Opinion
No. 2 CA-CV 2018-0091-FC
03-26-2019
IN RE THE MARRIAGE OF KRISTIN A. MCQUAY, Petitioner/Appellant/Cross-Appellee, and DUSTIN R. MCQUAY, Respondent/Appellee/Cross-Appellant.
COUNSEL Berkshire Law Office PLLC, Tempe By Keith Berkshire and Erica Gadberry Counsel for Petitioner/Appellant/Cross-Appellee Ann Nicholson Haralambie Attorney P.C., Tucson By Ann M. Haralambie Counsel for Respondent/Appellee/Cross-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NOT FOR PUBLICATION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 Pima County
No. D20171116
The Honorable John Assini, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL Berkshire Law Office PLLC, Tempe
By Keith Berkshire and Erica Gadberry
Counsel for Petitioner/Appellant/Cross-Appellee Ann Nicholson Haralambie Attorney P.C., Tucson
By Ann M. Haralambie
Counsel for Respondent/Appellee/Cross-Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. EPPICH, Presiding Judge:
¶1 Kristin McQuay appeals from the trial court's order denying her post-decree petition to relocate her child T.M. to Massachusetts, arguing the court erred by failing to order the child's father, Dustin McQuay, to undergo a mental health evaluation. Dustin cross-appeals, contending the court erred by awarding visitation to T.M.'s maternal grandparents and granting Kristin sole legal decision-making authority as to T.M.'s counseling and a related medication. We vacate the portions of the court's ruling relating to Dustin's cross-appeal, and remand the case for further proceedings.
Factual and Procedural Background
¶2 Kristin and Dustin were formerly married and are the parents of ten-year-old T.M. The parents were divorced in Missouri in 2014, and the same year, Kristin filed a petition to relocate with T.M. to Tucson. After contested proceedings, the Missouri court granted Kristin's petition and established a parenting plan that would allow the parties to share parenting time while residing in different states. The two retained joint legal decision-making authority. Shortly thereafter, however, Dustin also relocated to Tucson, and the parties co-parented on terms other than those provided in the Missouri plan.
¶3 In April 2017, Kristin filed a post-decree petition to permit T.M.'s relocation from Tucson to Massachusetts. Her petition requested that the court impose the parenting plan ordered by the Missouri court in 2014, which she had provided to the court in additional filings. She argued relocation was in T.M.'s best interests because the Boston area offered greater "[j]ob opportunities commensurate with [her] experience and earning ability" and she had recently married a spouse who lived in that vicinity. She additionally raised concerns about Dustin's inability to maintain consistent employment and his relationship with T.M.
¶4 Dustin objected to the petition, arguing relocation was not in T.M.'s best interests due to T.M.'s stability in Tucson and the presence of extended family in the area, including T.M.'s maternal grandparents. He also contended the court's "decision as to parenting time must be based on what it believes is in the best interests of the minor child and not what another Court had ordered two and a half years ago."
¶5 After filing her petition, Kristin filed a motion seeking to compel the parties to participate in a "parent/child relationship assessment and psychological evaluation[]" pursuant to Rule 63, Ariz. R. Fam. Law P. Her motion raised concerns related to Dustin's mental health, including his prior diagnosis and treatment for depression and ADHD. Dustin objected, noting that concerns about his mental health had been litigated in the prior Missouri proceedings, and contending that an evaluation would not provide any further information to the court. The trial court allowed both parties to hire necessary experts and ordered that T.M. "be included in any type of assessments or evaluations," but did not order Dustin to participate in a mental health evaluation.
¶6 After eight days of contested evidentiary hearings, the trial court issued a ruling and order denying Kristin's petition to relocate, containing detailed factual findings as to each of the factors enumerated in A.R.S. §§ 25-408 and 25-403. The court adopted a parenting plan proposed by Kristin that designated Dustin as the academic household, but allowed the parties to split parenting time while living in different states. Relevant to Dustin's cross-appeal, the plan provided that "Mother shall have the decision to enroll [T.M.] in any form of counseling that she believes is in [his] best interest" and that "Petitioner/Mother shall be [the] only parent authorized to re-fill [T.M.'s] adderall prescription." Also relevant to Dustin's cross-appeal, the court granted T.M.'s maternal grandparents visitation rights and a right of first refusal to watch T.M. when Dustin needed childcare. Kristin appealed, and Dustin cross-appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
The trial court's ruling originally contemplated two potential parenting schedules: one wherein Kristin would exercise frequent parenting time by commuting to Tucson, and the other wherein Kristin would have less-frequent parenting time during the academic year, but extended parenting during the non-academic year in Massachusetts. Upon Dustin's unopposed motion, we suspended this appeal and re-vested jurisdiction in the trial court in order for it to implement a parenting plan and rule on Dustin's then-pending motion for reconsideration. See Ariz. R. Civ. App. P. 3(b). The trial court adopted the schedule awarding Kristin extended parenting time during the non-academic year and clarified several aspects of its initial ruling, but did not modify its substance.
Mental Health Evaluation
¶7 On appeal, Kristin contends the trial court erred by failing to compel Dustin's participation in a mental health evaluation. She bases her argument on the statutory requirement that a court consider the mental health of an individual seeking parenting time and contends that she "presented . . . good cause to order a mental health evaluation" and that the court therefore should have done so. Rule 63, Ariz. R. Fam. Law P., provides that the court "may order a party whose physical or mental condition or ability to work is in controversy to submit to a physical examination, mental or behavioral health examination, or a vocational evaluation by a physician, psychologist, or designated expert."
In passing, Kristin also argues the trial court erred by not compelling Dustin's participation in a parent/child relationship assessment and allowing him to benefit from his non-participation in the same. She does not meaningfully develop any argument specific to that issue, however. Accordingly, we find any argument related to a parent/child relationship assessment waived. See Christina G. v. Ariz. Dep't of Econ. Sec., 227 Ariz. 231, n.6 (App. 2011) (failure to develop argument on appeal usually results in abandonment and waiver of issue).
¶8 In evaluating a petition for relocation, a court is required to determine whether relocation is in the child's best interests, in so doing it is to consider "[t]he factors prescribed under § 25-403," § 25-408(I)(1), including "[t]he mental health and physical health of all individuals involved" in the relocation. § 25-403(A)(5). The mental health of Dustin, as a party to the action, was thus "in controversy" within the meaning of Rule 63, allowing the trial court discretion to order a mental health evaluation pursuant to that rule. Having concluded the court was permitted to order Dustin to complete a mental health evaluation, we turn our consideration to whether the court erred in declining to do so.
Trial Court Application
¶9 Citing Perguson v. Tamis, 188 Ariz. 425, 427 (App. 1996), Kristin contends our review should be de novo. That standard applies to our review of the meaning and effect of a court rule. But, to the extent she further suggests that standard applies to the court's application of the rule and whether the language of Rule 63 required an evaluation, she is mistaken. The rule clearly provides the court discretion to order an evaluation, but nothing in the rule's language requires the court to do so. Rather, Rule 63 states the circumstances under which the court "may" order an evaluation, leaving the determination within the sound discretion of the trial court. We review such determinations for an abuse of discretion, and will affirm the court's decision if reasonable evidence supports it. See Boyle v. Boyle, 231 Ariz. 63, ¶ 8 (App. 2012).
¶10 Kristin's motion to compel a Rule 63 evaluation alleged Dustin had mental health issues, which she contended were responsible for Dustin's inability to maintain stable employment and an unhealthy relationship between Dustin and T.M. For example, Kristin alleged the relationship between the two was "enmeshed," because Dustin over-relied on T.M. for emotional support. After a hearing, the trial court declined to order Dustin's participation in a Rule 63 evaluation, suggesting that a compelled psychological evaluation was unsupported by the facts alleged in Kristin's motion.
In discussing Kristin's request for a parent/child relationship assessment and a psychological evaluation, the court stated: "I think if either one of you today filed a motion for a psychological evaluation of either parent I'm really not sure if that would be granted without having more of the reasons or the facts truly explained to the Court why we have to do a psychological evaluation." In response, Kristin's attorney stated: "We can withdraw that portion of it." It is not entirely clear whether Kristin intended to withdraw her request for a compelled mental health evaluation, but, significantly, she did not present further facts or argument in support of an evaluation, and did not take issue with the court's implication that she had failed to provide a sufficient basis to warrant one.
¶11 We cannot fault the trial court's conclusion. Although the court was permitted to order an evaluation, we see no indication that the court was incapable of considering Dustin's mental health without doing so. Dustin's psychological fitness had already been litigated in the Missouri proceedings, and Kristin did not suggest a significant change in his mental health after those proceedings occurred. Indeed, the parties were able to effectively co-parent in Tucson until Kristin requested relocation. Moreover, in our review, we see nothing in Kristin's allegations that would necessitate an evaluation; most appear to be, as the court characterized them, disagreements on "parenting style." Under these circumstances, the court's decision is supported by reasonable evidence, and reflects no abuse of discretion.
Due Process
¶12 Kristin next contends the trial court denied her due process by preventing her from gathering information necessary to cross-examine Dustin. We review the court's ruling de novo to determine whether it violated Kristin's rights. See Jeff D. v. Dep't of Child Safety, 239 Ariz. 505, ¶ 6 (App. 2016). "Due process requires the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Id. ¶ 7 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
¶13 Kristin has cited no authority, and we are aware of none, finding a violation of due process under similar circumstances; the trial court denied her request for an evaluation pursuant to its discretion under Rule 63 and, as discussed above, acted within its discretion in doing so. And while Kristin generally complains she was incapable of presenting evidence relating to Dustin's mental health absent a court-ordered evaluation, the court's ruling did not prevent her from presenting those concerns through other means—such as through her own lay-witness testimony or through the testimony of the psychologist who had conducted a parent/child relationship evaluation with T.M.—over the course of the eight-day trial. We therefore cannot agree Kristin was denied her right to due process. We see no error.
Use of Non-Participation as a Privilege
¶14 Finally, Kristin argues the trial court "erred when it essentially treated Father's participation in the evaluation as privilege, such that he could choose whether or not to participate," contending Dustin used the court's ruling "as both a sword and a shield." In essence, she contends the court erred by not drawing a negative inference from Dustin's decision not to voluntarily submit to an evaluation. She relies generally on case law allowing the court to draw such an inference, see, e.g., Buzard v. Griffin, 89 Ariz. 42, 48 (1960), but provides no authority requiring it to do so. To the extent she argues the court should have considered Dustin's non-participation more strongly in her favor, her request is that we re-weigh the evidence presented below, which we will not do. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, ¶ 4 (App. 2002). As the trial court was in the best position to evaluate the evidence presented by the parties, it was entitled to give Dustin's non-participation in an evaluation the weight it deemed appropriate. See id. We see no error.
We see nothing in the record to suggest Dustin actually invoked a recognized privilege—such as the privilege against divulging medical records. See A.R.S. § 12-2292(A).
Grandparent Visitation
¶15 On cross-appeal, Dustin contends the trial court lacked jurisdiction to award T.M.'s maternal grandparents visitation and a right of first refusal for childcare because the grandparents had never filed a petition seeking third-party visitation. See A.R.S. § 25-409; see also Glenn H. v. Hoskins, 244 Ariz. 404, ¶ 11 (App. 2018) ("Subject matter jurisdiction attaches to the superior court when a complaint or petition is filed."). In her answer to the cross-appeal, Kristin agrees the court's ruling as to grandparent visitation was in error, notwithstanding Dustin's testimony that he would continue to facilitate contact between the child and grandparents. Based on this concession, and because we agree the court lacked jurisdiction to award the non-party grandparents visitation absent a petition for third-party rights, we vacate the portion of the court's order granting T.M.'s maternal grandparents visitation and a right of first refusal.
Legal Decision-Making
¶16 On cross-appeal, Dustin also contends the trial court erred in modifying legal decision-making absent a petition for modification. Section 25-411(L), A.R.S., requires a person seeking modification of parenting time or legal decision-making to submit "an affidavit or verified petition setting forth detailed facts supporting the requested modification," and further requires notice be given "to other parties to the proceeding, who may file opposing affidavits." But see § 25-411(N) ("Subsection L of this section does not apply if the requested relief is for the modification or clarification of parenting time and not for a change of legal decision-making."). Legal decision-making "means the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions." A.R.S. § 25-401(3).
We reject Kristin's argument that Dustin has waived his ability to challenge the trial court's decision by signing a stipulated order adopting the parenting plan, which included the modification to legal decision-making. That order expressly provides that the parenting plan was "without prejudice to Petitioner's and Respondent's respective positions in the pending appeal and cross-appeal."
¶17 Although the trial court did not explicitly note it was modifying legal decision-making, its ruling did so by stating that "Mother shall have the decision to enroll [T.M.] in any form of counseling that she believes is in [his] best interest" and that "Petitioner/Mother shall be [the] only parent authorized to re-fill [T.M.'s] adderall prescription." Kristin's petition for relocation did not request any modification of legal decision-making and did not include any allegations related to T.M.'s therapy. Nor did the petition indicate or imply that the proposed relocation would necessarily include a modification of legal decision-making. See Murray, 239 Ariz. 174, ¶ 8. Dustin's answer to the petition was likewise silent as to legal decision-making. Thus, insofar as the court modified legal decision-making, it did so without a petition that complied with § 25-411.
¶18 But, "this court 'will not reverse for alleged noncompliance with § 25-411 on appeal absent a showing of prejudice.'" Sundstrom v. Flatt, 244 Ariz. 136, ¶ 8 (App. 2017) (quoting In re Marriage of Dorman, 198 Ariz. 298, ¶ 12 (App. 2000)). Here, we conclude Dustin has established prejudice, as neither the petition nor answer to the petition put legal decision-making at issue in the proceedings, wholly depriving him of notice as to that issue. See Cruz v. Garcia, 240 Ariz. 233, ¶ 12 (App. 2016) ("A family law judgment rendered without notice and a meaningful opportunity to be heard cannot stand."); see also Heidbreder v. Heidbreder, 230 Ariz. 377, ¶¶ 13-16 (App. 2012) (mother denied due process when court addressed child support at hearing on petition to modify legal decision-making and parenting time). Accordingly, we vacate the portions of the trial court's order modifying legal decision-making.
We need not consider Dustin's alternative argument that the trial court abused its discretion by modifying legal decision-making without making the requisite findings of fact and "[h]aving a non-residential parent control refilling a prescription." --------
Necessity of Remand for Further Proceedings
¶19 Kristin contends that modification of the trial court's ruling requires a remand for the court "to hold a new hearing that will allow the parties to present their case with the trial court." As to the portions of the ruling granting maternal grandparents visitation, which she agrees should be vacated, she argues grandparent visitation was an important component of the court's rationale in denying her petition to relocate. Dustin argues a remand is unnecessary because the record still supports the court's ruling with the modifications he proposes. For example, he relies on his testimony that the maternal grandparents would continue to receive visitation with T.M. if Kristin relocated to Massachusetts, and contends the absence of a court order to enforce that visitation does not undermine the court's reasoning.
¶20 In this instance, we conclude remanding the matter for the trial court to reconsider its ruling is appropriate. But, "[b]y doing so, we do not suggest a particular outcome on remand nor do we require additional evidentiary proceedings, unless the court determines that they would be appropriate." Hart v. Hart, 220 Ariz. 183, ¶ 14 (App. 2009). Relocation and modification of parenting time both involve multi-faceted factual determinations, see §§ 25-408, 25-403, and we give great deference to the trial court's ability to weigh the evidence presented below and render an appropriate determination, see Jesus M., 203 Ariz. 278, ¶ 4 ("[T]he trier of fact . . . is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings.").
Attorney Fees and Costs
¶21 Kristin requests attorney fees based on the unreasonableness of Dustin's position. See A.R.S. § 25-324. We are unpersuaded Dustin's position is unreasonable, and therefore deny her request made on this ground. Dustin also requests attorney fees based on the disparity between the financial resources of the parties. See id. Although the record supports a disparity in the past incomes of the parties, it does not contain current information regarding the parties' relative financial resources. Accordingly, in our discretion we deny Dustin's request on this basis, see Coburn v. Rhodig, 243 Ariz. 24, ¶ 16 (App. 2017), without prejudice to him seeking a fee award for the appeal from the trial court, which is better situated to assess the parties' current circumstances. Both parties request their costs on appeal. Because Dustin is the prevailing party, we grant him his costs upon compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-341.
Disposition
¶22 We vacate the portions of the trial court's order modifying legal decision-making as to T.M.'s therapy and related medication and awarding visitation and a right of first refusal to the non-party maternal grandparents. We remand the case for the court to reconsider its other rulings, with or without taking further evidence, in light of this decision.