Opinion
No. 1 CA-CV 13-0431
08-28-2014
In re the Marriage of: LIN CHAN, Petitioner/Appellant, v. VICTOR TAN, Respondent/Appellee.
Lin Chan, Litchfield Park Petitioner/Appellant Cholewka Law, PLLC, Gilbert By Becky Cholewka Counsel for Respondent/Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. FC2007-092052
The Honorable Benjamin R. Norris, Judge
AFFIRMED IN PART; REVERSED AND REMANDED IN PART COUNSEL Lin Chan, Litchfield Park Petitioner/Appellant Cholewka Law, PLLC, Gilbert By Becky Cholewka Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Chief Judge Diane M. Johnsen joined. SWANN, Judge:
¶1 Lin Chan ("Mother") appeals from orders denying her motion for a change in legal decision-making authority and parenting time, granting Victor Tan's ("Father['s]") motion for a change in legal decision-making authority and parenting time, awarding attorney's fees to Father, and denying her motion for new trial. We affirm the court's determinations regarding legal decision-making authority and parenting time because those determinations were supported by sufficient findings and the evidence. We reverse and remand the attorney's fees award for reconsideration because it is based in part on a finding that is unsupported by the record.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father married in May 2003 and Mother gave birth to a child ("Child") later that year. In 2007, Mother filed a petition for dissolution of the marriage. In March 2008, the family court entered a decree of dissolution awarding the parties joint legal custody of Child, designating Mother as the primary residential parent with presumptive preliminary legal decision-making authority, and ordering parenting time for Father.
¶3 In September 2009, Mother petitioned to modify Father's parenting time based on her remarriage, her new employment, and the parties' respective moves to residences 50 miles away from each other. Father objected that Mother's proposed modification would unfairly limit his time with Child. Father alleged that though his parenting time had initially been limited as a result of his health issues, he had since recovered and his parenting time should be increased.
¶4 In May 2010, the family court rescinded Mother's presumptive preliminary decision-making authority, increased Father's parenting time, and appointed a parenting coordinator to make recommendations regarding disputes over issues such as medical and psychological care. The court explained that though Mother had denied having had a negative impact on Child's relationship with Father, "a series of actions on Mother's part create questions about her stated position [and t]he evidence presented suggests that the cumulative impact of statements and actions of Mother gravitate toward interfering with the preservation of Father's relationship with [Child]." The court further found that it no longer believed Mother would involve Father in decision-making.
¶5 More than two years later, Mother notified Father that she had conducted a DNA test that proved Father was not Child's biological parent. Mother informed Father that she would be seeking sole custody of Child, and that she would let Child, who was aware of the test results, decide whether Father would have parenting time.
¶6 Mother, citing the DNA test results, then filed a verified Petition for Paternity and to Terminate Joint Custody and Award Petitioner Sole Custody and to Limit or Terminate Visitation and Child Support. Father filed a verified Response and verified Counter-Petition for Modification of Custody. Father alleged that Mother had actively engaged in acts designed to marginalize his relationship with Child, and that her paternity claim had likely caused Child to suffer irreparable emotional harm. Father further alleged that Mother's decision to subject Child to DNA testing without first informing him or the parenting coordinator constituted contempt of court.
¶7 The family court dismissed Mother's petition as lacking grounds for modification, finding that res judicata barred inquiry into Child's biological parentage and that Mother's decision to tell Child that Father was not his parent was "totally improper" and "extraordinarily cruel." Father's counter-petition proceeded to a hearing at which Mother, Father, and the parenting coordinator testified. After considering the evidence, the family court entered an order that preserved the parties' joint legal decision-making authority but designated Father as the primary residential parent with presumptive preliminary decision-making authority and awarded parenting time to Mother. The court also ruled that Father was entitled to attorney's fees and costs, finding that there was no substantial disparity between the parties' financial resources and that Mother had "acted unreasonably" and "in contempt of the Court's prior orders awarding joint legal decision-making" by subjecting Child to DNA testing and informing him of the result without Father's consent.
¶8 Mother filed a motion for new trial in which she contended that her conduct had not had any negative effects on Child and requested that the court make specific findings of fact in support of its orders. Nine days later, the court entered an order that partially granted Mother's motion by issuing additional factual findings but otherwise denied relief. The court then issued a separate order awarding Father $8,081 in attorney's fees and costs. Mother timely appeals, contending that her due process rights were violated and that the court's determinations regarding legal decision-making authority, parenting time, and attorney's fees were unsupported.
DISCUSSION
I. MOTHER WAS NOT DEPRIVED OF DUE PROCESS.
¶9 Mother contends that the family court violated her right to due process under the United States and Arizona Constitutions in three instances. See U.S. Const. amend. XIV, § 1; Ariz. Const. art. II, § 4. We review Mother's constitutional claims de novo. Emmett McLoughlin Realty, Inc. v. Pima County, 212 Ariz. 351, 355, ¶ 16, 132 P.3d 290, 294 (App. 2006).
A. The Court's Summary Denial of Mother's Petition Did Not Violate Due Process.
¶10 Mother first argues that the court's summary denial of her petition to modify legal decision-making authority and parenting time deprived her of due process. Under A.R.S. § 25-411(L), however, the family court is not required to set a hearing on a petition to modify legal decision-making authority or parenting time "unless it finds that adequate cause for hearing the motion is established by the pleadings." Here, the court determined, after considering the verified petition and counter-petition, that no adequate cause existed for a hearing on Mother's petition because Child's paternity had been determined and could not be relitigated. This procedure satisfied due process. See Pridgeon v. Superior Court (LaMarca), 134 Ariz. 177, 182, 655 P.2d 1, 6 (1982) ("[D]ue process is satisfied by a procedure which requires a court to review the petition and the affidavits of both parties to make a determination whether a hearing is required.").
B. The Court's Failure to Disclose a Confidential Report Did Not Violate Due Process.
¶11 Mother next argues that the court violated her due process rights by keeping Child's conciliation services interview under seal. She contends that A.R.S. § 25-406(G) provides for the disclosure of such reports to counsel. But Mother and Father agreed before trial that the report would remain confidential to protect Child from potential retaliation by either parent. We are aware of no authority prohibiting such an agreement. Mother is bound by her stipulation to waive disclosure. See Pulliam v. Pulliam, 139 Ariz. 343, 345-46, 678 P.2d 528, 530-31 (App. 1984) (affirming enforcement of stipulation); Bailey v. Bailey, 3 Ariz. App. 138, 142, 412 P.2d 480, 484 (1966) (holding that party had waived access to an in camera interview with a child by failing to object).
C. The Court's Ruling on Mother's Motion for New Trial Did Not Violate Due Process.
¶12 Mother finally argues that the court violated her due process rights because its prompt ruling on her motion for new trial deprived her of the opportunity to amend the motion or file a reply brief. But Mother never sought to amend the motion, and therefore cannot complain on appeal that she was deprived of the opportunity to do so. See Ross v. Ross, 96 Ariz. 249, 252, 393 P.2d 933, 935 (1964). Further, the Arizona Rules of Family Law Procedure do not provide a right to file a reply in support of a motion for new trial. See ARFLP 83(D)(2) (court "may" allow "reply affidavits"). Additionally, we note that before jurisdiction vested in the appellate court, Father submitted a post-ruling response to the motion for new trial and Mother filed a reply. On this record, we reject Mother's due process argument. II. THE COURT'S DETERMINATIONS REGARDING LEGAL DECISION-MAKING AUTHORITY AND PARENTING TIME WERE SUFFICIENTLY SUPPORTED BY ITS FINDINGS AND THE EVIDENCE.
¶13 Mother contends that the family court failed to make sufficient findings to support its orders allocating legal decision-making authority and parenting time. We review a modification of legal decision-making authority and parenting time for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). We also review the denial of a motion for new trial for an abuse of discretion. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909, 912 (App. 2009).
¶14 When considering a petition for change of legal decision-making authority and parenting time, the court must first determine whether there has been a change in circumstances materially affecting the child's welfare. Black v. Black, 114 Ariz. 282, 283, 560 P.2d 800, 801 (1977). If the court finds such a change in circumstances, it must then determine whether a change in legal decision-making authority and parenting time would be in the child's best interests. Id.
¶15 Mother first argues that the family court failed to make the prerequisite "change in circumstances" finding before it modified legal decision-making. To be sure, the court failed to specifically label or phrase any of its findings as describing a change in circumstances. Here, however, no such specific finding was required. Not only did the parties not dispute whether there had been a change in circumstances, they both actively argued that there was such a change -- each party petitioned the court to modify custody based on the information and events that resulted from the DNA testing. Consistent with the parties' arguments, the court found that the testing had affected Child: "Mother's decision to have the child DNA tested without informing Father or obtaining Father's consent . . . and her subsequent decision to tell the child of the results of the DNA test were calculated acts . . . which also have inflicted incalculable harm on the child." (Emphasis omitted.) On this record, this finding was sufficient to show that the court accepted the parties' allegation of a change in circumstances.
We note that the issue of biological paternity was not litigated in these proceedings, and we ascribe no legal significance to the claims Mother makes based on the DNA test.
¶16 Mother next argues that the court's best-interests findings were insufficient and unsupported. The court was required to determine whether a change in legal decision-making authority and parenting time would be in Child's best interests by making specific findings on the record about all relevant factors, including those set forth in A.R.S. § 25-403(A). A.R.S. § 25-403(B). Here, the court enumerated and made findings for each of the factors identified in § 25-403(A): (1) the past, present, and potential future relationship between the parent and child; (2) the interaction and interrelationship of the child with his parents, siblings, and any other person who may significantly affect his best interests; (3) the child's adjustment to home, school, and community; (4) the child's wishes, if he is of suitable age and maturity; (5) the mental and physical health of all individuals involved; (6) which parent is more likely to allow the child frequent, meaningful, and continuing contact with the other parent; (7) whether one parent intentionally misled the court; (8) whether there has been domestic violence or child abuse; (9) the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time; (10) whether a parent has complied with domestic relations education programs; and (11) whether either parent has been convicted of an act of false reporting of child abuse or neglect. A.R.S. § 25-403(A). The court also made findings regarding domestic violence, child abuse, substance abuse, and sexual offender and criminal history issues pursuant to A.R.S. §§ 25-403.03 to -403.05. Mother's contention that additional findings were required under § 25-403.01 is unsupported by the language of that statute.
¶17 Mother argues that the court "concentrated on [the DNA test] factor to the exclusion of other factors." The court found that Mother's relationship with Child was "superficially positive" but actually "toxic" because she sought to undermine Child's relationship with Father by informing Child of the DNA test results and by insisting that Child wear a different pair of eyeglasses at each parent's house. The court's observation that these actions "played a major role in the Court's ruling" was not an abuse of discretion. Though the court should not "focus too much attention on the child's relationship with [a parent] to the exclusion of other relevant considerations," Owen, 206 Ariz. at 421, ¶ 12, 79 P.3d at 670, not all of the statutory factors may apply or be of equal weight in a particular case. Here, it was within the court's discretion to find that the nature of Mother's relationship with Child was a critical factor. Moreover, contrary to Mother's contention, the court balanced that factor against other relevant factors, and Mother's suggestion that the court ignored factors weighing in her favor is unsupported by the record: the court expressly acknowledged that Child had positive and healthy relationships in both households and that a change would cause disruption in Child's life.
¶18 The court's findings were sufficient under § 25-403. Further, we reject Mother's contention that the findings were unsupported by the record. Father presented evidence that Mother unilaterally decided to inform Child of the DNA test results, that Mother required Child to wear different eyeglasses at each parent's home, that Mother did not effectively or consistently communicate with Father regarding parenting issues, and that Father was more likely to communicate with Mother and to ensure that Child had meaningful contact with Mother. On this record, we cannot say that the court abused its discretion by awarding joint legal decision-making authority or by designating Father as the primary residential parent with presumptive preliminary decision-making authority. III. THE AWARD OF ATTORNEY'S FEES IS BASED IN PART ON A FINDING THAT IS NOT SUPPORTED BY THE RECORD.
¶19 Mother challenges the family court's award of attorney's fees to Father under A.R.S. § 25-324(A). We review the attorney's fees award for abuse of discretion. In re Marriage of Berger, 140 Ariz. 156, 167, 680 P.2d 1217, 1228 (App. 1983).
¶20 As an initial matter, we note that though the court stated that the attorney's fees award was based on Mother's unreasonable actions "in contempt of the Court's prior orders," the court did not impose sanctions in the nature of contempt, and we perceive no legal basis for such a sanction. We therefore have appellate jurisdiction over the fee award. Cf. Stoddard v. Donahoe, 224 Ariz. 152, 154, ¶ 7, 228 P.3d 144, 146 (App. 2010) ("A special action petition is the appropriate method to challenge a civil contempt order because the finding of contempt and civil sanctions are not appealable.").
¶21 Under A.R.S. § 25-324(A), the family court may award attorney's fees after considering the reasonableness of the parties' positions and their financial resources. Here, the court found that Mother "acted unreasonably" by unilaterally subjecting Child to DNA testing and telling him the results, and found that based on Mother's and Father's household incomes, there was "no substantial disparity of financial resources" between them. Mother contends that the finding regarding the parties' financial resources was not supported by the record. We agree. Consistent with Father's affidavit of financial information, a contemporaneous child support worksheet attributes to Father a monthly income of $5,204.33. The record does not include an affidavit of financial information from Mother, but the child support worksheet attributes to her a monthly income of $1,352. On this record, the court's finding that the parties have substantially similar financial resources is unsupported. We therefore reverse and remand the attorney's fees award for reconsideration. See Merrill v. Merrill, 230 Ariz. 369, 377, ¶¶ 31-32, 284 P.3d 880, 888 (App. 2012) (remanding for reconsideration attorney's fees award that was based on a finding that parties with incomes of $1,502 and $7,477 had similar financial resources).
CONCLUSION
¶22 For the reasons set forth above, we affirm the orders allocating legal decision-making authority and parenting time, but reverse and remand for reconsideration the order awarding attorney's fees. In exercise of our discretion, we deny both parties' requests for attorney's fees on appeal, without prejudice to the superior court's ability to consider a request for fees incurred on appeal after remand.