Kazi v. Saleem ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 Matter of:
S. JAFFREY KAZI, Petitioner/Appellee,
v.
HALA SALEEM, Respondent/Appellant.
No. 1 CA-CV 16-0475 FC
FILED 6-8-2017
Appeal from the Superior Court in Maricopa County
No. FC2014-000776
The Honorable Timothy J. Thomason, Judge
AFFIRMED
COUNSEL
Gregg R. Woodnick, PLLC, Phoenix
By Leslie A.W. Satterlee, Markus W. Risinger, Gregg R. Woodnick
Counsel for Petitioner/Appellee
Hala Saleem, Pleasanton, California
Respondent/Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
KAZI v. SALEEM
Decision of the Court
W I N T H R O P, Judge:
¶1 Hala Saleem (“Mother”) appeals the family court’s orders
modifying legal decision-making and parenting time, denying her motion
for new trial, and awarding attorneys’ fees to S. Jaffrey Kazi (“Father”). For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The parties have one child in common, born in June 2005.
During a lengthy custody proceeding in California, Mother made several
allegations that Father was sexually abusing the child. After a twenty-one-
day trial, the California superior court found the allegations
unsubstantiated and awarded the parties joint legal custody. Father
received physical custody of the child in Arizona; Mother received
parenting time in California two weekends per month during the school
year and alternating weeks during the summer. The court also ordered that
the child see a therapist who would “provide a safe haven [and assist the
child] in adjusting to the new custodial arrangement.” Father registered the
custody order in Arizona. See Ariz. Rev. Stat. (“A.R.S.”) § 25-1055 (2017).1
¶3 On March 28, 2015, Mother contacted the Scottsdale Police
Department and reported that Father had physically and sexually abused
the child. The child submitted to a forensic interview and medical
examination, and the Arizona Department of Child Safety (“DCS”) took
temporary custody of the child, placing her in a foster home before finding
a placement with a paternal aunt. After a team decision meeting four days
later, DCS concluded the allegations were unsubstantiated and returned the
child to Father’s care. No criminal charges were filed, and Scottsdale police
listed the case as inactive.
¶4 On April 3, 2015, Father filed a petition to modify legal
decision-making and parenting time in Arizona, alleging a change in
circumstances based on the March 28, 2015 allegation.2 The court issued
1 We cite the current version of the applicable statutes because no
revisions material to this decision have occurred since the court’s orders.
2 Arizona’s juvenile court had jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act because the California superior
court stayed its jurisdiction to allow the matter to proceed in Arizona. See
A.R.S. §§ 25-1031 to -1040 (2017); see also Cal. Fam. Code §§ 3421 to 3430
(West 2017).
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Decision of the Court
temporary orders giving Father sole legal decision-making authority,
suspending Mother’s parenting time, and appointing a therapeutic
interventionist (“TI”) to make recommendations on parenting time. Mother
refused to participate in the therapeutic intervention process, however,
and, on November 10, 2015, the family court affirmed the temporary orders.
At the same time, the court encouraged Mother to meet with the TI,
suggesting Mother could receive supervised parenting time “in fairly short
order” if she were to do so. The court appointed Dr. Bettina Lehnert as the
child’s safe-haven therapist.
¶5 On April 4, 2016, following a one-day evidentiary hearing, the
family court found that, based on the evidence presented, “Father did not
molest [the child].” Although the court could not find “that Mother created
these allegations and put them in [the child’s] head,” the court did find that
“Mother’s behavior is troubling.” The court concluded a change in
circumstances supported a change of legal decision-making and parenting
time and, after considering the relevant factors, ordered that Father have
sole legal decision-making authority. See A.R.S. §§ 25-403 (2017), -403.01
(2017), -403.03 (2017). Regarding parenting time, the court concluded
unsupervised parenting time with Mother would endanger the child’s
physical, mental, moral, or emotional health. The court also stated:
The California Court did not impose supervised parenting
time . . . . Since then, the minor Child has been subjected to
another sexual assault examination, forensic interview and
removal from her parent’s care as a result of Mother’s
disturbing behaviors. It appears to this Court that therapeutic
supervision is critical to protect this Child from further
trauma caused by Mother.
The court reaffirmed the appointment of the TI, but suggested Mother
could propose a different TI if she wished. The court also acknowledged
that “prompt steps” toward reunification were in the child’s best interest,
and indicated it would promptly consider a request for parenting time if
Mother participated in the therapeutic intervention process. The court also
stated:
The Court is not deferring authority to the [TI]. The initial
appointment stated that the [TI] was appointed to make
recommendations to the Court about parenting time. The
Court is looking to the [TI] for recommendations. The Court
will make final decisions on parenting time.
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After considering the parties’ respective financial positions, the court
awarded Father reasonable attorneys’ fees based on the unreasonable
positions taken by Mother in the case. See A.R.S. § 25-324 (2017).
¶6 On July 8, 2016, the family court denied Mother’s motion for
new trial and awarded Father $40,000 in attorneys’ fees. See Ariz. R. Fam.
Law P. (“Rule”) 81. We have jurisdiction over Mother’s timely appeal
pursuant to A.R.S. § 12-2101(A)(2), (5)(a) (2016).
ANALYSIS
I. Legal Decision-Making and Parenting Time
¶7 We review the family court’s legal decision-making and
parenting time orders for an abuse of discretion. See Owen v. Blackhawk, 206
Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). 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, 219 P.3d 258, 262 (App. 2009).
A. Material Change in Circumstances
¶8 Mother argues there were no changed circumstances
supporting consideration of Father’s petition to modify.
¶9 When considering a petition to modify legal decision-making
and parenting time, the family court must find a “material change in
circumstances affecting the welfare of the child” before determining
whether modification is in the child’s best interest. Vincent v. Nelson, 238
Ariz. 150, 155, ¶ 17, 357 P.3d 834, 839 (App. 2015) (citing Canty v. Canty, 178
Ariz. 443, 448, 874 P.2d 1000, 1005 (App. 1994)); accord Christopher K. v.
Markaa S., 233 Ariz. 297, 300, ¶ 15, 311 P.3d 1110, 1113 (App. 2013). The
family court has broad discretion to determine whether a change in
circumstances has occurred, and we will not disturb its decision absent an
abuse of discretion. Pridgeon v. Superior Court, 134 Ariz. 177, 179, 655 P.2d
1, 3 (1982).
¶10 Put simply, Mother claims nothing has “changed,” i.e., Father
was abusing the child before and he continues to abuse her now. Cf.
Richards v. Richards, 137 Ariz. 225, 226, 669 P.2d 1002, 1003 (App. 1983)
(explaining that changed circumstances supporting modification of spousal
maintenance are proven by a comparison with the circumstances existing
at the time of the original award). But the record contains no evidence this
claim has been substantiated by any law enforcement or child welfare
agency or in any legal proceeding. Accordingly, the family court properly
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considered Mother’s March 2015 report to be a new allegation of abuse
against Father, which supported the court’s finding of a material change in
circumstances.
B. Finding That Father Did Not Abuse the Child
¶11 Mother challenges the family court’s finding that Father did
not abuse the child, urging the court should have given more weight to the
child’s forensic interview. Clearly, the court found “disturbing” “the
incredible level of detail and the things that [the child] was able to say”
during the interview. Again, however, we will not reweigh the conflicting
evidence and will defer to the family court to decide witnesses’ credibility
and the weight to give the evidence. See Hurd, 223 Ariz. at 52, ¶ 16, 219 P.3d
at 62; Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13, 972 P.2d 676, 680 (App.
1998). Moreover, the evidence reasonably supports the court’s finding. See
Vincent, 238 Ariz. at 155, ¶ 17, 357 P.3d at 839.
C. Supervised Parenting Time Conditions
¶12 Mother argues the family court denied her supervised
parenting time without making the requisite findings. The court may
restrict parenting time when it finds “the parenting time would endanger
seriously the child’s physical, mental, moral or emotional health.” A.R.S.
§ 25–411(J) (2017); see also A.R.S. § 25-403.01(D).3 We review an order
restricting parenting time for an abuse of discretion. See Hart v. Hart, 220
Ariz. 183, 187, ¶ 15, 204 P.3d 441, 445 (App. 2009); Baker v. Meyer, 237 Ariz.
112, 116, ¶ 10, 346 P.3d 998, 1002 (App. 2015). In explaining its decision to
restrict Mother’s parenting time, the court concluded that “frequent,
meaningful and continuing unsupervised parenting time with Mother, at this
time, would endanger the Child’s physical, mental, moral or emotional
health.” (Emphasis added.) The court did not deny supervised parenting
time; instead, it conditioned supervised parenting time on Mother’s
participation in the therapeutic intervention process.
3 Section 25-403.01(D) provides:
A parent who is not granted sole or joint legal decision-
making is entitled to reasonable parenting time to ensure that
the minor child has substantial, frequent, meaningful and
continuing contact with the parent unless the court finds, after
a hearing, that parenting time would endanger the child’s
physical, mental, moral or emotional health.
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¶13 Next, Mother argues the family court lacked authority to
order her to meet with a TI as a condition for parenting time. The court
may require a party to engage in services such as therapeutic intervention
and therapeutic supervised parenting time. Ariz. R. Fam. Law P. 95(A), (D).
Mother suggests this condition amounts to a deprivation of her
fundamental right to the care, custody, and control of the child. See generally
Santosky v. Kramer, 455 U.S. 745, 753-54 (1982). We disagree. Mother offers
no persuasive explanation why she would not have been given parenting
time after meeting with the TI, particularly considering the court’s
determination that reunification was in the child’s best interest.
¶14 Finally, Mother argues the family court impermissibly
delegated a decision on parenting time to the TI. See DePasquale v. Superior
Court, 181 Ariz. 333, 336, 890 P.2d 628, 631 (App. 1995) (“[A] court can
neither delegate a judicial decision to an expert witness nor abdicate its
responsibility to exercise independent judgment.”). Mother does not
explain how the court delegated a judicial decision to the TI; indeed, the
court expressly stated it, not the TI, would decide parenting time. Because
the family court may seek professional advice on child custody issues, see
A.R.S. §§ 25-405(B) (2017), -406 (2017); Hays v. Gama, 205 Ariz. 99, 102, ¶ 15,
67 P.3d 695, 698 (2003), Mother has shown no error on this basis.
D. Hearsay Evidence
¶15 Mother argues the family court erred by admitting over her
objection four letters from Dr. Lehnert raising concerns about “further
emotional abuse” by Mother and recommending she resume contact with
the child only “in a therapeutic context.”
¶16 We will not disturb the family court’s ruling on the
admissibility of evidence absent an abuse of discretion and resulting
prejudice. Selby v. Savard, 134 Ariz. 222, 227, 655 P.2d 342, 347 (1982). We
will not presume prejudice; instead, prejudice must affirmatively appear
from the record. Rimondi v. Briggs, 124 Ariz. 561, 565, 606 P.2d 412, 416
(1980). We review de novo questions of law related to the admissibility of
evidence. State v. Leteve, 237 Ariz. 516, 523, ¶ 18, 354 P.3d 393, 400 (2015).
¶17 Mother waived any argument based on hearsay when she
failed to seek strict compliance with the Arizona Rules of Evidence by
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invoking Rule 2, Ariz. R. Fam. Law P.4 To the extent Mother’s objection
went to reliability, see Ariz. R. Fam. Law P. 2(B)(2), “[h]earsay evidence is
considered reliable where the circumstances tend to establish that the
evidence offered is trustworthy,” State v. Snider, 172 Ariz. 163, 164, 835 P.2d
495, 496 (App. 1992) (citing Wieseler v. Prins, 167 Ariz. 223, 227, 805 P.2d
1044, 1048 (App. 1990)). Although Mother argued Dr. Lehnert acted
beyond her authority as the child’s safe-haven therapist in making
recommendations on custody and parenting time, Mother offers no
persuasive explanation why the letters were untrustworthy. Moreover, Dr.
Lehnert’s concerns were introduced as part of the DCS case event summary,
which was admitted in evidence without objection relevant to this appeal
as (Father’s) Exhibit 8 and (Mother’s) Exhibit 31.5 Thus, Mother has not
shown exclusion of the letters would have changed the outcome. See Selby,
134 Ariz. at 227, 655 P.2d at 347.
¶18 Mother also argues the family court erred by relying on
hearsay statements in Exhibit 8, in which the child recanted the allegations
of abuse. Mother did not timely object on this basis,6 and we generally do
not consider an argument raised for the first time on appeal. See Cullum v.
Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007).
Further, Mother’s Exhibit 31 contains the same narrative as Exhibit 8, so no
prejudice appears from the record. See Rimondi, 124 Ariz. at 565, 606 P.2d
at 416.
4 A party may require strict compliance with the Arizona Rules of
Evidence by filing a notice to that effect at least forty-five days before trial.
Ariz. R. Fam. Law P. 2(B)(1). If no notice is filed, relevant evidence is
admissible, unless its probative value is outweighed by a danger of unfair
prejudice, confusing the issues, undue delay, wasting time, needlessly
presenting cumulative evidence, lack of reliability, or lack of adequate and
timely disclosure. Ariz. R. Fam. Law P. 2(B)(2).
5 Mother objected to Exhibit 8, but only on the basis there were more
redactions on Exhibit 8 than Exhibit 31. The family court admitted both
exhibits.
6 Mother states she objected “during the hearing”; however, she cites
to the November 10, 2015 temporary orders hearing, where she objected
because “DCS has no right to just go talk to [the child] without videotaping
her” and “this interview has no forensic value.”
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II. Attorneys’ Fees in Family Court
¶19 Mother argues the family court erred in awarding attorneys’
fees to Father. The court may award reasonable attorneys’ fees “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). We review an award of attorneys’ fees for an abuse of
discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36, 250 P.3d 1213,
1221 (App. 2011). We view the record in the light most favorable to
upholding the award, and will affirm if any reasonable evidence in the
record supports the court’s decision. Mitchell v. Mitchell, 152 Ariz. 317, 323,
732 P.2d 208, 214 (1987).
¶20 The record indicates Mother has substantial financial
resources. In concluding Mother acted unreasonably, the family court
considered she (1) failed to appear for a temporary orders hearing, (2) failed
to participate in the therapeutic intervention process, (3) made false
allegations against Father, and (4) refused to develop a relationship with
the child. Although Mother suggests this conduct was not objectively
unreasonable, see In re Marriage of Williams, 219 Ariz. 546, 548, ¶ 10, 200 P.3d
1043, 1045 (App. 2008) (explaining that an objective standard applies in
considering reasonableness), the family court was in the best position to
observe and assess the parties’ conduct, MacMillan, 226 Ariz. at 592, ¶ 38,
250 P.3d at 1221. Because the record supports the court’s findings, we
cannot say the court abused its discretion in awarding fees based on the
unreasonableness of Mother’s positions.
CONCLUSION
¶21 For the foregoing reasons, we affirm. Father requests an
award of attorneys’ fees incurred on appeal pursuant to A.R.S. § 25-324,
arguing Mother has “exceptional financial resources” and continues to act
unreasonably. In the exercise of our discretion, we award Father an amount
of his reasonable attorneys’ fees upon compliance with Rule 21, ARCAP.
As the prevailing party, Father is also entitled to his taxable costs on appeal
upon compliance with Rule 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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