Lunsford v.
| Decision Date | 14 February 2017 |
| Docket Number | No. 2 CA-CV 2016-0080,2 CA-CV 2016-0080 |
| Parties | IN RE THE MARRIAGE OF DAVID ANTHONY LUNSFORD, Petitioner/Appellee, and DESIREE JEANINE GONZALES, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).
Appeal from the superior court in Pima county
The Honorable Dean Christoffel, Judge Pro Tempore
AFFIRMED
By J.M. Stanlee West-Watt, Maulik P. Shah, and Daniel G. Barker
Lalosh Law, P.L.L.C., Tucson
By Diane M. Lalosh
Judge Miller authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred.
¶1 Desiree Gonzales appeals the dissolution decree of the family court, contending the court erred in its conduct of the trial, decisions about parenting time and legal decision-making, and attribution of income to her. We conclude the court did not err and we affirm the decree.
¶2 We view the facts in the light most favorable to upholding the decree. In re Marriage of Foster, 240 Ariz. 99, ¶ 2, 376 P.3d 702, 703 (App. 2016). Gonzales and Lunsford were married in 2010 and had a son, K.L., in 2012. In 2014, while Gonzales was pregnant with their daughter, K.G.L., they both filed petitions for dissolution of marriage. The family court consolidated the two dissolution proceedings.
¶3 At a temporary-orders hearing in August 2014, the court ordered the continuation of the parenting time agreement that was already in place. Under that agreement, Lunsford took K.L. for several mornings per week, and overnight for one night on the weekend. In November, Gonzales filed a new motion for temporary orders, contending Lunsford's overnight parenting time was "negatively affecting the well-being" of K.L., who had become "inconsolable at night." Gonzales also sought help from Kathryn Seidler, a licensed clinical social worker.
¶4 In May 2015, Gonzales took K.L. to the emergency room "for concerns over possible sexual assault," and told the doctor he was complaining of rectal pain and putting his fingers in his rectum. The doctor found that K.L.'s rectum was slightly inflamed, though there were "[n]o obvious cuts or signs of direct trauma." The Tucson Police Department (TPD) and Department of Child Safety (DCS) were both notified. Both TPD and DCS dismissed their cases.
¶5 Gonzales also contacted Seidler about the incident, sending her an email describing K.L.'s behaviors. Seidler initially responded that it sounded as if K.L. was exhibiting symptoms of sexual abuse trauma and recommended he be seen by another therapist. The other therapist met with K.L. and did not render any opinions regarding visitation changes. After learning that DCS and TPD had determined not to investigate the allegations, Seidler changed her opinion and determined that Gonzales and Lunsford should continue with the parenting plan already in place. Seidler later explained that she was not concerned about possible abuse, and thought K.L. might have just had a rash.
¶6 At a temporary-orders hearing the following month, Gonzales described her concerns regarding K.L., and the court reviewed the reports from the hospital, TPD, and therapists. Based on the opinions of the therapists and in light of the fact that TPD and DCS were not investigating, the family court denied the motion for temporary orders regarding parenting time.
¶7 In July, Gonzales contacted K.L.'s pediatrician about another incident in which K.L. asked her to tickle his penis. She did not bring K.L. with her and apparently did not tell the doctor that K.L. was being seen by therapists. The incident was again reported to DCS and TPD. Gonzales then obtained an ex parte order of protection from a different judge. Lunsford contested the order, and the family court held a hearing that continued into the first day of trial in August. At the hearing, the court heard testimony from a DCS employee, Gonzales, Gonzales's mother, and one of K.L.'s therapists, and reviewed a video recording Gonzales had made of K.L.'s behaviors. The therapist testified she had not observed any evidence K.L. was sexually abused. Gonzales testified that after she had received the order of protection, DCS informed her it had determined the claims were unsubstantiated. The court dismissed the order of protection.
¶8 After the dismissal, the family court proceeded with trial regarding dissolution matters, which continued to the next day. The court heard testimony from Gonzales again, as well as K.L.'s other therapist and Lunsford. The court ruled from the bench to grant joint decision-making, but granted Lunsford final authority for medical issues. Parenting time as to K.L. was set at one week on and one week off. Lunsford's parenting time with K.G.L. was limited to every weekend except for one each month, days only, with overnights to be added when she was nine months old.
¶9 Consistent with her pretrial request, Gonzales asked the family court to make findings of fact and conclusions of law, and the court ordered the parties to submit proposed findings. The court issued an order with its findings and conclusions, and issued a final decree. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
¶10 Gonzales argues she was denied the opportunity to be heard and to present all of her evidence because the family court limited Gonzales's and Lunsford's testimony to one hour each on the second day of trial.
¶11 "[A] trial court has broad discretion over the management of a trial, and although it may place time limitations on trial proceedings, any limitations must be reasonable under the circumstances." Gamboa v. Metzler, 223 Ariz. 399, ¶ 13, 224 P.3d 215, 218 (App. 2010); see also Ariz. R. Fam. Law P. 22(1) (). Rigidity is disfavored, and "limits should be sufficiently flexible to allow adjustment during trial." Gamboa, 223 Ariz. 399, ¶ 13, 224 P.3d at 218, quoting Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, ¶ 29, 977 P.2d 807, 813 (App. 1998). We review the imposition of time limits for an abuse of discretion, and we will not reverse unless a party can demonstrate it was harmed by the time limits. Brown, 194 Ariz. 85, ¶ 30, 977 P.2d at 813.
¶12 Gonzales requested a two-day trial, which the family court set at the final pre-trial conference. However, the contested order of protection hearing continued well into the first day of trial. Despite this, Gonzales was given a reasonable opportunity to present evidence. The court consolidated the order of protection and divorce cases for purposes of the hearing, and Gonzales and one of K.L.'s therapists testified about his behavioral issues and how they should affect Lunsford's custody, which was a key factor to be determined at trial. Moreover, Gonzales testified three times—once at the order of protection hearing and twice during trial. The court did not abuse its discretion by limiting the trial. See Gamboa, 223 Ariz. 399, ¶¶ 14-16, 224 P.3d at 218.
¶13 And even had the family court erred, Gonzales has not shown she suffered harm due to the time limitation. See id. ¶ 17. Such a showing requires, at minimum, an offer of proof stating what the evidence would have shown. Id. Gonzales argues she was prejudiced for two reasons: she had audio and video recordings of K.L. that were not viewed at trial, and she was "prevented from presenting all of her testimony with regard to why she left a good paying job to stay home with her newborn child." With regard to the first argument, some of the audio and video recordings were viewed at the hearing on the protection order, after which the court expressed concern about Gonzales's interview techniques with K.L. Moreover, Gonzales testified repeatedly about the behaviors K.L. had been exhibiting. Finally, she does not indicate in her briefs what the additional testimony or videotapes would have demonstrated that was not already before the court.
¶14 Regarding Gonzales's argument that she was not able to fully explain why she left her job, she never objected below regarding that time constraint, nor is there any indication in the record that it limited her testimony. At the end of the first day of trial, the court asked if the parties wanted to use the remaining twenty-five minutes to introduce testimony as to child support and then "start . . . clean" the next day with the decision-making and parenting time issues. Both parties agreed, and Gonzales testified. She explained she had resigned from her position as an intelligence officer with the Department of Homeland Security to work as an independent insurance agent, and was not yet earning any income in this line of work. She told the court she had left her job because she was going to be required to take a five-week business trip, and that she wanted a job that would allow her to run a business and take care of her children at the same time. Her testimony was not cut off, and there was time for both cross-examination and re-direct. At the conclusion, the court asked Gonzales's counsel if there was anything else, and she did not indicate Gonzales had further testimony regarding why she left her job. Moreover, Gonzales does not explain in her briefs what she would have said had she been provided more time. There is no indication Gonzales suffered prejudice due to the amount of time spent on the issue of why she left her job. See id. ¶ 18.
¶15 Gonzales argues the family court erred by failing to make findings of fact and conclusions of law on the record...
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