Mothersed v. Greenen

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
JANINE MARIE MOTHERSHED, Petitioner/Appellant,
v.
WILLIAM RYAN GREENEN, JR., Respondent/Appellee.
No. 1 CA-CV 13-0686
FILED 12-30-14
Appeal from the Superior Court in Maricopa County
No. DR2001-090181
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
S. Alan Cook, PC, Phoenix
By S. Alan Cook
Counsel for Petitioner/Appellant
William Ryan Greenen, Jr., Mesa
Respondent/Appellee Pro Se
MOTHERSHED v. GREENEN
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.
H O W E, Judge:
¶1 Janine Mothershed (“Mother”) moved to modify child
custody. After an evidentiary hearing, the family court found that Mother
had not met her burden of showing a change of circumstances affecting the
welfare of the child (“the Child”) and dismissed her petition. She appeals
that ruling, the court’s refusal to admit statements of the paternal
grandparents during the hearing, and the award of attorneys’ fees to
William Ryan Greenen, Jr. (“Father”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were the Child’s parents. In March 2006,
the family court awarded them joint legal custody of Child, but Mother was
awarded final decision-making authority on educational matters and
Father was awarded final decision-making authority on medical matters.
Moreover, if Father lived within fifteen miles of the Child’s school, the
parents would have equal parenting time; otherwise, Father would have
parenting time every other weekend from after school on Friday until
before school on Monday.
¶3 Father periodically relocated within and beyond the fifteen-
mile range. In May 2012, after having been outside of the fifteen-mile range
for at least the school year, Father moved within the fifteen-mile area and
began to exercise equal parenting rights.
¶4 On May 7, 2012, Mother moved to modify custody and
parenting time, seeking sole custody with supervised parenting time or no
parenting time for Father. Mother alleged that Father had multiple drug
charges, threatened to assault her, kept little food in his home, lived in an
unsafe neighborhood, and would not allow Child to visit friends. Mother
also alleged that Child’s stepmother yelled at Child for eating too much and
that Child was upset she had to carry clothes and books back and forth
between the homes. Mother asserted that the Child’s grades and mental
status would suffer if Mother were not granted emergency custody.
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MOTHERSHED v. GREENEN
Decision of the Court
¶5 At trial, Mother had revised her position. Mother sought joint
legal custody with the right of final decision making and to be designated
primary residential parent, with Father having parenting time alternate
weekends. Mother also sought to admit into evidence written statements
from the Child’s paternal grandparents, but the family court sustained
Father’s objection on hearsay grounds.
¶6 After Mother rested her case, the court indicated that it did
not believe Mother had met her burden of proof. Father moved for a
directed verdict and the court granted the motion, dismissed Mother’s
petition, and ordered Father to submit an application and affidavit for an
award of attorneys’ fees.
¶7 The family court dismissed Mother’s petition and awarded
Father $4,710.31 in attorneys’ fees and costs. Mother appealed after filing
an unsuccessful motion for new trial.1
DISCUSSION
Dismissal of Mother’s Petition
¶8 Mother argues that the family court abused its discretion in
dismissing her petition when she rested her case. Mother argues that her
petition was not frivolous and that she presented a reasonable basis for the
family court to grant modification.
¶9 The party seeking a change in legal decision-making or
parenting time has the burden of proving a change in circumstances
materially affecting the welfare of the child. Hendricks v. Mortensen, 153
Ariz. 241, 243, 735 P.2d 851, 853 (App. 1987); Bailey v. Bailey, 3 Ariz. App.
138, 141, 412 P.2d 480, 483 (1966). Changes in activities and environment are
not a basis for modification unless shown to be detrimental to the child’s
welfare. Davis v. Davis, 78 Ariz. 174, 176, 277 P.2d 261, 263 (1954). The
family court has broad discretion to determine if a change of circumstances
exists and we will not reverse the court’s determination absent a clear abuse
of discretion. Hendricks, 153 Ariz. at 243, 735 P.2d at 853. In reviewing a
directed verdict based on the insufficiency of the evidence in a bench trial,
we may treat the ruling as a judgment on partial findings under Arizona
Rule of Family Law Procedure (“A.R.F.L.P.”) 82(c). Johnson v. Pankratz, 196
1 Father did not file an answering brief in this case. Although we may
treat his failure to do so as a confession of reversible error, we choose in our
discretion to reach the merits of this case. See Nydam v. Crawford, 181 Ariz.
101, 101, 887 P.2d 631, 631 (App. 1994).
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MOTHERSHED v. GREENEN
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Ariz. 621, 626 ¶ 19, 2 P.3d 1266, 1271 (App. 2000) (reviewing court may treat
directed verdict in bench trial as judgment on partial findings pursuant to
Rule 52(c), analog to A.R.F.L.P 82(c)). Reviewing the sufficiency of the
evidence, we view the evidence in the light most favorable to upholding the
ruling. Id. at 626 ¶ 20, 2 P.3d at 1271.
¶10 Mother had the burden of demonstrating a change in
circumstances materially affecting the welfare of the Child such that a
modification of custody and parenting time would be in the Child’s best
interest. Mother argues that she presented sufficient evidence, based on her
own testimony, the Conciliation Services’ report, and the statements of the
Child’s paternal grandparents that the family court had excluded.
¶11 Mother testified that the Child was always upset when she
went to Father’s home. She stated that Father could not financially support
the Child so the Child had to take school clothes back and forth between
the two homes. Mother testified that Father had limited food, restricted the
Child’s friends, and did not allow the Child to attend parties and
sleepovers. Mother also testified that the Child had asthma and Father had
ten German Shepherds, which required the Child to use her inhaler. Mother
described the Child as a great student who actively participated in
competitive gymnastics. Mother expressed concern that the Child’s grades
would suffer if Father had equal parenting time. Mother testified that she
and the Child did various activities together, but that when at her Father’s
home, the Child watched movies. Mother claimed that the Child had a poor
and distant relationship with her stepmother and was left with her
stepmother at night because Father worked.
¶12 Conciliation Services’ report of its interview with the Child
confirmed that the Child had a strong desire to stay with her Mother during
the week and see Father on alternate weekends. The Child explained that
she had to pack her things when she went to her Father’s and that he did
not allow her to attend sleepovers or birthday parties with her friends. The
Child stated that yelling occurred at both her Father’s and Mother’s homes,
but more at Father’s.
¶13 In the statements from the paternal grandparents that Mother
sought to have admitted, the grandparents opined that Mother was better
able to provide and care for the Child at that time. They confirmed that the
Child had a poor relationship with her stepmother and that Father
restricted food in his house and was not financially able to care for the
Child.
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MOTHERSHED v. GREENEN
Decision of the Court
¶14 Mother’s proffered evidence failed to demonstrate that
circumstances had changed since the original custody and parenting order.
Mother also did not establish that the alleged change of circumstances
materially affected the Child’s welfare. Mother’s interests and the Child’s
wishes may be considered, but are not dispositive. See Bailey, 3 Ariz. App.
at 141, 412 P.2d at 483. Although the Child would prefer to see Father on
alternate weekends so that she could pack her clothes less often and could
visit with her friends, that preference does not show a material effect on her
welfare. Although Mother alleged that Father had limited food at his home,
the record does not show that the Child is not being appropriately fed and
nourished. Moreover, the Conciliation Services’ report does not indicate
that the Child is in distress or is negatively affected by halftime visitation.
Mother’s concern regarding the Child’s grades is speculative because
Mother presented no evidence that the Child’s schoolwork has suffered. In
fact, Mother acknowledged that the Child’s grades were not adversely
affected. Although Child’s aggravated asthma from the dogs in Father’s
home is some evidence of a change in circumstances affecting the Child’s
welfare, Mother presented no corroborating evidence from a doctor.
Moreover, Mother admitted that she had not even mentioned this concern
in her petition. Because the family court has broad discretion in
determining if a change of circumstances has occurred, we cannot find that
the court abused its discretion in concluding that Mother had not met her
burden. Hendricks, 153 Ariz. at 243, 735 P.2d at 853.
Exclusion of Grandparents’ Statements as Hearsay
¶15 Mother argues that the family court abused its discretion in
refusing to admit into evidence the statements of the Child’s paternal
grandparents that supported Mother’s request that she be made the
primary residential parent.
¶16 Under Rule 2, a party may require strict compliance with the
rules of evidence by filing a notice to that effect at least forty-five days
before trial. A.R.F.L.P. 2(B)(1). If no notice is filed, all relevant evidence is
admissible. A.R.F.L.P. 2(B)(2). The family court may nevertheless exclude
certain evidence:
[The family court] shall exclude evidence if its probative value
is outweighed by the danger of unfair prejudice, confusion of
the issues, or by considerations of undue delay, waste of time,
needless presentation of cumulative evidence, lack of
reliability or failure to adequately and timely disclose same.
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MOTHERSHED v. GREENEN
Decision of the Court
This admissibility standard shall replace Rules 403, 602, 801-
806, 901-903 and 1002-1005, Arizona Rules of Evidence.
A.R.F.L.P. 2(B)(2).
¶17 Neither party provided notice invoking strict compliance
with the rules of evidence. A hearsay objection, however, concerns the
reliability of the evidence, see State v. Stotts, 144 Ariz. 72, 81–82, 695 P.2d
1110, 1119–20 (1985), and under the rule the court may still exclude
unreliable evidence. Hearsay evidence may be considered reliable where
circumstances establish that it is trustworthy. Brown v. Arizona Dep’t of Real
Estate, 181 Ariz. 320, 328, 890 P.2d 615, 623 (App. 1995). We will not disturb
the trial court’s decision on the admissibility of evidence absent a clear
abuse of discretion and resulting prejudice. Gemstar Ltd. v. Ernst & Young,
185 Ariz. 493, 506, 917 P.2d 222, 235 (1996). Even the improper exclusion of
evidence is not grounds for reversal if its admission would not have
changed the result. Gasiorowski v. Hose, 182 Ariz. 376, 382, 897 P.2d 678, 684
(App. 1994).
¶18 The statements Mother sought to have admitted were
unsworn, unsigned, typewritten letters purportedly from Father’s parents.2
The family court acted within its discretion by finding the proffered
statements unreliable. Although the letters stated the grandparents’
opinions about the Child’s best interests, the letters offered few facts not
already presented to the family court. Thus, even if the letters had been
admitted, they would have unlikely affected the family court’s ruling.
Accordingly, the family court did not abuse its discretion by excluding the
proffered evidence.
Attorneys’ Fees
¶19 Mother also contends that the family court erred by awarding
Father attorneys’ fees. We disagree.
¶20 The family court may, “after considering the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings,” order one party to pay the other a
reasonable amount for the costs and expenses of maintaining or defending
2 Although the documents were not admitted into evidence, they have
been provided on appeal.
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MOTHERSHED v. GREENEN
Decision of the Court
a dissolution or child custody proceeding. A.R.S. § 25–324.3 The purpose
of the statute is to provide a remedy for the party least able to pay. Bell-
Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 524 ¶ 13, 169 P.3d 111, 114 (App.
2007). Although the court must consider the parties’ income and conduct,
it need not find both a disparity of income and unreasonable conduct to
order an award of fees. Mangan v. Mangan, 227 Ariz. 346, 353 ¶ 27 n.13, 258
P.3d 164, 171 n.13 (App. 2011). An objective standard applies in assessing
the reasonableness of a party’s position. In re Marriage of Williams, 219 Ariz.
546, 548–49 ¶ 10, 200 P.3d 1043, 1045–46 (App. 2008). Whether a party
prevails in the proceeding is irrelevant to the determination of an award of
attorneys’ fees. Breitbart-Napp v. Napp, 216 Ariz. 74, 84 ¶ 39, 163 P.3d 1024,
1034 (App. 2007). We will not disturb the trial court’s decision to award
attorney’s fees under A.R.S. § 25-324 absent an abuse of discretion.
MacMillan v. Schwartz, 226 Ariz. 584, 592 ¶ 36, 250 P.3d 1213, 1221 (App.
2011).
¶21 Mother first argues that the award of fees “appears to be
outcome oriented,” but provides no argument or facts on which she bases
the claim. We therefore do not address it. See Modular Systems Inc. v. Naisbitt,
114 Ariz. 582, 587, 562 P.2d 1080, 1085 (App. 1977) (arguing only that court
erred is not the same as arguing an issue, so the issue is deemed
abandoned).
¶22 Mother further objects to the award of attorneys’ fees because
Father did not provide a fee agreement to support the application. Mother
offers no authority that the submission of a fee agreement is required. A
party seeking an award of fees must establish an obligation to pay legal
fees. Lisa v. Strom, 183 Ariz. 415, 419, 904 P.2d 1239, 1243 (App. 1995).
Father’s counsel submitted an affidavit stating that Father was being billed
the firm’s then-current billing rates and identifying those rates. Counsel
further avowed that Father was billed monthly for services and provided
the total of fees and costs incurred by Father. Attached to the affidavit were
copies of the billing statements provided to Father showing fees and costs.
The affidavit and its attachments sufficiently established that Father had
incurred expenses in defending the action; submission of a fee agreement
was not necessary.
3 Father sought attorneys’ fees pursuant to A.R.S. § 25-809(G). Because
that section applies to maternity and paternity proceedings, it does not
apply to this case. A.R.S. § 25-809(G) (pertaining to “proceedings under this
article”).
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MOTHERSHED v. GREENEN
Decision of the Court
¶23 Mother also objects to certain specific billing entries. Mother
objects to charges for file maintenance, noting that the charge varies from
$25.00 per hour to $75.00 per hour. The different charges relate to the
different rates for a secretary, $25.00, and a paralegal, $75.00. The billing
statements show that file maintenance was performed monthly over five
months, averaging less than an hour per month. Mother argues that these
charges represent impermissible administrative work, but offers no
authority that the cost of such maintenance of a client’s records is not
recoverable. We find no abuse of discretion in the court’s permitting
recovery of these charges.
¶24 Mother also objects to an entry for August 3, 2012, that Mother
argues lacks sufficient specificity. Counsel’s affidavit must indicate the type
of services provided. Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188,
673 P.2d 927, 932 (App. 1983). The entry states that counsel reviewed
“Various police reports, letters, and other documentation received from
Client.” The entry provides sufficient information about the services
rendered.
¶25 Mother argues that no financial records of either party were
introduced into evidence and no testimony was presented regarding the
financial conditions of the parties. Consequently, Mother argues, the court
made no findings and could not have made a determination of the relative
financial circumstances of the parties as required by A.R.S. § 25–324.
Mother argues that the court therefore abused its discretion in awarding
attorneys’ fees and in failing to grant her motion for new trial on the issue
of attorneys’ fees.
¶26 When filing her child support modification petition, Mother
also submitted a parent’s worksheet for child support, which listed an
estimated monthly gross income for Father of $2,000, and a monthly gross
income for Mother of $2,500. Father directed the family court’s attention to
this information in his application for attorneys’ fees. In addition, Mother
testified that she believed that Father could not financially support the
Child at that time, noting that he could not buy the Child school clothes and
had limited food at his home. Under A.R.S. § 25–324, the court must
consider the relative financial resources of the parties. White-Nathan v.
Nathan, 181 Ariz. 112, 118, 888 P.2d 237, 243 (App. 1994). Although the
information before the court did not provide exact data about the parties’
finances, it did represent an acknowledgment by Mother that Father has
fewer financial resources than she does. The court therefore had before it
information from which it could conclude that a fee award to Father was
appropriate.
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MOTHERSHED v. GREENEN
Decision of the Court
¶27 Mother also argues that she should not be responsible for
Father’s attorneys’ fees because her trial lawyer did an inadequate job.
Mother’s trial lawyer was her agent, he presented her case, and she is bound
by his actions. See Panzino v. City of Phoenix, 196 Ariz. 442, 447 ¶ 16, 999
P.2d 198, 203 (2000); Cahn v. Fisher, 167 Ariz. 219, 221, 805 P.2d 1040, 1042
(App. 1990). Mother’s disappointment in her attorney’s performance does
not change that she filed a petition and then failed to meet her burden to
show a change in circumstances affecting Child’s welfare. Nor does it
change that Father, whom Mother admits has fewer financial resources
than she does, was required to respond to the petition and litigate, incurring
fees and expenses. Accordingly, we find no abuse of discretion in the family
court’s award of attorneys’ fees to Father.
CONCLUSION
¶28 For the foregoing reason, the family court’s ruling is affirmed.
:jt
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