Lemay v. Lemay ( 2021 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
    RUXANDRA LEMAY, Petitioner/Appellee,
    v.
    ANDREW LEMAY, Respondent/Appellant.
    No. 1 CA-CV 20-0425 FC
    FILED 9-21-2021
    Appeal from the Superior Court in Maricopa County
    No. FC2019-070731
    The Honorable Lori H. Bustamante, Judge
    The Honorable Lisa A. VandenBerg, Judge
    AFFIRMED
    APPEARANCES
    Andrew LeMay, Litchfield Park
    Respondent/Appellant
    LEMAY v. LEMAY
    Decision of the Court
    MEMORANDUM DECISION
    Judge Maurice Portley1 delivered the decision of the Court, in which
    Presiding Judge Jennifer B. Campbell and Judge Samuel A. Thumma joined.
    P O R T L E Y, Judge:
    ¶1            Andrew LeMay (“Father”) appeals the family court’s decree
    of dissolution and post-decree orders denying his motions to set aside the
    decree. He alleges Judge Lori H. Bustamante had a conflict of interest and,
    because she did not sua sponte recuse herself, the decree should be declared
    void. For the following reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2            Father and Ruxandra LeMay (“Mother”) got married in 2003
    and have three children. Mother works full-time as a corporate controller
    for an automotive company, works two days a week as a self-employed
    psychologist, and has authored at least two books. By 2006, Father left his
    employment to help raise the couple’s children, while Mother continued to
    work and obtained a doctorate degree. Father also spends time vlogging
    (posting short videos to) a “Kids YouTube Channel.”
    ¶3            In February 2016, the parties signed a post-marital agreement.
    The written agreement required Father to refrain from certain activities
    absent Mother’s approval and, in exchange, Mother “agree[d] to not
    divorce [Father] for 10 (ten) years,” adding that “[s]hould [Mother] attempt
    to dissolve, annul, or other form of divorce [Father], [Mother] relinquishes
    custody of children to [Father] and agrees to pay for child support and
    alimony.” Although the parties later amended the agreement, the nature
    of the amendments are unclear from the record.
    ¶4            In June 2019, the parties’ eight-year-old middle child, who has
    ADHD, had a temper tantrum while riding in the car with his siblings and
    Father. The child threw a shoe at Father, who pulled over and left the child
    on the side of the road, then proceeded to drop the eldest child off at a pool
    1      The Honorable Maurice Portley, Retired Judge of the Court of
    Appeals, Division One, has been authorized to sit in this matter pursuant
    to Article 6, Section 3, of the Arizona Constitution.
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    LEMAY v. LEMAY
    Decision of the Court
    party. The middle child screamed, cried, and hid in nearby bushes until
    Father returned about ten minutes later.
    ¶5            Father was charged criminally in municipal court as a result
    of the incident. In November 2019, Father pled guilty to disorderly conduct
    (unreasonable noise), a class one misdemeanor, and was fined $250 and
    ordered to complete an eight-hour parenting skills program. The Avondale
    “City Prosecutor” listed on the plea agreement form was “Alan
    Kuffner/Manny Bustamante,” with Alan Kuffner signing the agreement.
    Later, on behalf of the City of Avondale, Kuffner moved to dismiss the
    criminal charges against Father after Father signed a general release of all
    claims against the City and others. Father’s criminal case was dismissed
    without prejudice on December 11, 2019.
    ¶6           Meanwhile, Mother moved out of the family home to an
    apartment in Goodyear in August 2019. Father remained in the home,
    while Mother continued to pay the mortgage, the children’s expenses, and
    other bills.
    ¶7            In November 2019, Mother filed her petition to dissolve their
    marriage. After filing a self-represented response to the petition, Father
    later hired an attorney, who represented him through conclusion of the
    dissolution trial. Both parties sought sole legal decision-making authority,
    primary care of the children, and child support.
    ¶8            In June 2020, the parties appeared before Judge Bustamante
    for the divorce trial. The parties reached an agreement on several property
    issues, and Mother agreed to continue paying the $1,184 monthly mortgage
    on the parties’ home through June 2022, while Father continues to live in
    the home. The parties agreed that, after June 2022, the home would be sold.
    ¶9           Later in June 2020, the court issued a decree of dissolution.
    Noting the June 2019 incident, for purposes of the decree, the court found
    Father had “not engaged in acts of domestic violence against the [middle]
    child.” The court awarded the parties equal parenting time and joint legal
    decision-making authority, with Mother having the ability to make final
    decisions. The court also ordered Mother to pay Father $437 for monthly
    child support and—in addition to paying the mortgage for two years—pay
    Father $500 in monthly spousal maintenance for two years. The court
    equitably divided the parties’ remaining assets and ordered Mother to pay
    the remaining credit card debts.
    ¶10           On July 6, 2020, before his attorney withdrew, Father filed a
    self-represented motion to vacate the decree and for new trial based on an
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    alleged conflict of interest. Father had been aware Judge Bustamante had
    the same surname as Manny Bustamante—whose law firm, Bustamante &
    Kuffner PC, represented the City of Avondale in negotiating Father’s plea
    deal. Accordingly, after the dissolution decree was issued, Father made
    inquiry and confirmed that Judge Bustamante is married to Manny
    Bustamante. Father’s motion to vacate did not state, and the record does
    not show, that Father had ever advised his counsel or Judge Bustamante of
    any alleged potential conflict of interest or actual conflict. Moreover, he
    never moved for a change of judge nor showed that he had been prejudiced
    in any way by any alleged conflict.
    ¶11           At the end of June 2020, Judge Bustamante moved to a
    different assignment, and this case was assigned to Judge Lisa A.
    VandenBerg. Judge VandenBerg denied Father’s motion, explaining in part
    that Father did not cite, and the court was unaware of, any legal theory
    supporting his motion, adding that Father was required to provide
    supporting authority, concluding it “is unclear upon what legal theory”
    Father was relying.
    ¶12            Father then filed a “Motion to Rule on Motion to Vacate Due
    to Conflict of Interest,” which the court denied as moot based on its prior
    ruling. In a later minute entry, the court explained that the motion also did
    “not provide specific facts or events to demonstrate that Judge Bustamante
    had a conflict of interest in the case that was before [her].” In January and
    February 2021, Father filed identical “Motion[s] to Consider Newly
    Discovered Evidence,” which the court denied, again explaining the
    motions did not provide any facts, evidence, or context to void the decree.
    ¶13           After Mother filed a petition for modification of child support
    in February 2021, Father filed a “Motion for Continuance Poisonous Tree
    Doctrine,” which again provided no facts, context, or comprehensible
    argument. The court denied the motion. The court incorporated each post-
    decree ruling in a February 2021 minute entry.
    ¶14           We have jurisdiction over Father’s appeal. See Ariz. Rev. Stat.
    (“A.R.S.”) § 12-2101(A)(1), (2), (5)(a); see also Yee v. Yee, 
    251 Ariz. 71
    , 73, ¶ 1
    (App. 2021).
    ANALYSIS
    I.      Appellate Briefing
    ¶15            Although this court has discretion to consider Mother’s
    failure to file an answering brief as conceding error, see ARCAP 15(a)(2);
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    LEMAY v. LEMAY
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    Gonzales v. Gonzales, 
    134 Ariz. 437
    , 437 (App. 1982), we decline to do so,
    given that the best interests of the children are at issue, see Hoffman v.
    Hoffman, 
    4 Ariz. App. 83
    , 84-85 (1966).
    ¶16           Moreover, Father’s opening brief is not a model of clarity.
    Among other things, it does not indicate he raised the issue to the court
    before the dissolution trial and contains assertions outside of the record.
    See ARCAP 13(a). Although we could summarily reject Father’s appeal, see
    Clemens v. Clark, 
    101 Ariz. 413
    , 414 (1966); Lederman v. Phelps Dodge Corp., 
    19 Ariz. App. 107
    , 108 (1973), we will address the merits of the arguments we
    can identify presented in Father’s appeal.
    II.    Father’s Claim of Judicial Bias or Partiality
    ¶17           Father does not argue that Manny Bustamante played any
    role in the Avondale case. He does not even suggest that the case had not
    been resolved before any hearings in the divorce case in the superior court,
    and in fact, Father’s Avondale proceedings had concluded before Judge
    Bustamante issued her first minute entry, setting a Resolution Management
    Conference for January 2020. Father only argues that because Manny
    Bustamante is a partner in the law firm that handled Father’s Avondale
    criminal case, Judge Bustamante had a conflict of interest in Father’s
    divorce proceedings and should have sua sponte recused herself. Father
    further maintains that, because she did not do so, his right to due process
    was violated, and we should impose civil and criminal sanctions upon the
    judge, declare the decree void, and order a new trial.
    ¶18             As previously noted, there is nothing in the record that
    suggests that Father ever advised anyone, including Judge Bustamante, at
    any time before the decree was issued about his concerns that the judge
    might be related to one of the City of Avondale’s prosecutors and that the
    relationship might somehow impact Father’s divorce proceedings. Father
    did not claim in his motion to vacate, and does not argue on appeal, that he
    ever advised Judge Bustamante, or her staff, of any alleged potential
    conflict of interest. Nor does the record reflect that Father provided a notice
    of change of judge, see Ariz. R. Civ. P. 42.1, or filed a motion for change of
    judge for cause, see Ariz. R. Civ. P. 42.2.
    ¶19           Moreover, Father has not included a transcript of the
    dissolution trial. When an appellant fails to include a transcript of the
    proceedings, we assume the missing portions of the record support the
    court’s findings and ruling. Baker v. Baker, 
    183 Ariz. 70
    , 73 (App. 1995);
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    LEMAY v. LEMAY
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    accord Kohler v. Kohler, 
    211 Ariz. 106
    , 108, ¶ 8 n.1 (App. 2005). Applying that
    rule here, Father has shown no error.
    ¶20            Even assuming Father did not waive the issue of judicial bias
    or partiality, however, nothing in Father’s appeal demonstrates Judge
    Bustamante knew of any potential conflict before trial, that any actual
    conflict existed, or that Father was prejudiced in any way by an alleged
    conflict. Father does not argue Judge Bustamante did not fairly consider
    the evidence presented at trial, and he raises no specific arguments with
    respect to the decree. Further, in the decree, Judge Bustamante not only
    found Father had not engaged in acts of domestic violence against the
    middle child, but she also awarded Father equal parenting time, joint legal
    decision-making authority, child support, and spousal maintenance. Just
    because Father may have an undeclared disagreement with the family
    court’s decree does not demonstrate that the court was biased or exhibited
    partiality.2
    III.   Father’s Due Process Argument
    ¶21            Father also does not demonstrate he was denied due process.
    Father was given notice of the dissolution hearing, appeared with counsel,
    testified, had at least one of his exhibits received in evidence, and entered a
    binding Rule 69 agreement with Mother. Accordingly, his due process
    rights were not violated. Moreover, to the extent his due process argument
    asks that we reweigh the evidence, we do not do so on appeal, see Hurd v.
    Hurd, 
    223 Ariz. 48
    , 52, ¶ 16 (App. 2009), and realistically cannot do so
    without a transcript, see Romero v. Sw. Ambulance & Rural/Metro Corp., 
    211 Ariz. 200
    , 203, ¶ 4 (App. 2005) (holding that unsupported arguments
    without the relevant transcripts are insufficient for this court to
    meaningfully review a trial court’s rulings or overcome the presumption
    2      Father argued before the family court that Mother violated the
    parties’ 2016 agreement when she filed for divorce. He does not overtly
    make that argument in his opening brief, however, and appears to have
    abandoned it. See Jones v. Burk, 
    164 Ariz. 595
    , 597 (App. 1990) (“Issues not
    clearly raised and argued in a party’s appellate brief constitute waiver of
    error on review.”). Even if Father continues to rely on this argument as
    “evidence” that Judge Bustamante was biased against him because she did
    not award him greater parenting time, child support, or spousal
    maintenance, the record does not reflect the full parameters of the parties’
    revised agreement. And as we have previously recognized, we must
    presume any missing documents and the missing transcript support the
    court’s decree. See Baker, 
    183 Ariz. at 73
    .
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    LEMAY v. LEMAY
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    that those rulings are supported by the record). Father has not rebutted the
    presumption of judicial impartiality, and under the record as presented, he
    has shown no error in the decree and the family court’s resolution of his
    post-trial motions.
    IV.    Fruit of the Poisonous Tree Doctrine
    ¶22             Father also argues the family court erred in declining to apply
    the “fruit of the poisonous tree” doctrine to his case. See Wong Sun v. United
    States, 
    371 U.S. 471
    , 488 (1963). As the family court correctly explained,
    however, that Fourth Amendment doctrine has no application to Father’s
    divorce proceedings.
    V.     Attorneys’ Fees and Costs on Appeal
    ¶23           Father requests attorneys’ fees and costs on appeal. Father is
    self-represented, and he is not the prevailing party. Accordingly, Father’s
    request for attorneys’ fees and costs is denied.
    CONCLUSION
    ¶24          We affirm the family court’s decree of dissolution and
    subsequent orders memorialized in the court’s February 2021 minute entry.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    7
    

Document Info

Docket Number: 1 CA-CV 20-0425-FC

Filed Date: 9/21/2021

Precedential Status: Non-Precedential

Modified Date: 9/21/2021