Johnson v. Provoyeur

• Decision Date: 26 July 2018
• Docket Number: No. 1 CA-CV 17-0276 FC,1 CA-CV 17-0276 FC
• Citation: 426 P.3d 1218
• Parties: In re the Matter of: Rebecca L. JOHNSON, Petitioner/Appellant, v. James PROVOYEUR, Respondent/Appellee.
• Court: Arizona Court of Appeals

426 P.3d 1218

In re the Matter of: Rebecca L. JOHNSON, Petitioner/Appellant,

v.James PROVOYEUR, Respondent/Appellee.

No. 1 CA-CV 17-0276 FC

Court of Appeals of Arizona, Division 1.

FILED July 26, 2018

Gillespie Shields Durrant & Goldfarb, Phoenix, By DeeAn Gillespie Strub, Mark A. Shields, Counsel for Petitioner/Appellant

Mushkatel, Robbins & Becker, PLLC, Sun City, By Zachary Mushkatel, Counsel for Respondent/Appellee

Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.

CAMPBELL, Judge:

¶ 1 Petitioner Rebecca L. Johnson ("Mother") appeals the superior court’s order denying her petition to modify the primary physical residence of the parties’ children. Mother argues the court abused its discretion by precluding her expert’s supplemental report due to her failure to timely disclose the report pursuant to the scheduling order and the Rules of Family Law Procedure. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Mother and respondent James Provoyeur ("Father") married and had two children in Rhode Island. In 2012, Mother moved to Arizona with the children. After Mother arrived, she learned she was pregnant with the parties’ third child. After Mother gave birth in June 2013, she filed for dissolution in Arizona.

¶ 3 The parties conceptually agreed to a parenting plan under which the children would live with the primary residential parent during the school year and with the other parent during summer and alternating school breaks. Mother and Father each sought appointment as the primary residential parent. After an evidentiary hearing in July 2014, the superior court found it was in the children’s best interests for Father to be the primary residential parent and for the children to reside principally in Rhode Island.¹

¶ 4 In April 2016, Mother filed a petition to modify the children’s primary physical residence, asserting Father had failed to fulfill his responsibility as the primary residential parent and, as a result, the children were suffering in his care. The superior court scheduled an evidentiary hearing for November 21, 2016, and ordered the parties to exchange updated disclosure statements, including all documents and exhibits, at least 60 days before the hearing. At the parties’ request, the court implemented a scheduling order requiring disclosure of experts’ identities and opinions on or before October 14, 2016, and completion of all discovery (except expert depositions) by November 1, 2016. Mother disclosed the report of her expert, Carol Mellen, Ph.D., on October 21, 2016 ("Original Report")—a week after the court-ordered deadline.

¶ 5 A few days before the scheduled evidentiary hearing, the court granted Father’s motion to continue, resetting the hearing for March 6, 2017. The request for a continuance was necessitated by Mother’s untimely disclosure of witnesses and voluminous documents, again after the court-imposed deadline. When granting the continuance, the court reaffirmed its earlier discovery and disclosure order requiring the parties to make all disclosures at least 60 days before the hearing.

¶ 6 On February 21, 2017, Mother again violated the court’s scheduling order and the Rules of Family Law Procedure by disclosing Dr. Mellen’s supplemental report, dated February 13, 2017 ("Supplemental Report"). The Supplemental Report included summaries of Dr. Mellen’s December 27 and 30, 2016 interviews and observations of the parties’ children. Mother did not alert the court or Father of the expected report, nor did she request a continuance based on her late disclosure. On February 27, 2017, Father moved in limine to exclude the Supplemental Report and Dr. Mellen’s related testimony because Mother had failed to timely disclose the Supplemental Report. He asserted the presentation of the newly disclosed information would cause him prejudice. Mother argued the disclosure was timely and not prejudicial to Father; she also asserted that it would be an abuse of the court’s discretion to exclude the Supplemental Report because it contained information regarding the children’s best interests. The court granted Father’s motion and excluded Dr. Mellen’s Supplemental Report, but admitted her timely disclosed Original Report and allowed Dr. Mellen to testify about the opinions therein.

¶ 7 Ultimately, the court denied Mother’s petition to modify, determining she failed to show a substantial and continuing change of circumstances that would justify a change in the children’s primary physical residence.

DISCUSSION

¶ 8 The superior court has broad discretion in ruling on disclosure and discovery matters, and this court will not disturb an evidentiary ruling absent a clear abuse of discretion and resulting prejudice. Marquez v. Ortega , 231 Ariz. 437, 441, ¶ 14, 296 P.3d 100, 104 (App. 2013) ; Gemstar Ltd. v. Ernst & Young , 185 Ariz. 493, 506, 917 P.2d 222, 235 (1996).

A. Mother Did Not Timely Disclose the Supplemental Report

¶ 9 Arizona Rule of Family Law Procedure ("Rule") 49(H) requires each party to disclose, at least 60 days before trial, all information regarding any expert witness he or she intends to call at trial. Here, the superior court also ordered the parties to complete all disclosures at least 60 days before trial. Mother was therefore required to disclose any supplemental report on or before January 5, 2017, and her February 21, 2017 disclosure of Dr. Mellen’s Supplemental Report was not timely.²

B. The Untimely Disclosure Prejudiced Father

¶ 10 If a party fails to timely disclose information, he or she "shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or in support of a motion, the information or the testimony of a witness not disclosed, except by leave of court for good cause shown." Ariz. R. Fam. Law P. 65(C)(1).³

¶ 11 Mother argues her late disclosure was harmless and caused no prejudice to Father. We disagree. The untimely disclosure deprived Father of a fair opportunity to obtain Dr. Mellen’s notes, to schedule and complete a deposition, or to allow his expert witness the necessary time to prepare a rebuttal report. Further, we reject Mother’s argument that Father had ample time to cure this prejudice and his failure to depose Dr. Mellen in the two weeks before trial constituted "lying in wait" and using the discovery rules as a "weapon." Arizona’s disclosure rules do not require an opposing party to undertake new discovery the week prior to trial to remediate or avoid prejudice caused by the other party’s disclosure violation. See Ariz. R. Fam. Law P. 65(C)(1) (requiring the party making a late disclosure to seek "leave of court for good cause shown" to use the evidence at trial).⁴ Additionally, Mother was aware the Supplemental Report was forthcoming and neither gave Father advance warning nor sought leave from the court to disclose the report when it became available.

¶ 12 Moreover, we discern no dilatory conduct by Father. He filed his motion in limine to exclude the Supplemental Report four business days after he received it. The circumstances of this case are therefore distinguishable from the cases Mother cites. See Allstate Ins. Co. v. O’Toole , 182 Ariz. 284, 288, 896 P.2d 254, 258 (1995) (defendant, aware that unrepresented plaintiffs had failed to serve their disclosure statement, did nothing to remind plaintiffs of their obligations and deliberately did not continue with other discovery); Bryan v. Riddel , 178 Ariz. 472, 476-77, 875 P.2d 131, 135-36 (1994) (plaintiff failed to make adequate disclosures of expected witness testimony, but defendant had obtained the relevant information via other discovery methods).

C. Mother Did Not Establish Good Cause for Her Late Disclosure

¶ 13 Mother asserted in the superior court that her late disclosure occurred because of illnesses, staff turnover and absences at her counsel’s office in February 2017, and Mother’s inability to pay Dr. Mellen to prepare the Supplemental Report until February 2017. Even accepting Mother’s explanation, Mother was aware a report would be forthcoming but failed to either request a continuance or alert anyone to the impending disclosure or the issues she encountered in producing the document. Accordingly, the superior court rejected her argument and excluded the report based on Mother’s disclosure violation. We find no abuse of discretion. See Marquez at 441, ¶ 14, 296 P.3d at 104 (trial court has broad discretion when ruling on disclosure matters); Zimmerman v. Shakman , 204 Ariz. 231, 236, ¶ 16, 62 P.3d 976, 981 (App. 2003) ("[I]f a trial is set and imminent, the possibility of prejudice increases. In such a case the trial judge possesses considerable latitude in determining whether good cause has been shown for late disclosure. If there is no good cause, barring the introduction of evidence not previously disclosed may be a reasonable sanction.").⁵

D. The Court Was Not Required to Admit the Supplemental Report Simply Because It Concerned the Children’s Best Interests

¶ 14 Mother—citing Hays v. Gama , 205 Ariz. 99, 67 P.3d 695 (2003) —argues that despite her disclosure violation, the superior court improperly excluded the Supplemental Report because "a trial court abuses its discretion when it excludes evidence that impacts a child’s best interests." Mother asserts that Hays stands for the proposition that a court commits reversible error by precluding any information regarding the child’s best interests.

¶ 15 Hays is distinguishable from this case. In Hays , the superior court precluded evidence from a child’s therapeutic counselor in a contested child custody proceeding as a contempt sanction because the child’s mother had violated certain court orders. Id . at 101, ¶¶ 9-10, 67 P.3d at 697. The Arizona Supreme Court vacated the sanctions, explaining the discovery rules did not authorize the exclusion because "[n]either the superior court nor any party h...