SORRELL v. SORRELL

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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 Marriage of: ) ) WHITNEY L. SORRELL, ) ) Petitioner/Appellant, ) ) v. ) ) JOAN COLETTE SORRELL, ) ) Respondent/Appellee. ) ) __________________________________) DIVISION ONE FILED: 10/31/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0524 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2008-050040 The Honorable Stephen J.P. Kupiszewski, Judge Pro Tempore AFFIRMED Yearin Law Group by Donald Yearin Attorney for Petitioner/Appellant Scottsdale P O R T L E Y, Judge ¶1 Whitney L. Sorrell ( Father ) appeals the order granting Joan Colette Sorrell ( Mother ) sole custody of their three minor children and modifying his parenting time. Father contends that the family court erred by (1) denying his motion to continue and (2) limiting the duration of his testimony. For the following reasons, we affirm. FACTS ¶2 Father and Mother were divorced in September 2008, and were appointed joint legal custodians of their children. Some two years later, Mother filed a petition to become the sole custodian of the children, to modify Father s parenting time and his child support obligation. ¶3 Both parties testified at the 2012 hearing. After the hearing, the family court found that the children loved their parents; the parents were unable to co-parent; and Father had a more significant inability to co-parent than Mother. As a result, the court granted Mother s petition, made her the sole legal custodian of the children and modified Father s parenting time. Father then filed this appeal. 1 DISCUSSION I. Denial of Motion to Continue ¶4 denying Father first contends that the family court erred by his motion to continue the hearing parenting counseling had been completed. 1 until the co- He suggests that if Mother did not file a brief on appeal. In the exercise of our discretion, we decline to treat her failure to file an answering brief as a confession of error. See Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982) ( Although we may regard [the] failure to respond as a confession of reversible error, we are not required to do so. ). 2 the counseling had been allowed to be completed the ruling may have been different. ¶5 We review the denial of a motion to continue for an abuse of discretion. Nordale v. Fisher, 93 Ariz. 342, 345, 380 P.2d 1003, 1005 (1963); State v. Barr, 217 Ariz. 445, 447, ¶ 6, 175 P.3d 694, 696 (App. 2008). if a decision untenable is grounds untenable reasons. An abuse of discretion exists manifestly or if unreasonable its discretion or is is based on exercised for Schwartz v. Superior Court, 186 Ariz. 617, 619, 925 P.2d 1068, 1070 (App. 1996). ¶6 2010. Mother filed her petition to modify custody on July 1, The parties resolved some of the issues by agreement in September 2010 and the hearing resolve the custody issue. was set for January 2011 to Because of a judicial reassignment, the hearing was reset to June 2011. Father moved to continue the hearing and it was reset for October 2011. A month before the October 31 hearing, Father filed his unsuccessful motion to continue. ¶7 Father moved to continue the hearing for a minimum of sixty days to allow the parents the opportunity to complete the joint co-parenting started. His counseling motion, sessions however, failed that they had just to state when the counseling would be completed, but suggested that [t]he co- 3 parenting issues will hopefully be resolved by effective coparenting counseling. ¶8 At the time Father filed his motion to continue, Mother s modification petition had been pending for more than a year. Mother parenting responded sessions, the and argued various hired were ready to testify. that other professionals than that the had cobeen The court then considered the pleadings and denied the motion. On this record, we cannot find that the family court abused its discretion by denying Father s motion. II. Time Limitation on Father s Testimony ¶9 Father next contends that the family court erred by limiting the imposition duration of time of his limitations testimony. for an We abuse review the of discretion. Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 13, 224 P.3d 215, 218 (App. 2010) (citing Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 91, ¶ 30, 977 P.2d 807, 813 (App. 1998)). court may proceedings impose and it reasonable has time broad chooses to manage a trial. limits discretion in The [family] on the the trial manner it Ariz. R. Fam. L.P. 77(B)(1); see also Ariz. R. Evid. 611 (stating that the court shall exercise reasonable control over witness interrogation and the presentation of evidence); Gamboa, 223 Ariz. at 402, ¶ 13, 224 P.3d at 218. 4 ¶10 Father, who was represented by counsel, did not seek additional time to complete his testimony or present additional evidence before the close of the hearing. 2 The family court, as a result, did not have the opportunity to address the issue. Generally, issues considered waived. raised for the first time on appeal are Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 (App. 2007). Because counsel did not seek additional time during the hearing, the issue has been waived. See id. CONCLUSION ¶11 Based on the foregoing, we affirm the rulings and the family court s custody order. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ______________________________ JOHN C. GEMMILL, Judge /s/ ______________________________ KENT E. CATTANI, Judge 2 The family court had set five hours for the hearing but subsequently extended the hearing to nearly seven hours. At the time the hearing concluded, neither party requested additional time to present any additional evidence. 5

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