Sakry v. Young

• Decision Date: 10 April 2012
• Docket Number: 1 CA-CV 11-0058
• Citation: Sakry v. Young, 1 CA-CV 11-0058 (Ariz. App. Apr 10, 2012)
• Parties: In re the Matter of: SCOTT JOSEPH SAKRY, Petitioner/Appellee, v. LEI ANN VARLETTA YOUNG, Respondent/Appellant.
• Court: Arizona Court of Appeals

In re the Matter of: SCOTT JOSEPH SAKRY, Petitioner/Appellee, v. LEI ANN VARLETTA YOUNG, Respondent/Appellant.

1 CA-CV 11-0058

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT C

Dated: April 10, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)

Appeal from the Superior Court in Maricopa County

Cause No. FC2009-000737

The Honorable David J. Palmer, Judge

AFFIRMED

Law Office of Alyson M. Foster, PLC

By Alyson M. Foster

Attorney for Petitioner/Appellee

Tempe

Lei Ann Varletta Young, In Propria Persona

Tracy, CA

NORRIS, Judge

¶1 Lei Ann Varletta Young ("Mother") appeals from the judgment of the family court in this paternity and child custody action. The family court awarded sole legal custody of theparties' child to Scott Sakry ("Father") and parenting time to Mother. For the reasons stated below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The parties are the unmarried parents of one minor child. They lived together in Arizona for approximately 17 months after the birth of their child. On October 25, 2008, the parties argued and had a physical altercation. When Father left the house the next day for a planned hunting trip, Mother filed a police report alleging domestic violence and moved to California with their child. When Father returned home, police arrested him on domestic violence charges, which Father subsequently pled no contest to, then completed the terms of his plea agreement.

¶3 On February 9, 2009, Father petitioned to establish paternity, custody, parenting time, and child support. Mother challenged Arizona's jurisdiction over the matter, but the court denied her motion and exercised jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. See Ariz. Rev. Stat. ("A.R.S.") §§ 25-1001 to -1067 (2007). After a trial, the family court awarded sole legal custody to Father and established a schedule for Mother's parenting time. The court also ordered Mother to pay 65% of Father's attorneys' fees, "based upon Mother's recalcitrance during [the] litigation,exemplified by her failure to cooperate in the discovery process and the preparation of a custody evaluation."

DISCUSSION ¹

¶4 Mother raises a number of arguments on appeal, including two she did not raise in the family court² and which, therefore, we do not address. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000) (citation omitted) (appeals court generally does not consider issues raised for first time on appeal).

I. Jurisdiction

A. Father's Petition

¶5 Mother argues the family court lacked jurisdiction over Father's paternity action because Father initiated the paternity action. We disagree. We "independently review the jurisdiction of the trial court as an issue of law." R.A.J. v. L.B.V., 169 Ariz. 92, 94, 817 P.2d 37, 39 (App. 1991).

¶6 Mother relies on case law holding that an earlier statute governing paternity petitions did not allow a father to bring "a paternity action against the mother." Sheldrick v. Maricopa Cnty. Superior Court, 136 Ariz. 329, 331, 666 P.2d 74, 76 (1983); see also Allen v. Sullivan, 139 Ariz. 142, 143, 677 P.2d 305, 306 (App. 1984) ("[W]e are constrained to hold that [the father] has no statutory means of establishing his own paternity."). Current statutes and case law, however, make it clear that fathers can file petitions to establish their own paternity. See A.R.S. § 25-803(A)(2) (2007); Ban v. Quigley, 168 Ariz. 196, 198-99, 812 P.2d 1014, 1016-17 (App. 1990) (amendments to the code "must have been intended to provide standing to commence a paternity action to a putative father").

B. Improper Service

¶7 Mother also argues the family court lacked jurisdiction because Father served her with the petition and summons "via the posting method." At a hearing on July 29, 2009, however, Mother expressly agreed to accept service of the petition and summons in light of the family court's decision to continue the temporary orders hearing to allow her more time to prepare. Mother accordingly waived any objection to Father's method of service, and we therefore reject Mother's argument she was not properly served.

C. Inconvenient Forum

¶8 Mother further argues the family court lacked jurisdiction because it abused its discretion in determining Arizona was the most convenient forum for the custody proceedings.³ Specifically, Mother argues the court failed to consider all of the relevant factors listed in A.R.S. § 25-1037. We disagree. The record reflects the parties submitted lengthy memoranda to the court discussing all of the applicable factors, and the family court noted in its minute entry that it had considered "the information and argument presented . . . [and] the [statutory] factors." We therefore hold the family court did not abuse its discretion in determining Arizona was the most convenient forum.

II. Civil Contempt ⁴

¶9 On August 27, 2009, Father requested the family court hold Mother in contempt, alleging she had failed to obey a court order to execute and return an acceptance of service of thepaternity petition and to timely provide discovery responses. At the temporary orders hearing, Father re-urged his motion for contempt, but the family court declined to address the contempt issues at the hearing, noting Mother had not yet responded. Mother eventually responded, but the court struck her response for failing to comply with Arizona Rule of Family Law Procedure ("Rule") 31.⁵ On January 28, 2010, the family court found Mother in contempt for failing to respond to discovery requests as previously ordered. The court awarded Father his attorneys' fees that were "expended in seeking to procure [discovery] responses" as a sanction and notified Mother that it would consider imposing additional sanctions if she did not respond to the discovery requests by February 28, 2010. On October 4, 2010, the family court again found Mother in contempt for "failing to provide discovery," and, as sanctions, awarded Father his attorneys' fees and prohibited Mother from introducing exhibits at trial or giving oral testimony on "the issues of her income or earning potential or child support."

A. Due Process

¶10 Mother argues that because "no order to show cause for any violation of any court order was ever issued," she "never had . . . prior notice of any hearings related to any contempt[]of court issue and thus, the orders finding her in contempt of court were made without due process." We disagree.

¶11 We review de novo Mother's claim she was denied due process. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6, 2 P.3d 100, 103 (App. 1999) (citation omitted). Rule 92(B) specifies "[n]o civil contempt may be imposed without notice to the alleged contemnor and without providing the alleged contemnor with an opportunity to be heard." See also Precision Components, Inc. v. Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 555, 880 P.2d 1098, 1101 (App. 1993) (citation omitted) ("[T]he imposition of sanctions should be preceded by some form of notice and opportunity to be heard on the propriety of imposing the sanctions.")

¶12 Here, the record is clear Mother received notice of the pending request for sanctions; Father had urged the motion several times and the court repeatedly extended the time Mother had to provide discovery responses. Mother also had an opportunity to respond in writing, which she failed to do after her original response was stricken. The family court's imposition of sanctions did not violate Mother's due process rights.

B. Improper Sanctions

¶13 Mother further argues "the contempt sanctions imposed by the [family] court unnecessarily interfered with its duty to consider the child's best interests" by preventing Mother from "introducing any witnesses or evidence at the time of trial related to any issue concerning [the child]." Mother relies on and quotes extensively from Hays v. Gama, where our supreme court vacated evidentiary sanctions excluding "the testimony and records of the child's therapist" because this evidence had "an especially significant effect on the ability of the court to determine the child's best interests." 205 Ariz. 99, 103, ¶ 22, 67 P.3d 695, 699 (2003). We review the family court's contempt order for an abuse of discretion. Id. at 102, ¶ 17, 67 P.3d at 698 (citation omitted).

¶14 At trial, Mother asked the family court to "reconsider its sanctions regarding submitting evidence, because at the root of this case is the issue of domestic violence . . . [and if she was] not able to submit evidence to that regard, . . . [it] goes against the grains of the best interest of the child." Mother also sought to introduce evidence of "other issues concerning [her] move to California." The court told Mother she could testify about those issues, but, due to the evidentiary sanctions it had imposed, she could not offer witnesses orexhibits. Mother later attempted to introduce as an exhibit a police report relating to Father's domestic violence, but the family court "preclude[d] the documents for lack of disclosure as [it] indicated in [its sanction] order." The court told Mother it was aware Father had "pled no contest to a domestic charge" and she could "testify to domestic violence." The family court also denied Mother's request to present testimony from "a couple [of] witnesses."

¶15 The family court did not abuse its discretion in excluding this evidence, and Mother's reliance on Hays is misplaced for two reasons. First, the Hays court emphasized that the evidentiary sanctions at issue there were not authorized by the discovery rules because "[n]either the superior court nor any party ha[d] identified any discovery order that Mother failed to obey," and thus, the sanctions were "imposed pursuant to the...