Phillips v. Cabrera

• Decision Date: 27 March 2018
• Docket Number: No. 1 CA-CV 17-0390 FC,1 CA-CV 17-0390 FC
• Citation: Phillips v. Cabrera, No. 1 CA-CV 17-0390 FC (Ariz. App. Mar 27, 2018)
• Parties: In re the Matter of: RAFE A. J. PHILLIPS, Petitioner/Appellee, v. VANESSA N. CABRERA, Respondent/Appellee, MARGARET PHILLIPS, Intervenor/Appellant.
• Court: Arizona Court of Appeals

In re the Matter of: RAFE A. J. PHILLIPS, Petitioner/Appellee, v. VANESSA N. CABRERA, Respondent/Appellee,MARGARET PHILLIPS, Intervenor/Appellant.

No. 1 CA-CV 17-0390 FC

ARIZONA COURT OF APPEALS DIVISION ONE

March 27, 2018

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. FC2015-005693

The Honorable Ronee F. Korbin Steiner, Judge Pro Tempore

AFFIRMED

COUNSEL

Vanessa N. Cabrera, Gilbert

Respondent/Appellee

Margaret S. Phillips Attorney at Law, Tucson

By Margaret S. Phillips

Counsel for Intervenor/Appellant

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.

JONES, Judge:

¶1 Margaret Phillips appeals the family court's order denying her petition to establish grandparent visitation and awarding Vanessa Cabrera (Mother) attorneys' fees and costs. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Rafe Phillips (Father) were married in August 2010 and divorced in October 2015.¹ At the time of the divorce, the parties' two minor children (the Children), were ages five and four. In May 2016, Phillips, the Children's paternal grandmother and a licensed Arizona attorney, petitioned for grandparent visitation. Shortly thereafter, Mother petitioned for a permanent modification of the legal decision-making authority and parenting time based upon concerns regarding Father's mental health, substance abuse, and threats of self-harm and domestic violence. Father then agreed to suspend his parenting time while he participated in an inpatient substance abuse rehabilitation program.

¶3 At the May 2017 evidentiary hearing, Phillips admitted she had not seen the Children since 2011. Phillips testified she tried, unsuccessfully, to visit the Children during Father's parenting times but admitted she had not even spoken with Mother since before the younger child was born and had not otherwise attempted to establish a relationship with the Children. Phillips blamed the circumstances on a falling out with Mother in 2010, long before the divorce decree entered. Although Phillips claimed to have sent gifts to the Children, most recently in 2013, the packages were addressed from Father. Phillips did not provide anyadmissible evidence to suggest Mother was an unfit parent at the time of the hearing.

¶4 Mother testified she did not believe contact with Phillips was in the Children's best interests; indeed, the Children had no idea who Phillips was because she had not attempted to establish a relationship with them. Father's statements on the issue were inconsistent; his testimony that Phillips "deserved" grandparent visitation came just four months after he sent a message to Mother stating otherwise. He did not comment on what arrangement he believed to be in the Children's best interests.

¶5 After taking the matter under advisement, the family court denied Phillips' request and awarded Mother her attorneys' fees and costs incurred in opposing the petition.² Within its findings, the court found Mother "significantly more credible than [Phillips]" because Phillips lacked any personal knowledge regarding the Children, relying instead upon information from Father, "who by all accounts, has had alcohol issues and . . . used drugs in the past." Phillips timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)³ and -2101(A)(1).

DISCUSSION

I. Requests for Production

¶6 Phillips argues the family court erred in entering a protective order preventing her from recovering records related to Mother's health, employment, and other activities in 2010. The court may enter an order protecting information from discovery where "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Ariz. R. Fam. Law P. 53(A); see also Ariz. R. Civ. P. 26(c). "A trial court has broad discretion in ruling on discovery issues, and we will not disturb its ruling absent a clear abuse of discretion" — that is, if the court "commits legal error in reaching a discretionary conclusion, or if the record lacks substantial evidence to support its ruling." Tritschler v.Allstate Ins., 213 Ariz. 505, 518, ¶ 41 (App. 2006) (citing Perguson v. Tamis, 188 Ariz. 425, 427 (App. 1996)). We find no abuse of discretion here.

¶7 When questioned about the relevance of the requested documents, Phillips asserted they would illustrate "a series of lies" that prevented Phillips from maintaining a relationship with Mother, and, by extension, the Children. The family court determined that these records, which predated the parents' marriage and the birth of the younger child, were not relevant to the Children's best interests or Mother's ability to parent. See A.R.S. § 25-409(C) (authorizing the court to order grandparent visitation if it finds, among other things, "the visitation is in the child's best interests"); Chapman v. Hopkins, 243 Ariz. 236, 244, ¶ 28 (App. 2017) (directing the court, in evaluating whether grandparent visitation is appropriate, to grant "robust deference" to a fit parent's opinion as to her children's best interests) (citing Goodman v. Forsen, 239 Ariz. 110, 113, ¶ 13 (App. 2016)). "Whether the time is too remote to be relevant is a question to be decided by the trial court, whose action in passing on the matter will not be reviewed, unless an abuse of discretion appears" under the facts of the particular case. Burnett v. State, 34 Ariz. 129, 138 (1928) (citations omitted). Phillips has shown no abuse of discretion here.

¶8 Phillips asserts this information from 2010 was critical to attack Mother's credibility. We disagree. "As evidence of the witness'[s] condition becomes more remote in time, it has proportionately less bearing on the credibility of the witness." State v. Fleming, 117 Ariz. 122, 125-26 (1977). Without any indication that Mother's veracity was compromised at the time of the 2017 hearing, we cannot say the court abused its discretion in determining that events occurring in 2010 had any bearing upon her credibility. See id. at 126 (finding the witness's two-day stay in a mental institution three years prior to the relevant transaction had no bearing on his credibility).

¶9 Phillips also argues the family court erred in ordering her to reimburse Mother for her attorneys' fees expended in filing the motion for protective order. However, the Arizona Rules of Family Law Procedure specifically direct the court to award the party requesting the protective order "the reasonable expenses incurred in opposing the motion [for discovery], including attorneys' fees, unless the court finds that the making of the motion was substantially justified or other circumstances make an award of expenses unjust." Ariz. R. Fam. Law P. 53(A), 65(A)(4)(b). The court did not make any findings excepting Phillips from this directive, and we find no error.

II. Due Process and Time Limitations

¶10 Phillips argues she was deprived of due process when the family court refused to grant her additional time to present her case. Whether a party is afforded adequate due process presents a question of law reviewed de novo. Savord v. Morton, 235 Ariz. 256, 260, ¶ 16 (App. 2014) (quoting Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999)). "The determination of when additional time is necessary is normally committed to the discretion of the trial court." Volk v. Brame, 235 Ariz. 462, 469, ¶ 22 (App. 2014).

¶11 The family court "enjoys broad discretion to 'impose reasonable time limits on all proceedings or portions thereof and to limit the time to scheduled time.'" Id. at 468, ¶ 20 (quoting Ariz. R. Fam. Law P. 22(1), and citing Ariz. R. Evid. 611, cmt. to 2012 amendment, and Findlay v. Lewis, 172 Ariz. 343, 346 (1992)). Time limits are unreasonable if they deprive the litigants of due process — that is, the opportunity to be heard at a meaningful time, in a meaningful manner, through the presentation of evidence and testimony and confrontation of adverse witnesses. Id. at 468-69, ¶¶ 21-22, 24. Thus, the court must remain "sufficiently flexible in its allotment of time to preserve due process." Id. at 469, ¶ 22. The court is not, however, required to "indulge inefficient use of time by parties or their counsel." Id.

¶12 We cannot say the family court acted unreasonably here. Shortly before trial, the court addressed Phillips' request for additional time, noting the parties had agreed at a status conference held only three weeks prior that the hour and fifteen minutes allotted to the issue of grandparent visitation was sufficient.⁴ The ensuing minute entry order stated that the court would entertain motions to enlarge the trial time if based upon good cause. But Phillips made no attempt to explain "why she suddenly believe[d] more time [wa]s needed," and the motion was denied.

Phillips did not renew her motion at trial. She offers new arguments on appeal as to why additional time was warranted, but they have been waived. See Crowe v. Hickman's Egg Ranch, Inc., 202 Ariz. 113, 116, ¶ 16 (App. 2002) ("Issues not properly raised below are waived.") (citing ARCAP 13(b)(3), and R.E. Monks Constr. Co. v. Aetna Cas. & Sur. Co., 189 Ariz. 575, 578 (App. 1997)).

¶13 Phillips also fails to prove a due process violation. Phillips bore the burden of proving grandparent visitation was in the Children's best interests. Phillips admitted she had not seen the Children for at least five years but argued Mother thwarted Phillips' attempts to establish a relationship with them in retaliation for a dispute that occurred between 2009 and 2011. Phillips devoted her presentation of evidence, testimony, and cross-examination, to those events. She did not present any evidence or testimony, or list any witnesses or exhibits within her pretrial...