Kelledy v. Cockerham

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: ) ) PATRICK KELLEDY, ) ) Petitioner/Appellee, ) ) v. ) ) KIMBERLY TARA COCKERHAM, ) ) Respondent/Appellant. ) ) ) ) __________________________________) DIVISION ONE FILED: 08/12/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CV 09-0093 1 CA-CV 09-0333 (Consolidated) DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. DR1999-014483 The Honorable Carey Snyder Hyatt, Judge VACATED IN PART; AFFIRMED IN PART Kimberly Tara Cockerham Respondent/Appellant, In Propria Persona Phoenix Barry L. Brody PC By Barry L. Brody And Law Offices of Robert E. Siesco, Jr. By Robert E. Siesco, Jr. Co-Counsel for Petitioner/Appellee Phoenix S W A N N, Judge Phoenix ¶1 In this consolidated appeal, Kimberly Tara Cockerham ( Mother ) appeals from two orders in which the superior court modified Mother s parenting time after considering several reports and recommendations from a Parenting Coordinator. vacate two of the court s orders: We one that required Mother to comply with an injunction against harassment to which she was not a party, and one that required Mother not to publish any audio, video, proceedings. or written documentation about the legal In all other respects, we affirm. Facts and Procedural Background ¶2 This is a high-conflict family law case. Patrick Kelledy ( Father ) married in May 1993. Mother and They divorced in August 2000 and were awarded joint custody of their two minor children. In April 2004, Father was awarded sole legal custody of the children and Mother was granted limited parenting time. ¶3 Mother s parenting time was modified in August 2008 to include overnight visits on alternate Mondays and weekends, plus two non-consecutive weeks of vacation time each year. At the same time it modified parenting time, the court appointed a new Parenting Coordinator and permitted by ARFLP 74. granted her the broadest authority In October 2008, the court held an evidentiary hearing to evaluate the success of the parenting time modification. After hearing testimony from the parties, 2 the court entered participation in participation in transportation. various orders counseling, the concerning difficulty children s in Mother s co-parenting, education, and safe The court set a January 2009 review hearing for the purpose of determining whether Mother s weekday parenting time would continue. ¶4 At the January 2009 hearing, the court entered additional orders, including an order that Mother inform Father of her address, and set a February 2009 review hearing for the purpose of addressing the weekday parenting time issue. At the February 2009 hearing, the court heard testimony from Mother and Father, and considered the reports of the Parenting Coordinator. The reports Mother s revealed parenting significant time. The problems Parenting in connection Coordinator with reported that Mother had interfered with an exchange of the children in dramatic fashion, made the younger child ride in a car on the older child s lap while sharing a seatbelt, interfered with the children s homework to the point that they felt compelled to hide their school homework clothing, and from her, failed failed to to comply provide with a appropriate court concerning disclosure of her residential arrangements. Father obtained an injunction against harassment order Finally, against Mother s live-in boyfriend after receiving a threat on his life. 3 ¶5 adopted After hearing testimony from both parties, the court the recommendations set forth in the two Parenting Coordinator reports that had been submitted before the hearing; suspended Mother s weekday parenting, subject to possible reinstatement during the summer months after the next hearing; and entered several other orders that required Mother s ongoing compliance. ¶6 Immediately after disposing of the weekday parenting time issue, the court held a hearing on an order of protection that Mother had recently obtained against Father. The court heard testimony from Mother, Father, and a third-party witness. Finding that the evidence failed to support the allegations set forth in Mother s petition, the court dismissed the order of protection. Mother immediately filed a notice of appeal from this February 2009 signed minute entry. ¶7 Before the time set for the next review hearing, Father filed an emergency petition in which he requested that the court terminate Mother s parenting time and preclude her from participating in or attending the children s school-related activities. The court declined to grant Father s petition on an emergency ex parte basis, and instead set an evidentiary hearing for April 2009. ¶8 Mother did not attend the April 2009 hearing. According to the court s minute entry, an unidentified telephone 4 caller had informed court staff that Mother was unable to attend because she was ill and was going to see a doctor. Because the caller had not identified himself or herself, and Mother had not personally contacted the court, the court conducted the hearing in her absence. ¶9 Based Coordinator s ordered on Father s reports, the Mother s parenting testimony court time made modified and the written to Parenting findings supervised, and non- overnight parenting time pursuant to a schedule left to Father s discretion. The court further ordered Mother not to be present at or near the children s school for any reason without Father s prior written approval. The court also required Mother, before filing a petition to modify the new parenting time orders, to provide information concerning her residence, her progress in supervised parenting time, and the injunctions directed against Father. dismissal of falsified Finally, the court adopted the most recent report of the Parenting Coordinator, ordered that Mother and Father would be equally responsible for all future Parenting Coordinator fees, and required Mother contribute $750 to Father s attorney s fees and costs. to The trial judge also permanently assigned the case to herself. ¶10 entry. Mother timely appealed from the court s signed minute We consolidated that appeal with Mother s appeal from 5 the February 2009 minute entry, and allowed Mother to file a second opening brief. ¶11 We have jurisdiction over this appeal pursuant to A.R.S. § 12-120.21(A)(1) and A.R.S. § 12-2101(B) and (C) (2003). Discussion ¶12 As an initial matter, we note that Mother s opening brief fails to comply with many of the requirements of ARCAP 13(a). appeal We nonetheless decline Father s request to dismiss the summarily adequate brief. based on Mother s failure to file a fully Unless a party s brief is totally deficient, we prefer to decide each case upon its merits rather than to dismiss summarily on procedural grounds. Adams v. Valley Nat l Bank of Ariz., 139 Ariz. 340, 342, 678 P.2d 525, 527 (App. 1984) (citation omitted). Mother s pro per brief is not totally deficient. I. ¶13 by The Parenting Coordinator s Reports Mother contends that the court abused its discretion considering the facts set forth in the Parenting Coordinator s reports and by adopting the recommendations. We disagree, and conclude that the court may afford evidentiary value to statements in a Parenting Coordinator s report. ¶14 Properly employed, a Parenting Coordinator assists the parties by undertaking fact-finding and minor decision-making responsibilities when ongoing conflicts render formal judicial 6 involvement an impractical or cumbersome means of meeting the parties immediate needs. cmt. (explaining that See ARFLP 74(A); ARFLP 74 committee [t]he appointment of a Parenting Coordinator is appropriate when parents have ongoing conflicts related to enforcement of custody and parenting time orders, which without a Parenting Coordinator would result in protracted litigation ). See also ARFLP Form 11 (explaining the related yet somewhat different roles of a Parenting Coordinator and a judge). The Parenting Coordinator is expressly charged with gathering and reporting factual information to support his or her recommendations. See ARFLP 74(F), (H). The Parenting Coordinator therefore serves a quasi-judicial role akin to that of a special master, and it would be anomalous to hold that the court cannot consider the information presented in support of a recommendation by such an officer of the court. ¶15 will Though the rule plainly contemplates that the court consider Coordinator, it the information does not submitted contemplate by blind the Parenting deference. No decision on a Parenting Coordinator s recommendation may become permanent over a party s objection without a prompt evidentiary hearing. See ARFLP 74(I). Here, Mother was provided copies of all relevant Parenting Coordinator reports, and she failed to object or request a hearing. The court nonetheless chose sua sponte to hold evidentiary hearings. 7 Mother had the opportunity to attend those hearings and present evidence to refute any facts in the report that she perceived as inaccurate.1 Mother has not complied with ARCAP 11(b) by Because ordering the transcripts of the hearings and including them in the record on appeal, we assume that the evidence presented at the hearings was not inconsistent with the decision of the court.2 See Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998). ¶16 We further conclude that the Parenting Coordinator s recommendations were consistent with the grant of authority contained in ARFLP 74(E) because they were reasonably designed to implement, clarify, or modify parenting time.3 The Parenting 1 Mother contends generally on appeal that the Parenting Coordinator s reports referenced falsehoods and information learned from Father that Father had no personal knowledge of. 2 On April 13, 2010, Mother filed a motion in this court asking us to suspend our conference of the case until transcripts could be prepared. Mother s request for transcripts was not transmitted to the superior court until April 2010. ARCAP 11(b) requires an appellant to order transcripts no later than ten days after filing her notices of appeal here, March and April 2009. Because Mother s request for transcripts was untimely, we deny her motion. 3 Regarding implementation, in the reports considered at the February 2009 hearing, the Parenting Coordinator recommended that all future parenting time exchanges take place at a neutral location, that the judge assigned to the parties family court case personally hold the hearing on Mother s order of protection, and that Mother be prohibited from making public any further audiotapes, videotapes, or written documentation about the legal proceedings. We conclude below that the recommended restriction on Mother s ability to publish information about the 8 Coordinator labeled also made several recommendations, 4 which temporary she had binding decisions, authority to make pursuant to ARFLP 74(G).5 ¶17 Parenting The court acted within its discretion by adopting the Coordinator s recommendations after conducting evidentiary hearings. legal proceedings was unconstitutional. It was, however, within the Parenting Coordinator s authority to make a recommendation regarding behavior that she perceived as contrary to the best interests of the children. Regarding clarification, the Parenting Coordinator recommended that the court affirm the holiday parenting time schedule because Mother was confused about what it provided. Regarding modification, she recommended that Mother s weekday parenting time be suspended for the remainder of the school year and reinstated for the summer months. 4 In the reports considered at the February 2009 hearing, the Parenting Coordinator suspended Mother s next scheduled weekday visit and required that the next visit, when it occurred, involve a neutral exchange location. In the report considered at the April 2009 hearing, the Parenting Coordinator memorialized an earlier decision to suspend Mother s next scheduled weekend visit. 5 ARFLP 74(G) provides that [w]hen a short-term, emerging, and time sensitive situation or dispute within the scope of authority of the Parenting Coordinator arises that requires an immediate decision for the welfare of the children and parties, a Parenting Coordinator may make a binding temporary decision. 9 II. The February 2009 Minute Entry ¶18 In the February 2009 minute entry, the court entered several orders that required Mother to demonstrate certain behavior. A. The Trial Court Improperly Ordered That Mother Follow an Injunction Against Harassment to Which She Was Not a Party. ¶19 The Parenting Coordinator reported learning from Father that in a separate proceeding, Father had obtained an injunction against harassment against Lenny Tasa-Bennett, an individual whom Father described as Mother s live-in boyfriend. The injunction restricted Mr. Tasa-Bennett from having contact with Father, the children, and other members of Father s family. The record contains no Mother as a defendant. indication that the injunction named But at the February hearing, the court ordered: IT IS FURTHER ORDERED directing Mother to follow the Injunction currently in place which restricts Mr. Tasa-Bennett from being around the minor children. If it is determined that this Order is violated, Mother s overnight parenting time will be suspended. (Emphasis added.) ¶20 If the court reasonably found that it was in the children s best interests not to have contact with Mr. TasaBennett, the court could have ordered Mother to avoid affirmative contact with Mr. Tasa-Bennett during her parenting 10 time. The court could likewise order Mother to take all appropriate measures to keep the children from having contact with him. an The court could not, however, simply bind Mother to injunction responsible to for which the she was compliance of not a party another. or We make her vacate the portion of the order that could be construed as binding Mother to the injunction, because the order does not provide fair notice of the conduct expected from Mother. B. The Court Improperly Ordered That Mother Not Publish Further Audiotapes, Videotapes, or Written Documentation About the Legal Proceedings. ¶21 The Parenting Coordinator reported that Mother had made an audio recording of a voice mail message from Father, and had posted the recording on YouTube under the title Dr. Patrick Kelledy yelling at his ex-wife AGAIN. The Parenting Coordinator immediately instructed Mother to remove the posting, and Mother complied with the instruction several days later. The Parenting Coordinator made the following recommendation to the court: That Mother be ordered not to make any further audio or videotapes or any written documentation about these legal proceedings public in any fashion and that any further violations will be punished by monetary sanctions. The court made the recommendation its own order by approving and adopting it. See ARFLP 74(J). 11 ¶22 Because the order preemptively forbade speech concerning a public proceeding, it constituted a classic prior restraint on speech. U.S. 544, 550 publication See, e.g., Alexander v. United States, 509 (1993). are the [P]rior most restraints serious and the on speech least and tolerable infringement on First Amendment rights, Nebraska Press Ass n v. Stuart, 427 U.S. 539, 559 the (1976), and is a heavy validity constitutional there of a prior presumption against restraint. New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam). ¶23 If the court reasonably found that Mother s publication of information related to the legal proceedings was harmful to the children, the court could have premised an order reducing Mother s parenting time or imposing other appropriate sanctions on such a finding. concerning the legal sanctions, the court s prior restraint. But by ordering that any speech proceedings order would amounted to result an in monetary unconstitutional Accordingly, we vacate the order. C. There Is No Record Support for Mother s Challenge to the Proceedings Concerning Her Order of Protection. ¶24 Mother contends that the court improperly refused to hear a threatening recording during the hearing on the order of protection she had obtained against Father. The record contains no factual support for Mother s contention - the minute entry 12 does not indicate that the court made any evidentiary rulings regarding the exclusion of evidence, provided the transcript of the hearing. and we have not been Accordingly, we have no basis upon which to consider Mother s assignment of error. III. A. ¶25 The April 2009 Minute Entry Mother s Absence at the Evidentiary Hearing Mother had notice of the April 2009 hearing, failed to attend. explanation for but She failed to contact the court with an her nonattendance, and although a caller described a medical emergency to court staff, the identity of the caller was unknown. In these circumstances, we discern no abuse of discretion in the court s decision to proceed with the properly noticed hearing in Mother s absence. We note also that Mother did not attempt to seek relief in the superior court after the hearing by producing evidence of a medical emergency. B. ¶26 Parenting Time Modification In the February 2009 minute entry, the court suspended Mother s weekday parenting time without comment.6 In the April 2009 minute entry, the court stated: 6 Nothing in the record supports Mother s argument that the court suspended her weekday parenting time as retribution for the fact that she had filed for an order of protection against Father. Similarly, nothing in the record supports Mother s argument that no witnesses or evidence were allowed at the February 2009 hearing. The record, which does not include a transcript of the hearing, indicates that Mother and Father both testified. The minute entry contains no indication that the 13 [T]he Court finds that Mother has repeatedly failed to abide by Court orders over the course of recent proceedings in this case and has failed to consider the best interests of her children as follows: 1) [T]o date, Mother has failed to provide the Court and/or the PC [Parenting Coordinator] with any proof of her current residence and whether she has sufficient and safe accommodations for her children during her parenting time with them; 2) Mother has failed to keep the children safe from her boyfriend/roommate, Mr. Lenny Tasa-Bennett, against whom Father was forced to obtain an Order of Protection to protect the children and himself. The children witnessed Mr. Tasa-Bennett in possession of firearms in the trunk of his and/or Mother s vehicle; 3) Mother has continued to fail to secure each of her children in separate, secure seat belts in the vehicles in which she is driving or riding; 4) Mother contributed to and assisted in setting in motion the public humiliation and police detention of Father at the boys school play on February 20, 2009, providing a signal to her boyfriend, Mr. Tasa-Bennett, who brought the police to the school under false pretenses. Father was removed from the auditorium in full view of both of the minor children and was detained for many hours during the performance. When the police discovered the deception by Mr. TasaBennett, he fled the scene; 5) Most disturbing is the fact that Mother left the school grounds with both children to begin her weekend parenting time after the play ended and while the police still had Father detained, and Mother failed to address the children s concerns about their Father, except to imply that he was going to jail. After more than 24 hours, the children were finally able to reach their Father by telephone to learn that he was safe and not in jail; court made any evidentiary rulings regarding the exclusion of evidence or other witnesses. 14 6) Mother affirmatively misled school officials on the day of the February 20th police incident at the school by providing the school with a copy of the Order of Protection that this Court had quashed ten (10) days earlier. Moreover, during the incident with the police at the school later that same evening, Mother failed to inform the officers that the Order of Protection they discovered in their records [sic] search had been quashed; 7) Mother has failed to provide the Court and/or the PC a copy of a progress report from her Counselor, Cindy Baysdorfer, of the Family Services Agency, specifying the kinds of instruction and education being provided to assist Mother in the area of CoParenting. Based upon all of the foregoing, IT IS ORDERED modifying Mother s parenting time from alternate weekends to supervised parenting time only by Parenting Skills or similar agency and/or by a supervisor approved by Father, pursuant to a schedule left to Father s discretion with no overnight access until further Order of the Court or recommendation by the PC. ¶27 The superior court is in the best position to determine the parenting measures that are in a child s best interests, and therefore parenting time. 818, 823 (1970). has broad discretion to determine Armer v. Armer, 105 Ariz. 284, 289, 463 P.2d We will not disturb the superior court s determination of parenting time unless it clearly appears that the court has mistaken or ignored the evidence. 15 Id. A.R.S. §§ 25-411(D) (Supp. 2009)7 and 25-410(B) (2007) ¶28 govern the court s authority to modify parenting time and impose supervision requirements. A.R.S. § 25-411(D) (Supp. 2009) provides: 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. A.R.S. § 25-410(B) provides: [I]f the court finds that in the absence of the order the child s physical health would be endangered or the child s emotional development would be significantly impaired, and if the court finds that the best interests of the child would be served, the court shall order a local social service agency to exercise continuing supervision over the case to assure that the . . . parenting time terms . . . are carried out. ¶29 Contrary to Mother s argument on appeal, the court need not make written findings regarding the standards set forth in A.R.S. §§ 25-411(D) and 25-410(B) (2007). Hart v. Hart, 220 Ariz. 183, 187, ¶ 16, 204 P.3d 441, 445 (App. 2009). absence of written findings regarding the specific In the statutory standards, we will presume that the trial court knew the law and applied it correctly. Id. at 188, ¶ 18, 204 P.3d at 446. 7 We cite to the current versions of statutes revisions material to our decision have since occurred. 16 That when no presumption may be overcome if the court uses language that indicates it applied an incorrect standard. ¶30 Here, the court s written See id. findings supporting the modification were labeled as examples of how Mother had failed to comply with court orders and consider the children s best interests. The findings themselves, however, illustrate that the considered both the portion the A.R.S. court endangerment of best interests § 25-411(D) and standard, the and also considered the significant impairment standard of A.R.S. § 25-410(B). ¶31 Mother contends that the findings were not supported by the evidence. transcripts of But because Mother has not supplied us with the hearings, supported the findings. 967 P.2d at 1025. that Father s assume that the evidence See Johnson, 192 Ariz. at 489, ¶ 11, Additionally, we reject Mother s arguments testimony was we because it false Father s credibility was could not and be considered included for the trial as inadmissible court to evidence hearsay. determine, Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998), and strict compliance with the Arizona Rules of Evidence had not been required. See ARFLP 2 (absent a party s timely pre-hearing request for strict compliance with the rules of evidence, all relevant evidence generally is admissible). 17 ¶32 had We note that if the court s second enumerated finding relied on Mother s failure to comply with the earlier, invalid order regarding the injunction against Mr. Tasa-Bennett, that finding would be improper. the court s evidence to other findings support the But that was not the case, and provided conclusion sufficient that Mother independent seriously endangered the children s health and harmed their best interests by allowing Mr. Tasa-Bennett to be around them. ¶33 Based on the trial court s findings, we conclude that the order was a measured response to conduct palpably injurious to the interests of the children, and in no way constituted an abuse of discretion. C. ¶34 Restrictions on Mother s Ability to Seek Modification After entering the order modifying Mother s parenting time, the court ordered: IT IS FURTHER ORDERED that prior to filing any Petition to Modify these Parenting Time Orders, except in an emergency pursuant to the requirements of A.R.S. § 25-411(A), Mother must: 1) produce to the Parenting Coordinator a signed, original copy of her current residential lease, including information as to all authorized cohabitants of said premises; 2) produce to the Parenting Coordinator a progress report from her counselor, Cindy Baysdorfer, regarding the education/tools being provided to Mother on the issue of Co-Parenting; 3) produce proof of the resolution/dismissal of any and all falsified Injunctions or Orders of Protection 18 involving Father, boyfriend/roommate household. ¶35 the children, and and/or any members Mother s of her Mother contends that she had already complied with the court s earlier orders to provide her lease and the counselor s report. She further contends that she never misrepresented the existence of injunctions or orders of protection. ¶36 Nothing in the record demonstrates that the court s findings of fact were clearly erroneous. found that Mother had failed relevant counselor s report. to The court specifically provide her lease and the The court also found that Mother had affirmatively misled police and school officials regarding the status of her order of protection against Father, and had played a role in Mr. Tasa-Bennett s use of false pretenses to instigate a police confrontation with Father at the children s school. The Parenting Coordinator s report explained that Mr. Tasa-Bennett had told police that Father was in violation of an order of protection prohibiting Father from having contact with Mr. Tasa-Bennett s son, but police later discovered that the paperwork Mr. Tasa-Bennett showed them was not a valid order of protection. ¶37 The court s findings provided an adequate basis for the parenting time modification order. Therefore, we do not find that the court abused its discretion by requiring that 19 Mother remedy the deficiencies identified in the findings before seeking relief. D. Reallocation of Parenting Coordinator Fees ¶38 When the Parenting Coordinator was appointed in August 2008, Father was ordered to pay all of the Parenting Coordinator fees. In the April 2009 minute entry, the court ordered that Mother and Father would share equal future Parenting Coordinator fees. responsibility for all Mother contends that the fee reallocation was an abuse of discretion because a significant disparity exists between her financial circumstances and Father s financial circumstances. ¶39 A.R.S. § 25-406(B) provides that when allocating the cost of a Parenting Coordinator,8 the court must consider the parties financial circumstances. Section 25-406(B) does not, however, make the parties finances the exclusive consideration. And ARFLP 74(D) discretion. parties does not impose any limits on the court s The court had discretion to consider not only the relative financial circumstances, but also each parent s responsibility for the conduct giving rise to the need for the expense of a Parenting Coordinator. The court held multiple hearings and became well versed in the totality of the 8 The statute refers to the allocation of the family court advisor. In ARFLP, the term Coordinator has replaced family court advisor. committee cmt. 20 cost of a Parenting ARFLP 74 circumstances of the parties dispute. On this record, we do not find that the court abused its discretion by reallocating future Parenting Coordinator fees equally between the parties. E. Attorney s Fees ¶40 The court ordered Mother to pay $750 as a contribution toward Father s attorney s fees and costs. the court abused its discretion. Mother contends that She again contends that there is a significant disparity between her financial resources and Father s financial resources. ¶41 The attorney s court fees has based discretion not only on to the award reasonable parties financial circumstances, but also on the reasonableness of the positions that the parties have taken throughout the proceedings. § 25-324(A) (Supp. 2009). much of the conduct on A.R.S. In view of the unreasonableness of this record, we find no abuse of discretion in the court s award. F. Announcement Regarding the Assignment of the Case ¶42 The court ordered that the case be permanently assigned to Judge Carey Hyatt for all further proceedings, in the event of a change in case type assignments. Mother contends that the court abused its discretion by entering this order. ¶43 Judge Hyatt was assigned to the parties case for all proceedings relevant to this appeal. 21 Should Judge Hyatt determine it advisable to retain assignment of the case after rotation to a different department of superior court, the assignment would have to be approved by the presiding judge of the family court department. See Ariz. Local R. Prac. Super. Ct. (Maricopa) 6.1(b). ¶44 Contrary to Mother s contention on appeal, judicial rotation is not administrative a right prerogative belonging of the to a party. presiding It judge is the of the superior court in each county to assign judges as needed to manage the caseload of the court as a whole. Nothing on this record suggests that continued assignment of this case to a single judge is legally improper. IV. Judicial Bias ¶45 Mother contends that Judge Hyatt has acted unprofessionally, and is biased against Mother because Mother is acquainted with Mr. Tasa-Bennett. According to Mother s appellate briefs, Mr. Tasa-Bennett was a litigant in a different case before Judge Hyatt. ¶46 There is a strong presumption that trial court judges are free of bias and prejudice. State v. Cropper, 205 Ariz. 181, 185, ¶ 22, 68 P.3d 407, 411 (2003). To overcome that presumption, a litigant must show by a preponderance of the evidence that a judge has feelings of ill will or favoritism toward one of the litigants. Id. 22 Mother has failed to meet that burden of proof. Nor does our review of the record reveal any evidence that suggests judicial bias. Attorney s Fees and Costs on Appeal ¶47 Father requests attorney s fees and costs on appeal pursuant to A.R.S. § 25-324 and ARCAP 21. Mother requests costs on appeal pursuant to A.R.S. § 25-324 and ARCAP 21. In our discretion, we decline to award fees and costs on appeal. Conclusion ¶48 For the reasons set forth above, we vacate in part but otherwise affirm. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ____________________________________ DANIEL A. BARKER, Judge 23

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