Flynn v. Brown ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
AMANDA SUE FLYNN, Petitioner/Appellant,
v.
GREGORY SCOTT BROWN, Respondent/Appellee.
No. 1 CA-CV 14-0701 FC
FILED 10-29-2015
Appeal from the Superior Court in Maricopa County
No. FC2010-092975
The Honorable John R. Hannah, Jr., Judge
The Honorable Peter A. Thompson, Judge
AFFIRMED
COUNSEL
Benes Law & Mediation, Chandler
By Julie A. Benes
Counsel for Petitioner/Appellant
The Wilkins Law Firm PLLC, Phoenix
By Amy M. Wilkins, Heather Coe-Smith
Counsel for Respondent/Appellee
FLYNN v. BROWN
Decision of the Court
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
G E M M I L L, Judge:
¶1 Amanda Sue Flynn (“Mother”) appeals from the family
court’s ruling denying her request to discontinue Gregory Scott Brown
(“Father”)’s parenting time, awarding joint legal decision-making
authority, and awarding Father attorney fees. On the record before us, we
discern no abuse of discretion and, therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In a 2011 dissolution decree, the family court awarded Mother
sole legal custody and final decision-making authority, and granted Father
supervised parenting time.
¶3 In 2013, Mother filed a petition to modify parenting time,
claiming Father sexually molested their minor daughter. On an emergency
basis, the family court temporarily awarded Mother sole legal decision-
making authority and suspended Father’s parenting time pending a
hearing. After a hearing, the family court reaffirmed its emergency
temporary orders, discontinued the child’s counseling, and scheduled trial.
¶4 In the joint pretrial statement filed one week before trial,
Father requested joint legal decision-making authority, to which Mother
objected, citing procedural irregularities. After a three-day trial, the family
court issued a sixteen-page ruling, finding “a preponderance of the
evidence supports the conclusion that Father did not commit sexual abuse
against his daughter.” The family court concluded that the “most likely
explanation is that Mother saw what looked to her like a ‘hickey’ on her
daughter’s neck, asked the child what happened and was told that Father
‘kissed my neck,” and jumped to a conclusion. “From there Mother
interpreted everything the child said . . . as sexual behavior.” The family
court found that Mother’s response shaped the child’s statements “and
then, over time, the child’s interpretation of events and her emotional
responses to them.” The family court found Mother’s explanations for
various disparaging remarks she made about Father or for her actions to
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keep Father away from the child to be “patently false.” The family court
also found that Mother had a “lack of objectivity and perspective.”
¶5 The family court denied Mother’s request for an order
discontinuing Father’s parenting time and then found a substantial change
of circumstances that justified changing Mother’s sole legal decision-
making to joint legal decision-making. The family court also found that
“Mother’s misguided effort to ‘protect’ the child from Father has placed the
father/daughter relationship at serious risk” and that “Father has
established a stable, alcohol-free lifestyle.” The family court concluded that
“Mother’s insistence on sole legal decision-making power and supervised
visitation stems from an unhealthy mistrust that is not in the child’s best
interest.” The family court further noted that Mother “overstated the
evidence supporting her position. At times been outright untruthful. She
seems to have convinced herself that Father is actually a threat to the child,
which may have led her to adopt an ‘end justifies the means’ approach to
the litigation.”
¶6 In addition to granting joint legal-decision making authority,
the court modified parenting time, ordered the parties to employ a
reunification counselor, and awarded Father attorney fees. Mother timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(2).
DISCUSSION
I. Legal Decision-Making Authority
¶7 Mother argues the family court erred in modifying legal
decision-making authority in the absence of a petition and without notice,
citing Arizona Rule of Family Law Procedure (“Rule”) 91(D). Rule 91(D) is
a prehearing procedural rule requiring compliance with A.R.S. § 25-411 to
modify child custody. That statute sets forth prehearing procedural
requirements a party must follow when seeking modification of legal
decision-making authority. A.R.S. § 25-411(L); In re Marriage of Dorman, 198
Ariz. 298, 302, ¶ 10 (App. 2000). Rule 91(D) and § 25-411(L) both direct a
party seeking modification of child support or legal decision-making
authority to submit an affidavit or petition and give notice so that the court
may determine whether to hold a hearing.
¶8 Here, the family court had already scheduled a trial on
Mother’s petition to modify parenting time when Father requested joint
legal decision-making authority in the joint pretrial statement. Although
he failed to make his request in a formal petition, the joint “pretrial
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statement controls the subsequent course of the litigation” and has “the
effect of amending the pleading.” Carlton v. Emhardt, 138 Ariz. 353, 355
(App. 1983); see also Ariz. R. Fam. Law P. 34(b) (family court may allow the
pleadings to be amended when merits of the action will be served and no
prejudice results). The parties submitted the joint pretrial statement one
week before the first day of trial and more than five weeks before the final
day of trial. Mother’s objection in the joint pretrial statement to Father’s
request to modify legal decision-making authority is evidence she had prior
notice.1 There was no procedural error in the family court’s modification.
¶9 Moreover, a party must challenge a failure to comply with §
25-411’s procedural requirements via special action “prior to a resolution
on the merits.” Dorman, 198 Ariz. at 302, ¶ 11. When, as here, the family
court “conducted an evidentiary hearing, reviewed the merits of the case,
and determined there was sufficient cause to modify” legal decision-
making authority, “[i]t is too late to obtain effective appellate review of
alleged noncompliance with the prehearing procedural requirements of §
25-411.” Id. at 303, ¶ 11. Thus, Mother’s argument that the family court
erred in modifying legal decision-making authority in the absence of a
formal petition is moot.
II. Evidentiary Issues, Factual Findings, and Rulings
¶10 Mother also challenges the family court’s finding of changed
circumstances, the court’s ruling permitting Father to offer an alternative
explanation for the source of the mark on the child’s neck, the court’s
finding that Father’s alternative explanation is “more consistent with the
evidence” than is sexual molestation, its reliance on testimony from a prior
hearing, and the award of attorney fees.2
1 Mother claims that had Father “retained a custody evaluator, Mother
would have been on notice of Father’s intent” to modify “custody/legal
decision making.” However, hiring a custody evaluator is not a condition
precedent to modifying legal decision-making authority. See A.R.S. §§ 25-
403(A), 25-403.01.
2 Mother also challenges the court’s November 21, 2013 ruling
discontinuing counseling for the minor child. Mother does not develop this
argument, however, nor has she shown that she was prejudiced by that
ruling. Accordingly, we decline to address it. See Polanco v. Indus. Comm’n
of Ariz., 214 Ariz. 489, 491 n.2, ¶ 6 (App. 2007) (declining to address an
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¶11 We review evidentiary rulings for abuse of discretion. Larsen
v. Decker, 196 Ariz. 239, 241, ¶ 6 (App. 2000). We will not set aside factual
findings unless they are clearly erroneous. In re Marriage of Berger, 140 Ariz.
156, 161 (App. 1983). We review an award of attorney fees under A.R.S. §
25-324 for abuse of discretion. Rinegar v. Rinegar, 231 Ariz. 85, 90, ¶ 22 (App.
2012).
¶12 We are unable to determine whether the court abused its
discretion in making findings regarding changed circumstances, Father’s
alternative explanation, and award of attorney fees because Mother did not
provide transcripts of the trial proceedings. As the appellant, Mother “is
responsible for making certain the record on appeal contains all transcripts
or other documents necessary for us to consider the issues raised on
appeal.” Baker v. Baker, 183 Ariz. 70, 73 (App. 1995); see also ARCAP
11(c)(1)(B) (appellant must include transcripts on appeal if contending that
a judgment, finding, or conclusion is unsupported by or contrary to the
evidence). In the absence of a transcript, we must assume the evidence at
trial supports the court’s findings. Baker, 183 Ariz. at 73.
¶13 In any event, based on the limited record before us, Mother’s
arguments fail. Mother’s contention that the family court did not find
changed circumstances is contradicted by the plain language of the family
court’s ruling, which unequivocally found a “substantial change of
circumstances.” The family court also did not err in permitting Father to
testify about an alternative explanation for the child’s injury. S. Ariz. Freight
Lines v. Jackson, 48 Ariz. 509, 517–18, (1936) (stating it was not error for a
defendant “to offer a possible explanation of the cause of the physical
condition of the plaintiff when that cause is one of the material issues of the
case”). Because we do not reweigh evidence on appeal, we discern no error
in the family court’s finding that Father’s alternative explanation “is more
consistent with the evidence.” See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16 (App.
2009).
¶14 As to Mother’s challenge to the attorney fees award, although
the family court may award attorney fees pursuant to A.R.S. § 25-324 based
on either a disparity in the parties’ financial resources or the reasonableness
of the positions, Magee v. Magee, 206 Ariz. 589, 591 n.1, ¶ 8 (App. 2004), the
family court here did not specify the basis for its award. Mother argues that
since the parties’ financial resources were substantially equivalent, the
family court must have made its ruling based on the reasonableness of the
argument a party mentioned only in passing and for which no supporting
legal authority was cited).
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parties during litigation and that, because Mother was reasonable and
Father was not, the family court erred in awarding Father attorney fees.
Although not specifically stated in the attorney fees section of its ruling, the
family court clearly viewed Mother’s positions as unreasonable, given its
view that Mother “overstated the evidence supporting her position,” was
“outright untruthful,” gave “patently false” explanations, and “adopt[ed]
an ‘ends justifies the means’ approach to the litigation.” An unreasonable
position can include making misrepresentations and false allegations
without good cause. Mangan v. Mangan, 227 Ariz. 346, 351–52, ¶ 25 (App.
2011). Because the abuse of discretion standard acknowledges the family
court’s opportunity to observe whether the parties’ positions were
reasonable, we discern no error. See Graville v. Dodge, 195 Ariz. 119, 131, ¶
56 (App. 1999).
¶15 Mother’s isolated challenges to various findings she alleges
are contrary to the evidence also do not warrant relief. Mother contends
the family court misread the forensic interviewer’s report or misheard the
forensic interview. Yet, Mother fails to explain how the asserted error
ultimately affected the family court’s ruling.
¶16 Mother also argues the family court improperly found that
Mother shaped the minor child’s descriptive terms and improperly
disregarded the minor child’s reports of inappropriate touching. Although
we do not have the trial transcripts, it appears from the record before us
that the forensic interviewer and/or an expert witness testified about these
issues at trial. The family court, as fact finder, determines what weight to
give expert testimony. Sholty v. Sherill, 129 Ariz. 458, 461 (App. 1981).
Again, we do not reweigh conflicting evidence on appeal but rather defer
to the “trial court’s opportunity to judge the credibility of the witnesses.”
Hurd, 223 Ariz. at 52, ¶ 16.
¶17 Finally, Mother challenges the family court’s reliance on
testimony given by the daughter’s step-mother at the temporary orders
hearing. Father listed the step-mother as a witness for trial without
objection from Mother, but the step-mother did not testify at trial. Mother
listed as a trial exhibit the recording of the prior hearing at which the step-
mother testified. After hearing all the evidence at trial, the family court took
the matter under advisement and had access to the step-mother’s prior
recorded testimony. Although the family court’s ruling does cite step-
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mother’s prior testimony, Mother does not explain how that reliance
prejudiced her.3 We find no prejudice and discern no error.
CONCLUSION
¶18 Finding no abuse of discretion or clear error, we affirm.
Because Father prevailed, we award him his taxable costs of appeal upon
his compliance with Arizona Rule of Civil Appellate Procedure (ARCAP)
21. Father also requested attorney fees on appeal under A.R.S. § 25-324.
Upon consideration of the record before us regarding the parties’ financial
resources and the reasonableness of their positions, we also award Father
an amount of reasonable attorney fees to be determined after Father’s
compliance with ARCAP 21.
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3 Mother points out the family court incorrectly stated that “Mother’s
attorney had an opportunity to cross-examine the witness” at the prior
hearing; in fact, Mother was unrepresented at the time. Nevertheless, she
cross-examined the step-mother herself, and was therefore not denied the
right to confront a witness.
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