Opinion
1 CA-CV 10-0874
11-01-2011
PAMELA IRVIN, Petitioner/Appellant, v. LEON RAY, Respondent/Appellee.
Pamela Irvin Petitioner/Appellant, In Propria Persona Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication -(Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. FC2004-009931
The Honorable Daniel J. Kiley, Judge
The Honorable J. Justin McGuire, Judge Pro Tempore
AFFIRMED
Pamela Irvin
Petitioner/Appellant, In Propria Persona
Phoenix BARKER , Judge
¶1 Pamela Irvin appeals the family court orders entered on October 25, 2010, and November 4, 2010, denying her Motion for New Trial, dismissing her Petition to Modify Decree Re: Day Care Provider, and denying her requests for attorney's fees. For the following reasons, we affirm.
Facts and Procedural History
Appellee did not file an answering brief. We are not required to regard the failure to do so as a confession of reversible error. Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982). We consider the case based on the opening brief and the record.
¶2 Pamela ("Appellant"), and Leon ("Appellee"), were married in June 2004. The marriage produced a child. In August 2004, Appellant filed a petition for dissolution of marriage stating that the marriage was irretrievably broken.
¶3 In the petition, Appellant asked the court to award her sole care and legal custody of the parties' child, and to order Appellee to pay reasonable child support. Appellee, in turn, requested joint custody, or in the alternative, sole custody for himself. In April 2005, the family court dissolved the marriage, finding that it was irretrievably broken with no reasonable prospect for reconciliation. The family court awarded sole custody of the child to Appellee finding as follows:
A.R.S. § 25-403(A)(6) requires the Court to consider which parent is more likely to allow the child frequent and meaningful contact with the other. Here, this case takes on a unique dimension. Mother testified that she believes Father should have no contact with the child, and the Court finds that it is Mother's intent
to stand in the way of a meaningful relationship between Father and the child to the maximum extent possible, absent intervention of the Court. Mother's vehemence in this regard was remarkable, and the Court is gravely concerned that Mother will engage in alienating behavior in the future.
. . . .
THE COURT FURTHER FINDS that it is in the child's best interests that he have a close and substantial relationship with each parent, but notes its concern that should Mother engage in the alienating behavior that she threatened at Trial, that her parenting time may need to be curtailed or supervised.
Mother's own closing argument illustrates what the Court has already found—that the parties' inability to communicate "negates any chance of the parties being able to jointly make decisions in the best interests of the minor child." In view of Mother's absolute refusal to acknowledge the appropriateness of Father's parenting time, much less custody, the Court concludes that joint custody at this juncture would simply not be practical.
¶4 For the purposes of determining child support, the family court found that "Father is attributed a gross monthly income of $5,037 and Mother is attributed a gross monthly income of $5,051." As a result, Appellant was ordered to pay Appellee $25.69 per month in child support. From the family court's entry of the original decree in 2005 to the orders Appellant is currently appealing, the parties have been constantly before the family court regarding issues arising out of the dissolution of the marriage and child support.
¶5 To address the complex family dynamics problems involved in parenting plans and provide speedy resolution to matters involving "the consideration of mental health and economic issues crucial to the protection of the best interests of the minor child," the family court, on its own motion, appointed a Parenting Coordinator ("PC") in June 2010. The order directed the parties to consult the PC before filing any petitions regarding parenting time, or enforcement of the family court's orders. The order directed Appellant and Appellee each to be responsible for 50% of the PC's fees to be paid in advance as determined by the PC.
¶6 On July 13, 2010, Appellant filed a Petition to Modify Decree Re: Day Care Provider. Appellant did not consult with the PC prior to filing the petition. Because the June 4th family court order stated that either party must first consult with the PC before filing any petitions with regard to parenting time with the court, the family court denied Appellant's petition.
¶7 On June 7, 2010, the family court held a hearing on Appellant's Petition to Modify Child Support. The family court found that Appellant's income was $60,000.00 per year and Appellee's income was $96,519.92 per year; as a result, the child support obligations were modified. The family court noted that the parties had equal sharing time and then revised the child's support obligation to provide that Appellee was now obligated to pay Appellant $105.58 per month.
¶8 On August 18, 2010, Appellant filed a Verified Motion for New Trial pursuant to Arizona Rule of Family Law Procedure 83. In an unsigned minute entry on September 20, 2010, the family court denied Appellant's motion because it had not been filed within the required fifteen-day period. The following day, the family court dismissed Appellee's motion to dismiss Appellant's motion for new trial as moot. On November 9, 2010 the family court issued an order memorializing this action.
¶9 Appellant timely appealed two orders: (1) the October 25, 2010 order denying her Petition to Modify Decree Re: Day Care Provider for failure to consult the PC, and (2) the November 4, 2010 order denying her Verified Motion for New Trial.
As to this second order, the notice of appeal referenced the court's judgment memorializing the minute entry treating the motion to dismiss as moot. In the exercise of our discretion, we consider the appeal to be from the denial of Appellant's Verified Motion for New Trial as this is consistent with what she has briefed on appeal. The court, in fact, denied Appellant's motion the day prior, and in the judgment issued November 9th, the court dismisses Appellee's motion to dismiss. However, we will address the substance of Appellant's appeal. See Gutierrez v. Gutierrez, 193 Ariz. 343, 350, ¶ 30, 972 P.2d 676, 683 (App. 1998) ("We liberally construe notices of appeal 'if the result is neither misleading nor prejudicial to the appellees involved.'") (internal citation omitted).
¶10 We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21 (A)(1) (2003), -2101(B) (2003).
Discussion
¶11 Appellant argues (1) that her constitutional right to access the courts has been denied by the appointment of a Parenting Coordinator, (2) that the family court erred in denying her Motion for New Trial, and (3) that the family court erred in refusing to award her attorneys' fees.
Appellant also argues that the court erred in dismissing her Petition to Modify Decree Re: Day Care Provider after learning that Appellee had been untruthful. Because we conclude the court properly dismissed Appellant's petition pursuant to appointment of the Parenting Coordinator, we do not address this issue.
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1. The Parenting Coordinator's Fee Is Constitutional.
¶12Analogizing her situation to that of the plaintiffs in Boddie v. Connecticut, 401 U.S. 371 (1971), Appellant claims that the PC's fee violates her due process rights by restricting her access to the courts based solely on her inability to pay. The Constitution requires that individuals have the opportunity for an appropriate hearing "granted at a meaningful time and in a meaningful manner." Boddie, 401 U.S. at 378. Cost requirements that "operate[] to foreclose a particular party's opportunity to be heard" violate due process. Id. at 380 (internal citation omitted).
¶13 As the order appointing the PC indicated, the intended use of a PC is "appropriate when parents have ongoing conflicts related to enforcement of custody and parenting time orders, which without a Parenting Coordinator would result in protracted litigation." Ariz. R. Fam. L. Proc. 74, committee cmt. (2007) ("Parenting Coordinators are used . . . to assist in the effective resolution of the ongoing conflicts surrounding custody and parenting issues."). When a PC is appointed, at the request of the parties or the direction of the court, the family court is given discretion to allocate the costs. A.R.S. § 25-406(B). While the family court is directed to consider the parties' financial circumstances, this is not the exclusive determination. Id. The rule governing appointment of a PC does not impose any limits on the family court's discretion to "determine the allocation of fees between the parties." Ariz. R. Fam. L. Proc. 74(D).
¶14 As the appellate record of over 400 documents indicates, this has been a high-conflict case. Appointment of the PC was completely appropriate. Most critically, however, the determination allocating which party would pay what amount of the PC fees was determined in an earlier stage in litigation. Objection to the appointment of a PC must be filed within ten days. Ariz. R. Fam. L. Proc. Form 11. Appellant's principal complaint concerns having to provide $1500 of the initial $3000 amount required to present matters to the PC. At the time of the hearing on Appellant's Petition to Modify Decree Re: Day Care Provider, the following exchange took place:
[Appellant's Counsel]: She doesn't have the $1500 to give to the parenting coordinator to go in there, and we raised it with Judge McVey, he wasn't concerned about it, but it's a problematic thing. . . .(Emphasis added.) Thus, the allocation of who bears responsibility for the PC was decided by written order in June 2010. There was no appeal from that order. Further, no evidence was presented, only argument at the proceeding before us. Thus, there was no error on this asserted ground.
[Judge]: You raised what with Judge McVey?
[Appellant's Counsel]: The fact that she didn't have the money to pay a parenting coordinator.
[Judge]: Okay, $1,500 is her portion of
. . .
[Appellant's Counsel]: Her portion, up front, before the parenting coordinator will even talk to them, they each have to come up with 1500 bucks up front.
[Judge]: So you litigated the issue of the allocation of responsibility and Judge McVey said . . .
[Appellant's Counsel]: Right.
[Judge]: What?
[Appellant's Counsel]: 50/50.
[Judge]: Alright.
2. Appellant's Rule 83 Motion Was Untimely.
¶15 Appellant also challenges the family court's denial of her motion filed pursuant to Arizona Rule of Family Law Procedure 83. We review the denial of a Rule 83 motion for abuse of discretion. See R.A.J. v. L.B.V., 169 Ariz. 92, 94, 817 P.2d 37, 39 (App. 1991).
¶16 Following the family court's judgment entered June 7, 2010, Appellant filed a Verified Motion for New Trial on August 18, 2010. The motion requested that the court grant Appellant a new trial pursuant to Arizona Rule of Family Law Procedure 83. Rule 83 provides that "[a] ruling, decision or judgment may be vacated and a new trial granted on motion of the aggrieved party." The party must file the motion "not later than 15 days after judgment." Ariz. R. Fam. L. Proc. 83. August 18 is well outside of the fifteen days provided by the rule.
¶17 In response to Appellant's motion for new trial, Appellee filed a motion to dismiss because the Rule 83 motion was untimely. In response to the motion to dismiss, Appellant asserted that "the pleadings should have, more appropriately, been captioned "Motion for Relief from a Judgment or Order Pursuant to Rule 85, AZFLP" and accordingly should have been based on Rule 85 and not Rule 83. The undersigned counsel apologized to the court and counsel for the "obvious error."
¶18 As Appellee pointed out to the court, the reference to Rule 83 was certainly not inadvertent. The entirety of the Rule was quoted. The arguments were based upon the grounds set forth in Rule 83. Also, as Appellee correctly pointed out in the family court, "[a] Rule 85 motion is substantially different than a Rule 83 Motion[,] and if she is going to make a Rule 85 Motion the Respondent Father is entitled to know the specific grounds that Mother asserts are applicable under Rule 85." Cf. AFLP Rule 83 with AFLP Rule 85.
¶19 The family court did not err in refusing to convert a motion intentionally filed under Rule 83, and based upon grounds set forth in that Rule, to a motion under Rule 85 which must meet separate standards.
3. Appellant Is Not Entitled to Fees.
¶20 Appellant asserts the family court erred in denying her request for attorneys' fees. She sought fees with regard to both her petition regarding the day-care provider and her motion for new trial. She argues that as the poorer party, she is entitled to fees.
¶21 Arizona Revised Statutes § 25-324 provides that a court may award a reasonable amount for costs and expenses "after considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." Appellant filed a motion with the family court that was required to first be filed with the PC. Appellant further filed a motion based on rule 83 that was clearly time barred. We have no difficulty in concluding that the family court did not err in determining, "based on the reasonableness of the positions of the parties" that Appellant should not receive her fees.
Conclusion
¶22 For the reasons stated above, we affirm.
DANIEL A. BARKER, Judge CONCURRING: PATRICK IRVINE, Presiding Judge PATRICIA K. NORRIS, Judge