Hays v. Gama

• Decision Date: 25 April 2003
• Docket Number: No. CV-02-0316-PR.,CV-02-0316-PR.
• Parties: Elizabeth K. HAYS, Petitioner, v. The Honorable J. Richard GAMA, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Donald T. Hays, Real Party in Interest.
• Court: Arizona Supreme Court

67 P.3d 695

205 Ariz. 99

Elizabeth K. HAYS, Petitioner, v. The Honorable J. Richard GAMA, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Donald T. Hays, Real Party in Interest.

No. CV-02-0316-PR.

Supreme Court of Arizona, En Banc.

April 25, 2003.

Patterson & Simiele by Scott L. Patterson, Tempe, Attorneys for Petitioner Elizabeth K. Hays.

John R. Zarzynski, Mesa, Attorney for Real Party in Interest Donald T. Hays.

Dianne Post, Phoenix, Attorney for Amici Curiae Arizona Coalition Against Domestic Violence Inc. and Arizona Voice for Crime Victims, Inc.

OPINION

HURWITZ, Justice.

¶ 1 This case involves the dissolution of a marriage and a hotly contested child custody dispute. We granted review to consider whether certain contempt sanctions imposed on a party for disobeying an order improperly interfered with the superior court's duty to determine the best interests of the child in awarding custody.

I.

¶ 2 On June 9, 2000, Elizabeth K. Hays ("Mother") filed a petition in superior court to dissolve her marriage to Donald T. Hays ("Father"). The couple had a five-year-old daughter ("Daughter"), and the issue of child custody became the subject of bitter dispute. On November 28, 2000, the superior court appointed a psychologist, Dr. John Moran, to perform a custody evaluation.

¶ 3 Wendy Dutton, a forensic interviewer at the Child Abuse Assessment Center at St. Joseph's Hospital, subsequently told Dr. Moran that Daughter may have been sexually abused by Father and others.¹ Dr. Moran accordingly recommended to the superior court that Daughter visit a therapeutic clinician, both to provide counseling and to make recommendations regarding custody and visitation to the court. The superior court then appointed Diana Vigil, Dr. Moran's spouse, as the child's therapeutic counselor.

¶ 4 At an evidentiary hearing held on January 29, 2001, Father and Mother agreed that Ms. Vigil should not serve as Daughter's counselor because of the potential for a conflict of interest in Dr. Moran's evaluation of any recommendations that might come from his spouse. At Father's request, the superior court appointed Dr. Brian Yee in Ms. Vigil's place. Mother did not object to the appointment of Dr. Yee at the January 29 hearing.

¶ 5 On February 22, 2001, however, Mother moved for reconsideration of the appointment of Dr. Yee. In support of this motion, Mother submitted an affidavit from the forensic interviewer, Wendy Dutton, alleging that Daughter would be better served by a female therapist. Ms. Dutton recommended Mary Livingston, whom she called "one of the finest therapists in Maricopa County." In a minute entry dated March 26, 2001, the superior court denied Mother's motion for reconsideration, finding Dr. Yee qualified to be the child's counselor.

¶ 6 Despite the superior court's denial of her motion, Mother, who had temporary custody of Daughter, did not take her to see Dr. Yee. Instead, in April 2001, Mother began taking the child to Ms. Livingston for counseling.

¶ 7 After Father learned that Daughter had been seeing Ms. Livingston and not Dr. Yee, he moved for sanctions against Mother. Prior to the sanctions hearing, Dr. Yee opined that it would not be in Daughter's best interest to begin a new therapy regime with him if a positive therapeutic relationship had developed with Ms. Livingston. In turn, Dr. Moran opined that such a positive therapeutic relationship had been established, and that changing to Dr. Yee midstream would therefore be "disruptive and possibly harmful." Father consequently did not request that Mother be ordered to take Daughter to Dr. Yee.

¶ 8 The hearing on the sanctions motion was held on September 19, 2001. After hearing argument, the superior court found that Mother "knew of the Court's order, intentionally violated the Court order, and has been in noncompliance with the Court order." It accordingly held Mother "in contempt of this Court for her willful failure to comply with the prior Court order."

¶ 9 While the superior court agreed with the parties that Daughter's therapeutic relationship with Ms. Livingston should not be disturbed, it ordered that three immediate sanctions be imposed as a result of Mother's disobedience of its order. First, Mother was ordered to pay all fees "incurred by counselor Mary Livingston." Second, Mother was ordered to pay Father's attorney fees and costs associated with the motion for sanctions. Third, the superior court ordered in a minute entry that "the opinions of Dr. [sic] Livingston will not be allowed in the proceedings in this matter."

¶ 10 At the September 19 hearing, the superior court raised the possibility of a fourth sanction. It requested memoranda from counsel as to whether "mental health professionals" should be prohibited from using "as a basis for their opinions the records of Mary Livingston." On December 7, 2001, after receiving the requested memoranda, the superior court further ordered that "the clinical records of Mary Livingston may not be used directly or indirectly as evidence in this matter, nor shall they form the basis for any expert opinions expressed on child custody/access issues presented in this matter."

¶ 11 On March 29, 2002, Dr. Moran wrote to Mother's counsel, stating that "the Standard of Practice, both nationally and in Maricopa County, and my standard of practice is, when alleged victims of sexual abuse are involved in therapy, to request the records from that therapist and to request a telephonic consultation with the therapist." He further advised that the order barring him from interviewing Ms. Livingston is "an unusual practice, and, I believe, contrary to the best clinical practices that I can pursue in completing this evaluation."

¶ 12 Armed with this opinion, Mother moved for reconsideration of the sanctions excluding the opinions of Ms. Livingston from the proceedings in the child custody matter and the order that Ms. Livingston's records may not be used to form the basis for any expert opinions expressed on child custody/access issues. Mother also asked for reconsideration of the sanctions order requiring her to pay Father's attorney fees. The superior court denied the motion for reconsideration.

¶ 13 Mother then filed a special action petition in the court of appeals, arguing that the sanctions imposed were an abuse of discretion because they are contrary to the best interests of the child. The court of appeals declined jurisdiction. We thereafter granted Mother's petition for review. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution, Arizona Rule of Civil Appellate Procedure 23, and Arizona Revised Statutes ("A.R.S.") section 12-120.24 (1992).

II.

¶ 14 Both at the hearing on the sanctions motion and in its subsequent minute entry, the superior court cited Rule 37(b)(2) of the Arizona Rules of Civil Procedure as a basis for excluding Ms. Livingston's testimony.² Notwithstanding the superior court's reference to Rule 37(b)(2), it is clear that its evidentiary sanctions, as well as the monetary ones, could not properly have been imposed pursuant to the discovery rules.

¶ 15 Rule 37(b)(2) applies only when a "party fails to obey an order to provide or permit discovery." Neither the superior court nor any party has identified any discovery order that Mother failed to obey. The orders appointing Ms. Vigil and substituting Dr. Yee were not discovery orders, but rather orders to allow the superior court to obtain professional advice in determining child custody. See A.R.S. § 25-405(B) (Supp.2002) (allowing superior court to seek professional advice on child custody issues); see also A.R.S. § 25-406 (2000) (providing for investigations and reports on child custody issues).³

¶ 16 Rather, as the superior court made plain at the September 19, 2001 hearing, the sanctions were imposed pursuant to the court's inherent contempt power. The only basis cited by the superior court for the sanctions was Mother's "willful failure to comply" with the order appointing Dr. Yee as the therapist, and the court expressly held Mother "in contempt of this Court" for that failure to comply. Similarly, in its December 19, 2001 minute entry, the superior court explicitly noted that its decision to exclude Ms. Livingston's records from direct or indirect use at trial was a result of Mother's noncompliance with the order appointing Dr. Yee.⁴

¶ 17 We therefore must determine whether the superior court abused its discretion in imposing the sanctions on Mother under its inherent contempt power. See Danielson v. Evans, 201 Ariz. 401, 412,

¶ 40, 36 P.3d 749, 760 (App.2001) (superior court's contempt order reviewed for abuse of discretion). We begin from the premise that contempt sanctions should generally be limited to "the least possible power adequate to the end proposed." Ong Hing v. Thurston, 101 Ariz. 92, 100, 416 P.2d 416, 424 (1966) (quoting Harris v. United States, 382 U.S. 162, 165, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965)). This is especially true when a contempt sanction impacts an innocent third party. See, e.g., Franklin Township Bd. of Educ. v. Quakertown Educ. Ass'n, 274 N.J.Super. 47, 643 A.2d 34, 38 (App.Div.1994) (noting that when a court sanctions a party pursuant to a rule requiring compliance with court orders, the court must consider "the sanction's impact on innocent third parties"); cf. McGregor v. Chierico, 206 F.3d 1378, 1385-86 (11th Cir.2000) (holding that a court cannot use its contempt power to forfeit assets of a contemnor also owned by a third party).

¶ 18 In this case, a very important third party is impacted by the contempt sanctions—the child. In a child custody case, A.R.S. § 25-403(A) (Supp.2002) mandates that the superior court make its determination "in accordance with the best interests of the child." We have repeatedly stressed that the child's best interest is paramount in custody determinations. See, e.g., ...