Richert v. Buck ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
DARLENE LOIS RICHERT, Petitioner/Appellee,
v.
ARTHUR WILBUR BUCK, Respondent/Appellant.
No. 1 CA-CV 15-0698 FC
1 CA-CV 16-0051 FC
(Consolidated)
FILED 1-5-2017
Appeal from the Superior Court in Maricopa County
No. FC2013-052900
The Honorable Cynthia Bailey, Judge
AFFIRMED
COUNSEL
Tiffany & Bosco, PA, Phoenix
By David L. Rose, Laura Lynn Wochner
Counsel for Petitioner/Appellee
David Dick and Associates, Chandler
By David A. Dick
Counsel for Respondent/Appellant
RICHERT v. BUCK
Decision of the Court
MEMORANDUM DECISION
Judge Rick A. Williams1 delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined.
W I L L I A M S, Judge:
¶1 Arthur Wilbur Buck (“Husband”) appeals from the decree of
dissolution of marriage. Raising several issues, he argues the court abused
its discretion in adopting the decree as to parenting time, child support,
spousal maintenance, and attorneys’ fees. For the following reasons, we
affirm.
BACKGROUND
¶2 Husband and Darlene Lois Richert (“Wife”) were married in
1989 and have two daughters; D.B. (born in 1998) and A.B. (born in 2003).
Wife filed a petition for dissolution of marriage in August 2013. The parties
entered a binding mediation/arbitration agreement to resolve all potential
issues and, at Husband’s request, attorney John Zarzynski was appointed
to facilitate those conferences.
¶3 During the first mediation in January 2014, the parties agreed
to joint legal decision-making and equal parenting time (“Parenting Plan”).
Husband lodged the Parenting Plan, and the court adopted it, without
objection. At a status conference in March 2014, the court found that the
remaining disputed issues included “child support, spousal maintenance,
attorneys’ fees, and personal property.” No objection was raised, and at the
second mediation in May 2014, the parties reached a Rule 69 Agreement
(“Property Agreement”) resolving property and debt allocation. Husband
lodged the Property Agreement, and it was adopted by the court, again
without objection. In lieu of trial on the remaining issues, the parties
stipulated to and the court ordered “binding and non-appealable
arbitration” to be “conducted in accordance with the Arizona Arbitration
Act as set forth in A.R.S. §§ 12-1501 to 12-1518.”
1 The Honorable Rick A. Williams, Judge of the Arizona Superior
Court, has been authorized to sit in this matter pursuant to Article VI,
Section 3 of the Arizona Constitution.
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Decision of the Court
¶4 Arbitration was held in September 2014. Husband and Wife
were present, represented by counsel, and each had the opportunity to
testify and offer exhibits. The arbitrator issued his decision in October 2014
(“Arbitration Ruling”), finding, in pertinent part, that (1) Husband did not
qualify for spousal maintenance; (2) Wife was required to pay child support
effective February 1, 2014; and (3) neither party was entitled to attorneys’
fees. Husband objected to the Arbitration Ruling, claiming several issues
were either not resolved or resolved incorrectly. After full briefing by the
parties, the court denied Husband’s motion and affirmed the Arbitration
Ruling.
¶5 Husband then filed a petition to modify parenting time,
asserting a “substantial change of circumstances” warranted modification
of the previously agreed to Parenting Plan because it was “now in the
children’s best interests to live primarily with” Husband. The court
dismissed Husband’s petition without prejudice. Husband’s motion for
reconsideration was also denied. In December 2015, the court approved the
Decree of Dissolution (“Decree”), incorporating the Parenting Plan,
Property Agreement, and Arbitration Ruling reached at the two mediations
and arbitration. Husband timely appealed. We have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).
DISCUSSION
¶6 Throughout his brief, Husband argues that we should reject
the factual findings and legal conclusions reached by the arbitrator and the
court. Generally speaking, we do not as part of our review reweigh the
conflicting evidence, but rather determine whether substantial evidence
exists to support the trial court’s decision. Rowe v. Rowe, 154 Ariz. 616, 620,
744 P.2d 717, 721 (App. 1987).
I. Parenting Time
¶7 Husband argues the trial court erred in adopting the equal
parenting time arrangement agreed to in the Parenting Plan and
incorporated into the Decree. Specifically, Husband claims the court erred
in not finding that a change in circumstances warranted modification, and
in refusing to grant him a hearing on the matter.
¶8 In considering a motion to modify parenting time, the trial
court “must first determine whether there has been a change in
circumstances materially affecting the child’s welfare,” and only if such
change exists, then evaluate whether modification “would be in the child’s
best interests.” Christopher K. v. Markaa S., 233 Ariz. 297, 300, ¶ 15, 311 P.3d
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1110, 1113 (App. 2013) (citing Black v. Black, 114 Ariz. 282, 283, 560 P.2d 800,
801 (1977)). The court’s discretionary determination regarding whether a
change in circumstances has occurred “will not be reversed absent a clear
abuse of discretion, i.e., a clear absence of evidence to support its actions.”
Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d 1, 3 (1982). The party
seeking modification of parenting time has the burden of proving a change
in circumstances materially affects the child’s welfare. Marley v. Spaulding,
10 Ariz. App. 213, 215, 457 P.2d 753, 755 (1969).
¶9 First, Husband asserts that sufficient evidence showed a
change in circumstances materially affected the children’s welfare and
modification was in their best interests. Husband filed his petition to
modify parenting time, along with his supporting affidavit, in April 2015;
15 months after the Parenting Plan was adopted by the court. He alleged,
in pertinent part, that the children no longer wished to live with Wife and
that their counselor found they were “emotionally unsafe” around Wife
because she (1) loses her temper and disciplines them too harshly by
removing or threatening to remove their cellular telephones and driving
privileges, (2) has “relationships with numerous other men,” and (3)
disparages Husband in front of them and posts such remarks on social
media. Wife did not file a response or controverting affidavit and, aside
from his affidavit, Husband provided no evidence supporting his factual
assertions, such as a report from the children’s counselor or copies of the
actual social media posts. Nor did Husband request the court conduct an
in-camera interview of the children to assess their wishes.
¶10 In an unsigned minute entry, the court dismissed the petition
without prejudice, finding that Husband had “not alleged a material
change in circumstances that affects the welfare” of the children, and
therefore, “further inquiry is not required.”2 Based on this record, we
2 The trial court’s minute entry states Husband “fail[ed] to make the
threshold showing required by A.R.S. § 25-411(A).” Under § 25-411(A), if a
parenting time order is in effect for less than one year, a parent may not
petition the trial court for modification unless “the child’s present
environment may seriously endanger the child’s physical, mental, moral or
emotional health.” The Parenting Plan was in effect for 15 months when
Husband petitioned for modification. It appears that although the court
cited the wrong statute and standard for orders in effect less than one year,
it applied the correct standard in considering a petition to modify for orders
more than one year; i.e., “material change in circumstances affecting the
child’s welfare.” As such, we do not address Husband’s argument that by
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Decision of the Court
cannot say the court abused its discretion by concluding that these
allegations did not constitute a change in circumstances affecting the
children’s welfare. And, because the court found Husband did not meet
his burden to show changed circumstances, it was not required to perform
a best interests analysis under A.R.S. § 25-403. See Christopher K., 233 Ariz.
at 300, ¶ 15, 311 P.3d at 1113.
¶11 Next, Husband argues the trial court was statutorily required
to hold a hearing on his motion to modify, and by refusing to do so, “failed
to follow the clear law and apply it [to] the facts of this case.” Upon a
party’s motion to modify parenting time, the trial court “shall deny the
motion unless it finds that adequate cause for hearing the motion is
established by the pleadings.” A.R.S. § 12-411(L). In determining whether
adequate cause exists, the court conducts an in-camera screening of the
petition and supporting affidavits; no hearing is required at the screening
stage. See DePasquale v. Superior Court, 181 Ariz. 333, 335, 890 P.2d 628, 630
(App. 1995). The petitioner has the burden to establish adequate cause
through detailed facts, not simply conclusory allegations. See Pridgeon, 134
Ariz. at 181, 655 P.2d at 5. As stated above, Husband provided only his
affidavit containing conclusory accusations. In this case, the court could
reasonably have concluded that Wife’s alleged discipline practices,
personal relationships, and remarks about Husband (even assuming they
occurred) did not establish adequate cause for a hearing and Husband
failed to meet his burden.
¶12 Moreover, the trial court dismissed Husband’s petition to
modify parenting time without prejudice. Thus, Husband was free to refile
with new and/or additional evidence supporting his factual assertions. See
Airfreight Express Ltd. v. Evergreen Air Center, Inc., 215 Ariz. 103, 108, ¶ 13,
158 P.3d 232, 237 (App. 2007) (stating that dismissal without prejudice is
not adjudication on merits and does not bar second action under doctrine
of claim preclusion).3 Yet, he did not do so. Husband filed a motion for
merging the January 2014 Parenting Plan into the December 2015 Decree,
the court “restarted the clock on when the Parties can move to modify
without showing an emergency exists.”
3 Husband argues the trial court erred “in applying res judicata and
precluding a hearing of the best interest issue, when the evidence plead [sic]
by affidavit established circumstances were different” from the January
2014 Parenting Plan to the April 2015 petition for modification. Res
judicata, also known as claim preclusion, is defined as “[a]n issue that has
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Decision of the Court
reconsideration, in which he repeated the same arguments and cited only
to his affidavit filed with his original motion to modify. He did not file a
new petition or otherwise furnish the court with new or additional evidence
that would substantiate any of his claims. Accordingly, the trial court did
not abuse its discretion in denying Husband’s petition to modify because
he failed to show a substantial change in circumstances materially affected
the welfare of the children.
II. Hearing on Alleged Unresolved Issues
¶13 Husband argues the trial court erred by refusing to grant him
a hearing on issues allegedly unresolved after the arbitration.
¶14 Husband appears to be disputing the factual determinations
in the Arbitration Ruling as to the circumstances surrounding Husband’s
unemployment and the start date of child support.4 Husband first
challenges the arbitrator’s finding that he voluntarily quit his job, arguing
that Wife improperly made this assertion during arbitration proceedings
without having provided any disclosure, and that the arbitrator thus
improperly attributed to Husband monthly income of $10,576. Husband
further asserts that evidence proved he was unemployed without income
from September through November 2013 while the children lived with him,
and that the arbitrator accordingly should have ordered Wife to pay child
support beginning prior to the February 1, 2014 start date.
¶15 Husband has not shown how lack of a hearing supports his
position under these facts. Husband argues that because the parties’
agreement to arbitrate did not specify exactly what issues were to be
arbitrated and Wife made a new claim during arbitration that Husband
voluntarily quit his job, he was “blindsided” and “unprepared.” He
been definitely settled by judicial decision.” See Res Judicata, Black’s Law
Dictionary (10th ed. 2014) (emphasis added). Because the trial court
dismissed Husband’s motion to modify parenting time without prejudice,
it was not definitely settled by judicial decision. Therefore, Husband’s
claim the court erred in applying res judicata to preclude a hearing on best
interests is without merit.
4 Husband’s additional claims of unresolved issues post-arbitration
included in his Opening Brief and labeled as “Other Claims,” “New Claim
That Petitioner Had Paid Respondent Child Support Directly to
Respondent,” and “Misstatement of Arbitration Award,” were settled with
the trial court before this appeal.
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Decision of the Court
contends this caused the arbitrator’s erroneous factual findings. But the
Parenting Plan was reached at mediation and adopted by the court in
January 2014. At the status conference in March 2014, the court found that
the remaining disputed issues were “child support, spousal maintenance,
attorneys’ fees, and personal property.” Although Husband and Wife were
not present at the status conference, their respective counsel were and
neither objected to the court’s findings. The Property Agreement was
reached at the second mediation and adopted by the court, without
objection, in May 2014. At that point, the only remaining disputed issues
were child support, spousal maintenance, and attorneys’ fees. In May 2014,
the court set the trial date and ordered the parties to exchange disclosures
as required by Arizona Rules of Family Law Procedure 49. The court also
ordered the parties to file a joint pretrial statement to include (1) current
financial affidavits, (2) completed worksheets using state child support
guidelines for any disputed child support issues, and (3) the amount and
duration of spousal maintenance requested and disputed.
¶16 In lieu of trial, the parties stipulated to binding non-
appealable arbitration; thus, Rule 49 disclosures were not produced by
either party. The stipulation itself did not list the issues to be arbitrated and
neither party requested a court reporter. However, the record clearly
reflects the parties were aware child support and spousal maintenance
would be addressed through arbitration and belies Husband’s contention
he was somehow blindsided.
¶17 As described in the Arbitration Ruling, Husband testified at
length about his employment status:
Husband testified that for a period of time between 2009 and
2011, he commuted from Northern California to Arizona but
that his job was primarily based in Northern California.
....
Husband testified that upon his return to Arizona, he worked
as a consultant for a short time for the “Lyle Anderson
Company.” Unfortunately, according to Husband, it never
turned into a permanent job.
....
He further testified that in mid August 2013, he was offered a
job . . . the “Dove Mountain” job. He testified that it was his
intent to split time between Phoenix and Tucson where the
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Decision of the Court
job was based. He testified that his original agreement with
his employer was to commute while he found a place to rent
in Tucson. He further testified that the children were
distressed and in counseling as a result of the breakup of their
parents[‘] marriage. According to Husband, he was advised
by the counselor not to be away from the girls. Finally, he
testified that on his last commute to Tucson, he was 15
minutes late and his manager told him that his tardiness was
unacceptable. When asked when he would be available full-
time in Tucson, Husband told his manager that he was not
going to be available full-time in Tucson after which,
Husband testified, he was “terminated.”
Exhibits produced at arbitration included financial affidavits, tax returns,
bank statements, and a CPA income summary. Additionally, documents
from Husband’s most recent employer, Dove Mountain, were introduced,
including an employment agreement, an email from the employer’s CEO,
and a “termination letter” dated November 13, 2013.5
¶18 The arbitrator found that Husband’s employment with Dove
Mountain was not conditioned upon him living in Tucson full-time; his
employer was aware of and agreed to Husband’s commute from Phoenix
to Tucson; the needs of the children did not require him to leave his
employment; and he was terminated on November 13, 2013, although no
reason was given. Contrary to Husband’s contention, the arbitrator did not
find Husband voluntarily quit his job, only that he was not convinced the
loss of Husband’s job was involuntary. The arbitrator found that Husband
can be self-sufficient through appropriate employment and, based on his
historic income, possessed adequate earning ability in the market place. In
fact, Husband earned more than $286,000 in 2011; $366,000 in 2010; and
$121,000 in 2009. From September 1, 2013 through December 31, 2013,
Husband earned $42,307; accordingly, the arbitrator reasonably attributed
monthly income to him for the average of $10,576.
¶19 With respect to the effective date for child support, Husband
asserts that because evidence at arbitration proved he was unemployed
5 Husband failed to supply this court with the arbitration exhibits. See
ARCAP 11(C) (imposing duty on appellant to ensure record contains all
documents deemed necessary for proper consideration of issues on appeal).
As such, we presume the missing portions of the record support the
arbitrator’s findings. State ex rel. Dep’t. of Econ. Sec. v. Burton, 205 Ariz. 27,
30, ¶ 16, 66 P.3d 70, 73 (App. 2003).
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Decision of the Court
without income from September through November 2013 while the
children lived with him, a February 1, 2014 start date for support is
erroneous and there was “no reason to ignore the first five (5) months after
the case was filed.” Wife filed for dissolution in August 2013, the parties
physically separated at the end of September 2013, and the children
apparently lived with Husband in the marital residence from November
2013 through January 2014 until the parties entered the equal parenting
time arrangement. As stated above, Husband had a monthly income of
$10,576 in September and November 2013. The arbitrator reasonably found
that because the parties began equal parenting time in late January 2014,
February 1 was an appropriate effective start date.
¶20 The record reveals Husband was aware, well in advance of
the arbitration date, that spousal maintenance and child support would be
arbitrated, and his income and employment status would be relevant.
Accordingly, the trial court did not err by finding (without a hearing) that
the arbitrator “was within his authority to make factual findings regarding
[Husband’s] income in order to determine appropriate child support and
spousal maintenance . . . .”
III. Confirmation of Arbitration Award
¶21 Husband argues the trial court erred by accepting the
Arbitration Ruling as to spousal maintenance and child support because (1)
it was procured by undue means, corruption, or fraud; (2) the arbitrator
exceeded his authority; or (3) the arbitrator refused to hear material
evidence.6
¶22 “On appeal, we review a superior court’s confirmation of an
arbitration award for an abuse of discretion. We review matters of statutory
construction de novo. Judicial review of arbitration awards is severely
restricted.” Nolan v. Kenner, 226 Ariz. 459, 461, ¶ 4, 250 P.3d 236, 238 (App.
2011) (internal citations omitted). We review the court’s affirmation of an
arbitration award in the light most favorable to upholding its decision and
will affirm unless the court abused its discretion. Atreus Cmtys. Grp. v.
Stardust Dev., Inc., 229 Ariz. 503, 506, ¶ 13, 277 P.3d 208, 211 (App. 2012); see
also Hirt v. Hervey, 118 Ariz. 543, 545, 578 P.2d 624, 626 (App. 1978)
6 Husband’s citation to A.R.S. § 12-3023 as justification for vacating the
Arbitration Ruling is misplaced. A.R.S. § 12-3001, et. seq. applies only to
the Revised Uniform Arbitration Act. As previously noted, the trial court
ruled the arbitration would be conducted in accordance with the Arizona
Arbitration Act.
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(“Arbitration awards are entitled to finality in all but narrowly defined
circumstances such as fraud, corruption, or other prejudicial misconduct . .
. . Our case law makes it clear that an arbitration award is not subject to
attack merely because one party believes that the arbitrators erred with
respect to factual determinations or legal interpretations.”).
¶23 In Arizona, parties opposing an arbitration award can
challenge it only on grounds defined by statute. See Smith v. Pinnamaneni,
227 Ariz. 170, 177, ¶ 24, 254 P.3d 409, 416 (App. 2011). As the party seeking
to vacate the award, Husband has the burden of proof. Pawlicki v. Farmers
Ins. Co., 127 Ariz. 170, 173, 618 P.2d 1096, 1099 (App. 1980). “The boundaries
of the arbitrators’ powers are defined by the agreement of the parties.
Within those boundaries, the arbitrators’ decision is final both as to
questions of fact and law.” Smitty’s Super–Valu, Inc. v. Pasqualetti, 22 Ariz.
App. 178, 180, 525 P.2d 309, 311 (1974) (internal citations omitted); see also
Atreus, 229 Ariz. at 506, ¶ 13, 277 P.3d at 211; Transnational Ins. Co. v.
Simmons, 19 Ariz. App. 354, 358, 507 P.2d 693, 697 (1973) (“[A party] cannot
ask that a matter be arbitrated and then later complain that the arbitrators
exceeded their powers when they considered the same.”).
¶24 Husband claims the Arbitration Ruling was procured by
undue influence, corruption, or fraud under § 12-1512(A)(1) because Wife
argued for the first time in arbitration that he voluntarily quit his job in
violation of Rule 49 disclosure obligations. “To demonstrate undue means,
a party must prove that the other party engaged in ‘intentional
misconduct.’” Nolan, 226 Ariz. at 461, ¶ 5, 250 P.3d at 238 (App. 2011) (citing
FIA Card Servs., N.A. v. Levy, 219 Ariz. 523, 525, ¶ 7, 200 P.3d 1020, 1022
(App. 2008)). “The type of intentional misconduct contemplated by § 12-
1512(A)(1) is equivalent in gravity to corruption or fraud and involves bad
faith. Id. (internal quotations omitted). Here, because the parties stipulated
to vacate trial and submit to arbitration, neither party was required to or in
fact produced Rule 49 disclosures. Moreover, even if Wife incorrectly
“suggest[ed] that Husband voluntarily left that employment in order to
posture himself for an award of spousal maintenance,” the arbitrator clearly
documented his findings in this regard as based on “the totality of the
evidence,” including documentation from Dove Mountain and Husband’s
earning capacity. Thus, the Arbitration Ruling was not obtained through
undue means.
¶25 Husband further contends the arbitrator exceeded his
authority under § 12-1512(A)(3) because the arbitrator found (1) Husband
voluntarily quit his job and he was blindsided because Wife raised this
claim for the first time in arbitration; and (2) Husband had the ability to be
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self-sufficient and denied him spousal support, which forced him to sell or
mortgage his property. But in agreeing to binding, non-appealable
arbitration, Husband was aware that spousal maintenance would be
arbitrated, and that income and employment status would be relevant.
Accordingly, the arbitrator did not exceed his powers when he considered
those factors. See Pasqualetti, 22 Ariz. App. at 180, 525 P.2d at 311; Atreus,
229 Ariz. at 506, ¶ 13, 277 P.3d at 211; Simmons, 19 Ariz. App. at 358, 507
P.2d at 697.
¶26 Lastly, Husband argues the arbitrator refused to hear
evidence material to the controversy so as to substantially prejudice his
rights under § 12-1512(A)(4). He claims that when he tried to testify about
the circumstances of his employment termination, Wife objected, and the
arbitrator refused to allow him to testify. As discussed above, the detailed
Arbitration Ruling reflects Husband was permitted to testify extensively.
The trial court did not abuse its discretion in adopting the Arbitration
Ruling.
IV. Attorneys’ Fees
¶27 Husband contends that the arbitrator erred in denying his
request for attorneys’ fees. Additionally, both parties request attorneys’
fees and costs on appeal.
¶28 A court may order a party to pay the other party’s reasonable
costs and expenses incurred in defending a domestic relations proceeding
“after considering the financial resources of both parties and the
reasonableness of the positions each party has taken throughout the
proceedings.” A.R.S. § 25–324(A). In declining to award attorneys’ fees,
the arbitrator found “that the parties are in similar financial circumstances”
and, although he was “a bit more concern[ed] over the behavior of
Husband,” both parties held “reasonable positions on the contested issues.”
The record supports the arbitrator’s decision and we find no abuse of
discretion. Further, in the exercise of our discretion, we deny both requests
for attorneys’ fees on appeal. As the prevailing party, however, we award
taxable costs to Wife upon compliance with ARCAP 21.
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CONCLUSION
¶29 Because substantial evidence exists supporting the trial
court’s adoption of the Decree, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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