Davis v. Davis

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
KERRY LYNN DAVIS, Petitioner/Appellee,
v.
NATHAN TRENT DAVIS, Respondent/Appellant.
No. 1 CA-CV 18-0037 FC
FILED 12-11-2018
Appeal from the Superior Court in Maricopa County
No. FC2009-090062
The Honorable Kristin Culbertson, Judge
AFFIRMED
COUNSEL
Ellsworth Family Law, P.C., Mesa
By Glenn D. Halterman, Steven M. Ellsworth
Counsel for Respondent/Appellant
DAVIS v. DAVIS
Opinion of the Court
OPINION
Presiding Judge Jennifer M. Perkins delivered the opinion of the Court, in
which Judge Lawrence F. Winthrop and Chief Judge Samuel A. Thumma
joined.
P E R K I N S, Judge:
¶1 Nathan Davis (“Father”) appeals the superior court’s order
modifying legal decision-making, parenting time, and child support. Father
contends that the court should not have admitted into evidence a report
from the appointed advisor because she did not record her interviews with
the children. Because Arizona Rule of Family Law Procedure (“ARLFP”) 10
does not require such recordings and, in any event, Father failed to
demonstrate prejudice resulting from the evidentiary ruling, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Father and Kerry Davis (“Mother”) have two children (the
“Children”) for whom they exercised joint legal decision-making pursuant
to a Decree of Dissolution of Marriage entered in 2010. In 2016, Mother
petitioned for a modification of parenting time alleging on-going
disagreements between Father and the Children. Mother later requested
that a therapist evaluate the Children; Father disagreed about which
therapist the Children should see.
¶3 The superior court appointed a Court Appointed Advisor
(“CAA”), pursuant to Rule 10, to “submit a report setting forth the advisor’s
recommendations” after completing an independent investigation which
could include interviews of the parties and the Children and a review of
relevant records. The CAA interviewed Mother, Father, and the Children
before issuing a 17-page written report, detailing those interviews and
including a recommendation. At Father’s request, the court issued a minute
entry ordering the CAA to release her recordings of the Children’s
interviews. When the CAA responded that no such recordings existed,
Father moved in limine to preclude the CAA’s report and testimony,
arguing that Rule 12 required the CAA to record the interviews with the
Children and release the recordings to the parties. Because that did not
happen, Father argued, the CAA’s report and testimony were inadmissible.
The court denied Father’s motion, holding that Rule 10 governed and Rule
12 did not apply.
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DAVIS v. DAVIS
Opinion of the Court
¶4 After an evidentiary hearing on Mother’s petition, the
superior court modified the existing orders regarding legal decision-
making, parenting time, and child support. The court ordered that Mother
have final decision-making authority for medical decisions but that the
parties share joint legal decision-making authority in all other decisions.
The court modified the parties’ parenting time schedule to give Mother
more time with the Children and accordingly modified the existing Child
Support order. Father now appeals.
DISCUSSION
¶5 Father argues that Rule 12 required the CAA to record any
interview she conducted with either child and, because she did not, the
superior court should have excluded the CAA’s report and testimony.
Moreover, Father argues that absent such recordings the superior court’s
orders should be vacated.
¶6 We review evidentiary rulings, including the denial of a
motion in limine, for abuse of discretion, Warner v. Southwest Desert Images,
LLC, 218 Ariz. 121, 133, ¶ 33 (App. 2008), and generally affirm “absent a
clear abuse or legal error and resulting prejudice,” John C. Lincoln Hosp. &
Health Corp. v. Maricopa Cty., 208 Ariz. 532, 543, ¶ 33 (App. 2004). However,
we review the application and interpretation of court rules de novo.
Duckstein v. Wolf, 230 Ariz. 227, 231, ¶ 8 (App. 2012). We interpret court
rules according to their plain language where that language is clear and
unambiguous. Stout v. Taylor, 233 Ariz. 275, 278, ¶ 11 (App. 2013).
¶7 Rule 10 provides, in relevant part, that the superior court
“may appoint” a CAA and requires that the court “ensure that any” CAA
appointed “has an opportunity to testify or submit a report setting forth[
the advisor]’s recommendations regarding the best interests of the
child[ren]” and “the basis for the . . . recommendations.” ARFLP 10(A)(1)(c);
10(E)(4). Although directing that the CAA shall “have immediate access to
the child,” id. at 10(D)(1), Rule 10 does not require a CAA to record such
contact electronically or in any other fashion. In contrast, Rule 12 allows the
court to “conduct an in camera interview with a minor child who is the
subject of a legal decision-making or parenting time dispute to ascertain the
child’s wishes as to both.” ARFLP 12(A). Rule 12 directs that “[t]he
interview must be recorded by a court reporter or” by electronic means and
that “[t]he record of the interview must be made available to the parties.”
Id.
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DAVIS v. DAVIS
Opinion of the Court
¶8 Rule 10’s plain language applies to CAAs, while Rule 12’s
plain language applies to court interviews of a child. Father identifies no
authority that imports Rule 12’s requirements into Rule 10. Instead, Father
argues that, as with a court interview under Rule 12, any child interview
conducted by a CAA must be recorded in order to allow rebuttal of the
CAA’s report. Father also argues CAA’s are included within the definition
of “court” under Rule 12(C) and are therefore required to record any child
interview they conduct in the course of their Rule 10 investigation.
¶9 “As used in [Rule 12], ‘court’ includes any Conciliation
Services department, agency or other third-party professional ordered by
the assigned judge to conduct a child interview pursuant to Ariz. Rev. Stat.
§ 25-405 or the Arizona Rules of Family Law Procedure.” ARFLP 12(C)
(2016). While this broad definition could be construed to include CAA’s
within the term “court,” the definition is explicitly limited to the usage of
“court” in Rule 12 and applies only to third-party professionals ordered to
conduct a child interview “to ascertain the child’s wishes as to the child’s
custodian and as to parenting time.” Ariz. Rev. Stat. (“A.R.S.”) § 25-405; see
also ARFLP 12. Thus, Rule 12 allows a court, if it so chooses, to ascertain the
child’s wishes with respect to parenting time through a direct interview
conducted by the court itself or by a qualified third-party as ordered by the
court consistent with A.R.S. section 25-405. ARFLP 12. In contrast, an
appointed CAA must conduct an investigation and submit a report to the
court containing the CAA’s recommendations. ARFLP 10(C), (E)(3)–(5). The
report may be introduced at trial and the CAA may be called to testify.
ARFLP 10(E)(4). Nothing in Rule 10 or 12 indicates that a Rule 10 CAA
appointment or report is subject to the requirements applicable to a Rule 12
court interview. Compare ARFLP 10 with ARFLP 12. 1 The superior court did
not err in rejecting Father’s motion in limine, finding that Rule 12 did not
govern.
¶10 Even assuming the CAA was required to record her
interviews with the Children, Father fails to show resulting prejudice.
Although Father claims prejudice by the admission of the CAA report, the
1 Subsequent to the superior court proceedings in this case, the Arizona
Supreme Court modified the Arizona Rules of Family Law Procedure to
expressly exclude CAAs from the definition of “Court.” ARFLP 12(b)
(effective January 1, 2019). Recognizing that change is not yet effective, it
further demonstrates the requirements of court interviews under Rule 12
do not apply to CAAs under Rule 10. See 2018 Arizona Court Order 0023
(noting that the January 1, 2019 amendments primarily serve to restyle and
clarify the existing rules).
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DAVIS v. DAVIS
Opinion of the Court
record indicates the superior court considered numerous items of evidence
before making its decision on Mother’s petition. Indeed, the court did not
simply adopt the recommendations of the CAA report. Rather, the court
issued new orders based on the evidence adduced at the evidentiary
hearing. In many areas, the court issued orders contrary to the CAA’s
recommendations by refusing to order additional therapy, granting Mother
final medical care decision-making authority, and changing the parenting
time schedule. Accordingly, Father has shown no “resulting prejudice.”
John C. Lincoln Hosp., 208 Ariz. at 543, ¶ 33; see also ARFLP 86 (“The court at
every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.”)
CONCLUSION
¶11 For the foregoing reasons, we affirm the ruling of the superior
court. Pursuant to Arizona Rule of Civil Appellate Procedure 21, Father is
not entitled to an award of costs. In our discretion, we decline to award
Father his attorney fees.
AMY M. WOOD • Clerk of the Court
FILED: AA
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