Burney v. Huntimer

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
MATTIELLA LEE BURNEY, Petitioner/Appellant,
v.
TIMOTHY RANDALL HUNTIMER, Respondent/Appellee.
No. 1 CA-CV 19-0542 FC
FILED 9-24-2020
Appeal from the Superior Court in Maricopa County
No. FC2017-008641
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL
Mattiella Lee Burney, Phoenix
Petitioner/Appellant
Reppucci & Roeder, PLLC, Phoenix
By Ryan M. Reppucci
Counsel for Respondent/Appellee
BURNEY v. HUNTIMER
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.
W I N T H R O P, Judge:
¶1 Mattiella Lee Burney (“Mother”) appeals the family court’s
order establishing paternity, legal decision-making authority, parenting
time, and child support for her child, M.B., born on February 1, 2017.
Mother argues the court ignored relevant evidence and therefore abused its
discretion when determining parenting time and legal decision-making
authority. Mother also argues the court erred in calculating child support
and in awarding attorneys’ fees to Timothy Randall Huntimer (“Father”).
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 Mother and Father both have a history of mental health
issues. In 2016, Father was diagnosed with major depressive disorder and
began attending weekly counseling. He reported suicidal thoughts and
ideations on multiple occasions. Mother also received counseling for
generalized anxiety and depression from 2016 to 2019.
¶3 Following M.B.’s birth, Mother filed a petition on September
22, 2017, to establish paternity, legal decision-making authority, parenting
time, and child support, and submitted a proposed parenting plan
requesting sole legal decision-making authority. The family court
appointed an advisor for M.B., entered temporary orders granting Father
1 Arizona Rule of Civil Appellate Procedure (“ARCAP”) 13 explains
that parties’ briefs must contain appropriate references to the record on
appeal. Here, Father’s answering brief repeatedly failed to cite the correct
number for items in the record. Noncompliance with ARCAP 13 is ground
for either striking the brief or imposing another type of sanction; however,
in our discretion, we decline to impose any formal sanction and address the
merits of the parties’ respective positions. See ARCAP 25.
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Decision of the Court
limited parenting time, and set a trial on Mother’s petition for July 2018. See
Ariz. R. Fam. Law P. (“Rule”) 10.1 (authorizing court-appointed advisor).
¶4 Prior to trial, Mother and Father reached a Rule 69 agreement
establishing joint legal decision-making authority and child support
obligations for Father. The agreement, approved by the court, granted
Father parenting time on a graduated schedule, conditioned on him
providing Mother documentation “showing completion on an initial intake
and first session of therapy” and continuing “documentation as agreed
regarding his therapy.”
¶5 The family court ordered counsel to prepare and file a
stipulated order that incorporated the Rule 69 agreement; no such order
was ever filed. In light of the Rule 69 agreement, the court subsequently
dismissed Mother’s petition and the Rule 69 agreement became a final order
pursuant to Rule 70(b).
¶6 In March 2019, Father filed a Motion for Temporary Orders
Without Notice Regarding Legal Decision-Making and Parenting Time,
alleging Mother had not complied with the Rule 69 agreement and had
refused to allow him to have parenting time. The court treated Father’s
Motion for Temporary Orders as a Motion to Enforce Parenting Time as set
forth in the Rule 69 agreement. Father also filed a Motion for Rule 83, 84,
and 85 Relief/Request to Reinstate the dismissed petition, which the court
later granted.
¶7 The court held an evidentiary hearing and, after presentation
of the evidence, found Mother in contempt of the order adopting the Rule
69 agreement. The court found Mother had not exercised joint legal
decision-making and had “knowingly interfered with Father’s parenting
time [] by making his parenting time conditional on a letter from his
therapist – which was not court-ordered and despite Father providing her
with the information regarding his therapy per the Rule 69 Agreement.” As
a sanction for Mother’s failure to abide by the Rule 69 agreement, the court
ordered the parties immediately implement an equal 2-2-3 parenting time
schedule. Mother requested a hearing on her reinstated petition, so the
court set a final evidentiary hearing and entered a Temporary Order for
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Decision of the Court
Legal Decision Making, Parenting Time and Child Support based on the
terms of the Rule 69 agreement.2
¶8 In June 2019, the court held the evidentiary hearing on the
reinstated petition and issued a final order. The order granted Father sole
legal decision-making authority and established parenting time and child
support. The court also granted Father’s request for attorneys’ fees, finding
Mother had considerably more resources, acted unreasonably by failing to
comply with the Rule 69 agreement, and knowingly presented a false claim
and/or knowingly accused Father of making a false claim.
¶9 Mother filed a timely notice of appeal from the final order.
We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”)
section 12-2101(A)(1).
ANALYSIS
I. Standard of Review
¶10 We review the family court’s orders establishing parenting
time and legal decision-making authority for an abuse of discretion. See
DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). An abuse of discretion
occurs when the court commits an error of law in reaching a discretionary
conclusion or when the record is devoid of evidence to support the decision.
Engstrom v. McCarthy, 243 Ariz. 469, 471, ¶ 4 (App. 2018). We will defer to
the court’s findings of fact unless they are clearly erroneous. Id.
¶11 We review an award of child support for an abuse of
discretion but review de novo the court’s interpretation of the Arizona Child
Support Guidelines. Walsh v. Walsh, 230 Ariz. 486, 490, ¶ 9 (App. 2012).
II. Parenting Time and Legal Decision-Making Authority
¶12 Mother argues the family court abused its discretion in its
orders establishing parenting time and legal decision-making authority by
ignoring relevant evidence and making findings of fact unsupported by the
record.
2 The court later clarified that the parties essentially agreed to set aside
the Rule 69 agreement, as evidenced by Father’s Rule 83, 84, and 85 Motion
requesting relief from the Rule 69 agreement and reinstatement of the
dismissed petition, and Mother’s request for a hearing on the previously-
dismissed petition.
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Decision of the Court
¶13 First, Mother challenges the court’s finding that she
“knowingly interfered with Father’s parenting time [] by making his
parenting time conditional on a letter from his therapist – which was not
court-ordered and despite Father providing her with the information
regarding his therapy per the Rule 69 Agreement.” Mother contends this
finding is clearly erroneous because she did not actually receive
confirmation of Father’s first session of therapy until April 2019. However,
in support of this contention, Mother relies on an exhibit that was not
entered into evidence and is therefore not part of the record on appeal. Our
review is limited to the record before the family court. GM Dev. Corp. v.
Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4 (App. 1990). Moreover, we do not
have a transcript of the evidentiary hearing and thus must assume the
transcript would support the court’s findings and conclusions. See Baker v.
Baker, 183 Ariz. 70, 73 (App. 1995). Because Mother did not identify
anything included in the record to support her position, we can find no
abuse of discretion. See State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27,
30, ¶ 16 (App. 2003).
¶14 Mother also argues the court abused its discretion by ignoring
evidence of Father’s mental health issues. However, the court explicitly
noted in its order that “Father’s actual records for his mental health
treatment since 2016 are in evidence. The Court has reviewed these records
and finds that Father is currently stable and does not pose a risk of harm to
the child due to depression.” Although Mother points to select portions of
Father’s mental health records that support her position,3 the court clearly
stated it reviewed and relied on all of the records submitted and we will not
reweigh evidence on appeal. See Clark v. Kreamer, 243 Ariz. 272, 276, ¶ 14
(App. 2017).
¶15 Similarly, Mother contends the court abused its discretion by
failing to consider evidence of Father’s domestic violence, again citing
portions of Father’s mental health records. As mentioned previously, the
court stated it reviewed Father’s mental health records, and yet it still found
that “[b]ased on the evidence, the Court does not find domestic violence
pursuant to [A.R.S. §] 25-403.03 occurred.” We will not reweigh evidence,
see id., and assume the court found that brief references to altercations
contained in Father’s mental health records were insufficient to support a
3 Mother references sections of Exhibit 20 in support of her argument.
Father contends Exhibit 20 is not part of the record on appeal. Father is
incorrect. The superior court exhibit worksheet shows Exhibit 20 was
entered into evidence and was provided to this Court as part of the record
on appeal.
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specific finding of significant domestic violence. See A.R.S. § 25-403.03(C)
(listing relevant factors the court must consider to determine if an act of
domestic violence has occurred); see also Fuentes v. Fuentes, 209 Ariz. 51, 55-
56, ¶ 18 (App. 2004) (stating this Court assumes the family court fully
considered all admitted evidence). Aside from Father’s mental health
records, Mother references an order of protection she purportedly obtained
against Father; however, that order was not entered into evidence and is
not part of the record on appeal. See GM Dev. Corp., 165 Ariz. at 4. Mother
also argues that the court did not consider her relevant testimony of
physical and verbal abuse by Father, but as stated previously, we were not
provided transcripts of the evidentiary hearing and thus must assume the
testimony supports the court’s findings and conclusions. See Baker, 183
Ariz. at 73. On this record, we cannot say the family court abused its
discretion in concluding no domestic violence occurred pursuant to A.R.S.
§ 25-403.03.
¶16 Finally, as it relates to the court’s analysis of whether joint
legal decision-making authority was logistically possible, Mother asserts
the court clearly erred in its finding that Mother “refuse[d] to provide an
address, stating that her address is protected. That is not correct. Family
Court has no record of a protected address.” The record on appeal shows
that in November 2017, Mother obtained an order for protected address,
and she updated her address again with the court in March 2019. However,
in the months following the update, the court received multiple instances
of returned mail from Mother’s purported address. The court later found
the evidence regarding Mother’s address to be “vague and conflicting,”
found Mother exhibited a “lack of candor” about her residence, and found
that “[b]ased on the evidence and Mother’s demeanor while testifying . . .
Mother may be living with an undisclosed third-party.” See Clark, 243 Ariz.
at 276, ¶ 14 (stating this Court does not reevaluate the credibility of
witnesses). Although the family court may have erred in stating there was
no record of Mother ever having a protected address, there was still other
competent evidence supporting the court’s concerns regarding Mother’s
residence and reasonably supporting its decision in this regard.
¶17 In sum, the record contains sufficient evidence supporting the
court’s order regarding parenting time and legal decision-making
authority; the court did not abuse its discretion. See Engstrom, 243 Ariz. at
471, ¶ 4.
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III. Child Support
¶18 Mother argues the family court erred in calculating child
support by failing to include the full amount she pays for medical insurance
for M.B.
¶19 However, the record reflects the parties stipulated to the fact
that a prior cost figure of $186.00 per month for insurance was incorrect and
that the correct amount was $40.00 per month. The court included the
undisputed $40.00 per month for insurance in the child support calculation.
Mother now claims the accurate amount for insurance should have been
$352.42 per month starting in February 2019; yet, in support of this amount
she cites a document not entered into evidence and thus not part of the
record on appeal. See GM Dev. Corp., 165 Ariz. at 4. Because counsel for
both parties stipulated to the amount of $40.00 per month for M.B.’s health
insurance, and because Mother can point to no evidence contained in the
record supporting a higher cost, we see no error or abuse of discretion in
the court’s calculation of child support.
IV. Attorneys’ Fees
¶20 Mother argues the family court abused its discretion in
awarding attorneys’ fees to Father, claiming she did not act unreasonably
or knowingly present any false claims.
¶21 We review an award of attorneys’ fees for an abuse of
discretion. Medlin v. Medlin, 194 Ariz. 306, 309, ¶ 17 (App. 1999). Here, the
family court awarded attorneys’ fees pursuant to A.R.S. §§ 25-324(A), -415,
finding Mother had considerably more resources available, acted
unreasonably in the litigation, and knowingly presented a false claim.
Mother does not challenge that she has more financial resources, but
contends that Father was the one who asserted false claims and
unnecessarily extended the litigation based on his failure to provide
relevant documents.
¶22 Mother does not argue that the court failed to consider the
reasonableness factor, only that the court came to the wrong conclusion.
The family court had access to the parties’ financial information and had
the opportunity to observe the parties over the course of the action. As
such, the court was clearly in a position to judge the parties’ credibility and
the reasonableness of their positions. See Graville v. Dodge, 195 Ariz. 119,
131, ¶ 56 (App. 1999) (stating the abuse of discretion standard recognizes
the trial court’s opportunity to observe the reasonableness of the parties’
conduct). We will not reweigh evidence or reevaluate the credibility of
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witnesses. See Clark, 243 Ariz. at 276, ¶ 14. We see no persuasive reason to
find the family court abused its discretion in awarding attorneys’ fees to
Father.
¶23 Mother also contends the court erred in awarding attorneys’
fees because Father missed the court’s deadline for filing his fee application.
The record shows Father failed to submit the application on time and that
Mother moved to strike his untimely application. The court denied the
motion to strike after Father responded to the motion and demonstrated
good cause for the late filing. It was within the court’s discretion to extend
the filing deadline upon a showing of good cause. See Rule 4(b)(1).
CONCLUSION
¶24 For the foregoing reasons, we affirm the family court’s order.
¶25 We deny Father’s request for attorneys’ fees on appeal
because he fails to cite any authority in support of it. See ARCAP 21(a)(2)
(“A claim for fees under this Rule must specifically state the statute, rule,
decisional law, contract, or other authority for an award of attorneys’
fees.”); Roubos v. Miller, 214 Ariz. 416, 420, ¶ 21 (2007) (holding a party
“must state the statutory or contractual basis” for an award of attorneys’
fees pursuant to ARCAP 21); Ezell v. Quon, 224 Ariz. 532, 539, ¶ 31 (App.
2010) (explaining ARCAP 21 “is a procedural rule that does not provide a
substantive basis for an appellate court to consider an award of attorneys’
fees”).
AMY M. WOOD • Clerk of the Court
FILED: AA
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