Smith v. Smith
| Decision Date | 09 June 2016 |
| Docket Number | No. 1 CA-CV 16-0012 FC A,1 CA-CV 16-0012 FC A |
| Parties | In re the Matter of: DENNIS RAY SMITH, Petitioner/Appellee, v. ROSE MARIE SMITH, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
Nos. FC2010-004944; FN2010-001617 (Cons.)
The Honorable Dewain D. Fox, Judge
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
Gillespie, Shields, Durrant & Goldfarb, Mesa
By Mark A. Shields, Robert Newell
The Harrian Law Firm P.L.C., Glendale
By Daniel Riley
Counsel for Respondent/Appellant
MEMORANDUM DECISIONJudge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Andrew W. Gould joined.
¶1 Rose Marie Smith ("Wife") appeals the family court's orders dismissing her petition to modify spousal maintenance with prejudice and denying her motion for a new trial. For the following reasons, we affirm in part, but reverse the family court's order dismissing Wife's petition with prejudice and remand for proceedings consistent with this decision.
¶2 In June 2010, after nine years of marriage to Wife, Dennis Ray Smith ("Husband") petitioned for dissolution of marriage with a minor child. They subsequently entered into an agreement resolving most of their issues. After a hearing resolving the remaining issues, the family court entered a final decree dissolving the marriage and ordering Husband to pay Wife $850 per month in spousal maintenance for 42 months beginning August 1, 2010.
¶3 In December 2013, Wife petitioned to modify the duration and amount of spousal maintenance, alleging that she had experienced a significant and ongoing change in circumstances. Wife alleged that, since the entry of the order, she had "suffered medical maladies that have significantly reduced her income and her earning potential." Wife further alleged that the conditions were not present when the court entered the original order and that they were "significant and ongoing."
¶4 Husband denied Wife's allegations and argued that Wife provided no information regarding her alleged medical maladies and that Wife had not alleged that she was "currently" suffering from the medical maladies. Husband also denied that Wife had suffered a change in circumstances, arguing that she had an adequate salary to live on and had a live-in boyfriend who contributed to her household expenses. Husband also requested attorneys' fees and expenses under A.R.S. § 25-324.
¶5 On July 31, 2014, Husband sent Wife a letter requesting that she provide a list of her health care providers and that she sign a medicalrelease for her records for each provider. Husband also subpoenaed Wife's employer for her employment records. Six days later, Wife's counsel objected to the subpoena as overbroad and seeking irrelevant information and proposed that Husband amend the subpoena. Wife's counsel also said Wife would not sign the releases because it was not her attorney's "practice to do so." Instead, Wife's counsel explained that he was collecting Wife's medical records and that after review, he would disclose them. Counsel stated that if he determined that any records were non-disclosable, he would provide a log identifying the document and the basis of his objection.
¶6 The next day, Husband responded in a letter that Wife put her employment history at issue by alleging that she was suffering generally from medical maladies, which caused a significant reduction in her income and earning potential. Husband also stated that, because Wife had put her medical condition at issue, he had a right to prepare a complete defense to her allegations and was entitled to all her medical records. Husband stated that if Wife did not agree to sign the medical releases by August 12, he would seek a court order compelling her to do so.
¶7 On August 12, Wife responded by inviting Husband to file a motion to compel. After Husband requested clarification about the releases, Wife confirmed that she would not provide them. That same day, Husband moved to compel Wife to provide a list of her medical providers, to sign a release for each provider, and to allow release of her employment records. Husband also requested attorneys' fees and costs associated with making the motion. Husband included an affidavit by his attorney stating that "after personal consultation and good faith efforts to do so, [counsel] has been unable to satisfactorily resolve the matter."
¶8 Wife responded that Husband failed to comply with Arizona Rule of Family Law Procedure 65, which requires that before a motion be brought, the moving party certify that, "after personal consultation and good faith efforts to do so," the parties have been unable to resolve the matter. Wife's counsel argued that Husband's counsel made no attempt to personally consult with him about the matter. Wife also argued that Husband's motion was premature because Wife offered to provide him a privilege log. Wife further argued that the court should impose sanctions under A.R.S. § 25-324 because Husband's income was more than Wife's and Husband had taken an unreasonable position by claiming that Wife refused to provide her medical records.
¶9 On August 19, the family court granted Husband's motion to compel, ordering Wife to disclose her health care providers, sign themedical releases, and allow release of her employment records. The court deferred ruling on Husband's requests for sanctions. Husband then moved to preclude Wife from offering testimony or other evidence about her health and also requested that the "facts regarding Wife's health should be taken in accordance with Husband's claim that there has not been a substantial and continuing change in circumstances." Husband argued that Wife had repeatedly refused to provide him with the medical releases and her medical providers and that her actions constituted failure to disclose damaging or unfavorable information. Husband therefore requested attorneys' fees and expenses.
¶10 Wife responded to Husband's motion, arguing that she had already provided a list of her medical providers and her relevant medical records. Wife also petitioned for special action relief from this Court and our supreme court. Wife argued that Husband had not complied with Arizona Rule of Family Law Procedure 65 to engage in personal consultation and good faith efforts to resolve the matter and that the family court had violated the confidentiality of her medical records by ordering her to sign the releases. This Court and the Arizona Supreme Court declined to accept jurisdiction.
¶11 On August 21, 2015, after a status conference, the family court denied Husband's motion in limine, but ordered that (1) Wife sign the medical releases for all her medical providers; (2) if she failed to do so, Husband could file a notice of non-compliance; and (3) Wife's failure to comply would result in a dismissal of her petition with prejudice. The court found that on August 19, 2014, Wife was ordered to disclose her health care providers and sign the medical releases and that Wife conceded in her response to the motion in limine that she did not sign the releases as the August 19 order required. The court also found that Wife's disclosure of the medical records herself did not allow Husband to confirm the completeness of the records as the August 19 order authorized and therefore was not a valid excuse for failing to comply with the order. The court further found that Wife's failure to comply was not substantially justified. Thus, the court sanctioned Wife by awarding Husband his attorneys' fees and costs. The court found that under A.R.S. § 25-324(A), Wife took unreasonable positions and failed to comply with its August 19 order and under A.R.S. § 25-324(B)(3), Wife caused unnecessary delays and unnecessarily increased Husband's litigation costs.
¶12 Husband subsequently notified the court that Wife had not complied with its order and requested that Wife's petition be dismissed with prejudice. On October 1, the court dismissed Wife's petition withprejudice. On October 20, however, the court modified its order to retain jurisdiction to determine the attorneys' fees amount; on October 21, the court awarded Husband fees and costs. On November 2, Wife moved for a new trial under Arizona Rule of Family Law Procedure 83 and explained that she had not received a copy of the court's October 1 order and that she had found out about that order from the October 20 order. Wife argued that the family court erred in granting Husband's motion to compel because Husband had not served Wife with a discovery request for her medical records as Arizona Rule of Family Law Procedure 65 required and because Rule 49 did not mandate the production of her medical records. Wife also argued that Husband did not comply with Rule 65 because he did not engage in "personal consultation and good faith efforts" to resolve the issue. Consequently, Wife further argued, the sanctions were improper. Wife requested that the family court vacate its orders dismissing her petition with prejudice and awarding Husband attorneys' fees and costs.
¶13 Husband responded that Wife's motion for a new trial was untimely because it was not filed within 15 days of entry of judgment as Arizona Rule of Family Law Procedure 83 required. On November 30, the family court denied Wife's motion for a new trial, concluding that she had not proved a ground for granting it. In doing so, the court found that the motion was timely because the court had no record that its October 1 order was mailed to the parties' counsels. Wife appealed the court's order on December 11. Wife moved for an accelerated disposition under Arizona Rule of Civil Appellate Procedure 29; this Court granted the motion.
¶14 ...
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