Opinion
2 CA-CV 2023-0153-FC
01-12-2024
In re the Marriage of Miranda Ann Ahumada, Appellant, and Sean Glaser, Appellee.
Miranda Ann Ahumada, Tucson In Propria Persona Law Office of Dan South PLLC, Tucson By Daniel B. South and Sara Wright Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20210142 The Honorable Helena Seymour, Judge Pro Tempore
Miranda Ann Ahumada, Tucson In Propria Persona
Law Office of Dan South PLLC, Tucson By Daniel B. South and Sara Wright Counsel for Appellee
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 In this domestic-relations action, Miranda Ahumada appeals from the superior court's judgment awarding her former husband, Sean Glaser, attorney fees as a sanction under A.R.S. § 25-324. She also argues the court erred by failing to consider the best interests of the parties' minor child when it granted Glaser's petition for enforcement relating to changes to the child's therapy and violated her right to due process by denying her the opportunity to testify. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming the superior court's findings and orders. Hefner v. Hefner, 248 Ariz. 54, n.2 (App. 2019). The parties married in 2019 and were divorced in 2021 pursuant to a settlement agreement. They agreed to joint legal decision-making for their minor child, born in 2016, and "essentially equal" parenting time.
¶3 Roughly two months after the superior court entered the dissolution decree, Glaser filed a petition to enforce the parenting plan. He alleged that Ahumada had interfered with his parenting time by scheduling the child for a therapy appointment during his scheduled time without his consent. In October 2021, after a resolution management conference on the petition, the parties "knowingly, intelligently, and voluntarily, without any force, duress, or threats" agreed to certain conditions relating to the child's therapy. Relevant here, the child was to transition from an unlicensed therapist to a licensed one. The child was to continue "on a temporary basis" at his current provider while the parties reached an agreement as to which therapist and provider would be best for their child. They agreed that during the transition, Glaser would "schedule and take" the child to an intake at a new provider, Intermountain Centers for Human Development.
¶4 In February 2022, Glaser filed a petition to enforce the October 2021 agreement and requested sanctions, alleging that Ahumada had cancelled an intake appointment he made at Intermountain "without [his] prior knowledge or consent." After a two-day hearing, the superior court granted Glaser's enforcement petition, finding that Ahumada had failed to comply with the October 2021 agreement by not permitting Glaser to take the child to an intake at Intermountain and that her actions were "in bad faith and unreasonable." The court also granted Glaser's request for attorney fees "[a]s a sanction for [Ahumada's] violation" of the October 2021 agreement. After reviewing Glaser's application for attorney fees and costs and Ahumada's response and objection to same, the court awarded Glaser his attorney fees in an amount "appropriate for the litigation limited to [his] Petition for Enforcement" and entered final judgment. Ahumada appealed, and we have jurisdiction under A.R.S. §§ 12-120.21 and 12-2101(A)(1).
The superior court awarded Glaser his attorney fees and costs in the amount of $2,084.45. This is the amount he requested in a subsequent motion for judgment in which he agreed to subtract the $650 to which Ahumada objected.
Discussion
I. Imposition of Attorney Fees as a Sanction
¶5 Ahumada contends the superior court erred by granting Glaser's request for attorney fees as a sanction because it was based on "false claims" and "contradictory arguments" he had presented in his petition to enforce. We review the imposition and amount of sanctions for an abuse of discretion. See Taliaferro v. Taliaferro, 188 Ariz. 333, 339 (App. 1996).
Ahumada also argues the superior court abused its discretion by awarding Glaser attorney fees under A.R.S. § 25-324 because it failed to consider the financial disparity between the parties and the reasonableness of the parties' positions. The record, however, establishes the court did not award Glaser attorney fees under § 25-324. Rather, the court ordered her to pay Glaser's fees and costs limited to his enforcement petition as a sanction under Rule 76.2, Ariz. R. Fam. Law P., for violating the court's October 2021 order. We therefore only address her arguments as they relate to the imposition of sanctions.
¶6 Ahumada provides several examples that she claims demonstrate the "inconsistent nature of [Glaser's] arguments" and requests that this court "reevaluate" the parties' October 2021 agreement, maintaining the superior court misinterpreted that agreement in finding she had violated it. This is essentially a request to reweigh the evidence, which we will not do. See Castro v. Ballesteros-Suarez, 222 Ariz. 48, ¶ 11 (App. 2009). And to the extent the evidence is contradictory, it is not our function "to reweigh the facts or to second-guess the credibility determinations of the judge who had the opportunity to evaluate the witnesses' demeanor and make informed credibility determinations." In re Estate of Newman, 219 Ariz. 260, ¶ 40 (App. 2008).
To the extent Ahumada is requesting a review of the parties' October 2021 agreement, we lack jurisdiction to do so. The order became final and appealable upon the entry of the signed order under Rule 78(c), Ariz. R. Fam. Law P., on December 17, 2021. Ahumada never appealed from that order and therefore has forfeited appellate review of the October 2021 agreement. See Ariz. R. Civ. App. P. 9(a); see also James v. State, 215 Ariz. 182, ¶ 11 (App. 2007) (failure to timely file notice of appeal deprives appellate court of jurisdiction).
¶7 Here, the superior court found Ahumada's actions had interfered with Glaser completing a therapy intake evaluation at Intermountain for their minor child and "were in bad faith and unreasonable," in violation of the October 2021 order. As a result, the court granted Glaser's request for attorney fees as a sanction under Rule 76.2, Ariz. R. Fam. Law P. Ahumada fails to meaningfully argue how these findings and conclusions are unsupported by the record, see Ariz. R. Civ. App. P. 13(a)(7), and therefore we could deem her arguments waived solely on that basis, see Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009). However, in our discretion, we decline to apply waiver here. See Noriega v. Town of Miami, 243 Ariz. 320, ¶ 27 (App. 2017) (waiver doctrine is discretionary).
¶8 Ahumada essentially argues that her understanding of the October 2021 agreement should govern our resolution of the issue. But "[w]e will not reweigh the evidence or substitute our evaluation of the facts." Castro, 222 Ariz. 48, ¶ 11. Additionally, she does not provide complete transcripts of the relevant hearings, instead providing only excerpts. See Ariz. R. Civ. App. P. 11(c)(1). In the absence of a complete transcript, we presume the missing record supports the superior court's findings and conclusions. See State ex rel. Dep't of Econ. Sec. v. Burton, 205 Ariz. 27, ¶ 16 (App. 2003). Consequently, we cannot say that the court abused its discretion.
II. Due Process
¶9 Ahumada argues the superior court violated her right to due process by not allowing her to testify at the evidentiary hearing on Glaser's petition to enforce the October 6, 2021 order, despite there being "ample time to accommodate it." Although the court enjoys broad discretion to "impose reasonable time limits appropriate to the proceedings," Ariz. R. Fam. Law P. 22(a), those limits must nevertheless be reasonable, Volk v. Brame, 235 Ariz. 462, ¶ 20 (App. 2014). The court must ensure the parties are given "an opportunity to be heard at a meaningful time and in a meaningful manner." Id. (quoting Curtis v. Richardson, 212 Ariz. 308, ¶ 16 (App. 2006)). The record before us indicates that during the two-day hearing the court provided the parties with the opportunity to object to the hour time limit set for the second day. Ahumada did not raise any concerns, and the hearing proceeded.
¶10 Before closing arguments on the second day, Ahumada requested to "make a statement." Although Glaser indicated that she did not have any time remaining, the court gave Ahumada the opportunity to make her record. Ahumada stated, "Your Honor, as the issue that has been pled before the Court today we stand on our pleadings and the testimony that has been presented here today." On appeal, Ahumada takes issue with the court's statement that it "considered the testimony of the parties and has assessed their credibility" despite her lack of testimony. However, the fact that she did not testify does not mean she was not afforded the opportunity to do so, which is what the law requires. See id. Nothing in the provided record suggests the court failed to afford her that opportunity.
¶11 Ahumada also argues the superior court relied on hearsay statements in assessing her credibility instead of "affording [her] the opportunity to present her side in person." In our review of the record, we found Ahumada made only one hearsay objection, which the court overruled and stated it would give the statement the "weight it deem[ed] appropriate." On appeal, however, Ahumada does not point to any hearsay statements on which the court relied, instead directing us to a portion of the record that shows no hearsay objection. See Starkins v. Bateman, 150 Ariz. 537, 544 (App. 1986) ("[I]f hearsay evidence is admitted without objection it becomes competent evidence admissible for all purposes."); see also Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13 (App. 2000) (failure to raise issue to court below constitutes waiver on appeal). Additionally, hearsay is not barred in family court proceedings unless a party requests strict compliance with the Rules of Evidence, which was not done in this case. See Ariz. R. Fam. Law P. 2(b)(1). On this record, we cannot say the court's time limitations were unreasonable or that it erred by allowing hearsay statements.
III. Child's Best Interests
¶12 Ahumada contends the superior court's "suggestion of switching therapists" for the parties' minor child raises "significant concerns" about the child's best interests. As we understand her argument, she maintains the court overstepped its authority by requiring the parties to makes changes to their minor child's therapy. This argument, however, essentially relitigates her interpretation of the parties' October 2021 agreement and mischaracterizes the court's actions. From the record provided, the court considered the child's best interests in memorializing the parties' agreement not to have the child's therapy disrupted while transitioning from an unlicensed therapist to a licensed one. And, as previously noted, the time to challenge the order adopting the October 2021 agreement has expired. See Ariz. R. Civ. App. P. 9(a); see also James, 215 Ariz. 182, ¶ 11. Therefore, we cannot address the merits of this argument.
Attorney Fees on Appeal
¶13 Ahumada requests attorney fees under A.R.S. §§ 12-349(B), 25-414, and 25-415(A)(1). None of Glaser's actions on appeal were "unjustified" as defined by § 12-349. Nor can we agree that §§ 25-414 or 25-415(A)(1) apply here. Section 25-414(C) states that "attorney fees incurred by the nonviolating parent associated with the review of noncompliance with a visitation or parenting time order shall be paid by the violating parent." But Ahumada, not Glaser, was the violating parent. Because Glaser did not "[k]nowingly present[] a false claim" relating to the child's best interests, sanctions under § 25-415(A)(1) are not appropriate. We therefore deny Ahumada's request.
¶14 Similarly, Glaser requests his attorney fees on appeal under
§ 25-324. Section 25-324 allows a court to award attorney fees after "considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings." Notwithstanding her unsuccessful arguments and her failure to ensure a full transcript of the proceedings were made part of the record, we cannot say that Ahumada has taken an unreasonable position on appeal. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶¶ 34-35 (App. 1998) (determining husband did not take unreasonable position on appeal and declining to award appellate attorney fees despite affirming award of fees to wife based in part on unreasonableness of husband's position at trial). Therefore, in our discretion, we decline Glaser's request. However, as the prevailing party, Glaser is entitled to his costs upon his compliance with Rule 21, Ariz. R. Civ. App. P. See A.R.S. § 12-342.
Disposition
¶15 We affirm the superior court's judgment in favor of Glaser.