Lewis v. Rehkow

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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 DIVISION ONE FILED: 06/14/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) KIMBERLY LEWIS, ) ) Petitioner/Appellee, ) ) v. ) ) WILLIAM ANDREW REHKOW, ) ) Respondent/Appellant. _______________________________________ ) In re the Marriage of: 1 CA-CV 11-0091 DEPARTMENT A MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2002-004726 The Honorable Pamela S. Gates, Judge AFFIRMED Kimberly Lewis, In Propria Persona Petitioner/Appellee Phoenix William Andrew Rehkow, In Propria Persona Respondent/Appellant Scottsdale N O R R I S, Judge ¶1 William Andrew Rehkow ( Father ) timely appeals the family court s order which, first, found him in contempt for failing to pay Kimberly Lewis ( Mother ) attorneys fees and costs after he agreed to do so, second, denied his petition for make-up parenting time as a sanction for Mother s alleged contempt of parenting-time orders, and third, denied his request that it hold Mother in child s school records. contempt for manufacturing their For the following reasons, we affirm the family court s order. FACTS AND PROCEDURAL BACKGROUND ¶2 As this court noted in a previous decision, [s]ince 2002, [Father] and [Mother] have been engaged in contentious litigation over their divorce and custody of their minor child. Lewis v. Rehkow, 1 CA-CV 09-0569, 2011 WL 1536416, at * 1, ¶ 2 (Ariz. App. April 21, 2011) (mem. decision). As relevant here, between 2003 and 2007, the family court and this court ordered Father to pay Mother $32,617.87 in attorneys fees and costs resulting from the parties numerous disputes (the underlying judgments ). ¶3 Pursuant to Arizona Rule of Family Law Procedure 69(A), on May 22, 2007, the family court entered on the record an agreement the parties reached that required Father to pay Mother the underlying judgments in $750-per-month payments (the 2007 Rule 69 agreement ). Pursuant to the parties agreement, Father started making monthly payments to Mother and did so for ten months, see infra ¶ 14. 2 ¶4 At the beginning of 2008, however, Mother began refusing to accept Father s monthly checks because they were endorsed to her personally. to her counsel. she learned Mother insisted Father endorse them As Mother testified at the evidentiary hearing, Father had been going through her personal materials, including bank ledgers, and became scared to death he would copy [her] signature and forge things. 1 ¶5 On February 21 2008, for reasons discussed below, see infra ¶ 26, the family court entered another judgment ordering Father to pay Mother $49,392 in attorneys fees and costs (the February 2008 judgment ). ¶6 Then, in July 2008, Mother garnished $1,872.63 from Father s bank account as payment towards judgments and the February 2008 judgment. the underlying According to Father s former counsel s testimony, 2 he agreed to resume making monthly payments shortly thereafter and to write his checks to Mother s counsel. Father, however, did not make any further payments. ¶7 In July 2009, Mother moved to enforce the 2007 Rule 69 agreement. Father did not respond to her motion, and the court 1 Mother s former counsel, who no longer represented her by the time of the evidentiary hearing, also testified she read emails from Father bragging about copying [Mother s] signature. 2 Father s counsel no longer represented him by the time of the evidentiary hearing. 3 granted the motion on July 21, 2009, ordering Father to recommence the monthly payments of $750, pursuant to his Rule 69 Agreement and make his payments payable directly to Mother s counsel (the July 2009 enforcement order ). this order, as discussed below, but still Father challenged did not make any further payments. ¶8 court Finally, to hold in November Father in 2009, contempt Mother for asked failing the to family make the payments required by the 2007 Rule 69 agreement and the July 2009 enforcement order. Father then asked the court to find Mother in contempt for interfering with his parenting time on Thanksgiving 2009 and to order her to allow him make-up parenting time. ¶9 Before the court held its evidentiary hearing on these requests, the parties filed further pleadings. Each alleged the other had violated the court s orders regarding their child s school records. ¶10 After briefing and an evidentiary hearing, on August 24, 2010, the court found Mother s concerns about the check endorsements were reasonable, but Father had nevertheless attempted to satisfy his payments, and did not find either party in contempt of the 2007 Rule 69 agreement for their actions before July 2008 (the August 2010 ruling ). 4 It found, however, Father in contempt of the 2007 Rule 69 agreement for failing to make payments after he agreed through counsel to do so in July 2008. The court further affirm[ed] the February 2008 judgment, but did not find Father in contempt for actions or inactions related to that judgment. DISCUSSION ¶11 For clarity and brevity, we reorganize and rephrase Father s arguments on appeal. 3 I. Jurisdiction ¶12 As an initial matter, we note Father has appealed the court s ruling on the parties various requests for contempt findings and sanctions. 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 [his] appeal . . . 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). 3 Father asserts on appeal Mother and her attorney have lied to law enforcement in order to influence this custody case. They have also repeatedly lied to several trial judges and Mother s attorney has clearly committed fraud upon the court. These claims and Father s efforts to obtain a change of custody were addressed in this court s memorandum decision issued April 21, 2011. Lewis, 1 CA-CV 09-0569, 2011 WL 1536416. These allegations and claims were not involved in the ruling Father now challenges (the August 2010 ruling), and are not properly before us. We express no opinion on those issues. 5 ¶13 Father jurisdiction agreement to because argues the find him he had family in court contempt appealed the of did the July not 2007 2009 have Rule 69 enforcement order, which directed him to perform his obligations under the 2007 Rule 69 agreement. We disagree. Although Father had appealed the July 2009 enforcement order and that appeal was pending (although subsequently dismissed 4) when the family court entered its August 2010 ruling, it did not stay its July 2009 enforcement order and it retained jurisdiction to enforce the 2007 Rule 69 agreement. See Carp v. Superior Court, 84 Ariz. 161, 164, 325 P.2d 413, 416 (1958) ( [W]here the proceedings are not stayed the court may enforce a judgment theretofore entered. ). II. The 2007 Rule 69 Agreement ¶14 As explained, the family court found Father was obligated to pay Mother pursuant to the 2007 Rule 69 agreement. The family court also found that after Father had paid her for ten months, she stopped accepting his checks and garnished his bank account. At that point, as Father s former counsel testified, the parties agreed Father would resume paying. On appeal, Father challenges the court s findings regarding both the 2007 Rule 4 69 agreement and the parties This court dismissed the appeal because Father did not pay the filing fee. 6 in subsequent December 2010, clarification he would resume paying and write his checks to Mother s counsel. ¶15 First, Father seems to argue the 2007 Rule 69 agreement was invalid because it did not contain a contingent provision. We disagree. The family court set forth on the record before a judge the terms of the agreement as required by Rule 69(A)(2), and the record reflects the parties entered the agreement voluntarily. Indeed, Father argued to the family court that he and Mother made the agreement on the record in the spirit of cooperation. Further, Father made payments for at least ten months pursuant to the agreement. we reject Father s argument the 2007 Rule On this record, 69 agreement was invalid. ¶16 Father next seems to argue Mother waived her right to enforce the 2007 Rule 69 agreement by waiting until July 2009 to ask the court to order him to resume making payments. Father did not raise this argument in the family court and has waived it. ¶ 18, Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, 169 P.3d 120, 125 (App. 2007) (citation omitted) ( [G]enerally, arguments raised for the first time on appeal are untimely and deemed waived. ). consistently asserted her Even if not waived, Mother has right to payment and has not relinquished any rights related to the 2007 Rule 69 agreement. 7 ¶17 in Father next argues the court abused its discretion finding he remained obligated to pay because Mother breached the 2007 Rule 69 agreement by garnishing his bank account. 5 Although the court did not explicitly find Mother breached the agreement, it did find she prematurely garnished the $1,872.63. It also found, however, that any arguably contemptuous conduct in doing so was de minimis when weighed against Father s various obligations to pay, and she would have nevertheless been entitled to pursue garnishment after he continued to refuse to pay after agreeing through counsel to do so in July 2008. its discretion On this record, the family court did not abuse in making these findings. See Federoff v. Pioneer Title & Trust Co. of Ariz., 166 Ariz. 383, 388, 803 P.2d 104, 109 (1990) (citation omitted) ( [W]e will sustain [factual] findings unless they are clearly erroneous or unsupported by any credible evidence. ). ¶18 Father next challenges the court s finding he agreed through counsel in July 2008 to resume paying under the 2007 Rule 69 agreement, arguing there was no record of the parties agreeing that all payments would be sent directly to Mother s former counsel and the court did not confirm the agreement[ s] 5 Under the 2007 Rule 69 agreement, Mother was entitled to execute on the various judgments if he did not pay within a 7-day grace period after the monthly payments were due. 8 terms on Father s the record former pursuant counsel to Rule testified 69. he We believed disagree. the check endorsement issue was a matter that could easily be addressed and he resolved it by agreeing in writing that checks made payable to [Mother s counsel] would be accepted and applied to the [underlying judgments]. He further testified, I consulted [Father] with it. I told [him] about it . . . . [and] believe[d he] agreed to it. recollection. agreement in [He was] not very happy about it, is my Mother s writing. former Thus, counsel the court also did confirmed not abuse the its discretion in finding Father had agreed through counsel in 2008 to resume making payments. ¶19 Father next argues the court abused its discretion because it did not make a finding that the agreement [made through his counsel in 2008 to resume making payments] was fair as required by Arizona Revised Statutes ( A.R.S. ) section 25317(B) (2007). Father raised this issue for the first time in his motion to reconsider, and thus waived it. See Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, 137, ¶ 18, 235 P.3d 285, 290 (App. 2010) ( Generally, we do not consider arguments raised for the first time in a motion for reconsideration. ). Even if separation not waived, agreement[s] A.R.S. and § has 9 25-317(B) no governs application to written Father s agreement through counsel he would write his checks to Mother s counsel. ¶20 In sum, the court did not abuse its discretion in finding Father was obligated to pay Mother under the 2007 Rule 69 agreement and agreed through counsel in 2008 to resume paying by writing checks to her counsel. III. Contempt Findings A. Father s Contempt of the 2007 Rule 69 Agreement ¶21 Father next argues the court should not have found him in contempt of the 2007 Rule 69 agreement because its finding Mother Father had to use extremely Mother. trash reasonable her signature illogical We disagree. and collected concerns and not regarding for an supported the improper by any potential for purpose was testimony of Mother testified he had gone through her her personal materials, and her former counsel testified he had bragged about using her signature. 6 The record amply supported the court s findings Mother s concerns were reasonable. See Federoff, 166 Ariz. at 388, 803 P.2d at 6 To the extent Father argues it was highly inappropriate for the [family] court to believe Mother, we defer to the [family] court s determination of witnesses credibility. Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App. 1998) (citation omitted). 10 109 (appellate court will sustain findings unless unsupported by any credible evidence ). B. Parenting Time ¶22 his Father also challenges the court s findings regarding allegations Mother parenting time in 2009. interfered with his Thanksgiving The court found, in the past, Father failed to notify Mother in a reasonable fashion to inform her that he was not exercising his Thanksgiving parenting time, . . . [and] the child would wait on Thanksgiving for Father to appear for his parenting time. The court also found Mother s trip [over Thanksgiving 2009] did not preclude Father s full parenting time, because he never confirmed he intended to use the time and Mother credibly testified had Father notified her [he wanted parenting time] . . . she would not have taken the trip with the minor child. ¶23 Father argues these findings were not supported by the evidence, and he was advance. We disagree. not required to confirm his visits in The court s findings were abundantly supported by both Mother s testimony and her former counsel s testimony at trial, including statements that Father had never used his Thanksgiving time and could have used it by responding to Mother after she repeatedly asked whether he wished to do so. 11 C. School Records ¶24 Father next argues the court abused its discretion by failing to doctoring hear the testimony child s of school Mother s attorney records. We regarding disagree; the parties had fully briefed the dispute, and nothing would have been served by holding an evidentiary hearing. ¶25 Father alleged Mother redacted their child s school records before giving him copies, in contempt of prior court orders. Mother redacted the responded, records, and arguing also her alleged former child s school in contempt of prior court orders. had contacted Father counsel the The fact her counsel redacted or, as Father argued, doctored the records was plainly admitted in both parties filings. The court later ruled the matter [was] fully briefed and there was no good cause to reasonably proceed. and denied It then their found requests neither for party contempt acted findings. After reviewing the record, we hold the court did not abuse its discretion in making these findings and conclusions after considering the parties briefing and without hearing testimony from Mother s former counsel on this issue. See Andrews v. Blake, 205 Ariz. 236, 252, 69 P.3d 7, 23 (2003) ( trial court may deem an evidentiary hearing necessary or helpful. that option to the trial court s sound discretion. ). 12 We leave IV. The February 2008 Judgment ¶26 Father next argues the family court should not have affirmed the February 2008 judgment, see supra ¶ 5, because, among other matters, it was unconstitutional because it restricted free speech and was void . . . due to fraud upon the court by Mother s former counsel. As background, on November 8, 2007, the family court found Father in contempt of a prior ruling (entered on December 18, 2006), which essentially directed the parties to ensure that there was no dissemination of information related to this case in any fashion to any third party. Father In the November 8, 2007 ruling, the court sanctioned by costs. ordering Then, on him to pay Mother s February 21, 2008, attorneys the court fees and entered its judgment awarding Mother these fees and costs, which totaled $49,392. reasons Mother not appealed relevant the November here, and 8, 2007 Father ruling for cross-appealed, challenging the November ruling and the resulting February 2008 judgment. This court, however, dismissed Father s cross appeal because he failed to pay the filing fee, and we affirmed the family court s challenges. November See Lewis 8, v. 2007 Rehkow, ruling, 1 CA-CV rejecting 08-0401, 387751 (Ariz. App. Feb. 12, 2009) (mem. decision). Father argues the family court 13 should not have Mother s 2009 WL Although affirmed the February 2008 judgment unconstitutional, fees. because that it was, judgment among merely other awarded things, attorneys His arguments are actually directed to the November 2007 ruling. ¶27 Although 2008 judgment family court its in the August 2010 affirm[ed] ruling, the the February parties never contested the November 2007 ruling or the February 2008 judgment in their February petitions 2008 Furthermore, giving rise judgment because to did this this not court appeal. Thus, need to be affirmed the November the affirmed. 2007 ruling (which imposed the fees assessed in the February 2008 judgment), it is too late for Father to attack either ruling on appeal. V. Due Process ¶28 Father next argues the family court violated due process because it prejudged the case and denied his motion to enlarge the hearing time. testimony for two parties filings, hours, and We disagree. admitted even noted 17 it The court heard exhibits, had gone reviewed through the [the] extremely voluminous file and pulled out every single order and would review any and all pleadings before ruling. court prejudged Father s relevant orders along with the Nothing in the record indicates the case, 14 and it did not abuse its discretion in limiting the hearing to two hours. See Ariz. R. Fam. L.P. 22(1) (court may impose reasonable time limits on all proceedings or portions thereof and limit the time to the scheduled time ); Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 13, 224 P.3d 215, 218 (App. 2010) (citation omitted) (court has broad discretion over the management of a trial ). ¶29 Finally, prevented him from Again, we disagree. call witnesses. Father argues testifying the at family the court evidentiary improperly hearing. Both parties were permitted equal time to There is no evidence the court refus[ed] to allow Father to testify; it allowed him to present the witnesses of his choice and he elected to use his time questioning his former court s counsel finding and Mother. Father had The a present evidence. 15 record full and amply fair supports the opportunity to CONCLUSION ¶30 For the foregoing reasons, we affirm the court s August 2010 ruling finding Father in contempt of the 2007 Rule 69 agreement and denying his request it hold Mother in contempt. We award Mother her costs on appeal subject to her compliance with Arizona Rule of Civil Appellate Procedure 21(c). /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ ____ _ ANN A. SCOTT TIMMER, Presiding Judge /s/ DONN KESSLER, Judge ____ _ 16

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