Branigan v. Fredrickson ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
JAYNE MARIE BRANIGAN, Petitioner/Appellant,
v.
JOHN CHRISTOPHER FREDRICKSON, Respondent/Appellee.
No. 1 CA-CV 12-0797
FILED 06-12-2014
Appeal from the Superior Court in Maricopa County
No. FC2003-013024
The Honorable Jay M. Polk, Judge
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
COUNSEL
The Huerta Law Office, PLLC, Tucson
By Saul M. Huerta
Counsel for Petitioner/Appellant
Ivy L. Kushner, Attorney at Law, Scottsdale
By Ivy L. Kushner
Counsel for Respondent/Appellee
BRANIGAN v. FREDRICKSON
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 Jayne Marie Branigan (“Mother”) appeals from the family
court’s order denying her request for reimbursement from John
Christopher Fredrickson (“Father”) for expenses she incurred on behalf of
the parties’ three children and granting his request to modify the child
support order. Mother also challenges the court’s denial of her motion for
a new trial and award of attorneys’ fees to Father. For the following
reasons, we affirm in part, vacate in part, and remand for further
proceedings consistent with this decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father dissolved their marriage in 2004 by
consent decree. Their settlement agreement provided for joint legal
custody of their three children with neither parent designated as the
primary residential parent. The parties also agreed Mother would pay
one-third of the children’s uninsured medical expenses and clothing,
allowances, and extracurricular activity costs and Father would pay the
two-thirds remainder.
¶3 In November 2009, Mother petitioned the family court for an
order requiring Father to reimburse her for uninsured medical expenses
and extracurricular activity costs she incurred on behalf of their children
since 2007. In 2010, the family court conducted an evidentiary hearing on
Mother’s petition (“2010 Hearing”) and ruled that a July 2009 agreement
between the parties waived Mother’s pre-2009 reimbursement claims.
Mother appealed, arguing the court should not have found she had
waived her reimbursement claims. Branigan v. Fredrickson, 1 CA-CV 10-
0552, 2011 WL 2462717, at *2, ¶ 9 (Ariz. App. June 21, 2011) (mem.
decision) (“Branigan I”). We agreed with Mother and remanded for the
family court to determine the amount of reimbursement she was entitled
to receive for her pre-2009 claims. Id. at *5, ¶ 22. Although Father argued
on appeal that Mother’s reimbursement requests were untimely under the
Arizona Child Support Guidelines, we deemed his argument waived
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because he had not raised that argument in the family court. Id. at *4, ¶
15.
¶4 On remand, Father petitioned the court to modify child
support and other obligations of the parties related to payment of their
children’s insurance and medical expenses. Mother moved to dismiss
Father’s petition, arguing he had not complied with court orders to
disclose complete tax returns and other documents related to his business.
The family court denied the motion to dismiss without prejudice to
Mother raising the issue of Father’s compliance at the scheduled
evidentiary hearing. The family court also denied Mother’s motion in
limine to preclude Father from arguing her reimbursement claims were
untimely.
¶5 At the evidentiary hearing on the petitions, the family court
granted Father a directed verdict on Mother’s petition because she had
failed to prove she had complied with Arizona Child Support Guideline
9(A). Guideline 9(A) requires “request[s] for payment or reimbursement
of uninsured medical, dental and/or vision costs” to be made within 180
days after the applicable medical services are rendered. See Ariz. Rev.
Stat. (“A.R.S.”) § 25-320 app. § 9(A) (Supp. 2014). 1 The parent responsible
for payment or reimbursement must pay or make payment arrangements
to the entitled person within 45 days after receipt of the request. Id. The
court also modified the child support order and awarded Father his
attorneys’ fees. Mother unsuccessfully moved for a new trial, and this
appeal followed.
DISCUSSION
I. Mother’s Petition
A. Denial of Motion in Limine
¶6 Mother first argues the family court should have granted her
motion in limine because, in Branigan I, we found Father had waived his
argument that her pre-2009 reimbursement claims were untimely and,
1Although the Arizona Legislature amended statutes cited in
this decision after Mother filed her petition, the revisions are immaterial to
the resolution of this appeal. Thus, we cite to the current version of these
statutes.
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therefore, consideration of the issue on remand contravened the law-of-
the-case doctrine. Because the law-of-the-case doctrine is inapplicable
here, the family court did not abuse its discretion in denying the motion in
limine. See Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 133, ¶ 33, 180
P.3d 986, 998 (App. 2008) (court’s decision on motion in limine reviewed
for abuse of discretion).
¶7 In Branigan I, we did not address the merits of Father’s
timeliness argument. Instead, we concluded Father had waived that
argument because he had not raised it in the family court and the family
court had not considered it; we specifically “express[ed] no opinion . . . as
to whether this issue should be addressed upon remand.” Branigan I, at
*4, ¶ 15. Thus, our decision did not foreclose Father from raising the issue
on remand. See Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II,
176 Ariz. 275, 278, 860 P.2d 1328, 1331 (App. 1993) (“The doctrine referred
to as ‘law of the case’ describes the judicial policy of refusing to reopen
questions previously decided in the same case by the same court or a
higher appellate court.” (citations omitted)).
¶8 Next, characterizing Father’s timeliness argument as a
“preclusive defense,” 2 Mother argues Father waived the argument
because he did not raise it in his answer to Mother’s petition and his
counsel stated during the 2010 Hearing that she was not aware of a time
limit for requesting reimbursement. Although these arguments bore on
Father’s waiver of the timeliness issue in Branigan I, they do not result in
waiver of the issue on remand. And, Mother provides no applicable
authority to persuade us otherwise. 3
2Father’s argument that Mother failed to comply with the
180-day requirement in Guideline 9(A) is not a “preclusive defense.” See,
e.g., Maricopa-Stanfield Irrigation & Drainage Dist. v. Robertson, 211 Ariz. 485,
491-92, ¶ 39, 123 P.3d 1122, 1128-29 (2005) (“The party asserting the bar [of
issue preclusion] must show that (1) the issue was litigated to a conclusion
in a prior action, (2) the issue of fact or law was necessary to the prior
judgment, and (3) the party against whom preclusion is raised was a party
or privy to a party to the first case.”).
3Mother’s reliance on Sanchez v. City of Santa Ana, 915 F.2d
424, 432 (9th Cir. 1990), is misplaced. That case addressed whether the
defendant waived its right to assert res judicata as a “preclusion defense”
by not specially pleading it in its answer to the complaint. Id. at 431-32.
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¶9 Finally, Mother appears to argue Father waived his
timeliness argument because, at the 2010 Hearing, he admitted Mother
had requested reimbursement from 2004 to 2008. Mother’s cited portions
of the record, however, do not support her assertion Father testified
Mother made timely reimbursement claims; indeed, Mother cites to her
own testimony and to Father’s testimony that he was not regularly
receiving “anything” from Mother.
¶10 For the foregoing reasons, the family court did not abuse its
discretion in denying Mother’s motion in limine.
B. Guideline 9(A)
¶11 Relying on A.R.S. §§ 25-503(I), (J) (Supp. 2014) and this
court’s opinion in Keefer v. Keefer, 225 Ariz. 437, 239 P.3d 756 (App. 2010),
Mother argues Guideline 9(A) is inapplicable because the unreimbursed
medical expenses and extracurricular activity costs qualified as child
support and became arrearages when Father did not reimburse her within
45 days of her request. Thus, she contends she is entitled to seek
reimbursement until ten years after their youngest child is emancipated.
Sections 25-503(I) and (J) read as follows:
I. The right of a party entitled to receive
support . . . vests as each installment falls due.
Each vested child support installment is
enforceable as a final judgment by operation of
law. . . . [A] party entitled to receive support
may also file a request for written judgment for
support arrearages.
J. If the obligee . . . make[s] efforts to collect a
child support debt more than ten years after
the emancipation of the youngest child subject
to the order, the obligor may assert as a
defense, and has the burden to prove, that the
obligee . . . unreasonably delayed in attempting
to collect the child support debt. On a finding
of unreasonable delay a [court] . . . may
determine that some or all of the child support
debt is no longer collectible after the date of the
finding.
¶12 As a preliminary matter, in addition to providing for the
reimbursement of uninsured medical expenses, the parties agreed Father
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would be responsible for two-thirds of the children’s clothing, allowances,
and extracurricular activity costs. Guideline 9(A) applies only to requests
for reimbursement of uninsured medical expenses; thus, Mother was not
required to request reimbursement of these other costs within 180 days.
The family court’s order denied “Mother’s request for reimbursement of
medical expenses” but did not mention Mother’s request for
reimbursement of the extracurricular activity costs. Therefore, to the
extent Mother is arguing on appeal she is entitled to reimbursement of
those costs, the family court has not decided this issue and, on remand, is
not precluded from considering a renewed request by Mother for
reimbursement of those costs.
¶13 Mother’s request for reimbursement of the uninsured
medical expenses, however, is barred by Guideline 9(A) and neither
A.R.S. § 25-503 nor our opinion in Keefer renders Guideline 9(A)
inapplicable. Section 25-503 relates to actions to collect support arrearages
and provides that a party’s right to receive support “vests as each
installment falls due.” A.R.S. § 25-503(I). Keefer simply held that the
statutory definition of support “unambiguously includes unreimbursed
medical expenses” and that Guideline 9(A) “treat[s] those expenses as
binding obligations of parents subject to child support orders.” Keefer, 225
Ariz. at 440, ¶ 11, 239 P.3d at 759. Here, the uninsured medical expenses
at issue never fell due because Mother failed to show she had requested
reimbursement within 180 days of the applicable medical services. 4 Thus,
Father’s obligation to reimburse Mother was never triggered, and the
family court properly interpreted and applied Guideline 9(A) in finding
Mother’s request for reimbursement of the uninsured medical expenses
untimely.
4To the extent Mother argues the family court should not
have discounted her testimony regarding her “ongoing” requests for
reimbursement, her credibility and the weight to afford evidence are
determinations properly made by the family court, not this court. See In re
Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704, 709 (1999) (“In
reviewing a trial court’s findings of fact, we do not reweigh conflicting
evidence or redetermine the preponderance of the evidence, but examine
the record only to determine whether substantial evidence exists to
support the trial court’s action.” (citing Whittemore v. Amator, 148 Ariz.
173, 175, 713 P.2d 1231, 1233 (1986))). Mother does not otherwise
challenge the family court’s finding that she failed to present credible
evidence of timely reimbursement requests from 2007 to 2009.
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Decision of the Court
II. Father’s Petition
A. Father’s Financial Disclosure
¶14 Restated for clarity, Mother next argues the family court
should not have granted Father’s request to modify child support because
he failed to provide her with complete copies of his tax returns before the
evidentiary hearing and failed to introduce into evidence at the
evidentiary hearing his complete tax returns. As discussed below,
although the record does not allow us to determine whether Father failed
to provide Mother with complete copies of his tax returns before the
evidentiary hearing, we are able to determine whether he introduced
complete tax returns at the evidentiary hearing. Because the record
reveals the returns Father introduced into evidence at the hearing were
incomplete on their face, the family court should not have modified child
support and should have, on this issue, granted Mother’s motion for new
trial.
¶15 On January 12, 2012, the family court ordered Father to
“produce no later than February 1, 2012 documents that are required to be
produced with a current Affidavit of Financial Information, including tax
returns for the past 3 years. Based upon agreement by [Father], he shall
also produce 2010 business tax returns.” (Emphasis added.) By referring
to the Affidavit of Financial Information, the court thus ordered Father to
produce complete copies of his federal income tax returns for the
preceding three years with all schedules and attachments and all W-2 and
1099 forms from all sources of income for the preceding three years.
Subsequently, through various filings, including an unsuccessful motion
to dismiss Father’s petition, Mother notified the family court that she
believed Father had failed to comply with its order. Mother did not,
however, attach to her filings copies of the returns Father had given her.
Thus, we cannot determine whether Father complied with the court’s
order. As discussed, supra ¶ 4, the court informed the parties Mother
could raise, and it would consider, whether Father complied with its order
at the evidentiary hearing.
¶16 At the evidentiary hearing, Mother objected to the admission
of Father’s tax returns, again asserting they were incomplete. Father,
however, testified that the 2008, 2009, and 2010 tax returns were
“[a]bsolutely 100 percent complete and accurate.” Based on this
testimony, the court overruled Mother’s objection.
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Decision of the Court
¶17 Our review of the record, however, reveals the returns
Father introduced into evidence at the evidentiary hearing were
incomplete on their face. Father did not attach the W-2s to his 2008 and
2010 returns. He also did not attach schedule K-1 to his 2009 return.
Additionally, although Father listed his 2010 business return as an exhibit
for the evidentiary hearing, neither he nor Mother admitted it into
evidence, and thus the family court did not consider it in modifying child
support. Because the court should not have modified child support
without first considering Father’s complete income and business tax
returns, we agree with Mother the court should have granted her motion
for a new trial on the issue of child support modification. Accordingly,
we vacate the family court’s child support modification order and remand
for a new trial on Father’s petition to modify child support.
III. The Evidentiary Hearing
¶18 Mother next argues she was denied a fair trial because the
family court abused its discretion in arbitrarily imposing time limits on
the parties’ presentation of evidence at the evidentiary hearing.5 We
disagree; the record reflects no abuse of discretion.
¶19 After this court remanded Branigan I, at an October 5, 2011
status conference, the family court scheduled an evidentiary hearing for
January 19, 2012 on “all of the remaining issues in this case” and allocated
two hours for the hearing, which the parties agreed would be “sufficient.”
The court did not, however, identify the “remaining issues.” Based on
additional information provided by a settlement judge, the court later
clarified that, in addition to Mother’s request for reimbursement, there
appeared to be a dispute over the “[e]nforcement of attorneys’ fees/costs
and medical expenses” and the “[m]odification of child support and
health insurance coverage.” It instructed the parties to file an appropriate
petition if they intended to raise these other issues at the evidentiary
hearing.
¶20 Anticipating Father would file a petition to modify child
support and health insurance coverage, Mother objected to consolidating
5To the extent Mother contends she was entitled to more
time at the hearing because she was not represented by counsel, parties
appearing in propria persona are held to the same standards as attorneys.
Kelly v. NationsBanc Mortgage Corp., 199 Ariz. 284, 287, ¶ 16, 17 P.3d 790,
793 (App. 2000).
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the petitions for one hearing and argued the two hours previously
allocated to consider only her petition would be “inadequate.” The court
denied Mother’s objection, and Father filed his petition to, inter alia,
modify the parties’ child support order. Mother again objected to
consolidating the petitions at the evidentiary hearing and to the two-hour
time allocation. On January 12, 2012, the court continued the proceedings
previously set for January 19 to March 15, 2012, and informed the parties
that
each party will be allowed 1/2 of the available
time to present all direct, cross, redirect
examination and any argument. The parties
are expected to complete the trial in the
allotted time, and the time will not be extended
absent a motion granted by the Court and filed
at least 30 days prior to the hearing setting
forth good cause to extend the time and
specifically including a list of each and every
witness who will testify and an estimate of
time and subject matter of the expected
testimony for each witness.
After the court issued this ruling, Mother unsuccessfully renewed her
objections.
¶21 Under the Arizona Rules of Family Law Procedure, the
family court has considerable discretion in imposing reasonable time
limits on proceedings. Ariz. R. Fam. Law P. 22, 77(B)(1). Although the
record reflects Mother objected to the two-hour time allocation and
informed the court that four hours would be necessary, her objections did
not indicate why two hours was inadequate. Instead, Mother asserted
generally that more time was needed. Moreover, after the court
confirmed that the scope of the evidentiary hearing would include not
only the reimbursement issue but also, inter alia, Father’s petition, Mother
did not move to extend the time allocated for the hearing.
¶22 Additionally, the evidentiary hearing transcript reflects the
family court conducted the hearing in a fair manner. The court informed
the parties to “feel free at any time to ask me how much time you have
left,” and the court reminded Mother at least three times of her remaining
time. Mother did not request additional time, even after being informed
her time had expired. Furthermore, the record reflects the court actually
gave Mother additional time to cross-examine Father. Finally, at the
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Decision of the Court
conclusion of her case-in-chief, Mother unequivocally stated she was
“done” without requesting additional time. Based on this record and the
discretion afforded the family court by Rules 22 and 77, we cannot
conclude the court abused its discretion in limiting the hearing to two
hours.
IV. Award of Attorneys’ Fees to Father
¶23 The family court awarded Father his attorneys’ fees
pursuant to A.R.S. § 25-324 (Supp. 2014). That statute affords the court
discretion to award fees after considering the parties’ financial resources
and the reasonableness of their respective positions throughout the
proceedings. Because the family court did not resolve Mother’s request
for reimbursement of extracurricular activity costs, supra ¶ 12, and we are
remanding for a new trial on Father’s petition to modify child support,
supra ¶ 17, we vacate the award of attorneys’ fees in favor of Father.
CONCLUSION
¶24 We affirm the family court’s denial of Mother’s motion in
limine and its finding Guideline 9(A) barred Mother’s request for
reimbursement of the uninsured medical expenses. We vacate, however,
its order modifying child support and remand for a new trial on Father’s
petition to modify child support. We also vacate the award of attorneys’
fees to Father. On remand, the court may consider a renewed request by
Mother for reimbursement of extracurricular activity costs.
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¶25 Father requests attorneys’ fees and costs on appeal pursuant
to A.R.S. § 25-324 and Arizona Rule of Civil Appellate Procedure 21. In
the exercise of our discretion, we deny his request for fees. Mother also
requests an award of attorneys’ fees on appeal. We deny her request
because she fails to cite any authority supporting it. See Ariz. R. Civ. App.
P. 21(a)(2); Ezell v. Quon, 224 Ariz. 532, 539, ¶ 31, 233 P.3d 645, 652 (App.
2010). We grant Mother her taxable costs on appeal, however, contingent
upon her compliance with Rule 21. See Henry v. Cook, 189 Ariz. 42, 44, 938
P.2d 91, 93 (App. 1996) (appellant who obtained partial success entitled to
recover all taxable costs).
:gsh
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