Kaestle v. Kaestle

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 the Matter of:
GREG KAESTLE, Petitioner/Appellee,
v.
ERIN KAESTLE, Respondent/Appellant.
No. 1 CA-CV 19-0015 FC
FILED 10-29-2019
Appeal from the Superior Court in Coconino County
No. S0300DO201600463
The Honorable Elaine Fridlund-Horne, Judge
AFFIRMED
COUNSEL
Law Office of Benjamin L. Deguire PLLC, Flagstaff
By Benjamin L. Deguire
Counsel for Petitioner/Appellee
Erin Kaestle, Phoenix
Respondent/Appellant
KAESTLE v. KAESTLE
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.
P O R T L E Y, Judge:
¶1 Erin Kaestle ("Mother") appeals the decree of dissolution
awarding joint legal decision-making and making Greg Kaestle ("Father")
the primary residential parent of the parties' children. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The parties were married in 2007 and have three children, two
daughters and a son ("Son"). In August 2016, Father filed a petition to
dissolve the marriage.2
¶3 At the same time, he filed a verified motion for temporary
orders without notice to Mother, requesting the superior court (1) award
him sole legal decision-making, primary and exclusive parenting time and
(2) order that Mother have no contact with the children because she was
allegedly endangering the children and interrupting Son's schooling. The
court granted Father's motion on October 20, 2016, and, finding good cause,
set a hearing on the temporary orders for November 15, 2016, outside the
default 10-day period. See generally Ariz. R. Fam. Law P. ("ARFLP") 48(d).
The parties later stipulated to continue the hearing, and the court held a
hearing on the temporary orders on December 20, 2016. The parties
ultimately stipulated to temporary orders.
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3 of the Arizona Constitution.
2 Father initially filed for divorce in Yavapai County, but refiled his
petition in Coconino County. With the parties' consent, the Yavapai County
case was transferred to Coconino County and consolidated with the earlier
Coconino County case.
2
KAESTLE v. KAESTLE
Decision of the Court
¶4 The court held trial over two days on December 15, 2017, and
February 12, 2018. In its under advisement rulings on May 23, 2018, the
court made Father the children's primary residential parent and awarded
joint legal-decision making to the parents, but gave Father final decision-
making authority over certain school and child care decisions.
¶5 Six days later, Mother filed for an order of protection in the
Maricopa County Superior Court, alleging Father had physically abused
Son on May 24, 2018. The court granted her request and barred Father from
contacting Mother and their children. The court then dismissed parallel
proceedings and transferred the order of protection to the Coconino County
Superior Court. Based on Father's alleged abuse of Son, Mother moved for
relief from judgment and petitioned the Coconino Court to modify its trial
rulings on, inter alia, legal decision-making and parenting time.
¶6 The court denied Mother's motion,3 and entered the final
decree of dissolution on November 26, 2018. Mother timely appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-
120.21(A)(1) (2019) and -2101(A)(1) (2019).
DISCUSSION
A. The Temporary Orders Without Notice.
¶7 Mother argues the superior court violated her due-process
rights because it did not hold a hearing on the temporary orders without
notice within 10 days. She also argues that no evidence supported the
issuance of temporary orders without notice. We find no due-process
violation.
¶8 A superior court may issue temporary orders without notice
if a party files a verified motion that, inter alia, "clearly shows" the party or
the party's minor child will suffer irreparable harm. See ARFLP 48(a)-(b).
The court must hold a hearing on the request for orders no later than 10
days after the order's entry, unless there is good cause for delay. See ARFLP
48(d); see also Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11 (App. 2016) (due process
entitles a party to notice and an opportunity to be heard). In this case,
Father filed a verified pleading seeking temporary orders without notice.
The court granted the request and set the hearing outside of the 10-day rule
3 At the time of her appeal, the superior court had not ruled on
Mother's petition for modification. We assume the court will rule on the
matter in due course.
3
KAESTLE v. KAESTLE
Decision of the Court
after finding good cause. Mother received notice, later agreed, by counsel,
to continue the hearing and, before that hearing, stipulated to temporary
orders. By agreeing to continue the hearing and then stipulating to the
temporary orders, she acceded to the court's action.
¶9 Finally, if a superior court violates a rule about temporary
orders, the only remedy is to file a special action. Gutierrez v. Fox, 242 Ariz.
259, 264, ¶ 12 (App. 2017). Moreover, any temporary orders become moot
after the entry of the decree and cannot be appealed. See ARFLP 47(j)(1);
Villares v. Pineda, 217 Ariz. 623, 624-25, ¶¶ 10-11 (App. 2008). Mother cannot
now challenge the temporary orders or the court's process on appeal.
B. The Decree of Dissolution.
¶10 Mother next argues the superior court violated her due-
process right when it entered the final decree of dissolution on November
26, 2018, more than two years after Father's initial petition, and more than
60 days after the final day of trial. Although Article 6, Section 21, of the
Arizona Constitution requires the superior court decide matters within
sixty days after their submission, any failure to comply with that provision
does not provide a basis for this court to reverse the superior court's ruling.
See W. Sav. & Loan Ass'n v. Diamond Lazy K Guest Ranch, Inc., 18 Ariz. App.
256, 260-61 (1972). Similarly, Mother does not provide any legal authority,
and we do not find any support for, the proposition that the superior court
must rule on a petition for dissolution within a certain time period. Further,
no evidence shows that any delay in signing the final decree prejudiced
Mother.
¶11 She also argues the court failed to consider evidence of
Father's alleged May 24 abuse of Son, and other evidence purportedly
entered at trial. With respect to Father's alleged abuse of Son, anything that
allegedly happened after trial could not be considered by the court. See
Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 57, ¶ 16, n.1 (App. 2007)
(superior court only considers evidence presented at trial). Similarly, any
evidence of what Father may have done to Son is not "newly discovered
evidence" because it occurred after the presentation of the trial evidence;
thus, we cannot say the court abused its discretion by denying Mother's
motion for relief from judgment. See De Gryse v. De Gryse, 135 Ariz. 335, 336
(1983) (review ruling on motion for relief from judgment for an abuse of
discretion); Waltner v. JPMorgan Chase Bank, N.A., 231 Ariz. 484, 490, ¶ 24
(App. 2013) (to be "newly discovered evidence," evidence must have
"existed at the time of trial").
4
KAESTLE v. KAESTLE
Decision of the Court
¶12 Mother next argues the superior court failed to consider
Father's trial testimony that: (1) he abuses alcohol and has failing health; (2)
Son was burned while in Father's care after spilling hot chocolate; and (3)
Father sent text messages allegedly showing he wanted Son removed from
the family home. Absent contrary evidence, "we presume [the superior
court] fully considered the relevant evidence." See In re Marriage of Gibbs,
227 Ariz. 403, 410, ¶ 21 (App. 2011). Accordingly, Mother must make an
affirmative showing that the court did not consider this evidence.
¶13 Mother has failed to provide the trial transcripts for our
review. She states in the Case Management Statement that she requested
transcripts on January 13, 2019. "The appellant must order transcripts . . .
within 10 days after filing the notice of appeal . . . ." Ariz. R. Civ. App. P.
("ARCAP") 11(c)(2). Mother filed her notice of appeal on November 26,
2018, meaning she needed to request the transcripts no later than December
6, 2018. Consequently, Mother's request for transcripts was untimely, and,
even if she later secured the transcripts, we find no request to submit the
transcripts past the due date.
¶14 Because we do not have the trial transcripts, we must
presume the court's findings are supported by the testimony at trial. See
Reeck v. Mendoza, 232 Ariz. 299, 302, ¶ 12 (App. 2013) ("[I]f appellant fails to
include necessary transcripts, appellate court presumes they would
support superior court's findings."). Therefore, Mother has not shown the
court did not consider the evidence. And we cannot say the court abused
its discretion when it ordered joint legal decision-making and made Father
the children's primary parent. See Engstrom v. McCarthy, 243 Ariz. 469, 471,
¶ 4 (App. 2018) ("We will affirm the family court's order of parenting time
and legal decision-making absent an abuse of discretion.").
CONCLUSION
¶15 For the reasons above, we affirm the superior court's
determination of legal decision-making and parenting time in the decree of
dissolution. Father requests his attorney's fees and costs on appeal. In the
exercise of our discretion, we decline his request for fees. We, however,
find he is entitled to his costs on appeal subject to his compliance with
ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA 5