Sakry v. Young

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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: ) ) SCOTT JOSEPH SAKRY, ) ) Petitioner/Appellee, ) ) v. ) ) LEI ANN VARLETTA YOUNG, ) ) Respondent/Appellant. ) ) DIVISION ONE FILED: 04/10/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0058 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2009-000737 The Honorable David J. Palmer, Judge AFFIRMED Law Office of Alyson M. Foster, PLC By Alyson M. Foster Attorney for Petitioner/Appellee Tempe Lei Ann Varletta Young, In Propria Persona Tracy, CA N O R R I S, Judge ¶1 Lei Ann Varletta Young ( Mother ) appeals from the judgment of the family court in this paternity and child custody action. The family court awarded sole legal custody of the parties child to Scott Sakry ( Father ) and parenting time to Mother. For the reasons stated below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 The parties are the unmarried parents of one minor child. They lived together in Arizona months after the birth of their child. for approximately 17 On October 25, 2008, the parties argued and had a physical altercation. When Father left the house the next day for a planned hunting trip, Mother filed a police report alleging domestic violence and moved to California with their child. When Father returned home, police arrested violence him on domestic charges, which Father subsequently pled no contest to, then completed the terms of his plea agreement. ¶3 On February 9, 2009, Father petitioned to establish paternity, custody, parenting time, and child support. Mother challenged Arizona s jurisdiction over the matter, but the court denied her motion and exercised jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. Stat. ( A.R.S. ) §§ 25-1001 to 1067 (2007). family court awarded sole legal custody See Ariz. Rev. After a trial, the to established a schedule for Mother s parenting time. also ordered Mother based Mother s upon to pay 65% of recalcitrance 2 Father s during Father The court attorneys [the] and fees, litigation, exemplified by her failure to cooperate in the discovery process and the preparation of a custody evaluation. DISCUSSION 1 ¶4 Mother raises a number of arguments on appeal, including two she did not raise in the family court 2 and which, therefore, we do not address. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000) (citation omitted) (appeals court generally does not consider issues raised for first time on appeal). I. Jurisdiction A. Father s Petition ¶5 over Mother Father s argues paternity paternity action. the family action We disagree. court because lacked Father jurisdiction initiated the We independently review the jurisdiction of the trial court as an issue of law. R.A.J. v. L.B.V., 169 Ariz. 92, 94, 817 P.2d 37, 39 (App. 1991). 1 Father did not file an answering brief. Although we could consider this a confession of error, see ARCAP 15(c), in the exercise of our discretion we decline to do so. See Thompson v. Thompson, 217 Ariz. 524, 526 n.1, ¶ 6, 176 P.3d 722, 724 n.1 (App. 2008). 2 The record does not reflect Mother raised in the family court her arguments the family court incorrectly determined Arizona was the child s home state and Father s failure to visit the child and pay child support constituted abandonment of the child. 3 ¶6 Mother relies on case law holding that an earlier statute governing paternity petitions did not allow a father to bring a paternity action against the mother. Sheldrick v. Maricopa Cnty. Superior Court, 136 Ariz. 329, 331, 666 P.2d 74, 76 (1983); see also Allen v. Sullivan, 139 Ariz. 142, 143, 677 P.2d 305, 306 (App. 1984) ( [W]e are constrained to hold that [the father] has paternity. ). no statutory means of establishing his own Current statutes and case law, however, make it clear that fathers can file petitions to establish their own paternity. 168 See A.R.S. § 25-803(A)(2) (2007); Ban v. Quigley, Ariz. 196, (amendments to 198-99, the code 812 P.2d must 1014, have been 1016-17 intended (App. to 1990) provide standing to commence a paternity action to a putative father ). B. Improper Service ¶7 Mother also argues the family court lacked jurisdiction because Father served her with the petition and summons via the posting method. At a hearing on July 29, 2009, however, Mother expressly agreed to accept service of the petition and summons in light of the family court s decision to continue the temporary orders hearing to allow her more time to prepare. Mother accordingly waived any objection to Father s method of service, and we therefore reject Mother s argument she was not properly served. 4 C. Inconvenient Forum ¶8 Mother jurisdiction Arizona was proceedings. 3 further because the it most argues abused the its convenient family discretion forum for court in lacked determining the custody Specifically, Mother argues the court failed to consider all of the relevant factors listed in A.R.S. § 25-1037. We disagree. The record reflects the parties submitted lengthy memoranda to the court discussing all of the applicable factors, and the family court noted in its minute entry that it had considered the information and argument presented . . . [and] the [statutory] factors. We therefore hold the family court did not abuse its discretion in determining Arizona was the most convenient forum. II. ¶9 Civil Contempt 4 On August 27, 2009, Father requested the family court hold Mother in contempt, alleging she had failed to obey a court order to execute and return an acceptance of service of the 3 We review this decision for an abuse of discretion. Tiscornia v. Tiscornia, 154 Ariz. 376, 377, 742 P.2d 1362, 1363 (App. 1987). 4 Although [t]his court lacks jurisdiction over an appeal from a civil contempt adjudication . . . [i]n the exercise of our discretion . . . we elect to treat [Mother s] appeal from the contempt order as a petition for special action and accept special action jurisdiction. State ex rel. Dep t of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 18, 66 P.3d 70, 73 (App. 2003) (citations omitted). 5 paternity petition and to timely provide discovery responses. At the temporary orders hearing, Father re-urged his motion for contempt, but the family court declined to address the contempt issues at the hearing, noting Mother had not yet responded. Mother eventually responded, but the court struck her response for failing to comply with Arizona Rule of Family Law Procedure ( Rule ) 31. 5 in contempt On January 28, 2010, the family court found Mother for failing previously ordered. fees that were responses as to respond to discovery as The court awarded Father his attorneys expended in seeking sanction and notified a requests to procure Mother [discovery] that it would consider imposing additional sanctions if she did not respond to the discovery 2010, the failing Father requests family to his court provide by February again found discovery, attorneys 28, fees Mother and, and 2010. as On in October 4, contempt sanctions, prohibited for awarded Mother from introducing exhibits at trial or giving oral testimony on the issues of her income or earning potential or child support. A. Due Process ¶10 Mother argues that because no order to show cause for any violation of any court order was ever issued, she never had . . . prior notice of any hearings related to any contempt[] 5 Mother never filed a proper response to the contempt motion. 6 of court issue and thus, the orders finding her in contempt of court were made without due process. ¶11 We disagree. We review de novo Mother s claim she was denied due process. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6, 2 P.3d 100, 103 (App. 1999) (citation omitted). [n]o civil contempt may be imposed Rule 92(B) specifies without notice to the alleged contemnor and without providing the alleged contemnor with an opportunity to be heard. See also Precision Components, Inc. v. Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 555, 880 P.2d 1098, 1101 (App. 1993) (citation omitted) ( [T]he imposition of sanctions should be preceded by some form of notice and opportunity to be heard on the propriety of imposing the sanctions. ) ¶12 Here, the record is clear Mother received notice of the pending request for sanctions; Father had urged the motion several times and the court repeatedly extended the time Mother had to provide discovery responses. Mother also had an opportunity to respond in writing, which she failed to do after her original response was stricken. The family court s imposition of sanctions did not violate Mother s due process rights. 7 B. Improper Sanctions ¶13 Mother further argues the contempt sanctions imposed by the [family] court unnecessarily interfered with its duty to consider the child s best interests by preventing Mother from introducing any witnesses or evidence at the time of trial related to any issue concerning [the child]. and quotes extensively from Hays v. Gama, Mother relies on where our supreme court vacated evidentiary sanctions excluding the testimony and records of the child s therapist because this evidence had an especially significant effect on the ability of the court to determine the child s best interests. 67 P.3d 695, 699 (2003). 205 Ariz. 99, 103, ¶ 22, We review the family court s contempt order for an abuse of discretion. Id. at 102, ¶ 17, 67 P.3d at 698 (citation omitted). ¶14 At trial, Mother asked the family court to reconsider its sanctions regarding submitting evidence, because at the root of this case is the issue of domestic violence . . . [and if she was] not able to submit evidence to that regard, . . . [it] goes against the grains of the best interest of the child. Mother also sought to introduce evidence of other issues concerning [her] move to California. testify sanctions about it those had The court told Mother she could issues, imposed, but, she 8 could due not to the offer evidentiary witnesses or exhibits. Mother later attempted to introduce as an exhibit a police report relating to Father s domestic violence, but the family court preclude[d] the documents for lack of disclosure as [it] indicated in [its sanction] order. The court told Mother it was aware Father had pled no contest to a domestic charge and she could testify to domestic violence. The family court also denied Mother s request to present testimony from a couple [of] witnesses. ¶15 The excluding family this court evidence, and misplaced for two reasons. that the evidentiary authorized superior by the court nor did not Mother s its discretion reliance on Hays in is First, the Hays court emphasized sanctions discovery any abuse at rules party ha[d] issue there not [n]either because were the identified any discovery order that Mother failed to obey, and thus, the sanctions were imposed pursuant to the court s inherent contempt power. 205 Ariz. at 101-02, ¶¶ 15-16, 67 P.3d at 697-98. Here, the family court to repeatedly found Mother had failed comply with discovery orders, and Rule 65(B)(2)(b) specifically authorizes orders prohibiting [the disobedient] designated matters in evidence. party from introducing Second, unlike the evidentiary sanctions in Hays, the family court did not exclude any evidence that had an especially significant effect on its ability to 9 determine the child s best interests. Here, in the months leading up to trial, Mother filed multiple memoranda describing the domestic violence incident in depth and evidencing Father s convictions for assault and disorderly conduct. The family court also specifically permitted Mother to testify regarding the child s best interests. Accordingly, the family court did not abuse its discretion by imposing evidentiary sanctions on Mother. III. Disqualification of Family Court Judge A. Mother s Motion to Disqualify the Family Court Judge ¶16 The family court judge held a telephonic status conference with the parties on September 28, 2010 at 8:39 a.m. During this conference, counsel for Father reminded the judge that he had filed motions requesting the court find Mother in contempt and issue discovery sanctions. Mother objected, and told the judge she had filed a motion to disqualify him. family court judge told Mother her motion had not yet The been filed, but, if and when it was filed, it would be given due consideration. the conference. After setting a trial date, the court concluded The record reflects the clerk of the court filed Mother s motion to disqualify the family court judge at 1:33 p.m. the same afternoon. On September 30, a different family court judge entered an order denying Mother s motion. 10 On October 4, 2010, the judge assigned to her case entered orders finding Mother in contempt and imposing discovery sanctions, see supra ¶ 9. ¶17 Mother argues that, by issuing contempt orders and sanctions, the family court judge assigned to her case exceeded his authority by continuing to act in the matter after a motion to disqualify was filed against him and was filed with the court. We disagree. Mother s argument ignores or overlooks that, as discussed above, the judge assigned to her case did not issue the contempt disqualify that judge was pending. order while her motion to That judge did not rule on the contempt issue until after the second judge had denied her motion to therefore, disqualify. exceed his The family authority. court See judge Ariz. R. did not, Civ. P. 42(f)(3)(B) ( If the court determines that the party who filed the notice of affidavit is not entitled to a change of judge, then the judge named in the notice or affidavit shall proceed with the action. ). B. The Family Court Judge s Post-Judgment Recusal ¶18 Approximately five months after issuing a final judgment decree in the custody matter, the family court judge voluntarily disqualified himself for reasons not stated in the record. Mother argues that, because 11 the family court judge recused himself after the judgment, it can only be assumed that [the judge] was . . . biased and prejudiced at the time he presided over the trial. Mother cites, as proof of the family court judge s alleged bias and prejudice, his failure to rule on Mother s motion for attorneys fees in a timely manner as well as his finding that Mother had refused to participate in the custody evaluation. ¶19 We find no support for this argument in the record. The family court filed a post-judgment minute entry explaining in detail why it had not ruled on Mother s motion for attorneys fees. The court noted the delay occasioned by Mother removing the case to federal court and the federal court then remanding the case back to the family court, and explained that [i]mplicit in [the family court s] award of attorney s fees to Father was the fact that the Court was denying Mother s request for attorney s fees, costs and expert witness fees. The family court note nevertheless acknowledged it had failed to that denial in its original ruling and expressly denied Mother s motion for fees [t]o correct that inadvertent oversight. addition, the record contains ample evidence supporting In the family court s finding that Mother failed to cooperate with the custody evaluation. Further, Mother s allegations of prejudice do not arise from an extra-judicial source. 12 It is generally conceded that the bias and prejudice necessary to disqualify a judge must arise from an extra-judicial source and not from what the judge has done in his participation in the case. Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App. 1977). We therefore reject Mother s argument the family court judge was prejudiced or biased during her trial. IV. Custody A. Domestic Violence ¶20 Mother further argues the family court incorrectly found that Father s acts of domestic violence against Mother did not constitute significant domestic violence as that term is described in A.R.S. § 25-403.03(A) (2007). We review the family court s custody decisions for an abuse of discretion, do not reweigh the evidence on appeal, and affirm the [family] court s ruling if substantial evidence supports it. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009). ¶21 occurring Mother testified to one incident of domestic violence, roughly two years earlier. Father was verbally abusive and, according to Mother, grabbed her, pushed her down, and slapped her. Domestic violence is never acceptable, but on this record we cannot say the family court abused its discretion by finding that Father s acts were not significant when viewed in the spectrum of domestic violence and in the context of the 13 parties overall relationship. Mother testified Father was drunk on that occasion and stated she had never claimed he beat [her] up, or . . . held a gun to [her] head. Under these circumstances, where an isolated incident occurred some years previously, A.R.S. § a trier of 25-403.03(A) fact did could not reasonably preclude conclude awarding that custody to Father. 6 See Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, P.2d 694 1181, 1185 (1985) (citation omitted) ( [T]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. We cannot substitute our discretion for that of the trial judge. ). 6 Mother contends that the court incorrectly found Father completed a domestic violence course and successfully completed misdemeanor probation. Father testified he successfully completed the terms of his no contest plea by meeting with a counselor and completing one year of probation. Thus, the family court s finding is reasonably supported by this testimony. Mother also challenges the evidence supporting the court s finding she waited several days to call the police after her altercation with Father. The record reflects this finding was incorrect; as Mother points out, Father testified at trial Mother waited 17 or 18 hours before calling the police. The family court did not, however, rely on this finding in reaching its conclusion their altercation was not significant domestic violence for purposes of A.R.S. § 25-403.03(A) and, therefore, this factual error does not affect our holding that the court did not abuse its discretion in awarding sole custody to Father. 14 B. Best Interests Attorney ¶22 Mother argues the family court abused its discretion by denying her motion to appoint a best interests attorney for the child and not joining the child as a party. We disagree. The family court has statutory discretion to appoint an attorney to represent the interests of a child in a custody dispute. A.R.S. § 25-321 (2007). We will reverse this decision only upon an abuse of that discretion. Ariz. motion 267, did attorney 275, not 877 for P.2d allege the child. J.A.R. v. Superior Court, 179 1323, any 1331 relevant (App. See id. at basis 276, 1994). Mother s for appointing 877 P.2d at an 1332 (setting forth factors relevant in deciding motion to appoint attorney pursuant to A.R.S. § 25-321). Rather, Mother alleged Father was dishonest and made questionable parenting decisions. We therefore hold the family court did not abuse its discretion in denying Mother s motion to appoint an attorney for the child. C. Findings of Fact ¶23 Mother argues several of the family court s factual findings were erroneous and do not comport with the record of testimony. to We view the evidence in the light most favorable sustaining the [family] court s findings and determine whether there was evidence that reasonably supports the court s findings. Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 15 P.2d 676, 679 (App. 1998). The evidence in the record, however, supports the findings challenged by Mother. V. Attorneys Fees ¶24 by Mother argues the family court abused its discretion not granting her request A.R.S. § 25-403.08 (2007). ¶25 On order Father February to pay for attorneys fees pursuant to We disagree. 25, 2010, Mother s Mother requested attorney s fees, the court expenses and costs to enable Mother to obtain adequate legal representation and to prepare evidence for the hearing. Father did not respond to this motion, and neither party raised the issue of Mother s pending request for attorneys fees conference held one week before the trial. the court fees. eventually denied Mother s at the status As discussed above, request for attorneys We review for an abuse of discretion the court s denial of attorneys fees. Hormel v. Maricopa County, 224 Ariz. 454, 461, ¶ 27, 232 P.3d 768, 775 (App. 2010) (citation omitted). ¶26 Although financially disparity Mother insolvent between the argued and in there parties, her was she a did motion huge not she was financial provide any financial documentation establishing her lack of resources or any other evidence that would have allowed the family court to make a finding of financial disparity, 16 as required by the statute. A.R.S. expressly makes discretionary: § 25-403.08(B). the If family the In court s court finds addition, decision there the to is statute award a fees financial disparity between the parties, the court may order payment of reasonable fees, preparation. Id. expenses and (emphasis costs added). to allow Given the adequate limited information provided to the family court, it did not abuse its discretion in denying Mother s request for an award of attorneys fees pursuant to A.R.S. § 25-403.08(B). CONCLUSION ¶27 For the foregoing reasons we affirm the judgment of the family court. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: __ /s/ MARGARET H. DOWNIE, Judge __ /s/ DIANE M. JOHNSEN, Judge 17

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