Opinion
No. 1 CA-CV 18-0395 FC
04-16-2019
In re the Matter of: GEORGE R. REISS, Petitioner/Appellee, v. MARIA K. REISS, Respondent/Appellant.
COUNSEL Jaburg & Wilk, PC, Phoenix By Kathi M. Sandweiss, Mitchell Reichman, Jason B. Castle Counsel for Petitioner/Appellee Law Offices of Kimberly A. Eckert, Tempe By Kimberly A. Eckert Counsel for Respondent/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2015-004033 FC2015-004231 The Honorable Timothy J. Thomason, Judge
AFFIRMED
COUNSEL Jaburg & Wilk, PC, Phoenix
By Kathi M. Sandweiss, Mitchell Reichman, Jason B. Castle
Counsel for Petitioner/Appellee Law Offices of Kimberly A. Eckert, Tempe
By Kimberly A. Eckert
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined. HOWE, Judge:
¶1 Maria Reiss ("Mother") appeals from a family court order modifying parenting time and providing financial awards to George Reiss ("Father"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In April 2015, Father petitioned for dissolution of his marriage to Mother, and on the same day Mother petitioned for legal separation. The cases were consolidated.
¶3 Mother and Father have two minor children, a son and a daughter. Around the time Father filed his petition, allegations were made that Father inappropriately touched the children, which caused the Department of Child Safety to initiate a safety plan that precluded Father from having any contact with the children. In May 2015, the family court entered temporary orders directing that the children reside primarily with Mother and gave Father substantial supervised parenting time. The court also ordered a comprehensive family evaluation by Dr. David Weinstock and appointed a Family Law Special Master ("FLSM") for all parenting issues, including legal decision-making, parenting time, supervision, physical- and mental-health issues related to the children, but not child support.
¶4 In March 2016, Dr. Weinstock presented his comprehensive family evaluation, which determined that nothing showed that Father had abused the children. He expressed concern that Mother had likely tainted the children's comments by interviewing and recording the children herself and that Mother had coached those comments. Dr. Weinstock recommended that Father be given final legal decision-making authority and the parties have equal parenting time without any further need for supervision.
¶5 After a September 2016 hearing, the FLSM entered findings and conclusions that included "documented concern about Mother's mental health[.]" The FLSM also noted that Department had issued a report indicating that the sexual abuse allegations against Father were "unsubstantiated" and that no follow up was necessary. Additionally, the FLSM confirmed that Dr. Weinstock determined the data did not support allegations of Father's sexual abuse and that Mother had likely tainted the children's comments or coached the children. The FLSM also noted that a police detective reported to Dr. Weinstock that he was concerned that Mother had coached the children. Because Mother and Father could not agree on a counselor for the children, the FLSM selected Dr. Cecile Korsten as the children's counselor. Pursuant to the FLSM's recommendation, the court ordered that Mother and Father have joint legal decision-making authority with Father as the final decision maker and that the supervision of Father's parenting time end. The parties adopted a 50/50 parenting-time schedule, and Dr. Korsten began her therapy sessions with the children in November 2016.
¶6 Following a six-day trial, the family court issued a 76-page decree of dissolution in March 2017. After making lengthy best-interests findings under A.R.S. § 25-403, the court noted that it did not believe Father had molested or inappropriately touched the children and found "that Mother played a significant role in shaping the [c]hildren's reporting of the touching." The court consequently awarded Father sole legal decision-making authority. The court also entered a parenting plan that provided Mother substantial, frequent, and meaningful contact with the children and entered an equal parenting-time schedule. The court noted that Mother may have mental-health issues that had harmed the children and warned that the court would not hesitate to restrict or suspend Mother's parenting time if her behavior persisted. Neither party appealed the decree.
¶7 In June 2017, Father petitioned to modify parenting time and requested that Mother's parenting time be supervised. Father alleged that Mother had violated the court's order appointing Dr. Korsten as the children's therapist by hiring Janniqua Dawkins as the children's nanny because Dawkins was actually a therapist. Additionally, Father alleged that Mother had stopped bringing the children to Dr. Korsten's scheduled therapy sessions during her parenting time.
¶8 After an evidentiary hearing at which Dr. Korsten testified that she believed outside interference had occurred that led to another Department report against Father, the court ordered that Mother undergo an immediate psychological evaluation with an evaluator Father selected and paid for. The court also ordered that Dawkins not provide the children any counseling or therapy. The court revoked any summer-vacation time until after the next evidentiary hearing, set for August 9, 2017. After the hearing, the family court selected Dr. Felix Salomon to conduct Mother's psychological evaluation and ordered Mother to contact and schedule an initial appointment within three days.
¶9 Mother requested a stay of the revocation of vacation time so that the children could attend a family reunion. The family court granted Mother's request with the condition that she schedule her evaluation with Dr. Salomon before the trip. Mother violated the court's order and took the children on vacation without scheduling an evaluation.
¶10 On June 29, 2017, Mother appealed. In her notice, Mother acknowledged that the issue of the modification of her parenting time was not ripe for appeal until a ruling after the August 9 hearing. Mother also objected to a psychological evaluation by an evaluator that Father had selected and paid for, the revocation of her summer-vacation time, and Dr. Korsten's continued appointment as the children's therapist. Father moved to dismiss the notice of appeal because it was not a final appealable order since issues were still pending. Father also requested his attorneys' fees and costs related to Mother's notice of appeal. This Court dismissed the appeal because it determined that the family court had not yet issued a final appealable order from which an appeal could be taken, and the matter proceeded in the family court.
¶11 At the August 9 hearing, the family court found that Dr. Salomon still had not evaluated Mother and that Mother's behavior was "causing grave damage" to the children. The court temporarily suspended Mother's parenting time until she scheduled and cooperated in Dr. Salomon's evaluation. The court determined that if Mother participated in the evaluation, her parenting time would be reinstated, but that it would be supervised and the period would be reduced. The court set a further evidentiary hearing for October 12, 2017.
¶12 After an incident in August where Father alleged that Mother had picked up the children from school unsupervised, the family court suspended Mother's parenting time until further order of the court after considering the best-interests factors under A.R.S. § 25-403. The court found that Mother had intentionally violated the court's order regarding the Dr. Salomon evaluation and that her parenting time was damaging the children's mental and emotional well-being.
¶13 Father petitioned that $4,000 of the $8,000 in expert fees he had paid Dr. Salomon be reapportioned, as well as $1,183.40 in car payments he had made on a vehicle awarded to Mother that she had failed to pay and her $2,324.62 share of the children's expenses. Father also requested an award of his reasonable attorneys' fees.
¶14 After the October 12, 2017 hearing, the court ordered that Mother undergo an evaluation by Dr. Donald Aubrey, pay for the cost of the evaluation, and have two supervised hours of parenting time per week at her cost. Dr. Aubrey prepared a report based on a one-hour meeting with Mother. The court determined that Dr. Aubrey's conclusions did not have a sufficient foundation and that the report therefore had no evidentiary value. The court requested that Dr. Weinstock provide four evaluators for Mother's psychological evaluation for the court to pick from. From that list, the court selected Dr. Carlos Jones.
¶15 Mother moved to amend the temporary parenting time orders to allow her additional parenting time and that it be unsupervised. Mother also moved to remove Dr. Korsten as the children's therapist. Father objected to both requests and counter-petitioned for modification. Father informed the court in his counter-petition that his nanny had witnessed Mother having unsupervised parenting time with the children and stated that his daughter had thereafter made another abuse allegation against him. As a result, Father requested that Mother's parenting time remain at two hours per week and that it be held at Arizonans for Children. The court denied Mother's request to remove Dr. Korsten and noted that it would consider that issue at the final hearing.
¶16 The court held another evidentiary hearing on January 12, 2018, and determined that Mother's unsupervised parenting time "endanger[ed] the [c]hildren" and that a psychological evaluation was necessary to determine the best interests of the children. But the court increased her parenting time to four supervised hours per week. The court denied Father's request to have Mother's parenting time supervised in a facility setting. The court set another evidentiary hearing for May 22, 2018.
¶17 Dr. Jones submitted a report to the court. In his report, he noted that Mother suffered from paranoid and borderline traits and was fixated on the belief that Father "is a child abuser, when he in fact [was] not." As such, Dr. Jones diagnosed Mother with adjustment disorder with anxiety and unspecified personality disorder with paranoid and borderline traits.
¶18 After the May 2018 final evidentiary hearing, the family court designated Father as the primary residential parent, returned Mother's parenting time to unsupervised time, and increased her time with the children to every other weekend and Wednesday evenings. The court also sanctioned Mother for failing to follow court orders and ordered that she reimburse Father for the child support he had paid while he had the children full time, the car payments that he had made on Mother's behalf, and her share of the fees for Dr. Korsten and the children's speech therapy that he had paid.
¶19 Mother moved for reconsideration, alleging that the family court's order appeared to be "punitive" in nature, given that her psychological evaluation had found no serious mental illness. She also argued that the assessment of financial penalties against her was contrary to A.R.S. § 25-403.08, given the large financial disparity between the parties. The court denied Mother's motion. Mother timely appealed.
DISCUSSION
¶20 Mother argues the family court erred in modifying parenting time and in awarding sanctions against her. We review these rulings for an abuse of discretion. Henderson v. Henderson, 241 Ariz. 580, 587 ¶ 16 (App. 2017) (contempt and sanctions); Baker v. Meyer, 237 Ariz. 112, 116 ¶ 10 (App. 2015) (parenting time); Magee v. Magee, 206 Ariz. 589, 590 ¶ 6 (App. 2004) (attorneys' fees). We address each of these arguments in turn.
Although Mother does not overtly argue that the rulings should be reversed due to judicial bias, Mother mentions judicial bias throughout her opening brief. Mother does not cite to the record where she raised judicial bias below, and our independent review did not find a bias argument made below. As such, to the extent Mother argues judicial bias, her contention is waived. See, e.g., Lemons v. Showcase Motors, Inc., 207 Ariz. 537, 541 ¶ 17 n.1 (App. 2004) ("Legal issues and arguments must be presented to the trial court and generally cannot be raised for the first time on appeal."). --------
1. Modification of Parenting Time
¶21 Ample evidence supports the family court's modification of parenting time. Dr. Jones noted Mother's "fixed belief" that Father is harming the children, despite evidence to the contrary. Additionally, Dr. Korsten testified about her concerns that Mother had influenced or coached the children, noting that it was harmful to the children. Dr. Korsten also testified that the children had made "significant progress" during the time that Mother had limited supervised parenting time. Moreover, since the original March 2017 dissolution decree, Mother had violated the court's orders regarding a psychological evaluation with Dr. Salomon and an additional Department report had been filed against Father. Given Dr. Jones's report and Dr. Korsten's testimony, the court concluded that "it is in the best interest of the [c]hildren for the [c]hildren to have the majority of their time with Father." The court did not abuse its discretion in so ruling.
¶22 Mother argues that the family court failed to make best-interests findings under A.R.S. § 25-403 when modifying her parenting time. But the court was not required to make § 25-403 best-interests findings here. Section 25-403(B) applies in a "contested legal decision-making or parenting time case," but § 25-411 governs the process for modifying legal decision-making or parenting time. Murray v. Murray, 239 Ariz. 174, 176 ¶¶ 6-7 (App. 2016). Section 25-411(J) provides that:
The court may modify an order granting or denying parenting time rights whenever modification would serve the best interest of the child, but the court shall not restrict a parent's parenting time rights unless it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional health.Although § 25-411(J) requires the court to find certain facts in an order modifying parenting time, it does not require, as § 25-403(B) requires, that the findings be reduced to writing. Hart v. Hart, 220 Ariz. 183, 187 ¶¶ 16-17 (App. 2009). In Hart, this Court held that § 25-411 does not, by its terms, require the express findings that § 25-403 requires, and as in Hart, we decline here to "judicially impose a requirement the legislature has intentionally chosen not to require." See 220 Ariz. at 187 ¶ 17.
¶23 Mother also argues that the family court deprived her of the rights under A.R.S. § 1-601, which provides parental fundamental rights, including the "liberty . . . to direct the upbringing, education, health care and mental health" of their children. Mother's argument appears to challenge the court's awarding Father sole legal decision-making authority. The legal-decision making order is not properly on appeal, however, because Mother failed to appeal the original March 2017 ruling. As such, we decline to address Mother's argument here. We therefore affirm the family court's parenting-time orders.
2. Father's Financial Awards
¶24 The family court acted within its discretion in sanctioning Mother. Under A.R.S. § 25-324(A), the court may award costs and expenses to a party after "considering the financial resources of both parties and the reasonableness of the positions each party has taken throughout the proceedings[.]" Further, a court has inherent authority to sanction parties for violating a court order. Sheehan v. Flower, 217 Ariz. 39, 43 ¶ 17 (App. 2007).
¶25 The court considered both Mother's financial resources and her reasonableness in making the sanctions award. The court noted that it "would enter a higher sanction, but for [Mother's] current financial condition[.]" The court also noted that Mother's failure to follow its orders regarding Dr. Salomon was "intentional and unreasonable." In fact, Mother never set up an evaluation appointment and was found in contempt of court for failing to do so. Thus, the court did not abuse its discretion in awarding sanctions against Mother.
¶26 The family court also acted within its discretion in entering the remaining monetary awards. Nothing shows that Father should not be reimbursed for child support, Mother's car payments, or the fees for Dr. Korsten and speech therapy. Thus, the court did not abuse its discretion in making those awards.
CONCLUSION
¶27 For the foregoing reasons, we affirm. In our discretion, we grant Father's request under A.R.S. § 25-324(A) for attorneys' fees and costs upon his compliance with ARCAP 21.