Kelly v. Kelly

• Decision Date: 16 November 2021
• Docket Number: 1 CA-CV 20-0441 FC
• Citation: 252 Ariz. 371,503 P.3d 822
• Parties: In re the Matter of: Christie KELLY, Petitioner/Appellee/Cross-Appellant, v. Garrett C. KELLY, Respondent/Appellant/Cross-Appellee.
• Court: Arizona Court of Appeals

252 Ariz. 371

503 P.3d 822

In re the Matter of: Christie KELLY, Petitioner/Appellee/Cross-Appellant,

v.Garrett C. KELLY, Respondent/Appellant/Cross-Appellee.

No. 1 CA-CV 20-0441 FC

Court of Appeals of Arizona, Division 1.

FILED November 16, 2021

Berkshire Law Office, PLLC, Tempe, By Keith Berkshire, Kristi A. Reardon, Counsel for Petitioner/Appellee/Cross-Appellant

Bishop Del Vecchio & Beeks Law Office, PC, Phoenix, By Daniel P. Beeks, Counsel for Respondent/Appellant/Cross-Appellee

Judge David D. Weinzweig delivered the opinion of the Court, in which Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.

WEINZWEIG , Judge:

¶1 At issue in this appeal is whether and how the superior court may impose evidentiary sanctions in custody litigation against a parent who defies its orders to cooperate in a Comprehensive Family Evaluation ("CFE").

¶2 Mother and Father are parents of a minor child. Mother petitioned to dissolve the marriage, requesting sole legal decision-making authority over the child. At her request, the superior court appointed a series of behavioral health evaluators to perform the CFE, and ordered both parties to cooperate. Father refused. He did not cooperate with the first evaluator, who resigned, and then refused to cooperate with the replacement evaluator. After repeated warnings, the court sanctioned Father, precluding him from presenting any evidence at trial that he could have presented to the CFE evaluators, and preventing him from questioning any witnesses on topics he might have discussed with the evaluators. After a lopsided trial, the court awarded Mother sole legal decision-making authority.

¶3 Father contends this was error. We agree. The superior court must consider all relevant, admissible evidence bearing on a child's best interests. A parent's myopic and combative litigation tactics cannot deprive his daughter of a well-informed custody decision anchored in the child's best interests. We vacate the court's legal decision-making and parenting-time orders, along with the attorney fees award, and remand for a new trial. Additionally, we reverse the court's allocation of $32,500 of Father's retirement assets to Mother, and remand for the court to redistribute those funds to Father.

FACTS AND PROCEDURAL BACKGROUND

¶4 Garrett Kelly ("Father") and Christie Kelly ("Mother") married in 2014 and have one daughter, born in 2015. Mother petitioned for divorce in June 2018, requesting sole legal decision-making authority, alleging "[s]ignificant domestic violence has occurred during the marriage." Father denied any domestic violence and sought joint legal decision-making.

I. Comprehensive Family Evaluation

¶5 Soon thereafter, Mother asked the superior court to order a CFE into her domestic violence allegations. Father objected, arguing a CFE was unnecessary. Between January and July 2019, the court appointed three evaluators to perform the CFE, the second of whom recused because of a conflict. Each appointment order instructed the parties to cooperate and "promptly provide[ ] all records, reports, and documents requested" by the forensic evaluator. But each time, Father hindered and ultimately foiled the evaluator's efforts.

¶6 The superior court first appointed Dr. David Weinstock, a clinical psychologist, in January 2019. Dr. Weinstock was tasked to evaluate the domestic violence issues and offer "legal decision-making recommendations." Father did not cooperate with Dr. Weinstock. He refused to submit "paperwork" to Dr. Weinstock in early March and refused to pay his share of the evaluator's retainer in late March. As a result, the court reiterated that Father must comply, set deadlines for his compliance and threatened sanctions for non-compliance. In April, the court ordered Father "to participate with" Dr. Weinstock, warning that "[s]hould [Father] fail to do so, he will be precluded from introducing any evidence he could have brought to [the CFE evaluator] to be included in the [CFE]." By late May, however, Father still refused to cooperate, and Dr. Weinstock wanted out of the case. The court released Dr. Weinstock from his appointment.

¶7 Just weeks later, the superior court told the parties it would appoint another CFE. Father, unrepresented after his attorney had withdrawn, argued the court should not appoint a replacement CFE evaluator because "[t]here is so much insurmountable fake evidence." But the court remained firm, emphasizing that both parties must participate or it would impose sanctions:

What cannot happen, again, is that people don't participate with the family evaluator, so it doesn't go forward. Because, ultimately, if that happens, then I'm going to exclude the evidence that you could have provided to the family court evaluator. And I'm doing that because ... the family court evaluator is for both parties’ benefit.

¶8 The court appointed Dr. Julie Skakoon as the new CFE evaluator to probe the two issues previously assigned to Dr. Weinstock and two more issues requested by Father: "[c]hild maltreatment allegations" and the "[f]itness of both parents." And again, the court warned that "both parties must participate in the [CFE]. If either party fails to participate, any evidence they could have presented to the evaluator at trial will be excluded."

¶9 Still, Father did not cooperate. And so, less than three weeks after appointing Dr. Skakoon, the court set a trial date and, without a hearing, levied sanctions against Father. The court explained:

The court received an update ... from Julie Skakoon documenting father's non-participation in the [CFE]. Based on this update and the court's prior July 2, 2019 minute entry, the court will set trial.

[I]n as much as father appears to refuse, yet again, to participate in the CFE[,] father will be precluded from presenting any evidence at the trial that he could have prevented [sic] to Ms. Skakoon[.]

¶10 The court also "relieved [Dr. Skakoon] from her duty as an evaluator" because "a one-sided CFE would not provide the court with useful information."

II. Trial and Decree

¶11 A trial was held on February 11, 2020. Father was allowed to introduce only the evidence he provided or could not have provided to the evaluators. In all, the court admitted three of Father's exhibits, one of which concerned attorney fees. It did not allow Father to call any witnesses to testify about issues he could have raised with the evaluators. And, although Father testified, the court prevented him from talking about issues he could have raised with the evaluators.

¶12 By contrast, the court admitted 62 of Mother's exhibits. Mother's expert witness testified. And Mother herself testified, broadly describing her relationship with Father during the marriage and dissolution proceedings. Father was not allowed to cross-examine Mother on issues he could have raised with the evaluators.

¶13 A decree of dissolution followed. The court awarded sole legal decision-making to Mother, finding that Father committed domestic violence, but awarded Mother and Father equal parenting time. The court also appointed a special master to investigate whether Father violated the preliminary injunction, entered upon Mother's petition for dissolution, by removing $65,000 from his IRA and, if so, to "apportion Mother an additional $32,500." The court awarded Mother her reasonable fees under A.R.S. § 25-324(A), finding that Father "acted unreasonably in the litigation."

¶14 The special master later concluded that Father removed $65,000 from the IRA, as alleged. He also concluded that Father owned $65,000 of the IRA as his sole and separate property. And yet, he recommended that Mother receive the "additional $32,500," which the court accepted.

¶15 Father timely appeals from the decree, challenging the superior court's evidentiary sanction, distribution of assets, admission of expert witness testimony and award of attorney fees. Mother timely cross-appeals the court's division of parenting time, domestic violence findings and denial of interest on her attorney fees judgment. We have jurisdiction. See A.R.S. § 12-2101(A)(1).

DISCUSSION

I. Evidentiary Sanction

¶16 Father challenges the evidentiary sanction the court imposed against him for not cooperating with the CFE evaluators, arguing it deprived him and his daughter of their right to a custody decision grounded in the daughter's best interests. We review the sanction for an abuse of discretion. Hays v. Gama , 205 Ariz. 99, 102, ¶ 17, 67 P.3d 695, 698 (2003).

¶17 As in Hays , the superior court here used its inherent contempt powers to sanction Father. Arizona courts "begin from the premise that contempt sanctions should generally be limited to ‘the least possible power adequate to the end proposed.’ " Id . (quoting Ong Hing v. Thurston , 101 Ariz. 92, 100, 416 P.2d 416, 424 (1966) ). This presumption is most significant when "a contempt sanction impacts an innocent third party," like the children of parents locked in custody battles. Id . ¶ 17-18.

¶18 A child's best interests reign supreme in custody disputes. Id . Arizona law directs the superior court to resolve issues of legal decision-making and parenting time "in accordance with the best interests of the child" and instructs the court to "consider all factors that are relevant to the child's physical and emotional well-being." See A.R.S. § 25-403(A). These factors include "[t]he past, present and potential future relationship between the parent and the child," "[t]he interaction and interrelationship of the child with the child's parent or parents," "[t]he mental and physical health of all individuals involved," "[w]hich parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent," "[w]hether there has been domestic violence or child abuse pursuant to § 25-403.03," and "[w]hether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making...