Opinion
2 CA-CV 2022-0021-FC
03-26-2024
In re the Marriage of Jim Mendoza Gutierrez, Petitioner/Appellee, and Vanessa Meraz, Respondent/Appellant.
Centuori &Collier PC, Tucson By Sarah E. Collier Counsel for Petitioner/Appellee Vanessa Meraz In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. D20183635 The Honorable Cynthia T. Kuhn, Judge AFFIRMED
Centuori &Collier PC, Tucson
By Sarah E. Collier
Counsel for Petitioner/Appellee
Vanessa Meraz
In Propria Persona
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE:
¶1 Vanessa Meraz appeals from the trial court's decree dissolving her marriage to Jim Gutierrez and awarding the parties equal parenting time and joint legal decision-making authority concerning their three minor children. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the trial court's rulings. Alvarado v. Thomson, 240 Ariz. 12, n.1 (App. 2016). Meraz and Gutierrez married in 2008 and subsequently had three children together. In 2018, Meraz and the children moved to California. Gutierrez remained in Arizona and filed for dissolution, asking the trial court to award the parties joint legal decision-making authority and equal parenting time. In response, Meraz asked the court to award her sole legal decisionmaking authority and all parenting time.
¶3 During the dissolution proceedings, both parties moved for temporary orders regarding legal decision-making authority and parenting time. Meraz requested temporary orders because she alleged Gutierrez had sexually abused their five-year-old son. Child Welfare Services of San Diego County (CWS) investigated the allegations and ultimately concluded they were unsubstantiated.
¶4 In May and June 2021, the trial court held a four-day trial on the issues of legal decision-making authority and parenting time. The court later issued an under-advisement ruling ordering Meraz to return the children to Gutierrez in Arizona as the primary residential parent. The court awarded the parties joint legal decision-making authority, with Gutierrez having final authority as to medical decisions. It further ordered that if Meraz relocated from California to within twenty miles of Gutierrez's residence in Pima County, the parties would exercise "equal parenting time, on an alternating week basis."
¶5 Meraz relocated to Arizona, and the trial court subsequently held a two-day trial on child support and division of the parties' assets and debts. In December 2021, the court issued the decree of dissolution, in which it affirmed its previous rulings as to legal decision-making authority and parenting time and denied Meraz's request for attorney fees. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶6 Meraz asserts the trial court's finding regarding the date of service of the dissolution petition is clearly erroneous. She also argues the court deprived her of due process and improperly modified the parties' agreement regarding legal decision-making authority and parenting time. Finally, she contends the court erred in denying her request for attorney fees and costs. We address Meraz's arguments in turn.
Meraz also challenges the trial court's denial of her October 2022 motion to correct "numerous material clerical errors, misstatements, and omissions in the trial record" filed pursuant to Rule 85, Ariz. R. Fam. Law P. Although we stayed the appeal and revested the trial court with jurisdiction to rule on her post-judgment motion, because Meraz did not file a new or amended notice of appeal from the court's ruling, we lack jurisdiction to consider this issue. See Ariz. R. Civ. App. P. 9(e)(3) ("A party intending to appeal one or more of the orders disposing of one or more of the motions listed in Rule 9(e)(1) must file a notice of appeal, a notice of cross-appeal, or an amended notice of appeal ...."), 9(e)(1)(E) (specifying motions under Rule 85, Ariz. R. Fam. Law P.); see also Ghadimi v. Soraya, 230 Ariz. 621, ¶ 7 (App. 2012) (we have an independent duty to examine our jurisdiction on appeal).
I. Date of Service
¶7 Meraz first argues the trial court erred in finding she had been served with the dissolution petition on December 14, 2018, rather than December 7, 2018. We accept the court's findings of fact absent clear error. Ariz. R. Fam. Law P. 82(a)(5); Engstrom v. McCarthy, 243 Ariz. 469, ¶ 4 (App. 2018). "A finding of fact cannot be clearly erroneous if there is substantial evidence to support it, even though there also might be substantial conflicting evidence." Lewis v. Midway Lumber, Inc., 114 Ariz. 426, 429 (App. 1977). "Evidence is substantial if it allows 'a reasonable person to reach the trial court's result.'" Castro v. Ballesteros-Suarez, 222 Ariz. 48, ¶ 11 (App. 2009) (quoting Davis v. Zlatos, 211 Ariz. 519, ¶ 18 (App. 2005)).
¶8 In its ruling on legal decision-making authority and parenting time, the trial court found that "the parties' filings state various dates of service." It pointed to Gutierrez's assertion in his amended pretrial statement that Meraz had been served "two weeks" before December 21, 2018. Further, the court noted CWS's report that Meraz had been "served with the divorce papers on . . . December 14, 2018." Finally, it recited Gutierrez's statements to a social worker that Meraz had been served with the petition on December 14 and that "it was not a coincidence" that, later that evening, the parties' son "randomly told" Meraz that Gutierrez had "touched" him. In its subsequent ruling on the remaining issues, the court concluded that, "[b]y operation of law, the marital community is deemed to have terminated on December 14, 2018."
¶9 Meraz contends the trial court's finding that she had been served with the petition for dissolution on December 14-and that the marital community had therefore terminated on that date-was clearly erroneous. She asserts "the record clearly shows the parties' agreement as to the date of service being December 7," pointing to various documents in the record and the parties' trial testimony. What she does not do is meaningfully explain why this alleged error has any effect on our disposition of this appeal. It does not. And, as the court acknowledged, conflicting evidence was presented as to the date of service. Thus, substantial evidence supported the court's finding that Meraz had been served on December 14. See Lewis, 114 Ariz. at 429; Lehn v. Al-Thanayyan, 246 Ariz. 277, ¶ 20 (App. 2019) (we do not reweigh evidence on appeal, instead deferring to trial court's determinations of witness credibility and weight given to conflicting evidence).
Meraz also asserts the court erred in "not ordering [Gutierrez] to file an affidavit of service in this dissolution matter." Because Meraz does not appear to have raised this argument below and does not further develop or cite any authority supporting this argument on appeal, we do not address it. See Ariz. R. Civ. App. P. 13(a)(7)(A), (B) (opening brief must contain argument with "[a]ppellant's 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" relied upon, as well as "references to the record on appeal where the particular issue was raised and ruled on"); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (appellant waives claims by failing to provide "an argument supported by authority in h[er] opening brief").
II. Due Process
¶10 Meraz next asserts the trial court violated her constitutional right to due process under the United States and Arizona Constitutions. Specifically, she contends the court deprived her of a meaningful opportunity to be heard and confront witnesses against her and her right to a fair and impartial tribunal. We review constitutional issues de novo. McGovern v. McGovern, 201 Ariz. 172, ¶ 6 (App. 2001).
Meraz additionally argues the trial court's denial of her October 2022 motion to correct transcripts violated her "constitutional right to accurate transcripts without material errors in order to ensure due process and right to appeal." Meraz did not file a new or amended notice of appeal following that ruling. As such, we lack jurisdiction to address her argument. See Ariz. R. Civ. App. P. 9(e)(3).
A. Meaningful opportunity to be heard and confront witnesses
¶11 Meraz argues she was denied "a meaningful opportunity to be heard and to cross-examine evidence" based on the trial court's "extensive[]" reliance on a report prepared by CWS "without objectively fact-checking it[]s contents" and reliability. Meraz contends that "merely warming up the witness seat does not amount to that right if a judge is determined in bypassing his or her duty as an objective fact-finder and simply cites to an agency or other document prepared by a professional as if they were the fact-finders." In support of her argument, Meraz asserts she repeatedly "testified to the inaccuracies of the CWS report" and "provided evidence to support her positions through her own testimony, transcripts and her 48 page rebuttal."
¶12 "'Due process entitles a party to notice and an opportunity to be heard at a meaningful time and in a meaningful manner,' as well as a chance to offer evidence and confront adverse witnesses." Cruz v. Garcia, 240 Ariz. 233, ¶ 11 (App. 2016) (quoting Cook v. Losnegard, 228 Ariz. 202, ¶ 18 (App. 2011)). "[A] parent is entitled to due process whenever his or her custodial rights to a child will be determined by a proceeding." Smart v. Cantor, 117 Ariz. 539, 542 (1977). Accordingly, "when there are disputed issues of fact as to a child's best interests, 'the court must allow the parties to present evidence before it makes its finding.'" Cruz, 240 Ariz. 233, ¶ 16 (quoting Murray v. Murray, 239 Ariz. 174, ¶ 18 (App. 2016)). However, "[d]ue process errors require reversal only if a party is thereby prejudiced." Volk v. Brame, 235 Ariz. 462, ¶ 26 (App. 2014).
¶13 Meraz did not object to admission of the CWS report at trial and cites no pertinent legal authority supporting her argument on appeal, thereby waiving it. See Cook v. Cook, 209 Ariz. 487, n.6 (App. 2005) (constitutional issues not objected to below are waived); Ariz. R. Civ. App. P. 13(a)(7)(A) (opening brief must include arguments consisting of "[a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities"). Further, even were we to address her argument on the merits, it would fail. Meraz was represented at trial and was not precluded from calling the caseworker who had prepared the report and that caseworker's supervisor as witnesses. Additionally, Meraz presented controverting testimony and other evidence challenging the report's accuracy both before and during trial. Meraz essentially asks us to reweigh the evidence on appeal, which we will not do. See Lehn, 246 Ariz. 277, ¶ 20. On this record, we cannot say she was denied due process.
B. Fair and impartial tribunal
¶14 Meraz argues the trial court was "bias[ed] towards professionals," asserting "[n]umerous findings of fact were based off of the CWS report." As "example[s]" of the court's bias against her, Meraz cites its finding that the date of service was December 14 "despite all of the evidence to the contrary," its citation to a custodial evaluation that "heavily relied on the CWS report," and its statement that she, rather than her attorney, falsely stated at trial that several admitted exhibits had previously been provided to the psychologist who performed the evaluation. Meraz, however, fails to provide any pertinent "citations of legal authorities . . . on which [she] relies" to support her argument. Ariz. R. Civ. App. P. 13(a)(7)(A). Thus, she has waived this argument on appeal, and we do not further address it. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (appellant waives claims by failing to provide "an argument supported by authority in [her] opening brief"); see also Ramos v. Nichols, 252 Ariz. 519, ¶ 8 (App. 2022) ("Courts hold unrepresented litigants in Arizona to the same standards as attorneys and do not afford them special leniency.").
III. Rule 69 Agreement
¶15 Meraz argues the trial court erred in "modifying and superseding" the parties' Rule 69, Ariz. R. Fam. Law P., agreement regarding legal decision-making authority and parenting time. We review the court's legal decision-making and parenting time orders for an abuse of discretion. DeLuna v. Petitto, 247 Ariz. 420, ¶ 9 (App. 2019).
¶16 In January 2019, after Gutierrez had filed his petition for dissolution, Meraz moved for temporary orders without notice awarding her sole legal decision-making authority and physical custody of the children with "no visitation/parenting time" for Gutierrez "pending investigation of allegations of sexual abuse." The trial court granted Meraz's motion, ordering that Gutierrez's parenting time with the children be "suspended immediately pending further orders of the court." At a subsequent hearing regarding the temporary orders, the court found that Meraz had failed to meet her burden of proof regarding the sexual-abuse allegations and ordered that the parties "shall temporarily have joint legal decision-making authority" and "cooperate in facilitating" Gutierrez's parenting time with the children in California.
¶17 The next month, Meraz again moved for, and the trial court granted, temporary orders without notice suspending Gutierrez's legal decision-making authority and parenting time. Following a hearing on March 21, the court ordered, "pendente lite, that [Meraz] will continue to possess sole legal decision-making" authority and "will be the primary residential parent," with Gutierrez having therapeutic supervised visits with the children three weekends per month and telephonic or video contact with the children "subject to such arrangements being worked out by counsel for the parties pursuant to A.R.S. § 25-103(b)."
¶18 In May 2019, the trial court held a review hearing on pending pretrial matters, during which the parties indicated their intent to enter into a Rule 69 agreement with respect to several issues. Under the terms of the agreement, Gutierrez would have telephone calls with the children three evenings per week in addition to one weekly "Skype, webcam, or FaceTime contact." Additionally, the parties agreed to a full custodial evaluation. The court adopted the agreement as a court order, finding it was "fair and reasonable" and in the best interests of the minor children. The court deferred ruling on Gutierrez's motion for reconsideration regarding therapeutic supervised visitation until after the custodial evaluation had been performed.
¶19 In August 2021, the trial court issued an under-advisement ruling as to legal decision-making authority and parenting time, in which it discussed the best interest factors set forth in A.R.S. § 25-403. In describing the parties' "[p]resent" relationship with the children, the court stated, "Pursuant to this Court's March 21, 2019 Order, [Gutierrez] is ordered, pendente lite, therapeutic supervised parenting time in California, three weekends per month, however, he submits he is unable to afford the expense involved. [He] also participates in telephonic . . . or Skype contact with such arrangements being worked out by counsel for the parties."
¶20 As noted, the trial court ultimately ordered Meraz to return the children to Gutierrez as the primary residential parent and granted the parties joint legal decision-making authority, with Gutierrez having final authority as to medical decisions. It further ordered that, if Meraz relocated from California to within twenty miles of Gutierrez's residence in Pima County, the parties would exercise "equal parenting time, on an alternating week basis." As also discussed, Meraz subsequently relocated to Arizona, and, following trial on the remaining matters, the court issued the decree of dissolution affirming its previous ruling as to legal decision-making authority and parenting time.
¶21 On appeal, Meraz argues the trial court erroneously modified the parties' Rule 69 agreement adopted in May 2019, asserting the agreement was binding upon the court's approval and "no changed circumstances" had been established. See Ariz. R. Fam. Law P. 69(a)-(b) (accepted Rule 69 agreement binding on court and parties); Engstrom, 243 Ariz. 469, ¶ 11; A.R.S. § 25-411(A). Further, she contends the court erroneously referred to the March 2019 order as the "present" order in effect at the time of its August 2021 under-advisement ruling, indicating it was unaware of the Rule 69 agreement. As such, Meraz asks us to reverse the court's orders, award her sole legal decision-making authority, and redesignate her as the primary residential parent, "with therapeutic supervised visitations for [Gutierrez] in San Diego" and telephonic and video contact as set forth in the Rule 69 agreement.
¶22 The trial court's adoption of the parties' Rule 69 agreement in 2019 did not render the resulting order regarding legal decision-making authority and parenting time permanent. At the hearing on the parties' agreement, in discussing the schedule for Gutierrez's telephonic and video visits with the children, the court reminded the parties that they were talking about "temporary orders." See Ariz. R. Fam. Law P. 47(k) ("Temporary orders . . . terminate and are unenforceable . . . following entry of a final decree, judgment, or order, unless that final decree, judgment, or order provides otherwise."). Indeed, in reviewing the terms of the agreement with Meraz, the court asked her, "And these are temporary orders anyway in the best interest of the children, right?" Meraz responded affirmatively. Moreover, the court's adoption of the parties' agreement occurred before the agreed-upon custody evaluation had been performed and before trial had been held on the issues of legal decision-making authority and parenting time. See A.R.S. § 25-316(D)(1), (4) (A temporary order "[d]oes not prejudice the rights of the parties . . . that are to be adjudicated at subsequent hearings in the proceedings."). As such, the court did not improperly modify the temporary Rule 69 agreement in its August 2021 ruling.
¶23 And, although the trial court appears to have overlooked the May 2019 minute entry adopting the parties' Rule 69 agreement in preparing its under-advisement ruling, Meraz fails to explain how any such oversight impacted its decision regarding legal decision-making authority and parenting time. See Ariz. R. Fam. Law P. 86 ("At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."); see also Walsh v. Walsh, 230 Ariz. 486, ¶ 24 (App. 2012) (not all errors warrant reversal; this court will reverse only if a party suffers prejudice from the error, and the prejudice "appear[s] affirmatively" in the record). Meraz's arguments fail.
IV. Attorney Fees and Costs
¶24 Finally, Meraz argues the trial court erred in denying her request for attorney fees and costs pursuant to A.R.S. §§ 25-324 and 25-403.08 because its "findings were based on errors, misstatements, [and] omissions in the trial record" and it "failed to objectively take into account all the evidence introduced" in support of her request. We will not disturb the court's decision to award or deny attorney fees absent an abuse of discretion, Murray, 239 Ariz. 174, ¶ 20, and we presume the court considered all admitted evidence, Fuentes v. Fuentes, 209 Ariz. 51, ¶ 18 (App. 2004). As noted above, Meraz's assertions of error were either unsubstantiated or did not cause her prejudice. Thus, on the record before us, we cannot conclude the court abused its discretion in denying Meraz's request.
¶25 Both Meraz and Gutierrez request attorney fees on appeal. Because Meraz fails to cite any authority supporting her request and because she is self-represented on appeal, we deny her request. See Ariz. R. Civ. App. P. 21(a)(2) ("A claim for fees under this Rule must specifically state the statute, rule, decisional law, contract, or other authority for an award of attorneys' fees."); Roubos v. Miller, 214 Ariz. 416, ¶ 21 (2007) (a party "must state the statutory or contractual basis" for an award of attorneys' fees pursuant to Rule 21, Ariz. R. Civ. App. P.); Munger Chadwick, P.L.C. v. Farwest Dev. and Constr. of the Sw., LLC, 235 Ariz. 125, ¶ 5 (App. 2014) ("parties who represent themselves in a legal action are not entitled to recover attorney fees"). Gutierrez asserts he is entitled to attorney fees pursuant to A.R.S. §§ 25-324 and 12-349. In our discretion, we deny his request. However, as the prevailing party on appeal, Gutierrez is entitled to his costs upon compliance with Rule 21.
Disposition
¶26 For the foregoing reasons, we affirm.