No. 2 CA-CV 2019-0116-FC
COUNSEL Palmer Law Group PLLC, Casa Grande By Ann T. Palmer Counsel for Petitioner/Appellee The Wilkins Law Firm PLLC, Phoenix By Amy M. Wilkins and Laura C. Brosh Counsel for Respondent/Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pinal County
The Honorable Richard T. Platt, Judge Pro Tempore
COUNSEL Palmer Law Group PLLC, Casa Grande
By Ann T. Palmer
Counsel for Petitioner/Appellee The Wilkins Law Firm PLLC, Phoenix
By Amy M. Wilkins and Laura C. Brosh
Counsel for Respondent/Appellant
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 Kevan Ward appeals from the trial court's under-advisement ruling denying his petition to enforce parenting time with his son and its award of attorney fees and costs to Lisa Ward, his son's mother. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's ruling. See Baker v. Meyer, 237 Ariz. 112, ¶ 2 (App. 2015). Kevan and Lisa married in June 2003 and have two minor children, I.W. and N.W. In July 2016, Lisa filed a petition for dissolution of marriage.
¶3 Months later, both parties agreed to a parenting plan, which provided that Lisa and Kevan would share joint legal decision-making and that Lisa would be the primary residential parent. The parenting plan provided that Kevan would have parenting time with I.W. and N.W. three weekends per month, as well as every Wednesday after school. In August 2017, the trial court adopted the parenting plan as part of its decree of dissolution.
¶4 In May 2018, Kevan filed a petition to enforce the parenting time provisions of the decree and to hold Lisa in contempt, asserting that she "repeatedly and intentionally violated the court-ordered Parenting Time Agreement by refusing to allow [him] to exercise his parenting time with [I.W.]." He claimed that Lisa had engaged in "parental alienation tactics to turn the children against [him]" and had attempted to prevent Kevan from "attending [I.W.'s] band concert at school." Lisa denied interfering with Kevan's parenting time with I.W., and, instead, she explained that I.W., who at the time was nearly fifteen years old, refused to see Kevan and she was "unable to physically force [I.W.]" to spend time with his father.
On appeal, Kevan only challenges the trial court's denial of his petition to enforce parenting time with I.W. and the corresponding award of attorney fees and costs.
¶5 After an evidentiary hearing, the trial court issued its under-advisement ruling denying Kevan's petition to enforce parenting time. The court also found that Kevan's position during litigation was "unreasonable in light of the evidence presented during the evidentiary hearing," and awarded Lisa her reasonable attorney fees and costs. Kevan filed a motion to alter or amend the judgment, alleging the court's ruling was "not supported by the evidence, [was] contrary to law, and ha[d] resulted in the loss of [his] substantial rights as to parenting time with [I.W.]." The court denied Kevan's motion to alter or amend. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(2).
Although the trial court did not enter finality language pursuant to Rule 78(c), Ariz. R. Fam. Law P., the order arising from a petition to enforce parenting time is nonetheless appealable pursuant to § 12-2101(A)(2) as a "special order made after final judgment." See Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, ¶ 15 (App. 2016) (special order after final judgment does not require finality language under civil rule equivalent to Rule 78(c)); see also Cone v. Righetti, 73 Ariz. 271, 275 (1952) ("It is an order special in character, in that it relates only to the custody and support of minor children involved in a divorce action after judgment entered therein."). --------
¶6 Kevan argues the trial court erred in denying his petition to enforce court-ordered parenting time because Lisa did not have "good cause" to deviate from the parenting plan and the court deprived Kevan of all parenting time with I.W. without making a best-interests or substantial-harm finding. We will not disturb a court's parenting-time determination absent an abuse of discretion. Nold v. Nold, 232 Ariz. 270, ¶ 11 (App. 2013).
¶7 Section 25-414(A), A.R.S., provides, "If the court, based on a verified petition and after it gives reasonable notice to an alleged violating parent and an opportunity for that person to be heard, finds that a parent has refused without good cause to comply with a visitation or parenting time order," the court must remedy the violation, which may include finding "the violating parent in contempt of court." The court, however, should limit its "power to punish for contempt" to "the least possible power," Ong Hing v. Thurston, 101 Ariz. 92, 100 (1966) (quoting Harris v. United States, 382 U.S. 162, 165 (1965)), considering the impact on and best interests of the child, see Hays v. Gama, 205 Ariz. 99, ¶¶ 17-18 (2003); see also Ward v. Ward, 88 Ariz. 130, 135, modified, 88 Ariz. 285 (1960) ("The trial court is given broad discretion in determining what will be most beneficial for the child."); cf. Clifford v. Woodford, 83 Ariz. 257, 262 (1957) (paramount consideration in custody proceeding is child's welfare).
¶8 In its under-advisement ruling, the trial court recognized § 25-414(A) required it first to determine "whether [Lisa] had 'good cause' to allow [I.W.] not to have parenting time with [Kevan]" in violation of the court-ordered parenting time agreement. The court appears to have concluded that Lisa had not violated the parenting plan, explaining:
[I.W.] was stressed with [Kevan] due to his perception that [Kevan] was being unduly critical of his poor school performance. [I.W.] expressed his position to [Kevan] in May 2018 by a text message where he told [Kevan] that he did not want to have parenting time with him. The testimony of the child's counselor is clear: the child does not want to have parenting time with [Kevan] and to force [I.W.] to do otherwise is harmful and not in [I.W.'s] best interests.Although the court did not expressly state that Lisa's refusal to force I.W. to spend time with Kevan was good cause for Lisa to deviate from the court-ordered parenting time, that finding is implicit in the court's ruling. See Boyle v. Boyle, 231 Ariz. 63, ¶ 15 (App. 2012) (appellate court may infer findings necessary to support trial court ruling).
¶9 Kevan maintains, however, that the trial court's under-advisement ruling essentially "deprived [him] of all parenting time with [I.W.] without a finding that parenting time would cause [I.W.] substantial harm," and he contends the court "failed to make best interests findings in determining legal decision-making and parenting time." We disagree.
¶10 As we have noted, Kevan filed his petition to enforce parenting time pursuant to § 25-414(A)—he did not file a petition to modify parenting time, under A.R.S. § 25-411(A), which may also be filed when the other parent fails to "comply with the provisions of the [court-ordered parenting plan]." Before a trial court "may modify an order granting or denying parenting time rights" under § 25-411, it must determine what "would serve the best interest of the child" and may not restrict a parent's parenting time unless it would "endanger seriously the child's physical, mental, moral or emotional health." § 25-411(J); see also A.R.S. § 25-403(A) ("The court shall determine legal decision-making and parenting time, either originally or on petition for modification, in accordance with the best interests of the child."). But although § 25-414(A)(7) authorizes "any other order that may promote the best interests of the child . . . involved," it provides that such an order must be based on a finding "that a parent has refused without good cause to comply with a visitation or parenting time order." In this case, the court apparently found that Lisa did not violate the parenting plan.
¶11 In any event, contrary to Kevan's argument, it appears that in making its "good cause" determination, § 25-414(A), the trial court nevertheless considered whether it would be in I.W.'s best interests to grant Kevan's petition and hold Lisa in contempt, relying on Hays. See Hays, 205 Ariz. 99, ¶¶ 17-18 (court to consider best interests of child in contempt proceeding). The court found that it was "not in [I.W.'s] best interest to force [him] to have parenting time with [Kevan]," despite the parenting plan based, in part, on the testimony of I.W.'s counselor that to force I.W. and Kevan to have parenting time would be "harmful and not in [I.W.'s] best interests." The court did not abuse its discretion by denying Kevan's petition to enforce. See Nold, 232 Ariz. 270, ¶ 11.
Award of Attorney Fees
¶12 Kevan argues the trial court erred in awarding Lisa attorney fees and costs under A.R.S. § 25-324(A). We review an award of attorney fees and costs under § 25-324(A) for an abuse of discretion. Magee v. Magee, 206 Ariz. 589, ¶ 6 (App. 2004). "In doing so, we defer to the court's factual findings so long as there is competent evidence to support them." Quijada v. Quijada, 246 Ariz. 217, ¶ 13 (App. 2019).
¶13 Section 25-324(A) states that the trial court, "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 any proceeding under this chapter." "[C]osts and expenses may include attorney fees, deposition costs and other reasonable expenses." § 25-324(C).
¶14 In awarding Lisa attorney fees and costs in this case, the trial court complied with § 25-324(A). The court expressly found that there was "no substantial disparity of financial resources between the parties" but that Kevan's position during litigation "was unreasonable in light of the evidence presented during the evidentiary hearing."
¶15 On appeal, Kevan contends the trial court erred because "[t]he reasonableness of a party's position must be evaluated by an objective standard." He further argues that his position was reasonable because he "asked the Court to order [Lisa] to comply with a court order," which she was "defying . . . because her teenage son told her to."
¶16 The evidence established that Lisa, I.W., and I.W.'s counselor repeatedly had told Kevan months before the evidentiary hearing that I.W. did not want to spend time with him. Kevan nonetheless insisted that Lisa was interfering with his visitation and continued to pursue litigation. Specifically, in May 2018, Kevan received a text message from I.W. that said, "You always stress me out about my grades and over exaggerate how bad my grades are and my behavior . . . . [I'm] done letting you use me and lie about me, [I'm] not coming back to your house." In September 2018, I.W.'s counselor spoke with both parents about parenting techniques and Kevan reported to the counselor that Lisa "may be influencing [I.W.]." The counselor informed Kevan why I.W. did not want to see him and advised him "that forcing a relationship is a difficult way to move a relationship forward in a positive way." Shortly thereafter, Lisa requested Kevan withdraw his petition, but he refused. Pursuant to a subpoena, the counselor provided Kevan with her therapy notes concerning her visits with I.W., and Kevan had also been informed of the counselor's proposed testimony. In her notes, she recorded that I.W. "denied wanting to have anything to do with [Kevan]." Despite this, Kevan continued to pursue the matter and maintained at the hearing that Lisa was using "parental alienation" to keep I.W. from him. Yet, Kevin also admitted he received the text message from I.W. in May, admitted I.W. had since "refuse[d] to respond to [his] text messages," and acknowledged that Lisa told him on at least four occasions that I.W. did not want to see him.
¶17 In sum, the trial court's finding that Kevan had acted "unreasonabl[y] in light of the evidence presented during the evidentiary hearing" is supported by the record. See Quijada, 246 Ariz. 217, ¶ 13. Accordingly, the court did not abuse its discretion by awarding Lisa attorney fees and costs under § 25-324(A). See Magee, 206 Ariz. 589, ¶ 6.
Attorney Fees on Appeal
¶18 Kevan requests his attorney fees and costs on appeal pursuant to § 25-324 and Rule 21, Ariz. R. Civ. App. P. Having reviewed the record as to the financial resources of both parties and having considered the reasonableness of the parties' positions throughout the proceedings, in our discretion, we deny Kevan's request for attorney fees. See § 25-324(A). And because Kevan is not the prevailing party, he is not entitled to his costs. See Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, ¶ 13 (App. 2007) (prevailing party entitled to costs upon compliance with Rule 21). Although Lisa did not request fees on appeal, as the prevailing party, she is entitled to her costs upon compliance with Rule 21(b).
¶19 For the reasons stated above, we affirm.