Opinion
2 CA-CV 2023-0220-FC
02-27-2024
In re the Marriage of Teresa D. Ryberg, Appellee, and Lance Z. Ryberg, Appellant.
The Higgins Law Group, Tucson By Maggie Higgins Schmidt Counsel for Appellee. Lance Ryberg, Tucson In Propria Persona.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20173696 The Honorable Catherine M. Woods, Judge.
The Higgins Law Group, Tucson By Maggie Higgins Schmidt Counsel for Appellee.
Lance Ryberg, Tucson In Propria Persona.
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE.
¶1 Lance Ryberg ("Father") appeals from the trial court's ruling denying his petition for modification of legal decision-making and parenting time, granting the cross-petition of Teresa Ryberg ("Mother") regarding parenting time, and awarding her attorney fees and costs. For the reasons that follow, we affirm.
Procedural Background
¶2 The parties divorced in 2018 pursuant to a dissolution decree that awarded them joint legal decision-making authority and established a parenting plan regarding their minor children. In December 2022, when three of their four children were still under the age of eighteen, Father petitioned for the modification of legal decision-making and parenting time. Mother opposed and cross-petitioned, requesting that the trial court only modify the parenting plan to conform with the schedule the parties had been following since the dissolution of their marriage. She later filed a motion requesting attorney fees and costs, alleging that Father's petition was unfounded and based on inaccurate and "falsified information."
¶3 The trial court held an evidentiary hearing in July 2023. The following month, after "carefully review[ing] the statements and arguments of counsel, the evidence presented, the credibility of the witnesses, the wishes of the children, and the best interests of the children," the court issued its ruling. It denied Father's petition for modification. It granted Mother's cross-petition, "officially put[ting] in place the week-on, week-off schedule the parties voluntarily have been following for approximately five years." And, finding that Father had filed his petition to modify for an improper purpose, it granted Mother's request for an award of reasonable attorney fees and costs under A.R.S. § 25-324(B)(3).
¶4 This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶5 Father is not represented by counsel on appeal. Nevertheless, he is "given the same consideration on appeal as one who has been represented by counsel." Higgins v. Higgins, 194 Ariz. 266, ¶ 12 (App. 1999). He is also held to "the same familiarity with court procedures and the same notice of statutes, rules, and legal principles as is expected of a lawyer." Id.
¶6 Father's opening brief does not comply with our procedural rules. See Ariz. R. Civ. App. P. 13(a). Most importantly, it fails to provide the required argument containing "contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies." Ariz. R. Civ. App. P. 13(a)(7)(A). We therefore deem any claims Father might have raised waived. See Boswell v. Fintelmann, 242 Ariz. 52, n.3 (App. 2017) (failure to develop and support conclusory arguments results in waiver); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (claim waived if not argued in opening brief with supporting legal authorities and citations to record).
¶7 In addition, Father challenges primarily his own trial counsel's handling of the case. He points to strategic advice he now questions and evidence he believes should have been presented to, and considered by, the trial court. Such claims are not within our purview in the context of family law proceedings. See Glaze v. Larsen, 207 Ariz. 26, ¶ 20 (2004) (noting "important difference between civil and criminal procedure with respect to the alleged errors of counsel" because, in civil context, post-judgment relief generally unavailable even for "inexcusable neglect of counsel"). We cannot consider on appeal allegations or evidence not presented to the trial court. See Reeck v. Mendoza, 232 Ariz. 299, ¶¶ 13-14 (App. 2013) ("improper" for appellate court to consider issues, theories, or evidence not presented to trial court, and we "cannot reweigh the evidence on appeal").
¶8 Insofar as Father's opening brief presents any claims of error by the trial court, he appears to challenge the court's crediting of Mother's testimony. In particular, he maintains that Mother lacked any "reasonable excuse" for certain alleged behaviors and that "he should not be responsible for [her] attorney fees." But Father has provided no basis to second guess the court's fact and credibility determinations. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13 (App. 1998) (appellate court defers to trial court's determination of witness credibility and weight to give conflicting evidence). Nor does he provide any basis in law or in the record to challenge the trial court's conclusion that his petition for modification was filed for an improper purpose, requiring an award of fees under § 25-324(B)(3). Indeed, he has failed to provide a transcript of the evidentiary hearing that resulted in the ruling he now challenges. See Ariz. R. Civ. App. P. 11(c)(1)(B) ("If the appellant will contend on appeal that a judgment, finding or conclusion, is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record transcripts of all proceedings containing evidence relevant to that judgment, finding or conclusion."). In the absence of that transcript, we presume that whatever transpired at the hearing supported the trial court's findings and conclusions. Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).
¶9 Mother requests an award of attorney fees and costs incurred on appeal pursuant to § 25-324. Because this appeal "was not grounded in fact or based on law," we must award Mother her reasonable costs and fees. § 25-324(B)(2).
Disposition
¶10 We affirm the judgment of the trial court and award Mother her reasonable attorney fees and costs, upon her compliance with Rule 21(b), Ariz. R. Civ. App. P.