Taraska v. Taraska ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Marriage of:
ARINA TARASKA, Petitioner/Appellee,
v.
MICHAEL TARASKA, Respondent/Appellant.
No. 1 CA-CV 18-0611 FC
FILED: 10-8-2019
Appeal from the Superior Court in Maricopa County
No. FC2016-008369
The Honorable Jacki Ireland, Judge Pro Tempore
AFFIRMED
COUNSEL
Arina Taraska, Surprise
Petitioner/Appellee
Michael Taraska, Phoenix
Respondent/Appellant
TARAKSA v. TARASKA
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer B. Campbell joined.
C R U Z, Judge:
¶1 This case involves a post-divorce dispute between Michael
Taraska (“Father”) and Arina Taraska (“Mother”) over legal decision-
making authority and parenting time for their child, R.T., born in July 2013.
For the following reasons, we affirm the superior court’s orders awarding
Mother sole decision making and modifying Father’s parenting time.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Mother divorced in March 2017. The superior
court awarded Father and Mother joint legal decision-making authority
and ordered an equal parenting time schedule, commonly referred to as a
5-2-2-5 plan, where both parents had parenting time for the same number
of weekdays and weekends on an alternating basis.
¶3 The parties continued to dispute legal decision-making
authority and parenting time, and in June 2017, the superior court
appointed a parenting coordinator (“PC”) pursuant to Arizona Rules of
Family Law Procedure (“ARFLP”) 74. In August 2017, the PC submitted a
report to the superior court containing recommendations that the court
adopted. The superior court ultimately dismissed the PC in September 2017
after finding that the PC process was unlikely to resolve future disputes.
¶4 In October 2017, the superior court denied petitions to modify
from both Father and Mother, but the court ordered that Father and Mother
could communicate with R.T. by telephone, Facetime, or Skype on the days
R.T. was with the other parent.
¶5 In June 2018, Mother filed an emergency petition to modify
legal decision-making authority and parenting time. Mother claimed that
emergency circumstances justified a change in custody because Father
failed to facilitate R.T.’s calls to Mother while R.T. was with Father and
because Father communicated with R.T. inappropriately during calls. In
her emergency petition Mother requested the court “[c]onsider changes . . .
since joint legal decision is not possible in this situation.” In a cross petition,
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Father asked the court to allow him to purchase a cell phone for R.T., to
alter the location for pick up and drop off, and to enforce the mediation
term of the consent decree. The court determined that no emergency
existed, but ordered an evidentiary hearing on Mother’s petition.
¶6 At the August 21, 2018 evidentiary hearing, Mother and
Father each testified and offered evidence. Mother called one witness, but
the court struck the witness’ testimony after the witness invoked her Fifth
Amendment right not to testify during Father’s cross-examination. Father
and Mother stipulated to the admission of each other’s evidence.
¶7 Following the evidentiary hearing, Father moved to strike all
evidence presented by Mother. The court denied the motion.
¶8 In September 2018, the court issued its findings regarding
Arizona Revised Statutes (“A.R.S.”) section 25-403(A) factors, awarded sole
legal decision-making authority to Mother, and vacated the prior order
allowing daily calls with R.T. The court found that “Father is emotionally
abusing this child and [showed] no insight into his behavior or intention of
changing his behavior” and ordered supervised parenting time for Father
“to protect the child’s physical, mental, moral, or emotional health.”
Regarding Father’s cross petition, the court declined to decide the issue of
a cell phone for R.T., leaving it to Mother as the sole legal decision maker
over the child. Finally, the court denied Father’s request for mediation.
¶9 Father timely appealed. We have jurisdiction pursuant to
A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Notice of Scope of Evidentiary Hearing
¶10 Father argues the superior court denied him due process
when it modified court orders on legal decision-making authority and
parenting time without notice and when it revoked the order requiring
daily calls with R.T. He argues that Mother’s petition did not contain
adequate notice that modification of legal decision-making authority and
parenting time would be at issue and that he was “blind-sided” by the
court’s order.
¶11 “Due process requires notice and an opportunity to be heard
at a meaningful time and in a meaningful manner.” Huck v. Haralambie, 122
Ariz. 63, 65 (1979). Due process claims are issues of law, which we review
de novo. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999).
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¶12 A petition must include a statement showing the petitioner is
entitled to relief and a demand for the relief sought. Ariz. R. Fam. Law P.
24(a).1 Here, neither party was represented by counsel, but self-represented
litigants are held to the same standard as a lawyer regarding notice of
statute, rules, and legal principles. Higgins v. Higgins, 194 Ariz. 266, 270, ¶
12 (App. 1999).
¶13 At the July 2018 hearing, the court stated that if Mother
“proves the allegations in the petition,” she could file a motion to “modify
joint legal decision making to sole.” From this statement Father concludes
that it was clear to the parties that the issue of legal decision-making
authority was not to be litigated at the upcoming evidentiary hearing, and
a new petition was required before the court could entertain Mother’s
request for change of legal decision-making authority. Father’s argument
fails, however, because Mother’s petition clearly requested modification of
legal decision-making authority.
¶14 Mother’s petition cited the superior court’s order of October
5, 2017, which stated that “[i]f the parties continue to communicate in
inappropriate manners [to R.T. regarding the other parent], the [c]ourt will
not hesitate to change legal decision making or to suspend one parent’s
parenting time.” Mother also explained the negative effects of Father’s
conduct on the child, including his “fears of losing physical contact with
Mother,” and “not letting [go of] Mother’s hand during the separation,” or
that the child should “not be aware of details of litigation Father exposes
him to.” Under “Prayer [f]or Relief” Mother requested, among other things,
the court “[c]onsider changes in [l]egal decision [sic] since joint [l]egal
decision [sic] is not possible in this situation” and “[c]onsider custodial re-
evaluation.” When read together, Mother’s petition provided adequate
notice to Father that her plea to the court was to address legal decision
making and parenting time in addition to ending the daily calls with R.T.
¶15 Father’s response to the petition and his separate pre-hearing
statement bely his claim of lack of notice as to the legal decision-making
and parenting-time issues. In his response to Mother’s petition, Father
acknowledged that Mother sought modifications to legal decision-making
authority and parenting time, opposing the requests as “not available as a
1 Mother filed her petition under ARFLP 29(A). The ARFLP were
revised effective January 1, 2019, and 29(A) was renumbered as 24(a) with
no substantive differences. See ARFLP, Correlation Table. For ease of
reference, we refer to 24(a) throughout this decision.
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remedy.” Also, in his separate pre-hearing statement, Father attempted to
narrow the issues to be heard by the court at the upcoming hearing and
requested a separate hearing to address modification of parenting time and
legal decision-making authority.2 More importantly, during the
evidentiary hearing itself the court referred to Mother’s petition and asked
whether Mother was “asking for sole, legal decision-making” and “[w]hat
parenting plan would [Mother] want the court to put in place.” Father was
present, but did not object to the court’s questions or to Mother’s request
for sole legal decision-making authority. Accordingly, we reject Father’s
argument that he lacked notice of Mother’s requests.
¶16 Father cites Cruz v. Garcia, 240 Ariz. 233, 237, ¶ 16 (App. 2016),
to argue he had no opportunity “to be heard at a meaningful time in a
meaningful manner” before the court modified legal decision-making
authority and parenting time. Cruz is distinguishable from this case. In
Cruz, the court had previously set a separate hearing to address legal
decision-making authority. Id. at ¶ 15. “The court reiterated twice at the
hearing that the motion before it was [father’s] petition to suspend
[mother’s] parenting time” rather than the other then-pending motions. Id.
The court then heard evidence and adjudicated the issues of legal decision
making and parenting time. Id. at ¶ 17.
¶17 Unlike Cruz, here the court had one pending motion
regarding R.T.: Mother’s emergency petition to change the court’s orders.
At the evidentiary hearing, the court addressed Mother’s requests for
modification to legal decision making and parenting time. Father then
testified, responded to Mother’s evidence, and presented evidence. In
contrast to Cruz, the court made factual findings based on the evidence
admitted at the evidentiary hearing, including testimony from both parties
and all of the exhibits admitted per stipulation of the parties.
¶18 In his reply brief, Father argues, for the first time, that
Mother’s petition “was jurisdictionally defective” under A.R.S. § 25-411.
However, Father’s challenge is untimely. “The time for achieving [§ 25-
411]’s intended [procedural] protections . . . has passed if noncompliance is
first brought to our attention on appeal from the final judgment.” In re the
Marriage of Dorman, 198 Ariz. 298, 302, ¶ 11 (App. 2000). The superior court
conducted an evidentiary hearing, reviewed the merits of Mother’s petition,
and determined there was sufficient cause to modify the legal decision-
making and parenting-time orders. Therefore, Father’s objection under
2 The court implicitly denied that request in considering Mother’s
petition at the evidentiary hearing as scheduled.
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A.R.S. § 25-411 is now waived and the court’s orders will not be disturbed
on this basis.
¶19 Father had notice that the superior court would consider
modifications to legal decision-making authority and parenting time at the
evidentiary hearing, and he had the opportunity to be heard and to present
evidence at the evidentiary hearing. As such, the superior court did not
deny Father due process in modifying court orders for legal decision-
making authority or parenting time.
II. Admission of Video Evidence
¶20 Father argues that the superior court erred in admitting video
evidence presented by Mother because he did not have an opportunity to
cross-examine Mother’s witness regarding the evidence. We will not
disturb a superior court’s ruling on the admissibility of evidence absent a
clear abuse of discretion and resulting prejudice. Fuentes v. Fuentes, 209
Ariz. 51, 56, ¶ 24 (App. 2004) (citation omitted). To determine that there has
been an abuse of discretion, “the record must be devoid of competent
evidence to support the decision of the trial court.” Borg v. Borg, 3 Ariz.
App. 274, 277 (1966) (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)).
¶21 Father invoked the Arizona Rules of Evidence under ARFLP
2(a) for the evidentiary hearing. Mother presented video evidence and
called family friend Ms. Robbins as a witness to lay a foundation for that
evidence. Father stipulated to the admission of all of Mother’s evidence in
exchange for Mother’s stipulation to the admission of all of his evidence;
Mother agreed and the court admitted all exhibits from both parties.
¶22 The stipulation of evidence generally waives a party’s right to
object to the evidence on appeal. See State v. Rockwell, 161 Ariz. 5, 10 (1989);
cf. Gustafson v. Riggs, 10 Ariz. App. 74, 76 (1969) (“The stipulation of
evidence into the record . . . waives any error arising from the introduction
of the evidence itself.”). Father claims he stipulated to “some but not all”
of Mother’s evidence “on the basis and understanding” that he would have
an opportunity to cross-examine Mother’s witness. But the transcript does
not support Father’s assertion: Father made no mention of cross-examining
Mother’s witness when stipulating to admitting both parties’ evidence.
¶23 The evidence that Father challenges entered the record via
stipulation. Therefore, the video evidence to which Father now objects was
not admitted as a result of Ms. Robbins’ testimony, but rather through
stipulation. Moreover, Father’s stipulation to the admission of Mother’s
exhibits was made in exchange for the benefit of the admission of all of his
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own exhibits. Once admitted, the court was not obligated to grant Father’s
request that the exhibits be withdrawn from evidence. We find no abuse of
discretion in the court’s admission of the video evidence or in its
subsequent denial of the motion to strike the same.
¶24 In addition, we will not disturb the court’s admission of
evidence absent “both a clear abuse of discretion and resulting prejudice.”
Fuentes, 209 Ariz. at 57, ¶ 27 (emphasis added). Prejudice will not be
presumed but must “affirmatively appear from the record.” Rimondi v.
Briggs, 124 Ariz. 561, 565 (1980); see Borg, 3 Ariz. App. at 277. A complete
review of the record reveals sufficient competent evidence to sustain the
court’s judgment even without the evidence challenged by Father as
inadmissible. Therefore, the court’s admission of the video evidence did
not result in prejudice to Father. See Groener v. Briehl, 135 Ariz. 395, 398
(App. 1983).
III. Parenting Coordinator’s Recommendation
¶25 Father also argues, for the first time on appeal and without
citing to any legal authority, that the superior court lacked jurisdiction to
hold an evidentiary hearing to modify legal decision-making authority and
parenting time because the court failed to comply with a prior court order
that was the “law of the case.” He cites to the 2017 PC report recommending
the court order “a psychological evaluation of each parent, prior to
considering any petitions for modification.”
¶26 The “law of the case” is
a rule of general application that the decision of an appellate
court in a case is the law of that case on the points presented
throughout all the subsequent proceedings in the case in both
the trial and the appellate courts, and no question necessarily
involved and decided on that appeal will be considered on a
second appeal or writ of error in the same case, provided the
facts and issues are substantially the same as those on which
the first decision rested, and, according to some authorities,
provided the decision is on the merits.
State v. King, 180 Ariz. 268, 278 (1994) (quoting In re Monaghan’s Estate, 71
Ariz. 334, 336 (1951)). The issue of the 2017 PC report recommendations
was not previously litigated on appeal and no decision rendered such that
the superior court and parties were bound to follow it in all subsequent
proceedings. Furthermore, a family’s changing circumstances may in fact
require that the superior court modify its prior orders. The prior order
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adopting the PC report and recommendations did not bar the superior
court from considering Mother’s petition and conducting the evidentiary
hearing. See King, 180 Ariz. at 278-79; Zimmerman v. Shakman, 204 Ariz. 231,
236, ¶ 15 (App. 2003). Thus, the “law of the case” doctrine did not deprive
the court of jurisdiction to consider Mother’s petition.
¶27 Finally, Father alleges the superior court was biased against
him. In reviewing this type of claim against a judicial officer, we presume
judges to be “free of bias and prejudice.” State v. Rossi, 154 Ariz. 245, 247
(1987). A review of the record shows no indication that the judge was
partial or prejudiced against Father. Accordingly, Father has failed to prove
error on this basis.
CONCLUSION
¶28 For the foregoing reasons, we affirm the court’s orders.
AMY M. WOOD • Clerk of the Court
FILED: RB
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