Ward v. Ward ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
TOMMIE WARD, Petitioner/Appellant,
v.
SHANNA WARD, Respondent/Appellee.
No. 1 CA-CV 18-0551 FC
FILED 7-11-2019
Appeal from the Superior Court in Maricopa County
No. FC2013-051291
The Honorable Jennifer C. Ryan-Touhill, Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED
COUNSEL
Tommie Ward, Surprise
Petitioner/Appellant
Shanna Ward, Black Canyon City
Respondent/Appellee
WARD v. WARD
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Diane M. Johnsen joined.
W I N T H R O P, Judge:
¶1 Tommie Ward (“Father”) appeals the superior court’s 2018
order modifying parenting time, legal decision-making, and child support
for Father’s two children with Shanna Ward (“Mother”). Father also
appeals the court’s award of attorneys’ fees in favor of Mother. For the
following reasons, we vacate the child support award and remand for
further proceedings consistent with this decision. We affirm on all other
issues.
FACTS1 AND PROCEDURAL HISTORY
¶2 Father and Mother married in 2004 and have two children,
T.W. (born in 2004) and S.W. (born in 2008). After Father filed for
dissolution, the superior court issued a divorce decree in July 2013. In the
decree, the court granted equal parenting time and joint legal decision-
making authority and ordered Father to pay Mother spousal maintenance
and child support. Shortly after the divorce, Father moved approximately
forty-five minutes away from the children and Mother.
¶3 Father and Mother had trouble adhering to the parenting plan
and disagreed over T.W.’s need for counseling, the children’s schooling,
and other issues. The court appointed a parenting coordinator pursuant to
Arizona Rule of Family Law Procedure (“ARFLP”) 74 to assist in resolving
the issues. The parenting coordinator issued a series of reports outlining
the parties’ disagreements and made recommendations for resolving the
issues. Even after receiving these recommendations, the parties continued
to have disputes. Conciliation services also did not resolve the disputes.
¶4 In October 2017, Mother petitioned the court to modify
parenting time, legal decision-making, and child support. Mother sought:
1 “We view the evidence in the light most favorable to upholding the
trial court’s decision.” Baker v. Meyer, 237 Ariz. 112, 113, ¶ 2 (App. 2015).
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(1) primary physical custody of the children; (2) sole legal decision-making
authority; and (3) an increase in monthly child support. As “material
changes affecting the welfare of the children,” Mother identified the
children having different school schedules, T.W.’s need for mental health
counseling, the parties’ disagreement on disciplinary matters, and Father’s
general unwillingness to co-parent.2 Father then petitioned for T.W. to live
with him full-time and S.W. part-time.
¶5 Before setting a hearing on the petition, the court required the
parties to attend a resolution management conference. A court conciliator
interviewed the parties and both children and issued a report outlining his
findings as to the best interests of the children pursuant to Arizona Revised
Statutes (“A.R.S.”) section 25-403.
¶6 In July 2018, the court held an evidentiary hearing. Father
represented himself and Mother was represented by counsel. At the outset
of the hearing, Mother’s counsel objected to Father calling his adult son as
a witness. Mother’s counsel argued that the witness was untimely and
improperly disclosed. After hearing Father’s argument regarding the
relevance of his adult son’s testimony, the court sustained Mother’s
objection. Mother and Father were the only two witnesses that testified at
the hearing.
¶7 Mother testified that modification of legal decision-making
and parenting time was in the best interests of the children because she and
Father could not agree on any issues. She stated that Father’s request to
divide the children’s parenting time so that T.W. lived primarily with him
and S.W. lived primarily with her “doesn’t make sense” for the children
and “would be very strange for them.” She asserted that Father refused to
address the children’s school and medical issues and would not discipline
the children. She explained that the current parenting plan was
unworkable because the children were on different school schedules for the
first time, and Father also refused to let the children participate in
extracurricular activities. In addressing allegations Father made in his
pretrial statement, Mother denied having a substance abuse problem or
hitting T.W.; she instead suggested that Father encouraged T.W. to lie in his
interview with the conciliator.
2 Mother also argued that the time required for Father to pay spousal
maintenance had ended, which also necessitated a change in child support.
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¶8 On cross-examination, Father questioned Mother about the
accuracy of the gross income she reported to the court. Mother conceded
that she received $332 a month per child as Social Security benefits due to
her fibromyalgia. Mother stated she did not include the payments in her
gross monthly income because each payment “actually has [the children’s]
name on it.” On redirect, Mother conceded that she should have listed the
children’s benefits in her gross income, but she asserted that she disclosed
and accounted for the payments in the child support section of her financial
affidavit to the court.
¶9 Father then testified. After Father began reading from his
notes, the court stated that the written presentation sounded like what was
already in Father’s pretrial statement, which the court had already read; as
such, the written statement would be cumulative. The court instead offered
to ask Father a series of questions to clarify and supplement the information
in the pretrial statement. Father testified that he believed his son needed to
reside with him because “[h]e’s going through puberty and there are issues
there that a father knows best how to deal with instead of the mother.” He
also stated he believed the children were doing fine in school, but T.W.
would be better suited going to a school near Father. He asserted that T.W.
never showed signs of any mental health issues when at his house. Father
testified T.W. told him that Mother hit T.W. in the mouth and threw objects
at him. Father further alleged that Mother has a drinking problem and
abuses prescription drugs and marijuana. He testified that his children told
him Mother abused substances.
¶10 On cross-examination, Mother’s counsel questioned Father
about the accuracy of his reported income and the payments made for the
children’s health insurance. Father conceded that he had not disclosed all
the tax returns Mother had requested.
¶11 The court took the matter under advisement and issued a
written decision on August 7, 2018. The court granted Mother’s petition.
Specifically, the court ordered: (1) Mother have sole legal decision-making
authority over the children; (2) Mother have primary physical custody of
the children; and (3) Father to pay Mother $1,113 per month in child
support. The court also ordered Father to pay Mother’s attorneys’ fees,
finding that Father acted unreasonably throughout the litigation and his
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financial resources greatly outweighed Mother’s. Father timely appealed,
and we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (2019).3
ANALYSIS
I. Due Process
¶12 Father argues the superior court violated his due process
rights by waiting until after the hearing to weigh the credibility of the
conciliator’s report, refusing to let his adult son testify as a witness, and
refusing to let him read from his notes while testifying. We review
questions of due process de novo. See Jeff D. v. Dep’t of Child Safety, 239 Ariz.
205, 207, ¶ 6 (App. 2016). “Due process requires the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’” Id. ¶ 7 (quoting
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
A. The Conciliator’s Report
¶13 Father argues the court violated his due process rights by
failing to assess the credibility of the conciliator’s report before the
evidentiary hearing. T.W. stated in his interview with the conciliator that
Mother hit him often. Father asserts that if the court would have told him
the statements made by T.W. lacked credibility, Father would have offered
additional evidence to support T.W.’s statements that Mother physically
abused him. He maintains that if the court was not inclined to accept
without reservation the conciliator’s report and recommendations, it was
required to inform the parties before the hearing.
¶14 Father has shown no authority requiring the court to make
credibility findings before the close of evidence, and the law is to the
contrary.4 See ARFLP 82(a)(1) (“If requested before trial, the court must
make separate findings of fact and conclusions of law. The findings and
conclusions may be stated orally on the record after the close of the evidence
or may appear in an opinion, minute entry, or memorandum of decision
3 We cite to the current version of the statute(s) when no revisions
material to this decision have occurred.
4 Although Father cites to passages from the Arizona Family Law
Rules Handbook as legal authority for his position, the portion he quotes
relates to ARFLP 73, which does not address conciliation services.
Moreover, this secondary source is not precedential, and the applicable
ARFLP does not support Father’s position. See ARFLP 82(a)(1).
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filed by the court.”) (emphasis added). Father questions the court’s finding
that T.W.’s claims of abuse were “not credible.” The court did not hear T.W.
testify, so it could not have found the child not credible as a general matter.
But, the court did not solely rely on T.W.’s statements when it determined
no evidence supported his claims of abuse.
¶15 Father and Mother each testified about the allegations of
abuse and inappropriate behavior by Mother, and the court advised the
parties that it would review the conciliator’s report. The court concluded
in its under advisement ruling that Father’s own inconsistent statements
about the existence of abuse and the absence of any reports to the police or
the Department of Child Safety (“DCS”) all favored a finding that no
credible evidence supported the allegations. The superior court was in the
best position to determine the credibility of Mother and Father as witnesses
and give appropriate weight to the conciliator’s report, and we find no
abuse of that discretion. If Father had additional evidence to corroborate
T.W.’s reported statements, he should have offered that evidence at the
hearing.
B. Father’s Adult Son as a Witness
¶16 Next, Father argues the court violated his due process rights
by precluding his adult son, a child from a prior relationship, from
testifying. A trial court has considerable discretion in determining the
relevance and admissibility of evidence, State v. Smith, 136 Ariz. 273, 276
(1983), and may exclude irrelevant or duplicative evidence, Ariz. R. Evid.
402, 403.
¶17 Father asserts his adult son’s testimony would have been
relevant to “make significant connections of the inappropriate exposure
[the adult son] experienced [with Mother], and how he believes the same
building blocks are being built around [T.W.] as they were [with] him.”
Mother counters that Father’s son left Arizona in 2008 and did not return
until after the parties had separated in early 2013, and that the adult son
had no factual basis to testify about the current relationship between
Mother and T.W.
¶18 After Mother objected to having the son testify, the court
asked Father to respond. Father stated only that his son “can assist this
Court in finding insight into any issues which might be addressed in this
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action.” The court then sustained the objection.5 Father’s pretrial statement
explained his position on Mother’s alleged conduct and his suggestions that
Mother had an inappropriate relationship with T.W., and the court assured
Father it would consider his pretrial statement in making its ruling.
Further, Father had the opportunity during the hearing to additionally
address each contested issue. As such, the court acted within its discretion
when it weighed the relevancy of the adult son’s potential testimony and
ultimately precluded him from testifying. On this record, we see no abuse
of discretion or due process violation. See Smith, 136 Ariz. at 276.
C. Father’s Testimony
¶19 Finally, Father argues the court violated his due process rights
by refusing to allow him to read from his notes during the presentation of
evidence. Mother asserts the court did not violate Father’s rights because
he attempted to read “a self-authored speech from his attorney chair, when
he would have taken the stand if he had an attorney.”
¶20 “[A] trial court has broad discretion over the management of
a trial, and although it may place [] limitations on trial proceedings, any
limitations must be reasonable under the circumstances.” Gamboa v.
Metzler, 223 Ariz. 399, 402, ¶ 13 (App. 2010) (internal citation omitted). This
includes excluding evidence that the court deems cumulative or a waste of
time. Ariz. R. Evid. 403. Although courts may use their discretion in
conducting court proceedings to account for pro se litigants, they retain the
power to effectively manage a court proceeding. See id.; Ariz. R. Evid.
611(a)(1) (“The court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to . . . make
those procedures effective for determining the truth.”).
5 Mother originally objected to the adult son as a witness in her
pretrial statement, arguing the witness was untimely and improperly
disclosed. After hearing Father’s argument on the relevancy of his son’s
testimony, the court precluded the testimony without clarifying on what
basis it ruled. Even so, the record confirms Father disclosed the witness a
day late and the disclosure failed to provide the required summary of the
witness’ anticipated testimony. Johnson v. Provoyeur, 245 Ariz. 239, 241-42,
¶ 8 (App. 2018) (“The superior court has broad discretion in ruling on
disclosure and discovery matters, and this court will not disturb an
evidentiary ruling absent a clear abuse of discretion and resulting
prejudice.”).
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¶21 At the hearing, after Father was sworn-in, he attempted to
read notes from a legal pad as part of his testimony. After Father read only
two sentences, the court stated that his pre-written presentation sounded
like what was already in his pretrial statement, and the court did not want
or need cumulative information. The court instead offered to ask Father
questions in order to elicit his testimony. Father agreed, and after it
completed its questioning, the court gave him multiple opportunities to
offer any further thoughts he wanted to express. Father reiterated that he
“love[d] and care[d] for [his] children,” and stated he had repeatedly
attempted to mediate the children’s issues with Mother, but Mother failed
to cooperate. He also stated that he did not feel Mother acted in good faith
and asked the court to deny her request for attorneys’ fees.
¶22 We conclude the court’s questionable restriction on Father’s
narrative testimony ultimately did not impede Father’s ability to present
his position. Although Father was not permitted to proceed in the manner
he may have preferred, the record confirms he was not prejudiced by the
ruling because he had a meaningful opportunity to be heard on all the
relevant issues. See Mathews, 424 U.S. at 333.
II. Modification of Legal Decision-Making and Parenting Time
¶23 Father argues the court erred in finding it was in the best
interests of the children to modify legal decision-making and parenting
time. The superior court has broad discretion in determining what is in a
child’s best interests, and we review an order modifying legal decision-
making authority and parenting time for an abuse of that discretion. Baker,
237 Ariz. at 116, ¶ 10; Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003).
The court abuses its discretion “when the record, viewed in the light most
favorable to upholding the trial court’s decision, is devoid of competent
evidence to support [it].” Savord v. Morton, 235 Ariz. 256, 259, ¶ 10 (App.
2014) (internal citation and quotation omitted). We will not reweigh the
evidence, and we will affirm if substantial evidence supports the court’s
ruling. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).
A. Legal Decision-Making
¶24 Mother requested sole legal decision-making authority based
on her assertion that Father refused to address the children’s school and
medical needs. Father wanted sole legal decision-making authority for
T.W. and asserted there was no need to change the joint legal decision-
making for S.W. The court determined the best interests of the children
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required Mother to have sole legal decision-making authority over both
children.
¶25 After reviewing the testimony and other evidence presented
by Mother and Father and considering the factors in A.R.S. § 25-403(B), the
court found that Mother’s denials of Father’s allegations of domestic abuse
were credible because Father had given conflicting statements about
whether any abuse occurred and there were no police reports or DCS
documents to corroborate the allegations. Additionally, the court found
that T.W. “would benefit from counseling and Father’s refusal to agree to
this service and repeatedly blame Mother for all problems facing the
child(ren) is unreasonable and detrimental to the minor children.” The
court’s analysis of the best interests of the children was supported by
substantial evidence, and Father has shown no abuse of discretion.
B. Parenting Time
¶26 Mother petitioned to be the primary custodial parent for both
children and to change the parenting schedule for the children’s school
vacation; Father argued he should have primary custody of T.W., joint
custody of S.W., and alternating weekends with both children. The court
ultimately awarded Mother primary custody of the children, and Father
was awarded alternating weekends, after school one day a week and a
rotating holiday and vacation schedule.
¶27 The court considered the relevant factors identified in A.R.S.
§ 25-403(A) and found the best interests of the children would be to modify
the prior parenting plan. The court noted that Father had moved
approximately forty-five minutes away from the children after the divorce,
and, under the existing parenting plan, the children were spending a
significant amount of time commuting between the parents’ homes.
Further, the record shows that S.W. reported feeling tired because she had
to get up early to commute from Father’s house to school, and Mother
testified the children were missing out on extracurricular activities because
Father was not willing to drive them back and forth from his home. The
court determined a change in the parenting plan would “maximize[] each
parent’s parenting time to the extent it is in the children’s best interests.”
Substantial evidence in the record supports the court’s determination, and
we will not disturb the decision on appeal.
III. Child Support
¶28 Father contends the court abused its discretion in determining
Mother’s gross income when calculating child support. Specifically, he
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argues that the court erred by not considering $664 per month that Mother
receives in Social Security disability benefits on behalf of the children.
Mother argues the benefits are resources for the children and are not
“designed to supplement existing resources and are not intended to
displace the obligation of the parent to support his or her children.” She
further argues that Father never disclosed his W-2 statements for his current
employment or proof of medical insurance for the children. She asserts that
the superior court therefore “made the best possible decision, given what
the court had to work with.”
¶29 Whether the court should have included other amounts in
calculating Mother’s gross monthly income is a question of law we review
de novo. Patterson v. Patterson, 226 Ariz. 356, 358, ¶ 4 (App. 2011). In
determining whether the court abused its discretion, we consider whether
it made an error of law in reaching its discretionary conclusion. Grant v.
Ariz. Pub. Serv. Co., 133 Ariz. 434, 455-56 (1982). Gross income is considered
differently in calculating child support than for tax purposes, and, for
purposes of child support, it includes all money the household receives and
can spend. Strait v. Strait, 223 Ariz. 500, 502, ¶ 8 (App. 2010) (citing
Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994)).
¶30 At the hearing, Mother admitted that she began receiving
$664 in monthly Social Security disability benefits—$332 per child—shortly
after the parties divorced in 2013. Mother testified the payments were
earmarked for the children, and she did not pay taxes on these benefits;
accordingly, she did not believe these funds were reportable income to her,
but rather a source of child support that she reported as such on her
affidavit of financial information. In her answering brief, Mother maintains
that she did not intentionally try to hide the fact that the children received
the Social Security benefits.
¶31 Mother’s bank statements show she receives three direct
deposits from Social Security each month: one for $1,221 (for Mother’s
disability benefits) and two for $332—totaling $1,885. Mother concedes the
two $332 deposits are for the benefit of the children. On Mother’s April
2017 affidavit of financial information, she listed her gross monthly income
as $1,325.90. Contrary to her testimony, Mother did not list the $664 as an
alternative source of income or as a source of child support, and she did not
account for those funds anywhere else on her affidavit. Although the court
stated at the hearing that it would review the additional Social Security
payments when calculating Father’s child support obligation, the court’s
child support worksheet lists Mother’s income as $1,325.90, not $1,885. The
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court then calculated Father’s child support obligation based on this
income.
¶32 We agree with Father that the court erred when it failed to
include the children’s Social Security benefits when it calculated Mother’s
gross income. Our review of the record confirms that those funds were
received by the household each month via direct deposit to Mother’s bank
account and thereby became available for expenditures—satisfying the
definition of “gross income” as defined by the child support guidelines. See
A.R.S. § 25-320 app. § 5(A) (“Gross income includes income from any
source, and may include, but is not limited to, income from . . . social
security benefits (subject to Section 26), worker’s compensation benefits,
unemployment insurance benefits, [and] disability insurance benefits.”); see
also Clay v. Clay, 208 Ariz. 200, 202, ¶ 7 (App. 2004) (explaining states like
Arizona that have adopted the “Income Shares Model” for calculating child
support benefits consider dependency benefits issued to the child of the
disabled parent as earnings derived by the disabled parent from the
parent’s past Social Security contributions).
¶33 We therefore vacate the portion of the order dealing with
child support and remand the issue for further proceedings. On remand,
the court may order an additional evidentiary hearing and/or require
Mother to provide additional information concerning the disability benefits
so that the court may accurately use Mother’s gross income in calculating
the appropriate child support order.
IV. Attorneys’ Fees
¶34 Father argues the court erred in awarding Mother attorneys’
fees and costs. Father does not dispute that there is a disparity in the
parties’ financial resources but contends he did not act unreasonably or in
bad faith. We review the award of attorneys’ fees for an abuse of discretion.
See In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 8 (App. 2008).
¶35 Section 25-324(A) authorizes the court to award attorneys’
fees after considering the parties’ financial resources and the
reasonableness of their positions. An award of attorneys’ fees may be
supported on either basis. Here, the court found Father’s income far
outweighs Mother’s and the positions he took were unreasonable.
Specifically, the court found Father failed “to demonstrate appropriate and
good faith compliance with discovery requests and by arguing no basis
existed to modify child support.” The record shows Father also failed to
disclose accurate proof of employment throughout the proceedings.
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Additionally, the employment information that was presented to the court
showed Father’s income greatly outweighed Mother’s income. Because
reasonable evidence supports the court’s findings, the court did not abuse
its discretion in awarding fees to Mother.
CONCLUSION
¶36 For the foregoing reasons, we affirm the superior court’s
order in part but vacate and remand the issue of child support to be
calculated consistent with A.R.S. § 25-320 and the child support guidelines.
AMY M. WOOD • Clerk of the Court
FILED: AA
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