Chongtanalertporn v. Brocato ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
PANLADA CHONGTANALERTPORN,
Petitioner/Appellant,
v.
DAVID CHRISTOPHER BROCATO,
Respondent/Appellee.
No. 1 CA-CV 20-0238 FC
FILED 1-26-2021
Appeal from the Superior Court in Maricopa County
No. FC2018-055145
The Honorable Alison Bachus, Judge
AFFIRMED AS MODIFIED
COUNSEL
Strong Law, Scottsdale
By Marc R. Grant, Jr.
Counsel for Petitioner/Appellant
Lasiter & Jackson PLLC, Phoenix
By Nicole Porter Lasiter
Counsel for Respondent/Appellee
CHONGTANALERTPORN v. BROCATO
Decision of the Court
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Chief Judge Peter B. Swann joined.
T H U M M A, Judge:
¶1 Panlada Chongtanalertporn (Mother) appeals the superior
court’s rulings regarding the use of an interpreter during the dissolution
trial and the requirement that Mother complete a psychological evaluation
and anger management counseling before filing a non-emergency petition
to modify the legal decision-making or parenting time orders in the decree.
The court appropriately addressed the issues with the interpreter, but the
restrictions on Mother’s ability to file a petition to modify deviate from
Arizona Revised Statutes (A.R.S.) section 25-411. Accordingly, the
restrictions on Mother’s ability to file a petition to modify are stricken and
the decree is affirmed as modified.
FACTS AND PROCEDURAL HISTORY
¶2 In 2018, Mother petitioned to dissolve her four-year marriage
to David Christopher Brocato (Father) and sought sole legal decision-
making authority for their minor child. Mother requested a Thai language
interpreter for the trial and the court promptly appointed one. Before
Mother testified, however, her attorney asked if Mother could use the
interpreter as needed rather than have a continuous interpretation because
Mother speaks “some English.” The court denied that request and required
the interpreter to translate the entire proceeding. Mother claimed confusion
listening to both English and Thai. On the second day of trial, the court
denied Mother’s request to dismiss the interpreter entirely. The court
instructed Mother to listen to the Thai interpretation to avoid confusion.
¶3 After trial, the court issued a decree of dissolution awarding
the parties joint legal decision-making authority, with the child to live with
Father in Colorado and Mother having long distance parenting time. The
decree required Mother to undergo a psychological evaluation and
complete six hours of anger management counseling. Absent an
emergency, the decree precluded Mother from petitioning to modify legal
decision-making or parenting time until she completed a psychological
evaluation and counseling.
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CHONGTANALERTPORN v. BROCATO
Decision of the Court
¶4 This court has jurisdiction over Mother’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§
12-120.21(A)(1) and -2101(A)(1)(2021).1
DISCUSSION
I. The Court Did Not Err by Denying Mother’s Request to Limit the
Use of the Interpreter.
¶5 Mother contends the superior court violated her due process
rights when it required her to use the interpreter during the entire
proceeding. Due process claims are issues of law, reviewed de novo. Mack
v. Cruikshank, 196 Ariz. 541, 544 ¶ 6 (App. 1999).
¶6 “‘The fundamental requirement of due process is the
opportunity to be heard “at a meaningful time and in a meaningful
manner.”’” Dep’t of Child Safety v. Beene, 235 Ariz. 300, 305 ¶ 11 (App. 2014)
(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). “The determination
of whether there has been a denial of due process depends upon the nature
of the proceedings, the private interests at stake, the interests of the state,
and the risk that the procedures used will lead to erroneous decisions.”
Matter of Maricopa Cty. Juv. Action No. JD-561, 131 Ariz. 25, 27 (1981) (citing
Lassiter v. Dep’t of Soc. Servs. of Durham Cty., 452 U.S. 18 (1981)). Mother has
not shown the procedure used led to an erroneous decision.
¶7 Mother claims she understands English and wanted to use the
interpreter only if she did not understand something. She contends that she
should have been able to waive her right to a “continuous translation.”
Mother admittedly understands basic English but not “formal” or
“difficult” words. Thus, by her own admission, the court properly could
conclude Mother needed an interpreter.
¶8 The court was within its discretion to require a continuous
interpretation rather than grant Mother’s request for an as needed or
standby interpreter. The court indicated at the outset, based on its prior
experience, that the interruptions caused by such a procedure can be
cumbersome or result in excessive delays. Furthermore, given Mother’s
admission that she does not fully understand English, the court properly
denied her request to dismiss the interpreter. This eliminated the risk of
Mother not understanding something in the proceedings.
1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.
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CHONGTANALERTPORN v. BROCATO
Decision of the Court
¶9 Mother has also failed to show prejudice by the procedure
used. Volk v. Brame, 235 Ariz. 462, 470 ¶ 26 (App. 2014) (holding a due
process violation must be prejudicial to warrant reversal). Prejudice will not
be presumed but must “affirmatively appear from the record.” Rimondi v.
Briggs, 124 Ariz. 561, 565 (1980). Mother claims the continuous
interpretation “unnecessarily abridged [her] ability to be heard, offer
testimony, and participate in her counsel’s cross examination of adverse
witnesses.” Yet, when Mother expressed confusion or misunderstanding,
the attorneys rephrased or repeated the questions, and Mother was able to
answer. Mother never suggested she did not understand the testimony
from the other witnesses or show how her participation was “abridged.”
Mother has identified no portion of the proceedings which she did not
understand. On this record, she has shown no prejudice.
II. Limitations on Mother’s Ability to File a Petition to Modify Were
Improper.
¶10 The decree orders Mother to undergo a psychological
evaluation and complete six hours of anger management counseling.2 The
decree also provides that, “[b]arring an emergency, Mother shall not file a
petition to modify legal decision-making or parenting time without
providing documentation” that she completed these requirements, and “[a]
petition to modify filed before documentation showing completion of those
two requirements may be summarily denied.” (Emphasis added). This court
reviews legal decision-making and parenting time orders for an abuse of
discretion, recognizing legal issues are reviewed de novo. Engstrom v.
McCarty, 243 Ariz. 469, 471 ¶ 4 (App. 2018).
¶11 Mother contends this language violates A.R.S. § 25-411, which
authorizes a motion to modify legal decision-making or parenting time
whenever “there is reason to believe the child’s present environment may
seriously endanger the child’s physical, mental, moral, or emotional
health.” A party may also seek modification at any time if there is evidence
of domestic violence or abuse. Id. However, a parent must wait six months
to file a petition based on the other parent’s failure to comply with court
2 Mother’s reply brief asserts, for the first time, that the court lacked
authority to require her to undergo an evaluation or complete counseling.
This issue is waived. See Johnson v. Provoyeur, 245 Ariz. 239, 243 n.5 ¶ 13
(App. 2018) (issues first raised in a reply brief are waived). Even if it had
not been waived, the court does have such authority. See Ariz. R. Fam. L.P.
95(b).
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CHONGTANALERTPORN v. BROCATO
Decision of the Court
orders. Id. Section 25-411(L) requires a parent petitioning to modify to
submit an affidavit or verified petition setting forth facts supporting the
motion, which the court “shall deny” unless the pleadings show adequate
cause for a hearing.
¶12 Father argues the decree does not violate A.R.S. § 25-411
because Mother can file an emergency petition regardless of her
compliance. He also contends the order does not limit Mother’s rights to
petition because the decree uses permissive language — it states that a
petition filed before completion of the requirements “may be summarily
denied.” However, the statute allows a party to file a petition to modify if
the other parent fails to comply with custody orders. See A.R.S. § 25-411(A).
If Father fails to comply with a custody order before Mother completes the
evaluation and counseling requirements, the decree, as written, provides
another basis for the court to deny Mother’s petition not included in the
statute.
¶13 Father contends the court had authority to impose this
additional requirement. The requirements for a petition to modify,
however, are set forth in § 25-411. The time frames and the cause
requirement act as a threshold to “‘prevent repeated or insubstantial
motions for modification.’” In re Marriage of Dorman, 198 Ariz. 298, 302 ¶ 9
(App. 2000) (quoting Uniform Marriage and Divorce Act § 410, cmt. 9A
U.L.A. 538 (1998)). These statutory requirements balance the competing
interests of “the need for stability in the child’s life versus the need to
change a previous order if that is necessary to place the child in a more
suitable environment.” Canty v. Canty, 178 Ariz. 443, 447 (App. 1994). The
decree, however, improperly imposed additional requirements.
¶14 The decree’s language appears to be designed to compel
Mother’s compliance with the order to undergo an evaluation and complete
counseling. However, compliance may be compelled in other ways that do
not also limit Mother’s statutory right to file a petition to modify, such as a
petition to enforce or a motion for contempt. See Ariz. R. Fam. L.P. 91 and
92; see also Hays v. Gama, 205 Ariz. 99, 104 ¶ 23 (2003) (holding sanctions
excluding evidence improperly restricted the court’s ability to consider the
best interests of the child and should not have been imposed when other
sanctions were available to vindicate the court’s authority). Here, the
language in the decree was unnecessary for the court to vindicate its
authority because there are sufficient other means to compel Mother’s
compliance. Id.5
CHONGTANALERTPORN v. BROCATO
Decision of the Court
¶15 For these reasons, the following language in the decree is
vacated:
Barring an emergency, Mother shall not file a
petition to modify legal decision-making or
parenting time without providing
documentation of (1) the completed
psychological evaluation (showing that Mother
provided a copy of this decree to the examiner)
and (2) completion of anger management
counseling. A petition to modify filed before
documentation showing completion of those
two requirements may be summarily denied.
In all other respects, the decree is affirmed. See Acuna v. Kroak, 212 Ariz. 104,
115 n.15 ¶ 42 (App. 2006) (holding court of appeals has authority to modify
a judgment under A.R.S. § 12-2103(A)).
¶16 Finally, Mother asks this court to vacate the award of
attorneys’ fees in the decree, but she has failed to cite relevant portions of
the record or legal authority to support this argument. Therefore, this
argument is waived. See ARCAP 13(a)(7)(A); State Farm Mut. Auto. Ins. Co.
v. Novak, 167 Ariz. 363, 370 (App. 1990).
¶17 Both parties request an award of attorneys’ fees. Because
neither took an unreasonable position on appeal, and there is no evidence
of a financial disparity, these competing requests are denied. See A.R.S. §
25-324. Mother, however, is awarded her taxable costs on appeal contingent
upon her compliance with ARCAP 21.
CONCLUSION
¶18 The decree is affirmed as modified.
AMY M. WOOD • Clerk of the Court
FILED: AA
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