Malik v. Trinidade ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SAM MALIK, Petitioner/Appellant,
v.
RICHELLE TRINIDADE, Respondent/Appellee,
and
STATE OF ARIZONA, ex rel., THE DEPARTMENT OF ECONOMIC
SECURITY, Third Party/Appellee.
No. 1 CA-CV 22-0312 FC
FILED 3-2-2023
Appeal from the Superior Court in Yavapai County
No. V1300DO201780354
The Honorable Joseph P. Goldstein, Judge Pro Tempore
AFFIRMED
COUNSEL
Sam Malik, Phoenix
Petitioner/Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Third Party/Appellee State of Arizona
MALIK v. TRINIDADE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Anni Hill Foster joined.
T H U M M A, Judge:
¶1 Petitioner Sam Malik challenges a decree of dissolution that
ended his marriage to Richelle Trinidade and resolved issues related to
their minor children including support and allocating the community’s
property. Malik purports to challenge a subsequent order addressing child
support. Because this court lacks appellate jurisdiction over the child
support order, that portion of the appeal is dismissed. Because Malik has
otherwise shown no error, the decree is affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 Malik and Trinidade married in 2005 and have three minor
children. In August 2017, Malik filed this case for legal separation. In
February 2018, the court converted the case to a dissolution at Trinidade’s
request. This is a high conflict divorce proceeding, with more than 400
docket entries as well as a prior appeal, which remanded for an evidentiary
hearing. See Malik v. Trinidade, No. 1 CA-CV 19-0820 FC, 2021 WL 2550079,
at *6 ¶ 36 (Ariz. App. June 22, 2021) (mem. dec.).
¶3 At a September 2021 status conference on remand, the court
set trial for January 19 and 26, 2022, to address legal decision-making,
parenting time, child support, spousal maintenance and the division of
property. The record shows that, before this January 2022 trial setting,
Malik had filed last minute or “emergency” motions to continue some
hearings. Perhaps as a result, the order setting the January 2022 trial warned
that “it is very difficult to reschedule trials,” that any motion to continue
“must be made by motion as far in advance of the trial as possible” and
“must present compelling reasons for the request” and specified the
procedure required for such a motion.
¶4 Malik failed to file a pretrial statement. A week before trial,
he moved for a continuance, mailing a copy of his motion to Trinidade. As
the court later found, that motion failed to comply with the trial setting
order requirements, and no pretrial action was taken on the motion.
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MALIK v. TRINIDADE
Decision of the Court
¶5 Both parties appeared for trial as scheduled on January 19,
2022. As trial began, Malik “inform[ed] the Court he [was] unprepared to
proceed” and “made several oral motions to continue.” The reasons Malik
offered to continue trial included claimed discovery misconduct by
Trinidade and his failure to “bring[] his notes with him to court.” As noted
in a subsequent order, “[t]he oral motions were considered and denied.”
That same order notes that, after those denials, Malik “requested a
continuance due to health related issues. The court explored these issues
with [Malik] and denied the motion, again for the reasons as set forth on
the record.”
¶6 Although the court recessed trial for lunch well before noon
(apparently to allow Malik a longer recess), Malik did not return for the
afternoon setting. Instead, Malik “called the division and court staff
attempted to transfer the call into the courtroom, but [Malik] was no longer
on the telephone line.” When trial resumed in the afternoon, the court noted
that Malik “has not appeared” and that he “called the division during the
recess,” “informed the Court he had undisclosed medical issues; however
the call was disconnected by [Malik] before more information could be
obtained.” Noting “the arguments made by” Malik during the morning
session, and the fact that trial was set months ago, the court elected to
“proceed with testimony.” At the end of the day, the court took the matter
under advisement and vacated the second day of trial.
¶7 Nearly a week later, Malik filed an “Emergency Motion for
Continuance,” asking to “CONTINUE beginning the case for 105 to 120
days (3.5 to 4 months) due to [Malik] now becoming medically
incapacitated.” The unverified filing stated that Malik “suffered a heart
attack” on the day of trial, that his “condition worsened over the lunch
recess, and he decided to go to his doctor” and that he is not “able to attend
or participate” in the litigation “in any way at this time.” Along with setting
forth Malik’s view of how the delay could do Trinidade “no harm!”, the
filing attached one heavily redacted page of an HonorHealth “After Visit
Summary,” dated January 19, 2022, indicating a physician’s assistant had
seen Malik for chest pain, with a diagnosis of non-ST elevation myocardial
infarction. The summary suggested Malik schedule an appointment “for a
visit in 2 days” with a medical doctor and a doctor of osteopathy, although
the identifying information for those individuals was redacted. The filing
did not show that Malik was admitted for care, did not contain any
information from a doctor and did not contain any restriction on his
activities.
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MALIK v. TRINIDADE
Decision of the Court
¶8 Trinidade opposed the motion, noting the trial had finished
and the request to continue trial was moot. Her opposition added that a
review of the audio-video recording of trial showed no complaint by Malik
of chest pains or need for medical attention, instead showing that he
“requested multiple continuances” because he was not prepared. “It was
only when those were denied did he assert that he was having a medical
condition.” The opposition added that, “despite having a supposed heart
attack, [Malik] drove over 100 miles (skipping nearby hospitals) [from
Prescott] to HonorHealth in Scottsdale.” The opposition added that Malik
“has been well enough to drive back and forth from Glendale to Black
Canyon City to exercise his parenting time during the weekend.”
¶9 Malik filed no reply and never supplemented his motion with
information from a doctor or in response to the opposition. After
considering “the events” at trial and filings, the court denied the motion,
noting “[n]o basis was provided as to what motivated [Malik] to travel all
the way to Scottsdale to seek immediate assistance, or as to why [Malik]
was instructed by the [physician’s assistant] to schedule an appointment
with another doctor for a later date.”
¶10 Later in March 2022, the court issued a 22-page decree. The
decree awarded Trinidade sole legal decision-making, granted Malik three
hours of weekly supervised parenting time, awarded no spousal
maintenance or attorneys’ fees and divided the community’s property. The
decree deferred a final decision on child support, insurance and
unreimbursed medical expenses, to be resolved at an evidentiary hearing
in late May 2022. The decree was an appealable partial final judgment. See
Ariz. R. Fam. L.P. 78(b)(2023).1 Malik filed a timely notice of appeal from
the March 2022 partial final judgment.
¶11 After the late May 2022 evidentiary hearing, the court entered
a final judgment addressing child support, insurance and unreimbursed
medical expenses. See Ariz. R. Fam. L.P. 78(c). Malik, however, did not file
a notice of appeal from that Rule 78(c) final judgment.
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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MALIK v. TRINIDADE
Decision of the Court
DISCUSSION
¶12 Trinidade failed to file an answering brief, which could be
considered a confession of error. The court, however, is not required to view
it as such, particularly when the best interests of minor children are at issue.
See In re Marriage of Diezsi, 201 Ariz. 524, 525 ¶ 2 (App. 2002). Thus, the court
addresses the merits of Malik’s arguments on appeal.
I. Malik Has Shown No Reversible Error in the March 2022 Partial
Final Judgment.
¶13 Malik’s primary arguments on appeal are (1) the court denied
him due process by continuing with trial when he was absent and denying
his motion to continue filed after the trial was completed and (2) the
evidence does not support the rulings in the decree.
¶14 A superior court has discretion in considering a motion to
continue, and this court will reverse a ruling on such a motion only if a
party shows that discretion was abused. See Henderson v. Henderson, 241
Ariz. 580, 589 ¶ 29 (App. 2017). Although at first blush Malik’s motion to
continue suggests dire medical issues, it reflects no admission for medical
treatment and no doctor’s statement. It contains no explanation why, if
Malik had a serious medical incident requiring urgent care, he did not seek
immediate care but elected to drive for two hours to consult, on an
outpatient basis, with a physician’s assistant. Nor did Malik file a reply or
seeking to show medical need or further explain, and never supplemented
his motion with any such information if it existed.
¶15 The superior court also properly considered the context for
the motion. Malik previously had sought continuances for evidentiary
hearings, and he sought to do so in a pretrial filing here. When that effort
was unsuccessful, he made several requests the morning of trial for a
continuance, all of which were denied. Only then did he express medical
concerns. Malik has not shown that the court had to ignore his other,
apparently escalating, attempts to obtain a continuance, all of which had
been unsuccessful.
¶16 Malik failed to file a pretrial statement, meaning he waived
the right to present witnesses or exhibits at trial, waived any objections he
may have had to any witnesses or exhibits Trinidade offered at trial and
waived his right to raise issues or claims at trial. See Ariz. R. Fam. L.P.
76.1(i). These waivers mean, procedurally, Malik could not show that any
evidence he would have offered at trial was material. See Ariz. R. Fam. L.P.
34(a)(1). More broadly, his motion to continue failed to comply with the
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MALIK v. TRINIDADE
Decision of the Court
requirements of the court’s prior orders and the applicable rules. See Ariz.
R. Fam. L.P. 34(a). On this record, Malik has failed to show the court abused
its discretion in denying his post-trial motion to continue. See Henderson,
241 Ariz. at 589 ¶ 29. For these same reasons, Malik has not shown he was
denied his due process right of an opportunity to be heard “at a meaningful
time and a meaningful manner.” Dep’t of Child Safety v. Beene, 235 Ariz. 300,
305 ¶ 11 (App. 2014) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
¶17 Turning to Malik’s sufficiency of the evidence argument,
other than legal decision-making, Malik fails to develop his argument for
the issues resolved in the March 2022 partial final judgment, which
constitutes waiver. See Sholes v. Fernando, 228 Ariz. 455, 461 ¶ 16 (App.
2011).2 Even absent waiver, on the record provided, Malik has shown no
error. He failed to provide a trial transcript. Thus, this court assumes the
evidence presented supports the findings and conclusions in the March
2022 partial final judgment. See Hefner v. Hefner, 248 Ariz. 54, 60 ¶ 19 (App.
2019). Malik has not shown that the superior court abused its discretion in
issuing that lengthy ruling. Nold v. Nold, 232 Ariz. 270, 273 ¶ 11 (App. 2013);
In re Marriage of Flower, 223 Ariz. 531, 535 ¶ 14 (App. 2010); Cullum v. Cullum,
215 Ariz. 352, 354 ¶ 9 (App. 2007). Nor has he shown that the court abused
its discretion in weighing the evidence and determining credibility,
Gutierrez v. Fox, 242 Ariz. 259, 272 ¶ 49 (App. 2017), particularly given that
this court does not reweigh credibility and conflicting evidence on appeal,
Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009). On this record, Malik has
shown no error.
II. This Court Lacks Appellate Jurisdiction Over the May 2022 Final
Judgment.
¶18 Malik seeks to challenge portions of the May 2022 final
judgment. “This court’s appellate jurisdiction is defined, and limited, by the
Legislature.” Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, 426 ¶ 4
(App. 2016). To challenge the May 2022 final judgment, Malik had to timely
appeal from that judgment. See ARCAP 9. Malik, however, filed no notice
of appeal from the May 2022 final judgment. Thus, this court lacks
jurisdiction over those rulings reflected only in the May 2022 final
judgment.
2 In his notice of appeal, Malik wrote he was appealing the issue of
attorneys’ fees. This argument is waived because Malik does not press it on
appeal. See State v. Carver, 160 Ariz. 167, 175 (1989).
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MALIK v. TRINIDADE
Decision of the Court
CONCLUSION
¶19 The March 2022 decree is affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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