Savage v. Crippa ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SARAH R. SAVAGE, Petitioner/Appellant,
v.
GARY GERARD CRIPPA, Respondent/Appellee.
No. 1 CA-CV 17-0659
FILED 10-25-2018
Appeal from the Superior Court in Maricopa County
No. CV2017-053518
The Honorable Steven K. Holding, Judge Pro Tempore
VACATED AND REMANDED
COUNSEL
S. Alan Cook PC, Phoenix
By S. Alan Cook, Sharon Ottenberg
Counsel for Petitioner/Appellant
Law Offices of Karla L. Calahan, Scottsdale
By Karla Lynn Calahan
Counsel for Respondent/Appellee
SAVAGE v. CRIPPA
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
H O W E, Judge:
¶1 Sarah Savage (“Mother”) appeals the trial court’s order
denying a name change for her nine-year-old daughter, K.C., and the
subsequent denial of her motion for a new trial and sanctions. For the
following reasons, we vacate the trial court’s orders and remand the matter
for a new trial.
FACTS AND PROCEDURAL HISTORY
¶2 In June 2017, Mother applied to change K.C.’s name by
adding Mother’s last name before the child’s current last name, Crippa.
Mother requested the change because (1) she wanted K.C. to feel more like
a part of her family, (2) K.C. had a poor image of Mother and Mother’s
family because of “domestic violence issues and continuous court
litigatio[n]” with Gary Crippa (“Father”), (3) K.C. had requested the change
several times, and (4) the change “would make things easier for doctor
visits[.]” Although Father received notice of the hearing on the application,
the certificate of service did not state that he received a copy of the
application. Regardless, both parties were present for the hearing. About 20
minutes before the hearing began, Father electronically filed an objection to
the application but did not bring Mother a copy of the objection.
¶3 Mother testified that K.C. had asked to add Mother’s last
name to hers so that she would feel more like a part of Mother’s family. The
court asked Father’s counsel about Father’s position on the application, and
counsel replied that Father objected to the name change. His counsel
asserted that Father had spent over $100,000 in a custody battle over the last
four years, the parties had almost equal parenting time, Father believed that
K.C. did not request the name change, and K.C. had bonded with her
siblings and Father. When asked for anything further, Mother added that
K.C. wanted to have the same last name as her younger sister. At the
hearing’s conclusion, the court stated that “[t]his is one of those unique
situations [] where it’s intermeshed into family court and . . . a civil
application. This Court will not get involved in a family court matter and
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SAVAGE v. CRIPPA
Decision of the Court
will not fuel either side.” In its written order denying Mother’s request to
change K.C.’s name, the court specifically found that the application was
“being used as leverage in the family court matter and a change of [K.C.’s]
name . . . would only cause more disharmony.”
¶4 Mother timely moved for a new trial and sanctions. She
argued, inter alia, that the record did not contain substantial evidence to
support the trial court’s order. She also asked the court to impose sanctions
against Father and his counsel because Father did not serve her with the
objection and his allegations in the objection and at the hearing were false,
which required her to file the motion for new trial to rectify. The trial court
denied Mother’s motion, and she appealed to this Court from the denial of
the application and the motion for a new trial and sanctions.1
DISCUSSION
1. Denial of Name Change Application
¶5 Mother argues that the trial court abused its discretion by
denying her request to add her last name to K.C.’s name. A trial court
abuses its discretion if it commits an error of law in reaching a discretionary
conclusion, reaches a conclusion without considering the evidence,
commits some other substantial error of law, or the record fails to provide
substantial evidence to support the court’s conclusion. Flying Diamond
Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50 ¶ 27 (App. 2007).
¶6 Under A.R.S. § 12–601(B), a parent may apply to change a
minor child’s name; the court ruling on the application must “consider the
best interests of the minor[.]” The parent seeking the name change has the
burden to show that the change is in the child’s best interests. See Laks v.
Laks, 25 Ariz. App. 58, 61 (1975). In making its ruling, the trial court is not
required to expressly find that the grant or denial of a name change is in the
child’s best interests unless the applicant so requests. Pizziconi v. Yarbrough,
177 Ariz. 422, 425–26 (App. 1993). This Court will assume that a trial court
has found every controverted issue of fact necessary to sustain its decision
on a name change application, and the judgment will be upheld if
reasonable evidence supports it. Id. at 426.
¶7 Here, Mother did not request a best interests finding, so the
court did not need to expressly state that it found that denying the name
1 This Court stayed Mother’s appeal because the trial court did not
sign the order denying the name change. The trial court subsequently
signed the order and the appeal was reinstated.
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Decision of the Court
change was in K.C.’s best interests. See id. at 425–26. Nevertheless, the trial
court found that Mother was using the application as leverage in a family
court matter and that a name change would “only cause more
disharmony.” Because the court made this finding, we must determine if
substantial evidence in the record supported the court’s conclusion.
¶8 The record does not support the trial court’s finding. First,
beyond Mother’s verified application, the only evidence presented at the
hearing was Mother’s testimony because Father did not testify, and his filed
objection and counsel’s statements at the hearing were not evidence. See
Quine v. Godwin, 132 Ariz. 409, 412 (App. 1982) (noting that arguments
made by counsel are not evidence). Second, the only evidence in the record
at the time of the hearing concerning a potential family court issue was a
reference in Mother’s application for the name change citing “domestic
violence issues and continuous court litigatio[n].” This single reference is
insufficient to indicate whether a matter was still pending in the family
court. Even if a family court matter was pending, the reference does not
demonstrate that a name change would be used as leverage in that other
matter. Third, although Mother’s motion for a new trial and sanctions
attached a 2014 family court order issued by the commissioner who ruled
in this case, no evidence was introduced to show that the commissioner had
current knowledge of the parties’ status in the family court or if any issues
even remained in the family court. Last, the record is devoid of any
evidence showing how a name change would result in “more disharmony”
for the family. Thus, the trial court abused its discretion by denying the
name change based on the rationales it stated on the record and in its order.
¶9 Mother also argues that the trial court abused its discretion by
denying her motion for a new trial and sanctions. We review a trial court’s
denial of a motion for a new trial for an abuse of discretion. Dawson v.
Withycombe, 216 Ariz. 84, 95 ¶ 25 (App. 2007). We also review a trial court’s
decision on sanctions for an abuse of discretion. Corbett v. ManorCare of Am.,
Inc., 213 Ariz. 618, 630 ¶ 42 (App. 2006). By vacating the order denying the
name change, we need not address the merits of the motion for a new trial.
Regarding Mother’s request for sanctions, however, the record does not
show that Father and his counsel engaged in any actions warranting
sanctions. Thus, the court did not abuse its discretion by declining to
impose Mother’s requested sanctions.
¶10 Mother asks this Court to direct the trial court to add
“Savage” to K.C.’s name. We decline the request because whether the name
should be changed depends on the child’s best interests, a factual
determination for the trial court. See Jesus M. v. Ariz. Dep’t of Econ. Sec., 203
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Ariz. 278, 282 ¶ 13 (App. 2002) (“Whether severance is in the child’s best
interests is a question of fact for the juvenile court to determine.”).
Therefore, we vacate the order and remand for a new trial.
2. Attorneys’ Fees on Appeal
¶11 Father requests attorneys’ fees and costs incurred on appeal,
citing A.R.S. §§ 25–324 and 12–341. The former statute applies in dissolution
matters, not to a separately filed request for a name change. The latter
statute allows costs to a prevailing party, but Father is not the prevailing
party, and thus, his request is denied. Mother requests attorneys’ fees and
costs under A.R.S. § 12–342 and Arizona Rules of Civil Appellate Procedure
(“ARCAP”) 21 and 25.2 We deny her request for fees under ARCAP 21
because she did not cite a statute, rule, or other substantive authority for
her request. See ARCAP 21(a)(2) (“A claim for fees under this Rule must
specifically state the statute, rule, decisional law, contract, or other
authority for an award of attorneys’ fees.”). Because Mother cites only
A.R.S. § 12–342, which addresses costs but not attorneys’ fees, she is not
entitled to attorneys’ fees under ARCAP 21. Mother also seeks fees as a
sanction under ARCAP 25, asserting Father’s answering brief is based on
“facts that are not part of the trial record” and contains “unfounded
arguments.” In an exercise of discretion, we decline to impose sanctions
under ARCAP 25, but we award Mother her costs on appeal upon her
compliance with ARCAP 21.
2 During Mother’s appeal, she filed a separate motion seeking
attorneys’ fees and costs under the same statute and rules. Because this
decision addresses her requested attorneys’ fees and costs, Mother’s motion
is denied as moot.
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Decision of the Court
CONCLUSION
¶12 For the foregoing reasons, we vacate the trial court’s order
and remand for a new trial.
AMY M. WOOD • Clerk of the Court
FILED: AA
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