Opinion
2 CA-CV 2022-0016-FC
07-27-2023
Miguel Harlan Plaza, Petitioner/Appellant, v. Marilyn Leon, Respondent/Appellee.
Law Office of Mark L. Williams, Nogales By Mark L. Williams Counsel for Petitioner/Appellant Brenna Larkin, Tumacacori Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Santa Cruz County No. DO21052 The Honorable Sheila L. Dagucon, Judge Pro Tempore The Honorable Jeffrey T. Bergin, Judge
Law Office of Mark L. Williams, Nogales By Mark L. Williams Counsel for Petitioner/Appellant
Brenna Larkin, Tumacacori Counsel for Respondent/Appellee
Judge Gard authored the decision of the Court, in which Chief Judge Vasquez and Judge Brearcliffe concurred.
MEMORANDUM DECISION
GARD, Judge
¶1 Miguel Plaza appeals from various orders relating to parenting time, legal decision-making, child support, attorney fees, and his request to disqualify the trial judge. For the following reasons, we conclude that the trial court erred in its finding of domestic violence under A.R.S. §§ 25-403(A)(8) and 25-403.03. We therefore vacate the court's orders relating to legal decision-making, parenting time, and child support and remand for reconsideration of those issues. We affirm the court's orders relating to attorney fees and costs and the request to disqualify the trial judge.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the trial court's findings and orders. Hefner v. Hefner, 248 Ariz. 54, n.2 (App. 2019). Plaza and Marilyn Leon have one minor child together, E.L., who was born in 2020. Plaza filed a petition to establish paternity, legal decisionmaking, parenting time, and child support in March 2021. In her answer, Leon admitted, "No known domestic violence has occurred." She also requested reasonable attorney fees and costs.
This matter has a lengthy and contentious history. We set forth that history in detail, as it is relevant to several of the issues presented, including the trial court's award of attorney fees to Leon.
¶3 Leon subsequently moved to amend her answer to include new allegations that Plaza had sexually assaulted her in March 2020 and was sending her "harassing messages of a sexual nature through fake profiles on social media." The trial court granted the motion, and Leon filed her amended answer, raising new domestic violence allegations and again requesting reasonable attorney fees and costs.
¶4 At the subsequent four-day trial, Plaza requested that he have sole legal decision-making and that Leon have supervised parenting time, with the possibility of unsupervised parenting time in the future subject to a mental health evaluation. Alternatively, Plaza requested joint legal decision-making and equal parenting time. Plaza testified he did not believe Leon's mental health was adequate to care for E.L. He admitted to surreptitiously recording Leon on various occasions, including while she had discussed committing suicide.
For purposes of this appeal, Plaza only challenges the denial of his request for joint legal decision-making and equal parenting time.
¶5 Leon requested that she have sole legal decision-making and that Plaza's parenting time be supervised by a professional. Leon testified she had experienced emotional and verbal abuse during her relationship with Plaza, and, as a result, suffered from depression and anxiety. Leon further testified that Plaza had sexually assaulted her in March 2020 and that she was being harassed through social media, explaining why she believed Plaza was the source of the harassment. Leon also testified that Plaza had made inappropriate comments to her during parenting time.
¶6 In December 2021, the trial court issued an under-advisement ruling establishing legal decision-making, parenting time, and child support. The court found that Plaza had "committed significant acts of domestic violence against" Leon and awarded her sole legal decisionmaking and primary residential parenting time. The court ordered supervised parenting time for Plaza, generally ranging from six to fourteen hours per week, with no overnight parenting time. The court further awarded Leon child support in the monthly amount of $442.
¶7 After the trial court entered this order, Plaza filed a request that the trial judge disqualify herself from deciding the issue of attorney fees. The court treated the request as a motion for change of judge and referred the matter to the presiding judge. The motion was denied as untimely under Rule 6.1(c), Ariz. R. Fam. Law P., and on the ground that Plaza had failed to "establish grounds which rise to the level of bias or impartiality such that there is cause for a change of judge."
¶8 The trial court thereafter awarded Leon attorney fees and costs, and, based on certain conduct during the proceedings, ordered that Plaza's counsel personally pay $3,000 toward the total amount. Plaza filed a motion to amend or make additional findings of fact with regard to the ruling on attorney fees and costs. The court amended the ruling to include additional findings and granted in part Plaza's request to explain the amount to be paid by Plaza's counsel, entering final judgment pursuant to Rule 78(c), Ariz. R. Fam. Law P.
¶9 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-2101(A)(1) and 12-120.21(A)(1).
Discussion I. Legal Decision-Making, Parenting Time, and Child Support
¶10 Plaza challenges the trial court's denial of his request for joint legal decision-making and equal parenting time. Specifically, Plaza argues that the court erred by finding he had engaged in domestic violence. He also challenges the court's award of child support to Leon.
¶11 We will not disturb the trial court's parenting time and legal decision-making orders on appeal absent an abuse of discretion. Engstrom v. McCarthy, 243 Ariz. 469, ¶ 4 (App. 2018). "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." Id. (quoting Hurd v. Hurd, 223 Ariz. 48, ¶ 19 (App. 2009)). We defer to the court's findings of fact "unless they are clearly erroneous, but we draw our own legal conclusions found or implied in the judgment." Nash v. Nash, 232 Ariz. 473, ¶ 5 (App. 2013). For the reasons that follow, we conclude the court misapplied the relevant statutes and failed to properly evaluate the evidence.
¶12 To determine legal decision-making and parenting time, the trial court must consider the factors in § 25-403 in accordance with the best interests of the child. In a contested case, the court must make "specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child." § 25-403(B). A court's failure to make § 25-403's requisite findings is an abuse of discretion. Hurd, 223 Ariz. 48, ¶ 11.
¶13 One factor a trial court must consider is "[w]hether there has been domestic violence . . . pursuant to § 25-403.03." § 25-403(A)(8). If the court determines that a parent who is seeking sole or joint legal decisionmaking has committed an act of domestic violence, § 25-403.03(D) creates a "rebuttable presumption that an award of sole or joint legal decisionmaking to the parent who committed the act of domestic violence is contrary to the child's best interests." Subsection (D) defines an act of domestic violence to include sexual assault, placing a person in reasonable apprehension of imminent serious physical injury, or "engag[ing] in a pattern of behavior for which a court may issue an ex parte order to protect the other parent." § 25-403.03(D)(1)-(3). Section 25-403.03(E) sets forth factors the court must consider to determine if a parent seeking parenting time or legal decision-making has rebutted subsection (D)'s presumption.
¶14 Notwithstanding subsection (D), however, a trial court must also determine whether there is "significant domestic violence" or if "there has been a significant history of domestic violence." § 25-403.03(A) (emphasis added). Subsection (A) directs courts to apply the criminal code's definition of domestic-violence offenses, see A.R.S. § 13-3601(A), to determine if significant domestic violence has occurred. If the court finds the existence of either significant domestic violence or a significant history of domestic violence, subsection (D)'s rebuttable presumption does not apply and "joint legal decision-making shall not be awarded." § 25-403.03(A).
¶15 Similarly, for the purposes of apportioning parenting time, when the trial court determines that an act of domestic violence has occurred, the offending "parent has the burden of proving to the court's satisfaction that parenting time will not endanger the child or significantly impair the child's emotional development." § 25-403.03(F). If the parent meets that burden, the court must place conditions on parenting time to protect the best interests of the child. Id.; see § 25-403.03(B) ("The court shall consider the safety and well-being of the child and of the victim of the act of domestic violence to be of primary importance."). These conditions may include ordering the parents to exchange the child in a protected area, implementing supervised parenting time, ordering the offending parent to complete a domestic-violence class, prohibiting overnight parenting time, or "any other condition that the court determines is necessary." § 25-403.03(F)(1)-(3), (6), (9).
A. Domestic Violence
¶16 In its ruling, the trial court recognized its obligation to consider whether either party had engaged in significant domestic violence or had a significant history of domestic violence under § 25-403.03(A), and whether either party had engaged in an act of domestic violence under § 25-403.03(D). After setting forth the standards, the court, relying on § 25-403.03(A) and DeLuna v. Petitto, 247 Ariz. 420, ¶ 11 (App. 2019), stated that it would "determine whether there is 'significant domestic violence' or if there has been a significant history of domestic violence."
¶17 The trial court thereafter summarized the parties' testimony about a sexual encounter that had occurred on March 28, 2020, explaining that Leon characterized the act as a sexual assault but that Plaza claimed it was consensual sex. The court included no assessment of the weight it gave either party's statements, noting only that "[t]he matters are under investigation by law enforcement." The court further set forth allegations Leon had made in a petition for an order of protection, including, in addition to the alleged sexual assault, "multiple sexually explicit social media messages from [Plaza], inappropriate sexual remarks by [Plaza] to [Leon] during his parenting time, and [Leon] being afraid of [Plaza] retaliating against her by harming or not returning the child from his parenting time." The court noted that the order of protection had been granted, but it made no specific findings as to which of these alleged acts of domestic violence it found proven. Instead, the court found summarily that Plaza had "committed significant acts of domestic violence against [Leon] according to A.R.S. § 25-403.03(D)(1)-(3)." The court then awarded Leon sole legal decision-making. See § 25-403.03(A).
Plaza argues the trial court's finding that the order of protection deprived the parties of the ability to communicate and made joint legal decision-making impossible was clearly erroneous, an abuse of discretion, and a violation of his due process rights afforded by A.R.S. §§ 25-403 and 25-403.03. Plaza urges this court to hold that a family law judge may modify an order of protection after a contested hearing in order to effectuate legal decision-making and parenting time orders. This court has previously held to the contrary under facts similar to those presented here. See Vera v. Rogers, 246 Ariz. 30, ¶¶ 17-22 (App. 2018). We need not reach this issue, however, because Plaza directs us to no place in the record where he asked the trial court to modify the order of protection. See Woyton v. Ward, 247 Ariz. 529, ¶ 16 (App. 2019); Hawkins v. Allstate Ins., 152 Ariz. 490, 503 (1987) ("[A]n appellate court will not consider issues not raised in the trial court.").
In fact, the parties disagree on appeal as to the incidents on which the trial court based its determination of domestic violence.
¶18 Accordingly, the trial court appears to have found that Plaza had engaged in significant domestic violence under subsection (A) by applying subsection (D), which defines a single "act of domestic violence." As a result, the court failed to consider whether the proffered acts amount to domestic violence as defined by § 13-3601. And in addition to misapplying the relevant statutes, the court made no clear findings as to which acts it found proven and failed to explain how any such acts qualify as significant under the correct definition of domestic violence.
If, by citing to § 25-403.03(D), the court intended to find that Plaza had engaged in one or more acts of domestic violence rather than significant domestic violence under subsection (A), it erred by failing to address for the record whether Plaza had rebutted the presumption against awarding him legal decision-making under subsection (E).
¶19 Because the court made a legal error as to the correct standard in its finding of domestic violence and failed to clearly articulate its evaluation of the evidence presented, we vacate the court's legal decisionmaking order and remand for reconsideration of that issue. See Engstrom, 243 Ariz. 469, ¶¶ 12-16 &15 (vacating finding of significant domestic violence where court "relied on many acts that do not statutorily constitute domestic violence, and did not explain why Father's actions amounted to 'significant' domestic violence"); Burk v. Burk, 68 Ariz. 305, 308 (1949) ("[T]he trial judge is in the best position to determine what is best for the child, and, unless it appears very clearly that he has mistaken or ignored the evidence, or failed properly to evaluate it, we will not disturb his decision on that vital question.").
¶20 On remand, the trial court should determine whether, on this record, Plaza's conduct constitutes "significant domestic violence" or "a significant history of domestic violence" under § 25-403.03(A). As that subsection requires, the court should apply the definition of domestic violence set forth in § 13-3601. If the court determines that Plaza has engaged in significant domestic violence or that he has a significant history thereof, it must make specific findings regarding the evidence of domestic violence on which it relied and explain its finding that such incident or incidents qualify as significant. See A.R.S. § 25-403(B). If the court finds that Plaza has committed an act of domestic violence under § 25-403.03(D), it must consider whether Plaza has rebutted the presumption against legal decision-making under § 25-403.03(E).
Plaza urges this court to adopt a three-factor test to determine whether domestic violence or a history thereof is "significant" under § 25-403.03(A). He cites Paredes-Gabriel v. Riva, No. 1 CA-CV 18-0328 FC, ¶ 13 (Ariz. App. May 2, 2019) (mem. decision), an unpublished case in which we quoted a superior court order remarking, "Significance is a product of three factors: (1) The seriousness of the particular incident of domestic violence, (2) the frequency or pervasiveness of the domestic violence, (3) and the passage of time and its impact." We subsequently, however, declined to adopt these factors because they do not appear in any statute or procedural rule, and we do so again here. See DeLuna, 247 Ariz. 420, n.6 ("We agree these factors seem reasonable but note that these factors do not appear in § 25-403.03(A), any family court rule, or published Arizona opinions."). Instead, we recognize, as we have previously, that § 25-403.03(A) gives superior courts discretion to determine whether domestic violence is of a degree sufficient to qualify as significant. Id. ¶ 15. But we emphasize that a court must explain why the domestic violence it finds qualifies as significant and it must base its determination of significant domestic violence on the definition of domestic violence in § 13-3601.
¶21 Based on this conclusion, we need not address the majority of Plaza's remaining challenges to the trial court's ruling on legal decisionmaking. However, because it is likely to recur on remand, we address Plaza's claim that the court abused its discretion by considering the alleged sexually explicit social media messages that Leon had received to find domestic violence, over his objections. He contends that the court's implicit finding that he sent the messages lacks evidentiary support because it rested on hearsay evidence. We review evidentiary rulings for an abuse of discretion. Larsen v. Decker, 196 Ariz. 239, ¶ 6 (App. 2000).
¶22 Leon testified at trial that she had received multiple harassing messages from various social media accounts, none of which bore Plaza's name or any immediate, obvious connection to him. Plaza objected to her testimony on hearsay and foundation grounds, and Leon responded that she was seeking to admit the messages not for the truth of what they contained, but to show that she had received them and "the nature of the messages she's receiving." The court admitted the evidence, explaining, "The information is coming in just to show that that's what [Leon] thought, it goes further to her state of mind and how she is managing herself which is related to how she takes care of that child, so I'm going to allow it." Leon then testified she had deduced that Plaza sent the messages under false names because they referred to facts that she claimed only Plaza knew, including the existence of moles on the bottom of her feet.
¶23 In its under-advisement ruling, the trial court stated that Leon had "alleged . . . that she received multiple sexually explicit social media messages from [Plaza]." It did not specify whether it found Leon's allegations to be true or to what extent it had considered the proffered evidence that Plaza sent the messages. Thus, it is unclear whether the court determined Leon had established the authenticity and foundation of the messages, see Ariz. R. Evid. 901(b)(4), or whether, as Plaza asserts on appeal, it relied on the truth of the matters asserted in the messages in making its domestic-violence findings, see § 25-403.03(C) (relevant factors court considers to determine whether person committed act of domestic violence are subject to rules of evidence). In making its rulings on remand, the court should therefore clarify its rulings in regard to this evidence.
B. Parenting Time
¶24 Because the trial court found that Plaza had engaged in domestic violence, he bore the burden of proving that parenting time would not endanger E.L. or significantly impair her emotional development. See § 25-403.03(F). The court found that "[n]o credible testimony or other evidence was presented that showed [E.L.] would be endangered while in [Plaza's] care," nor was any evidence presented that demonstrated "any impairment to [E.L.]'s emotional development."
¶25 Accordingly, the court crafted a parenting plan it found sufficient to maximize Plaza's "substantial, frequent, meaningful and continuing contact" with E.L. while imposing "conditions [that] are appropriate to protect the child, [Leon], or any other household member." This plan awarded Plaza supervised parenting time, no overnight time, and fewer total hours each week than Leon.
¶26 Plaza argues that the evidence does not support these limitations, and that he should instead have received equal parenting time. We do not address Plaza's arguments because the trial court's error in finding domestic violence also affects its parenting-time orders. The court found that Plaza had carried his burden to show that parenting time would not endanger E.L. and imposed several conditions, including a requirement that all parenting time be supervised. See § 25-403.03(F). In making its determinations under § 25-403.03, however, a court must "consider evidence of domestic violence as being contrary to the best interests of the child," as well as the safety and well-being of both the child and the victim of the domestic violence. § 25-403.03(B). Because the court's ruling as to the scale of domestic violence is unclear and based on an improper standard, its weighing of the necessary conditions for parenting time may change on remand. We therefore vacate the orders and remand for the court to reconsider parenting time.
C. Child Support
¶27 Plaza also argues the trial court abused its discretion by failing to use the equal parenting time category to calculate child support and ordering him to pay child support in the monthly amount of $442 as a result. Plaza requests that if he prevails on appeal and is awarded equal parenting time, that child support be recalculated using equal parenting time, or by attributing him a "significant increase in the number of parenting time days."
¶28 We will not disturb a child-support award absent an abuse of discretion. Sherman v. Sherman, 241 Ariz. 110, ¶ 9 (App. 2016). "We accept the [trial] court's factual findings unless clearly erroneous but review de novo the court's conclusions of law and interpretation of the Arizona Child Support Guidelines, A.R.S. § 25-320 app. ('Guidelines')." Id. Parenting time is a relevant factor when calculating child support. A.R.S. § 25-320(D)(8). "For purposes of calculating parenting time days, only the time spent by a child with the parent . . . is considered." § 25-320 app. § 11. Deviation from the Guidelines is only permitted if, after considering all relevant factors, the court finds that "[a]pplication of the guidelines is inappropriate or unjust in the particular case." § 25-320 app. § 20(A).
¶29 Here, the trial court adhered to the Guidelines in calculating child support and attributed the appropriate amount of parenting days based on its parenting-time order. But because we vacate the court's parenting-time orders and remand for further consideration, and because the parenting-time orders dictated, in part, the child-support calculation, we also vacate the child-support order and remand for recalculation of that issue if necessary.
II. Trial Judge's Requested Recusal
¶30 Plaza next argues that the trial court judge pro tempore, the Honorable Sheila Dagucon, erred by failing to recuse herself from deciding the issue of attorney fees at the close of the case. Plaza's argument stems from various events occurring during and after the 2018 election for superior court judge, in which his counsel, Mark Williams, unsuccessfully challenged the Honorable Thomas Fink. In his request for disqualification and on appeal, Plaza argues that Judge Dagucon could not have decided the fees issue impartially because she had supported Judge Fink in the election and her law partner had participated in having Williams's campaign signs removed from alongside a public roadway. We resolve this issue because it may arise again on remand, and we find no abuse of discretion.
¶31 During the election, Williams learned that the Arizona Department of Transportation (ADOT) had removed his political signs from an intersection in Sonoita based on a request from Judge Dagucon's law partner, who opined that they "block[ed] views of oncoming traffic." Williams later saw a sign supporting Judge Fink's re-election displayed outside the law office. Because the complaint to ADOT did not mention Judge Fink's signs, which Williams maintains were placed next to his signs in an equally unsafe manner, he believes the request was politically motivated. Before winning the election, Judge Fink requested Judge Dagucon's appointment as a judge pro tempore.
¶32 Based on the foregoing, in October 2018, Williams filed a complaint against Judge Dagucon with the Arizona Commission on Judicial Conduct, citing Canons 4.1(3) and 4.1(5) of the Arizona Code of Judicial Conduct. The commission found "no evidence of ethical misconduct," concluded that Judge Dagucon "did not violate the Code," and dismissed the complaint.
¶33 In December 2021, after Judge Dagucon had decided the parenting-time, child-support, and legal-decision-making issues, Plaza filed a request that she disqualify herself from deciding the issue of attorney fees. Plaza cited the removal of Williams's campaign signs, Judge Dagucon's law office's display of Judge Fink's sign, and Judge Dagucon's knowledge that Williams had filed a judicial complaint against her. Judge Dagucon treated Plaza's request as a motion for change of judge, and referred the matter to the presiding judge-Judge Fink-for determination. Judge Fink recused himself and referred the motion to the Honorable Jeffrey Bergin, presiding judge of the Pima County Superior Court. Judge Bergin denied Plaza's motion, finding it untimely under Rule 6.1(c), Ariz. R. Fam. Law P., and concluding Plaza had failed to "establish grounds which rise to the level of bias or impartiality such that there is cause for a change of judge."
¶34 On appeal, Plaza argues that Judge Dagucon erred by failing to recuse herself and by construing his motion as arising under Rule 6.1. He contends that the Code of Judicial Conduct provides independent grounds for disqualification and required Judge Dagucon to recuse herself because she was biased and prejudiced against his counsel. He specifically submits that Judge Dagucon "had at a minimum an economic interest" in supporting Judge Fink's campaign in 2018 because he requested her appointment as a judge pro tempore. He also argues that Judge Dagucon's knowledge of the judicial complaint is another source of bias and that her award of $3,000 in attorney fees against his counsel was "payback" for the judicial complaint and "designed to cause professional harm" to Williams's reputation for the purpose of helping Judge Fink.
¶35 Plaza asks us to hold that the Code of Judicial Conduct is an independent source of authority for a judge to be disqualified, and thus, that Judge Dagucon should have recused herself after considering the request as a discretionary matter, regardless of Rule 6.1. Plaza cites State v. Carver, 160 Ariz. 167 (1989), as holding "that Rule 81, of the Arizona Rules of Supreme Court's judicial canons independently provide a basis requiring a judge's recusal wholly apart from the procedures of Rule 10.1," Ariz. R. Crim. P., and asserts that the same legal reasoning and analysis applies here.
¶36 We review a trial court's denial of a motion for change of judge based on a claim of judicial bias for an abuse of discretion. Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, ¶ 21 (App. 2013). "We presume that a judge is impartial, and 'the party seeking recusal must prove bias or prejudice by a preponderance of the evidence.'" In re Aubuchon, 233 Ariz. 62, ¶ 14 (2013) (quoting Carver, 160 Ariz. at 172). "A change of judge for cause is not warranted if based merely on 'speculation, suspicion, apprehension, or imagination.'" Costa v. Mackey, 227 Ariz. 565, ¶ 12 (App. 2011) (quoting State v. Ellison, 213 Ariz. 116, ¶ 37 (2006)). Instead, the party requesting a recusal must demonstrate an "extrajudicial source of bias or deep-seated favoritism." Stagecoach Trails MHC, L.L.C., 232 Ariz. 562, ¶ 21.
¶37 Because it is not material to the outcome here, we decline Plaza's invitation to hold that the Code of Judicial Conduct provides an independent vehicle for a party to seek a judge's recusal. The four canons of the Code of Judicial Conduct "state overarching principles of judicial ethics that all judges must observe." Ariz. R. Sup. Ct. 81, Scope. The canons are considered "rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances." Id. But they are not "intended to be the basis for litigants to seek collateral remedies against each other or to obtain tactical advantages in proceedings before a court." Id.
Even if the Code of Judicial Conduct were to give Plaza a vehicle to file a motion to disqualify Judge Dagucon, we note that, as previously discussed, the Commission on Judicial Conduct has already found that Judge Dagucon did not violate the Code.
¶38 Whether a trial judge's impartiality is challenged in a Rule 6.1 motion for change of judge for cause or in a request pursuant to the Code of Judicial Conduct, the ultimate question is whether the judge harbors bias or prejudice toward a litigant. Ariz. R. Sup. Ct. 81, Canon 2.11(A)(1); Ariz. R. Fam. Law P. 6.1(a); A.R.S. § 12-409(B). To resolve whether disqualification is required under Carver, we examine first whether the judge's impartiality might be reasonably questioned, and second, whether there is evidence of a personal bias or prejudice concerning the litigant. 160 Ariz. at 172-73.
¶39 Plaza's argument that it "appears" Judge Dagucon's ruling on attorney fees against his counsel was "payback" and designed to harm his counsel's reputation in support of Judge Fink is grounded in speculation and lacks evidentiary support. In order to show that a judge's "impartiality might reasonably be questioned" based on an "[a]ppearance of interest or prejudice" a party must present more than mere speculation. Carver, 160 Ariz. at 172-73. An appearance of interest will not be found based solely on assumptions about a judge's possible actions under the circumstances. Id. at 173. Rather, because a party is entitled to a change of judge for cause when the judge's bias will deprive that party of a fair trial, see § 12-409(B), "[i]t occurs when the judge abandons his judicial role and acts in favor of one party or the other." Carver, 160 Ariz. at 173. In denying the motion to disqualify, Judge Bergin found that the events surrounding the 2018 election, as well as Judge Dagucon's hiring by Judge Fink, were insufficient to raise the appearance of impropriety. The record supports this ruling. While Williams may believe Judge Dagucon harbors a personal vendetta against him, he points to nothing in the record substantiating that belief. Moreover, Judge Dagucon presided over the entirety of the case, without objection from Plaza until the litigation was nearly complete, and demonstrated no clear bias or prejudice toward him or Williams. In addition, after our review of the record, we cannot find that Judge Dagucon abandoned her judicial role or acted in favor of one party throughout the proceedings.
¶40 Nor has Plaza provided evidence of actual bias or prejudice against him or Williams. "Bare allegations of bias and prejudice, unsupported by factual evidence, are insufficient to overcome the presumption of impartiality and do not require recusal." Carver, 160 Ariz. at 173. We find no evidence in the record to suggest that Plaza and Williams were denied a fair consideration of attorney fees before an impartial judge. Although Plaza argues that Judge Dagucon's attorney fees order was "extremely negative" to Williams, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Ellison, 213 Ariz. 116, ¶ 40 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). And as to Williams's filing of a complaint against Judge Dagucon, the Judicial Ethics Advisory Committee has concluded that a judge is not ethically obligated to automatically recuse herself when one of the litigants has filed a complaint against her with the Commission on Judicial Conduct. Ariz. Jud. Ethics Adv. Comm. Op. 98-02 (1998), at 1 ("The mere fact that a complaint has been made against a judge alleging the judge is biased and cannot be impartial does not require automatic disqualification or recusal by the judge.").
¶41 We therefore find that Plaza has failed to overcome the presumption that Judge Dagucon was impartial. Plaza's reliance on the Arizona Code of Judicial Conduct as opposed to Rule 6.1 does not affect the outcome because he has failed to provide sufficient proof of either an appearance of or actual bias or prejudice. In fact, the treatment of Plaza's request under Rule 6.1 served as a safeguard in this case, allowing for review by a neutral judge. Judge Bergin concluded, and we agree, that "[w]hile Judge Dagucon's complaint regarding election signs may have been unfavorable to [Plaza's] counsel's past political campaign, this in and of itself, does not give rise to a finding of impropriety."
¶42 We therefore conclude that neither Judge Bergin nor Judge Dagucon abused their discretion by denying Plaza's disqualification request.
III. Attorney Fees and Costs Award in Trial Court
¶43 Plaza also challenges the trial court's award of attorney fees to Leon and its order that Williams pay $3,000 of the total amount. Because the court's award was independent of its legal-decision-making, parentingtime, and child-support orders, which we vacate above, we address this issue. We review an award of attorney fees for an abuse of discretion. Medlin v. Medlin, 194 Ariz. 306, ¶ 17 (App. 1999). We will not disturb the court's "discretionary award of fees if there is any reasonable basis for it." Hale v. Amphitheater Sch. Dist. No. 10, 192 Ariz. 111, ¶ 20 (App. 1998).
¶44 "A claim for attorney fees, costs, and expenses must be made in the pleadings or by motion filed before trial or a post-judgment evidentiary hearing" and "must also be included in any required pretrial statement." Ariz. R. Fam. Law P. 78(e)(1). A claim that is not made in compliance with this rule is "waived absent good cause shown." Ariz. R. Fam. Law P. 78(e)(1).
¶45 Under A.R.S. § 25-324, a court must consider the "financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." But "an applicant need not show both a financial disparity and an unreasonable opponent in order to qualify for consideration for an award." Magee v. Magee, 206 Ariz. 589, n.1 (App. 2004). If a court determines that a party filed a petition in bad faith, filed a petition that was not grounded in fact or based on law, or filed a petition for an improper purpose such as delay or harassment, the court is required to award reasonable costs to the other party. § 25-324(B). Similarly, under A.R.S. § 12-349 a court is authorized to "allocate the payment of attorney fees among the offending attorneys and parties, jointly or severally, and may assess separate amounts against an offending attorney or party."
¶46 Leon made her request for attorney fees pursuant to §§ 25-324 and 12-349, and cited numerous actions taken by Plaza and his counsel, including: serving irrelevant interrogatories; failing to disclose Plaza's professional relationship with Judge Liliana Ortega, which required her recusal; failing to disclose information regarding a Department of Child Safety (DCS) investigation; issues surrounding pretrial statements; filing a contempt petition; disclosing surreptitious recordings to intimidate Leon; serving broad and untimely discovery requests regarding private information; changing positions during trial; and having an unprofessional demeanor during the litigation. Leon specifically noted Williams's confrontational emails, threats of sanctions, visits to Leon's work, and request for Leon to "describe the missionary position . . . using [him] as an example, on the floor in front of the judge" during cross-examination.
¶47 In awarding fees to Leon, the trial court made express findings supported by the record. The court addressed each incident alleged by Leon in her application and found in favor of Plaza with regard to Leon's challenges to his use of interrogatories and failure to disclose the DCS investigation. However, the court found that Leon had met her burden of proving Plaza's overall positions were unreasonable "because they resulted in harassment and intimidation . . . improper use of discovery attempts, and increase[ed] [Leon's] cost of litigation to defend her personal information as well as defend[] herself against a frivolous contempt motion." The court also found that Williams had "prosecuted this case in an undignified and unprofessional manner, acted unreasonably, bringing a claim without substantial justification, making claims for the purpose of harassment, and engaging in abuse of discovery."
¶48 We defer to the trial court's findings of fact on these questions, as it was in the best position to assess the conduct of the parties before it. See MacMillan v. Schwartz, 226 Ariz. 584, ¶ 38 (App. 2011). And we will not reweigh the evidence on appeal, as Plaza implicitly requests. See Hurd, 223 Ariz. 48, ¶ 16. The record supports the court's decision here, and we will not disturb it.
¶49 Plaza further contends that the trial court violated his and Williams's right to due process because they were denied notice that Leon was seeking attorney fees and the ability to address the claim and crossexamine Leon about it at trial. Specifically, Plaza maintains that Leon's application for attorney fees and costs and her accompanying China Doll affidavit "should have been dismissed and stricken" because the claim was not asserted in the answer, amended answer, pretrial statement, or in response to interrogatories and was instead made after closing arguments in open court. Thus, Plaza asserts that the court abused its discretion by finding "good cause" to consider Leon's claim for attorney fees.
Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 185 (App. 1983).
¶50 Leon explained, however, that the request was not ripe until trial, and "things kept happening" that needed to be added to the motion. Leon's request for attorney fees was in fact based on incidents that had occurred after the start of trial, which Leon could not have challenged until they had taken place. Cf. White v. Kaufmann, 133 Ariz. 388, 390 (1982) (litigant cannot be expected to assert defense supporting award of attorney fees before it is known). We therefore cannot conclude that the court abused its discretion by finding "good cause" to consider Leon's claim. We also cannot conclude that the court abused its discretion by accepting Leon's motion filed in open court under Rule 35(a)(5), Ariz. R. Fam. Law P.
¶51 Further, "[d]ue process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Huck v. Haralambie, 122 Ariz. 63, 65 (1979). Although the court found good cause to consider Leon's claim for attorney fees despite her lack of compliance with certain procedural rules, the court also granted Plaza's request for adequate time to respond to the filing. Over the course of three months, Plaza filed a motion to dismiss and strike the application, a response to the application for attorney fees, a cross-motion for attorney fees, and a request for Judge Dagucon's recusal. Thereafter, Plaza filed a motion to amend or make additional findings, after which the court amended its ruling and granted Plaza's request for an explanation of the court's determination of the amount to be paid by Williams. We therefore find that Plaza and Williams were neither deprived of notice nor of an opportunity to be heard regarding the attorney fees issue.
¶52 Because we find no abuse of discretion, we affirm the trial court's award of attorney fees to Leon, and its order that Williams pay $3,000 of that total amount.
IV. Attorney Fees and Costs on Appeal
¶53 On appeal, Plaza requests an award of reasonable attorney fees and costs against Leon and her counsel jointly and severally pursuant to Rule 21(c), Ariz. R. Civ. App. P., and § 25-324. Similarly, Leon requests reasonable attorney fees and costs pursuant to Rules 21(a) and 25, Ariz. R. Civ. App. P., § 12-349, and Rule 78, Ariz. R. Fam. Law P. In our discretion, we defer both parties' requests for attorney fees and costs on appeal to the trial court, pending ultimate resolution of the case. See Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, ¶ 37 (App. 2007).
Disposition
¶54 For the foregoing reasons, we affirm the trial court's orders relating to attorney fees and costs and the trial judge's requested disqualification. We vacate the court's orders relating to legal decisionmaking, parenting time, and child support, and remand for additional consideration consistent with this decision.