Matthews v. Robles ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
DUSTIN MATTHEWS, Petitioner/Appellant,
v.
ROSEANN ROBLES, Respondent/Appellee.
No. 1 CA-CV 16-0774 FC
FILED 10-26-2017
Appeal from the Superior Court in Maricopa County
No. FC2012-093973
The Honorable Richard J. Hinz, Judge Pro Tempore
AFFIRMED
APPEARANCES
Dustin Matthews, Tempe
Petitioner/Appellant
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Margaret H. Downie joined.
MATTHEWS v. ROBLES
Decision of the Court
C A M P B E L L, Judge:
¶1 Dustin Matthews (“Father”) appeals the denial of his petition
to enforce parenting time and the award of attorney fees in favor of Roseann
Robles (“Mother”). For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Pursuant to a paternity judgment entered in December 2013,
Father and Mother were awarded joint legal decision-making authority
with Father having parenting time during the week from 6:30 a.m. through
4:30 p.m. and alternating weekends.
¶3 In September 2016, Father filed a petition to enforce, seeking
to compel Mother’s compliance with the parenting time order. The
underlying facts were not disputed. The maternal grandparents picked up
the child from day care on weekdays prior to 4:30 p.m. Father did not get
off work until 5 p.m. If Father could leave work early, he called Mother to
request the child be left at day care—in that case, Father picked up the child
and parented him until 4:30 p.m. Mother testified she would have made the
child available to Father by having the maternal grandparents return with
the child had he asked. According to Mother, “[t]hat’s not ever actually
come up as an issue thus far.”
¶4 After an evidentiary hearing, the family court denied the
petition, finding as follows:
Mother is not refusing to allow Father to exercise his
parenting time. The parties need to communicate in an open
and honest manner about the welfare of the child. If Father is
able to leave work early to exercise his parenting time
Monday through Friday from 6:30 a.m. to 4:30 p.m., he shall
communicate such to Mother at least 30 minutes in advance.
If Mother or the maternal grandparents pick the child up
early, the Court does not find it constitutes a violation of
Father’s parenting time as it appears that Mother is willing to
allow Father to have the child at that time if Father is able to
leave work early.
¶5 Thereafter, the family court awarded Mother $850 in attorney
fees, concluding that Father’s position was unreasonable because (i) he was
never denied “any physical parenting time” and (ii) “it is mainly an issue
of control for [him].” See Ariz. Rev. Stat. (“A.R.S.”) § 25-324 (attorney fees).
MATTHEWS v. ROBLES
Decision of the Court
Father timely appealed. We have jurisdiction pursuant to A.R.S.
§ 12-2101(A)(2). See In re Marriage of Dorman, 198 Ariz. 298, 300, ¶ 3 (App.
2000).1
DISCUSSION
I. Petition to Enforce Parenting Time
¶6 Father argues the family court (1) “revoked” his
constitutional right to make decisions concerning the care, custody, and
control of the child without due process and (2) “violated” his right under
Arizona law to make routine decisions regarding the child during his
parenting time, i.e., whether it was acceptable for the maternal
grandparents to pick up the child before 4:30 p.m. See A.R.S. § 25-401(2), (5).
¶7 We view the evidence in the light most favorable to sustaining
the family court’s ruling, deferring to its factual findings unless clearly
erroneous. Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 17 (App. 2015); Walsh v.
Walsh, 230 Ariz. 486, 490, ¶ 9 (App. 2012). We defer to the family court to
decide witness credibility and weight to give the evidence. Gutierrez v.
Gutierrez, 193 Ariz. 343, 347-48, ¶ 13 (App. 1998). We review de novo
questions of law, including the interpretation of a decree or court order.
Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13 (App. 2001). We also review de
novo an alleged denial of due process. Jeff D. v. Dep’t of Child Safety, 239
Ariz. 205, 207, ¶ 6 (App. 2016).
¶8 Father argues the family court “revoked” his constitutional
right to make decisions concerning the care, custody, and control of the
child without due process. But a party asserting a denial of due process
must show prejudice, e.g., Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 17 (App.
2010), and Father has shown none. Father also argues the court “violated”
his right under Arizona law to make routine decisions regarding the child
during his parenting time, i.e., whether it was “acceptable” for the maternal
grandparents to pick up the child before 4:30 p.m. See A.R.S. § 25-401(2), (5).
Even assuming an error on this basis, the error was harmless. See Ariz. R.
Fam. Law P. 86 (“The court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the substantial
rights of the parties.”). Father offers no persuasive explanation why it was
unacceptable for the maternal grandparents to pick the child up early from
1 Mother did not file an answering brief. In our discretion, we decline
to consider her failure to file an answering brief a confession of reversible
error. See Gonzales v. Gonzales, 134 Ariz. 437, 437 (App. 1982).
MATTHEWS v. ROBLES
Decision of the Court
day care when such action does not prevent him from exercising his allotted
parenting time.
II. Attorney Fees
¶9 Father argues the family court erred by awarding Mother
attorney fees under A.R.S. § 25-324 because she did not request fees on this
basis, his “reasonableness was not in question” within the meaning of the
statute, and the court failed to evaluate the financial resources of both
parties. We review de novo questions of law, including the application of a
fee statute. Burke v. Ariz. State Ret. Sys., 206 Ariz. 269, 272, ¶ 6 (App. 2003);
Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, 205, ¶ 5 (App. 2014).
¶10 The family court was not required to make findings of fact
because Father did not request them. See Myrick v. Maloney, 235 Ariz. 491,
494-95, ¶ 10 (App. 2014). Thus, we assume the court resolved each issue of
fact in a way that supports its decision. See Murren v. Murren, 191 Ariz. 335,
337, ¶ 8 (App. 1998) (citing Crye v. Edwards, 178 Ariz. 327, 328 (App. 1993));
Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13 (App. 2001). Although A.R.S. §
25-324 lists “reasonableness” and “financial resources” as factors, a fee
“applicant need not show both a financial disparity and an unreasonable
opponent in order to qualify for consideration for an award.” Magee v.
Magee, 206 Ariz. 589, 591 n.1, ¶ 8 (App. 2004); see also Rinegar v. Rinegar, 231
Ariz. 85, 90, ¶ 23 (App. 2012) (recognizing fee award may be based on
financial disparity alone). The family court’s findings regarding the
reasonableness of Father’s position were supported by the evidence.
Accordingly, its decision to award Mother attorney fees was not an abuse
of discretion.
CONCLUSION
¶11 For the foregoing reasons, we affirm the denial of Father’s
petition to enforce parenting time and the award of attorney fees. Because
MATTHEWS v. ROBLES
Decision of the Court
Father is not the prevailing party, we deny Father’s request for fees and
costs on appeal.
AMY M. WOOD • Clerk of the Court
FILED: AA