Opinion
1 CA-CV 12-0343
04-11-2013
In re the Marriage of: CHARLES TAYLOR, Petitioner/Appellant, v. JILL LYNN BENDER (TAYLOR), Respondent/Appellee.
Wilenchik & Larson, PLLC By Gregory A. Larson Attorneys for Petitioner/Appellant McCarthyWeston, P.L.L.C. By Philip (Jay) McCarthy, Jr. Attorneys for Respondent/Appellee
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(Not for Publication -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 Coconino County
Cause No. S0300DO20010248
The Honorable Elaine Fridlund-Horne, Judge
AFFIRMED
Wilenchik & Larson, PLLC
By Gregory A. Larson
Attorneys for Petitioner/Appellant
Scottsdale McCarthyWeston, P.L.L.C.
By Philip (Jay) McCarthy, Jr.
Attorneys for Respondent/Appellee
Flagstaff BROWN, Judge ¶1 Charles Taylor ("Father") appeals the trial court's order granting Jill Bender's ("Mother") petition to modify parenting time of their son ("the child") based on Mother's relocation from Flagstaff to Colorado. Father argues the court abused its discretion by (1) denying his motion to continue the trial and (2) allowing the best interests attorney to testify. For the reasons that follow, we affirm.
BACKGROUND
¶2 The parties are the biological parents of the child, born in 1998. Following their 2002 divorce, Mother and Father resided in Flagstaff and shared joint custody of the child. In February 2009, Mother remarried and her current husband took a job in Colorado. Mother remained in Flagstaff with the child and commuted to Colorado for at least a week each month. ¶3 In April 2011, Mother moved to Colorado. The child resided primarily with Father until December 3, 2011, when the child left Father's home to stay with Father's sister, who also lives in Flagstaff. On December 28, Mother filed a petition to allow the child to relocate to Colorado together with a request that the trial court grant a temporary order allowing the child to reside with Mother in Colorado pending the outcome of a trial on the merits of the petition. Father opposed both the petition and the request. The trial court denied Mother's request for a temporary order and ordered an expedited family evaluation in preparation for an expedited March 19, 2012 trial date. The trial court also appointed a best interests attorney ("BIA") for the child and ordered an in camera interview with the child for January 17. ¶4 On March 13, Father filed a motion to continue trial to allow him to retain new counsel. The trial court denied the motion the next day. Father then moved to allow his lawyer to withdraw, advising the trial court he had terminated his counsel's services and understood that he would be "responsible for those proceedings" on March 19. Father simultaneously filed a pro per motion to continue, requesting time to find a new attorney and obtain an evaluation of the family report. ¶5 At the outset of the trial, Father orally renewed his request for a continuance, asserting he was not ready to proceed because he needed additional time to hire a new attorney. Mother's counsel opposed the request, noting that two months earlier the court had informed the parties that consideration of Mother's petition would be expedited and that Mr. Buckman, who conducted the family evaluation, had "dropped everything to work on this case for purposes of getting it accomplished." Mother's counsel explained further that Mother and her husband had "braved the blizzard" to get to Flagstaff from Colorado and that Father should not be permitted to "manipulate the situation" by firing his attorney on the eve of trial. The BIA stated that a continuance would not be in the best interests of the child because "the longer this goes on, the more of a strain it's having on him, on his relationship with both parents." After further discussion, the court denied Father's request, explaining that trial had been set on an expedited basis and the court would be unable to reset it in a timely fashion. At the court's urging, Father's former counsel delivered the case file to Father during Mother's opening statement. ¶6 After considering evidence and argument, the trial court made detailed findings on the record supporting its conclusion to grant Mother's petition and determined that the child would relocate to Colorado with Mother at the beginning of the 2012-13 school year. Father filed his notice of appeal from the court's unsigned minute entry, but the court later entered a signed order incorporating rulings from the prior minute entry.
In general, only final judgments are appealable. Fields v. Oates, 230 Ariz. 411, _, ¶ 8, 286 P.3d 160, 163 (App. 2012). A limited exception applies when an appeal is filed after a final decision, but before entry of final judgment, "if no decision of the court could change and the only remaining task is merely ministerial." Smith v. Ariz. Citizens Clean Elections Comm'n, 212 Ariz. 407, 415, ¶ 37, 132 P.3d 1187, 1195 (2006) (citing Barassi v. Matison, 130 Ariz. 418, 636 P.2d 1200 (1981)). Father's notice of appeal falls within this narrow exception.
DISCUSSION
¶7 Father challenges the trial court's denial of his request to continue the trial. Generally, "[w]hen an action has been set for trial, hearing or conference on a specified date by order of the court, no continuance of the trial, hearing or conference shall be granted except upon written motion setting forth sufficient grounds and good cause, or as otherwise ordered by the court." Ariz. R. Fam. L.P. ("ARFLP") 77(C)(1). We review the denial or grant of a continuance for abuse of discretion. In re Maricopa Cnty. Superior Ct. No. MH2003-000240, 206 Ariz. 367, 369, ¶ 10, 78 P.3d 1088, 1090 (App. 2003). "An 'abuse of discretion' is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Quigley v. City Court of Tucson, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982). ¶8 Father argues the "trial court's decision to delay the relocation for five months" shows there was no just reason to deny his request for a continuance. We find no abuse of discretion. ¶9 Father had the benefit of retained counsel until a few days before trial. At the time his counsel moved to withdraw, Father acknowledged the impending trial date and accepted responsibility for it. Father also had two months' notice of the trial date. In denying Father's motion, the trial court considered Father's explanation as to the efforts he had made to find new counsel as well as the concerns voiced by Mother's counsel and the BIA about the need for a timely resolution of the pending petition and the strain added delay would impose on the child. Thus, the court acted within its discretion when it determined it would not be able to set a new trial date in a timely fashion. See State v. Barreras, 181 Ariz. 516, 520, 892 P.2d 852, 856 (1995) (affirming the denial of a continuance to obtain the presence of a witness in the absence of prejudice); see generally ARFLP 1 ("These rules should be construed and enforced in a manner to secure the just, prompt and inexpensive determination of every action and proceeding."). ¶10 Father also argues that certain comments the BIA made during opening statements and closing arguments constituted impermissible testimony in violation of ARFLP 10(E)(6)(c)(d). Because Father failed to object to these comments at trial, he has waived any argument on that issue. See Sobol v. Marsh, 212 Ariz. 301, 303, ¶ 7, 130 P.2d 1000, 1002 (App. 2006) ("As a general rule, a party cannot argue on appeal legal issues and arguments that have not been specifically presented to the trial court.") ¶11 Even considering the merits of Father's argument, we find the BIA's comments do not warrant reversal. ARFLP 10(E)(1) states that the best interests attorney shall participate "to the same extent as an attorney for any party." The rule prohibits, however, a best interests attorney from testifying in court. See ARFLP 10(E)(6)(d). And as with any other attorney, the "argument and positions taken by the [best interests attorney] do not themselves constitute evidence." Aksamit v. Krahn, 224 Ariz. 68, 71, ¶ 12, 227 P.3d 475, 478 (App. 2010). ¶12 In his opening statement, the BIA provided an overview of what he anticipated the trial evidence would show. "[E]xplaining what result a client wants, or proffering what one hopes to prove, is not testifying; those are things all lawyers do." Id. at 72, ¶ 14, 227 P.3d at 479 (quoting ABA Standards § III(B) cmt.). Accordingly, the BIA's comments were well within the boundaries for appropriate comment during opening statement and do not merit reversal. ¶13 In his closing argument, the BIA conveyed to the court out-of-court statements made by the child regarding where he wanted to live. Notwithstanding that the BIA should not have recounted those statements, nothing in the record suggests that the court was persuaded by them or factored them into its ultimate decision. Indeed, throughout the proceedings the court received varying evidence regarding where the child desired to live. The court found that at the time of trial, the child wanted to live with his aunt but if he was unable to, he would try and stay with Father, and if that did not work out, he would stay with Mother. During the in camera interview, the child stated he wanted to live with Mother. The child also told the family evaluator he wanted to live with Mother. ¶14 At trial, the trial court stated it had considered the family evaluation report, "but the court is really interested in the testimony of both of the parents." The court also made it clear that the child's wishes were a factor, but that many other factors were at issue. Nothing in the record suggests that the court relied on the improper statements in its findings or conclusion. Therefore, the statements made during closing argument do not warrant reversal.
CONCLUSION
¶15 We affirm the trial court's decision in all respects. Because neither Father nor Mother has provided any information regarding their respective financial resources, and because neither party has taken an unreasonable position on appeal, we decline both parties' requests for attorneys' fees. See Ariz. Rev. Stat. §§ 25-324(A) (2012), -411(M)(2012). As the prevailing party, however, Mother is entitled to recover costs incurred on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.
______________________
MICHAEL J. BROWN, Judge
CONCURRING: ______________________
SAMUEL A. THUMMA,
Presiding Judge
______________________
DIANE M. JOHNSEN, Judge