Opinion
1 CA-CV 12-0210
02-14-2013
In re the Marriage of: SHANNON MICHELLE HOLLAND, Petitioner/Appellee, v. WILLIAM C. SCALLON, JR., Respondent/Appellant.
Fabiola Jean-Gilles, PLC by Fabiola Jean-Gilles Christopher Post Attorneys for Respondent/Appellant Shannon Holland, Petitioner/Appellee In Propria Persona
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(Not for Publication -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 Nos. FC2010-091985 and FC2010-092275 (Consolidated)
The Honorable Shellie F. Smith, Judge Pro Tempore
AFFIRMED
Fabiola Jean-Gilles, PLC
by Fabiola Jean-Gilles
Christopher Post
Attorneys for Respondent/Appellant
Tempe Shannon Holland, Petitioner/Appellee
In Propria Persona
Gilbert GOULD, Judge ¶1 In this appeal, William C. Scallon, Jr. ("Father") challenges the award of sole custody to Shannon Michelle Holland ("Mother") on the grounds that he was denied due process and effective assistance of counsel. Father additionally argues the family court abused its discretion in refusing his request for a trial continuance and in awarding a Maytag top-loading washing machine to Mother. For the reasons that follow, we affirm the family court's rulings.
BACKGROUND
¶2 The parties married in 2009, and their child, R., was born in 2010. On May 24, 2010, when R. was four months old, Mother petitioned for dissolution and sought sole custody. She requested that Father receive no parenting time because he posed a serious danger to the child's "physical, mental, moral, or emotional health." ¶3 Meanwhile, Mother initiated the transfer of an order of protection previously secured from the Gilbert Municipal Court. This order, effective May 17, 2010, precluded Father from coming within 500 feet of Mother and R. To obtain the order, Mother presented the following evidence: (1) Father's text message containing a picture of a bullet; (2) another text message picturing Father holding what appeared to Mother to be a gun against his head; (3) a call to the Gilbert police after Father allegedly pushed Mother and kicked a hole in a wall; and (4) an alleged verbal threat by Father. ¶4 Father, who was incarcerated prior to trial, requested and secured the appointment of a best interest attorney for R. He also requested drug testing for Mother, and alleged that Mother had committed "significant acts of domestic violence" against Father. Mother submitted to testing, and the best interest attorney reported that Father's domestic violence allegation against Mother was unsubstantiated. ¶5 The family court initially scheduled a two-hour trial for August 11, 2011. Following the withdrawal of Father's counsel in July 2011 the family court sua sponte granted a two-month continuance and re-set trial for two hours on October 19, 2011. It later denied a request by Father's new counsel for an additional continuance to sometime after Father's projected release from prison on November 1, 2011 and did not act on new counsel's notice of a scheduling conflict with the trial date caused by his appointment as a guardian ad litem in a juvenile case pending in another county. ¶6 The trial proceeded as scheduled on October 19, 2011. During the trial parents testified and were represented by counsel. Mother's witness, Tracy Graves, testified briefly about Father's alleged threat to kill Mother and R., and Father's sister, Taunya Davis, was present but not called to testify. The family court also received the best interest attorney's recommendation that Mother be granted sole custody of R., and that any supervised parenting time for Father be conditioned upon (1) his completion of a forensic psychiatric evaluation following his release from prison, and (2) Father's compliance with weekly random drug testing over a six-month period. ¶7 Ultimately, the family court entered a Decree awarding Mother sole custody of R. and adopting the best interest attorney's recommendation on parenting time. The Decree also refers the case to the Title IV-D Commissioner and the Attorney General's Office for a child support determination, and directs Father to turn over the Maytag washing machine to Mother. The Decree, which includes no Rule 54(b) language, also awards attorneys' fees and costs to Mother, but specifies no amount of fees. Father appealed. ¶8 After the Decree was entered, the family court filed a signed order awarding child support to Mother. The family court later filed a signed order awarding Mother $4500 in attorneys' fees and $225 in costs. Father again appealed.
Pursuant to the court's order, the order of protection will remain in effect through June 9, 2013.
This most recent filing makes all previous orders, including the Decree, effective. See Hill v. City of Phoenix, 193 Ariz. 570, 574, ¶ 16, 975 P.2d 700, 703 (1999) ("without the 54(b) certification, prior judgments which adjudicate some but not all claims in a given suit, or which determine the rights and liabilities of some but not all parties, become final upon entry of the judgment entered last in time - the judgment which effectively terminates all issues remaining in the litigation"). Although the final notice refers only to the order on fees and costs, Mother received all notices and was not misled. As a result, this last notice substantially complies with Rule 8(c) of the Arizona Rules of Civil Appellate Procedure. See id. at 573, ¶ 14, 975 P.2d at 702.
DISCUSSION
I. Father Failed To Preserve His Due Process Argument.
¶9 Father contends that the family court violated his due process rights by allowing Mother more time to present witnesses at the trial. We review the family court's enforcement of time limits for an abuse of discretion. Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 13, 224 P.3d 215, 218 (App. 2010). We review constitutional issues de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004). ¶10 Rules 22(1) and 77(B)(1) of the Arizona Rules of Family Law Procedure provide the family court with authority to "impose reasonable time limits on all proceedings . . . and limit the time to the scheduled time." Parties desiring additional time may request it by motion. Id. Rule 611(a)(2) of the Arizona Rules of Evidence similarly allows the family court to impose reasonable time limits. See also Rule 16(h), Ariz. R. Civ. P. (stating courts may impose reasonable time limits on all civil proceedings); Gamboa, 223 Ariz. at 402, ¶ 13, 224 P.3d at 218 (same). The family court's discretion, however, is not unlimited, and consistent with the dictates of due process under our state and federal constitutions, any time limits imposed by the court must provide a litigant with a reasonable opportunity to be heard. See Yavapai-Apache Nation v. Fabritz-Whitney, 227 Ariz. 499, 508, ¶ 48, 260 P.3d 299, 308 (App. 2011)(internal citations omitted) (stating that due process requires a party be given a meaningful opportunity to be heard); Hall v. Lalli, 194 Ariz. 54, 57, ¶ 6, 977 P.2d 776, 779 (1999)(same); U.S. Const. amend. XIV; Ariz. Const. art. 2, § 4. ¶11 Father did not object to the time limitations at trial or request additional time to present evidence. After the parties devoted the first seven minutes to preliminaries and the washing machine issue, the family court told Father's counsel that it would allow Mother one hour and Father forty minutes. Father's counsel responded: "All right." Accordingly, we find no error. See Gamboa, 223 Ariz. at 402, ¶ 14, 224 P.3d at 218 (affirming the court's time limits because the appealing party had agreed to them); See also Helena Chem. Co. v. Coury Bros. Ranches, Inc., 126 Ariz. 448, 451, 616 P.2d 908, 911 (App. 1980) (holding that a party may not seek a new trial based upon an error that occurred at trial if the party did not object to the error at trial). ¶12 In any event, Father could not prevail on this issue by demonstrating only an abuse of discretion, but also had to show prejudice attributable to the time limitation. Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 91, ¶¶ 30-33, 977 P.2d 807, 813 (App. 1998); See also State v. Dunlap, 187 Ariz. 441, 450, 930 P.2d 518, 527 (App. 1996) (explaining that the due process inquiry must consider both prejudice and the reasons for the prejudice). Father failed to make an offer of proof to the family court about what evidence he was unable to present during the time allotted. As a result, Father cannot show that the time limitation caused harm. See Gamboa, 223 Ariz. at 403, ¶ 17, 224 P.3d at 219 (citation omitted) ("[a]t a minimum, the complaining party must make 'an offer of proof stating with reasonable specificity what the evidence would have shown'"); See generally Ariz. R. Evid. 103(a)(2) (requiring an offer of proof to preserve an objection to the exclusion of evidence unless the evidence's nature is apparent from the record). Father's due process claim fails for this reason as well. See Gamboa, 223 Ariz. at 402-03, ¶¶ 17-18, 224 P.3d at 218-19.
Rule 611 of the Arizona Rules of Evidence applies to family law proceedings. See Ariz. R. Family L.P. 2(B)(1),(2).
Although no offer of proof was made at trial, at the beginning of the trial Father's attorney briefly identified Father's sister, Taunya Davis, as a witness who would testify that (1) Mother had admitted to using drugs during her pregnancy with R., and (2) Father was capable of exercising parenting time with R. In his Opening Brief, Father now states that Davis was prepared to testify about Mother's credibility, as well as Mother's purported effort to extort money from Davis.
II. Father's Ineffective Assistance Of Counsel Claim Fails.
¶13 Father alternatively claims that he is entitled to a new trial because he received ineffective assistance from his prior counsel. We disagree. Unlike post-conviction relief in a criminal proceeding, a party may not obtain post-judgment relief in a civil proceeding based on ineffective assistance of counsel. Panzino v. City of Phoenix, 196 Ariz. 442, 445, ¶ 7, 999 P.2d 198, 201 (2000); Glaze v. Larsen, 207 Ariz. 26, 31, ¶ 20, 83 P.3d 26, 31 (2004). See also MacCuish v. U. S., 844 F.2d 733, 735 (10th Cir. 1988) (citing authorities from numerous jurisdictions, the court held that ineffective assistance of counsel does not apply to civil proceedings). But see John M. v. Arizona Dept. of Econ. Sec., 217 Ariz. 320, 324-26 , ¶¶ 11-17, 173 P.3d 1021, 1024-26 (App. 2007) (indicating, without deciding, that ineffective assistance of counsel may serve as a basis for reversing an order terminating parental rights).
In further support of this position, we note that ineffective assistance of counsel is not listed as one of the grounds for a new trial under Rule 83(A), Arizona Rules of Family Law Procedure.
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III. The Family Court Did Not Abuse Its Discretion In Denying The Continuance.
¶14 Father also challenges the family court's refusal to continue the trial. "When 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. 77(C)(1). We review the grant or denial of a continuance for abuse of discretion. In re Maricopa Cnty. Sup. Ct. No. MH2003-000240, 206 Ariz. 367, 369, ¶ 10, 78 P.3d 1088, 1090 (App. 2003). ¶15 We find no abuse of discretion in the family court's denial of a continuance. The petition for dissolution was filed on May 24, 2010. Trial was initially set for August 11, 2011, but was continued by the court until October 19, 2011 due to the withdrawal of Father's prior counsel. Thus, at the time of the second trial, Mother had already expended time and money to prepare for trial twice and the case had been pending for nearly seventeen months. ¶16 Father contends that a second continuance would have allowed him to communicate with counsel more freely outside of prison in preparing for trial. On appeal, however, Father admits his counsel had adequate time to prepare for trial. Father also argues that without the continuance he was not able to complete the Parent Information Program mandated by A.R.S. § 25-352(A), yet Father testified at trial that he was able to take parenting classes in prison. ¶17 We conclude the family court properly considered all of the above factors, and therefore did not abuse its discretion in denying the continuance. See State v. Barreras, 181 Ariz. 516, 520, 892 P.2d 852, 856 (1995) (affirming the denial of a continuance requested to obtain the presence of a witness in the absence of evidence of prejudice); see generally Ariz. R. Family L.P. 1 (directing family courts to construe and enforce the rules "in a manner to secure the just, prompt and inexpensive determination of every action and proceeding"). We find no basis for reversal.
IV. The Family Court Did Not Abuse Its Discretion By Awarding Mother The Maytag Washing Machine.
¶18 Finally, Father challenges the family court's award of the Maytag washing machine to Mother. Mother claimed that her parents had loaned this appliance to the parties, and produced a receipt in support of her claim. We review the family court's award of property for abuse of discretion, but the characterization of property is a legal conclusion that this court reviews de novo. In re Marriage of Pownall, 197 Ariz. 577, 581, ¶ 15, 5 P.3d 911, 915 (App. 2000). ¶19 According to Father, the family court based its ruling on incompetent evidence and should have abstained from ruling. The record reflects, however, that Father agreed to the release of this appliance to Mother. In light of this record, we decline to reverse.
CONCLUSION
¶20 We affirm the family court's rulings in all respects, and deny Father's request for attorneys' fees on appeal pursuant to A.R.S. § 25-324(A) (Supp. 2012). We award Mother her costs on appeal subject to her compliance with Rule 21(a) of the Arizona Rules of Civil Appellate Procedure. Finally, we decline to address Father's request to vacate the family court's fee award to Mother because he has failed to develop it on appeal. See A.R.C.A.P. 13(a)(6) (appellant's brief must contain arguments "with respect to the issues presented, and the reasons therefore, with citations to the authorities, statutes and parts of the record relied on"); Brown, 194 Ariz. at 93, ¶ 50, 977 P.2d at 815 (rejecting contentions made without supporting argument or citation to authority).
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ANDREW W. GOULD, Judge
CONCURRING: ________
PATRICIA K. NORRIS, Presiding Judge
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RANDALL M. HOWE, Judge