decision-making authority and continued drug testing for Father for ninety days. The 2016 Order provided that if Mother relocated to Arizona, the parties would follow a 5-2-2-5 parenting plan; if Mother remained in Florida, Father would serve as primary residential parent and Mother exercise parenting time, in Arizona, for up to forty-eight consecutive hours upon fourteen days' notice to Father. After ninety days, the court granted Father's request to suspend his drug testing obligation.
¶5 In January 2017, Father filed an emergency motion for temporary orders, alleging Mother refused to disclose her location or return Child to his care as scheduled. After a hearing, the family court modified the temporary order (the 2017 Order) to provide that Father would serve as primary residential parent and Mother exercise parenting time, in Arizona, for up to forty-eight consecutive hours upon fourteen days' notice to Father. The 2017 Order further prohibited either party from removing Child from Arizona without the written consent of the other parent or a court order. Father was also awarded his attorneys' fees and costs incurred in pursuing the motion.
¶6 Four months later, Father filed another emergency motion, alleging Mother took Child to Florida without his written consent or a court order. Father requested Mother be held in contempt and her parenting time suspended until completion of a mental health exam. The family court immediately ordered Mother to return Child within twenty-four hours.
¶7 In July 2017, Mother relocated to Arizona and petitioned to modify the temporary orders. In her petition, Mother requested a 5-2-2-5 parenting time schedule and final legal decision-making authority. When the family court declined to consider the request to modify the temporary orders before the October evidentiary hearing, Mother filed a motion to clarify and a petition to enforce, moved to remove the CAA, and again requested modification of the temporary orders based on an alleged domestic violence incident, Father's failure to obtain proper dental care for Child, and Father's purported drug abuse. In September, Father filed an emergency motion, alleging for the third time that Mother had failed to return Child as scheduled and that her whereabouts were unknown. The court again ordered Mother to return Child immediately and denied Mother's motions. The court also explained:
To be clear, the operative parenting time order in place is [the 2017 Order]. Father is the primary residential parent. Mother's parenting time is limited to the 48 consecutive hours
. . . and Mother must comply with the notice requirements set forth in that order. The [2016 Order] is not the current parenting time order and the operative parenting time order is not a 5-2-2-5 or other equal parenting time arrangement.
¶8 Less than two weeks later, Mother renewed her motion to remove the CAA for unethical conduct. Before the family court ruled on the motion, the CAA filed her final report, which detailed her investigation into Mother's allegations of domestic violence, neglect, and drug abuse, and concluded the concerns were unfounded. The CAA also detailed a variety of incidences where Mother absconded with Child, made false reports, forged documents, threatened daycare workers and other professionals, concealed her whereabouts, refused to comply with the temporary orders, and unnecessarily involved law enforcement in parenting time exchanges. In conclusion, the CAA expressed "concern [Mother] has lost sight of what is in the best interest of her daughter, and is more focused on winning this case, no matter what the cost" and, given Mother's behaviors, "concern[] that Joint Legal Decision making between the parents may not work" and "serious concern of [Mother]'s safety and the safety of others in her presence." The CAA suggested the family court consider ordering supervised parenting time; a forensic psychological evaluation to test for personality, substance abuse, and major mental health disorders; and individual therapy.
¶9 By the time of trial, Father had complied with the family court's order to file an updated Affidavit of Financial Information (AFI), a pretrial statement, and a child support calculation. Mother did not file any of these items, which the court found to be "a strategic maneuver."
¶10 At the conclusion of trial, the family court awarded Father sole legal decision-making authority. Mother was awarded six hours of supervised parenting time per week. The court also found Mother in contempt of its orders for absconding with Child and ordered she pay a portion of Father's attorneys' fees — ultimately totaling $40,000 — as a sanction. Finally, after finding Mother willfully failed to provide the court with her financial information, the court adopted Father's child support worksheets and ordered Mother to pay child support of $750 per month.
¶11 Mother moved unsuccessfully for a new trial twice — first arguing the family court abused its discretion in ordering child support, supervised parenting time, legal decision-making, and a psychiatric evaluation, and then arguing the fee award was error. Mother timely appealed the final order, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) and -2101(A)(1), (5)(a).
Absent material changes from the relevant date, we cite the current version of rules and statutes.
DISCUSSION
I. Legal Decision-Making Authority
¶12 Mother argues the family court erred in awarding Father sole legal decision-making authority because it failed to consider significant acts of domestic violence against Mother or Father's history of substance abuse. We review the court's legal decision-making order for an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 2002) (citing Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982)). "An abuse of discretion results when the record is 'devoid of competent evidence to support the decision,' or when the court commits an error of law in the process of reaching a discretionary conclusion." Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018) (quoting Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19 (App. 2009)). Accordingly, "we defer to the court's findings of fact unless they are clearly erroneous." Id. (citing Alvarado v. Thomson, 240 Ariz. 12, 14, ¶ 11 (App. 2016)).
A. Domestic Violence
¶13 Pursuant to A.R.S. §§ 25-403(A)(8) and -403.03, the family court must consider the existence, nature, and effect of domestic violence in determining an appropriate legal decision-making order. The court here found Mother's allegations of domestic violence were not sufficient to invoke consideration of these provisions. This finding is supported by the record, which contains undisputed testimony that the domestic violence incident of which Mother complained resulted from a "push[] . . . with one hand, just to move [Mother] back in order to close the door" to a vehicle where Mother was "trying to . . . pull [Child] out of her car seat." Moreover, law enforcement deemed the report of violence "unfounded" and took no action. See A.R.S. § 25-403.03(C)(2) (directing the family court to consider police reports when determining whether a person has committed an act of domestic violence). Mother has not proved error on this basis.
B. Substance Abuse
¶14 The family court must also consider a parent's mental and physical health, including struggles with substance abuse, when determining an appropriate legal decision-making order. A.R.S. § 25-403(A)(5); see, e.g., Taliaferro v. Taliaferro, 188 Ariz. 333, 335-36 (App. 1996) (considering a parent's history of alcoholism when determining what legal decision-making arrangement was in a child's best interests). The court here recognized that Father has a history of substance abuse and depression but accepted his uncontradicted testimony that he had not consumed alcohol since 2015 and noted that Father appeared to be compliant with his medication. Father also testified that he regularly attends Alcoholics Anonymous meetings and continues to see a therapist as necessary. The CAA confirmed Father's participation in these services. Further, Father tested negative on all mandatory drug tests. Substantial evidence supports the court's conclusion that substance abuse did not affect Father's ability to parent.
¶15 Mother does not argue the family court abused its discretion with respect to findings on any of the other best-interest factors. Additionally, our review reveals ample evidence in the record to support the court's award of sole legal decision-making authority to Father.
II. Supervised Parenting Time
¶16 Mother argues the family court erred in limiting her parenting time to six supervised hours per week. We again review for an abuse of discretion, see supra ¶ 12, and find none.
¶17 The family court may restrict parenting time rights by requiring supervision if it finds "that the parenting would endanger seriously the child's physical, mental, moral or emotional health." A.R.S. § 25-411(J); see also Hart v. Hart, 220 Ariz. 183, 188, ¶ 19 (App. 2009). Sufficient evidence supports a finding that Child was in danger with Mother here. The court found Mother had exhibited bizarre and irrational behavior throughout the case that was not in Child's best interests and, as a result, the court did not trust Mother to follow a parenting time schedule or "actually function in a parenting time situation." This is a reasonable reaction to the circumstances, whereby Mother absconded with Child multiple times; withheld her whereabouts; repeatedly engaged in threatening and disruptive behavior with Father, the CAA, and daycare workers; and generally refused to acknowledge or follow the court's prior orders — all to Child's detriment. On this record, we cannot say the court abused its discretion in requiring Mother's parenting time be supervised.
III. Mental Health Examination
¶18 Mother argues the family court abused its discretion by ordering she undergo a psychological examination. But the court did not order any examination. Rather, at the conclusion of the trial, the court advised Mother that "her path to unsupervised parenting time . . . include[d] a forensically informed psychological evaluation . . . with demonstrated reasonable behavior relating to her communication with Father and with professionals regarding parenting issues"; if Mother progressed in this fashion, the court would consider modification of her parenting time without regard to the time limitations in A.R.S. § 25-411(A) (stating that, absent extenuating circumstances, "[a] person shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after its date").
IV. Child Support
¶19 Mother argues the family court erred by calculating her child support obligation based upon her previous income. We review a child support award for an abuse of discretion and accept the underlying factual findings unless clearly erroneous. Sherman v. Sherman, 241 Ariz. 110, 112-13, ¶ 9 (App. 2016).
¶20 The family court found Mother earned $80,000 annually. This figure is supported by Father's child support worksheets and Mother's most recent financial statement, submitted in October 2016. At trial, Mother disputed this figure, testifying she was unemployed and living off credit cards. However, she refused to comply with the court's order to provide updated financial information in advance of the trial; nor did she disclose her credit card statements as Father requested, or otherwise support her self-serving assertion with any other evidence.
¶21 The family court's finding may be supported by substantial evidence even if conflicting evidence exists. Pouser-Webb v. Pouser (In re Estate of Pouser), 193 Ariz. 574, 580, ¶ 18 (1999) (citing Whittemore v. Amator, 148 Ariz. 173, 175 (1986), and Moore v. Title Ins. Co. of Minn., 148 Ariz. 408, 413 (App. 1985)). In such cases, we defer to the court's determination of witness credibility and the weight to give conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998) (citing Premier Fin. Servs. v. Citibank (Ariz.), 185 Ariz. 80, 85 (App. 1995)). Reasonable evidence supports the court's determination of Mother's income here, particularly given her failure to provide information and documentation to support her position. We find no error.
V. Attorneys' Fees at Trial
¶22 Mother argues the family court erred in awarding Father a portion of his attorneys' fees incurred at trial because "[t]here is no evidence to support that Mother was unreasonable." "An award of attorneys' fees under A.R.S. § 25-324 will not be disturbed on appeal absent an abuse of discretion." MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011) (citing In re Marriage of Berger, 140 Ariz. 156, 167 (App. 1983)).
Mother also asserts that Father failed to timely request fees in his pleadings or pretrial statement. This assertion is false. Moreover, Mother did not raise this argument with the family court, and it is waived. See In re MH 2006-000023, 214 Ariz. 246, 248, ¶ 7 (App. 2007) (holding that a party's failure to object to the timeliness of a notice with the trial court results in waiver on appeal where there is no prejudice).
¶23 Pursuant to A.R.S. § 25-324(A):
The court from time to time, after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings, may order a party to pay a reasonable amount to the other party for the costs and expenses of maintaining or defending [a family court case].Although the court must consider both factors, "an applicant need not show both a financial disparity and an unreasonable opponent in order to qualify for consideration for an award." Mangan v. Mangan, 227 Ariz. 346, 353, ¶ 27 n.13 (App. 2011) (quoting Magee v. Magee, 206 Ariz. 589, 591, ¶ 8 n.1 (App. 2004)).
¶24 The family court found Father had greater financial resources but an award of fees was nonetheless appropriate given Mother's unreasonable conduct. Indeed, the record supports the court's findings that Mother twice removed Child from the state in violation of its orders, sent nearly 7,000 emails or texts to Father or his counsel during a six-month period in 2017, refused to provide an accurate address to Father or the court, "launched unfounded full scale attacks on [the CAA and Father's counsel]," failed to comply with discovery and disclosure obligations as "a strategic maneuver," and generally "engaged in a pattern of litigation abuse, gamesmanship, and otherwise destructive behavior designed to frustrate Father's relationship with the child." On this record, Mother has shown no error in the award of fees.
VI. Due Process
¶25 Mother argues she was deprived of a fair trial because: (1) Father did not prove she had been served with the original petition; (2) her request for mediation was denied; (3) her request for a status conference was denied; (4) Father failed to disclose proof of child care expenses; and (5) the CAA report was untimely. As a general rule, a "trial court has discretion to control the courtroom and trial proceedings." Christy A. v. Ariz. Dep't of Econ. Sec., 217 Ariz. 299, 308, ¶ 31 (App. 2007) (citing Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 91, ¶ 33 (App. 1998)). "We will not interfere in matters within the trial court's discretion unless we are persuaded that the exercise of such discretion resulted in a miscarriage of justice or deprived one of the litigants of a fair trial." Id. (quoting O'Rielly Motor Co. v. Rich, 3 Ariz. App. 21, 27 (1966)).
¶26 Mother argues she was deprived of a fair trial because Father failed to prove he had served her with the original petition. Arizona Rule of Family Law Procedure 40(g)(1) requires proof of service "[i]f service is not accepted, and no voluntary appearance is made." The record reflects Mother appeared voluntarily through counsel and actively participated in the case for more than a year before trial without objection to the court's authority over the case or her person. Mother was not deprived of a fair trial on this basis.
¶27 Mother argues the family court wrongfully denied her requests that the court order mediation and a telephonic status conference. Mother has no right to court-ordered mediation, see Ariz. R. Fam. Law P. 66(b)(3) ("The court may provide or authorize [alternative dispute resolution] processes, which may include . . . [m]ediation.") (emphasis added), and cites no authority suggesting she is entitled to a status conference on request. Mother has not shown any abuse of discretion in the denial of either request; nor does she articulate how these denials deprived her of a fair trial. We find no due process violation.
¶28 Mother argues for the first time on appeal that Father failed to disclose proof of the childcare expenses reported in his child support worksheet. Mother did not raise this argument with the family court, and it is waived. See supra n.3. Moreover, Mother disputes neither the existence or reasonableness of the childcare expenses and fails to explain how the lack of documentation to support undisputed facts deprived her of a fair trial.
We likewise decline to address Mother's suggestion that Father should have been sanctioned for discovery abuse where the record does not indicate she ever requested sanctions in the family court. --------
¶29 Mother's argument that the CAA report was untimely, again raised for the first time on appeal, is also waived. See supra n.3. Furthermore, Mother did not object to the admission of the report into evidence, and she fails to explain how she was prejudiced when the evidence indicates Mother received the report at the same time as Father — nearly a week before trial — and simply elected not to read it.
VII. Newly Discovered Evidence
¶30 Lastly, Mother directs us to additional evidence not contained within the record below. To the extent Mother believes this new evidence is relevant and could not with reasonable diligence have been discovered before trial, her remedy is through the family court. See Ariz. R. Fam. Law P. 83(a)(1)(E), 85(b)(2). As it stands, the evidence is not contained in the record on appeal, and we will not consider it. See ARCAP 11(a) (describing the record on appeal as including "documents . . . filed in the superior court before and including the effective date of the filing of a notice of appeal . . . the index . . . exhibits[,] and . . . [t]ranscripts of oral proceedings in the superior court."); Ashton-Blair v. Merrill, 187 Ariz. 315, 317 (App. 1996) ("We may only consider the matters in the record before us.").
CONCLUSION
¶31 The family court's orders are affirmed.
¶32 Both parties request an award of attorneys' fees and costs incurred on appeal pursuant to A.R.S. § 25-324. After considering the parties' relative financial positions, including Mother's June 2018 AFI, and the reasonableness of the positions taken by the parties throughout the proceedings, we award Father reasonable attorneys' fees and costs incurred on appeal upon compliance with ARCAP 21(b).