Lopez v. Raygoza

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

KRYSTLE N. LOPEZ, Petitioner/Appellant,

v.

JOSE RAMIRO RAYGOZA, Respondent/Appellee.

No. 1 CA-CV 16-0761 FC
FILED 10-12-2017

Appeal from the Superior Court in Maricopa County
No. FC2016-000070
The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Krystle N. Lopez, Phoenix
Petitioner/Appellant

Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Respondent/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.

C R U Z, Judge:

¶1 Krystle N. Lopez (“Mother”) appeals the superior court’s
order granting Jose Ramiro Raygoza (“Father”) sole legal decision-making
authority over the parties’ child, A.R., and limiting Mother’s parenting
time. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother and Father never married. When A.R. was three years
old, Mother filed this action seeking sole legal decision-making authority
and asking the superior court to order that Father have no parenting time.
In response, Father requested joint legal decision-making and equal
parenting time. While the action was pending, the court entered a
judgment establishing Father’s paternity and, based on the parties’
agreement, a temporary order for a week on/week off parenting time
arrangement.

¶3 The superior court developed “significant concerns” about
both parents after a Court-Appointed Advisor (“CAA”) reported that the
Department of Child Safety (“DCS”) was investigating allegations that one
of Mother’s relatives had sexually abused A.R. Mother indicated to the
CAA that she continued to live with the relative accused of molesting A.R.
Father had returned A.R. to Mother despite DCS’ instructions that A.R.
remain in Father’s care pending further investigation of the allegations. In
addition, the court noted the CAA’s report detailed Mother’s criminal
record and history of drug use and Father’s admission that he used
marijuana illegally. The CAA also observed that the parties had a high level
of conflict and had exchanged threatening and verbally abusive texts and
emails.

¶4 After finding it was in A.R.’s best interests to reside with
Father until further order, the superior court directed that Mother have
reasonable supervised parenting time at least once a week. The court

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designated A.R.’s grandmother as a suitable supervisor of Mother’s
parenting time but allowed the parties to agree on a different supervisor.

¶5 The superior court also ordered Mother to immediately
submit to a drug test. Mother tested positive for several illegal drugs, and
the court ordered her to submit to a weekly urinalysis until she provided
eight consecutive negative samples. It continued the order that A.R. remain
with Father and that Mother exercise parenting time once a week,
supervised by A.R.’s grandmother.

¶6 Alleging Mother had violated the court order by conducting
unsupervised parenting time with A.R., Father filed an expedited motion
to modify Mother’s parenting time. The superior court, noting Father no
longer agreed A.R.’s grandmother could supervise parenting time, ordered
that, absent the parties’ agreement to another third-party supervisor,
Mother would exercise her parenting time at Arizonans for Children, a non-
profit organization offering such services. The court ruled it would
continue Father’s motion to the upcoming trial on Mother’s petition for
legal decision-making and parenting time.

¶7 Five days prior to trial, Mother filed a motion to continue,
asserting she was beginning cancer treatment and had just received new
documents she wanted to review before trial. The superior court denied
the motion, and Mother appeared and presented evidence at trial.

¶8 After considering A.R.’s best interests and other relevant
statutory factors, the superior court granted Father sole legal decision-
making authority. It ordered A.R. would live with Father and granted
Mother supervised parenting time at Arizonans for Children once a week.

¶9 Mother timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶10 Mother argues the superior court abused its discretion by
granting Father’s motion to modify parenting time without first conducting
an evidentiary hearing and by denying Mother’s motion to continue the
trial. She also argues the court denied her due process of law at trial and
challenges the basis for the court’s best interests findings.

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I. Motion to Modify Parenting Time

¶11 Mother argues the superior court abused its discretion by not
conducting an evidentiary hearing before modifying her pretrial parenting
time, thereby requiring Mother to conduct her parenting time at Arizonans
for Children. The order at issue was a temporary order pending the
October 2016 trial and is therefore not appealable. See Ariz. R. Fam. Law P.
47(M) (stating “temporary orders become ineffective and unenforceable . . .
following entry of a final decree, judgment, or order”); Villares v. Pineda, 217
Ariz. 623, 624-25, ¶¶ 10-11 (App. 2008) (accepting review of a special action
challenging a temporary order regarding child custody, noting the order
was not appealable).1

II. Motion to Continue Trial

¶12 Mother also argues the superior court abused its discretion by
denying her motion to continue the trial. Once a matter is set for trial, the
court may not grant a continuance “except upon written motion setting
forth sufficient grounds and good cause, or as otherwise ordered by the
court.” Ariz. R. Fam. Law P. 77(C)(1). We will not disturb the court’s ruling
on a motion to continue trial absent an abuse of discretion. Dykeman v.
Ashton, 8 Ariz. App. 327, 330 (1968).

¶13 Mother asked the superior court to continue trial because she
was beginning cancer treatment and had just received documents from the
Department of Public Safety and the Phoenix Police Department that she
wanted to review before trial. The exhibit attached to Mother’s motion did
not support her contention that she was unable to attend trial for medical
reasons; it showed only that she had a medical appointment set for a few
days before trial. In addition, Mother did not identify the documents she
had received or state why they might be relevant to her presentation at trial.

1 We note, however, that the superior court did not modify Mother’s
parenting time, but simply affirmed prior parenting time orders. The court
did not decide the merits of Father’s allegations that Mother conducted
unsupervised parenting time, and stated Mother could address that issue
at trial. Mother did not proffer any controverting evidence at trial and does
not argue on appeal that she would have presented such evidence if the
court had conducted a pretrial hearing on Father’s motion. See In re
Marriage of Molloy, 181 Ariz. 146, 150 (App. 1994) (stating appellate court
will only reverse superior court’s error if the complaining party suffered
prejudice).

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We find no abuse of discretion in the court’s denial of the motion to
continue.

III. Due Process

¶14 Next, Mother contends the superior court deprived her of due
process at trial by refusing to allow her additional time to present evidence
and disregarding her witnesses and exhibits. Due process requires the
court to give a party notice and a meaningful opportunity to be heard.
Wallace v. Shields, 175 Ariz. 166, 174 (App. 1992). Whether the superior court
afforded Mother due process at trial is a question of law we review de novo.
Jeff D. v. Dep’t of Child Safety, 239 Ariz. 205, 207, ¶ 6 (App. 2016).

¶15 The superior court may impose reasonable time limits on a
proceeding if doing so does not deprive a party of a meaningful
opportunity to gather and present evidence. Volk v. Brame, 235 Ariz. 462,
468, ¶ 20 (App. 2014); Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 13 (App. 2010)
(stating superior court has broad discretion over the management of a trial
and may place time limitations on trial proceedings). A party asserting that
the trial court denied her right to due process must show how the lack of
additional time harmed her case. Brown v. U.S. Fid. & Guar. Co., 194 Ariz.
85, 91, ¶ 30 (App. 1998).

¶16 The superior court gave Mother a meaningful opportunity to
be heard. The court imposed time limitations equally on both parties, and
Mother did not object at the time the court advised of such limits. During
the trial, Mother testified and cross-examined another witness, but did not
offer any exhibits or tell the court that she wished to call additional
witnesses after the court informed Mother that she had used all her
presumptive time. Nor did she tell the court she needed more time to
present her case or had additional evidence she was unable to present
within the predetermined time limits.2 Further, Mother has made no
showing of prejudice, as she does not identify on appeal what additional
evidence she would have offered or witnesses she would have called, and
she does not explain how the absence of that evidence prejudiced her. See
Gamboa, 223 Ariz. at 402-03, ¶¶ 17-18 (rejecting appellant’s argument that
superior court’s time limitations harmed him because he did not make an
offer of proof stating with reasonable specificity what additional evidence

2 We note the superior court also had discretion to refuse to allow
Mother to present her witnesses and exhibits because she failed to disclose
them prior to trial. Ariz. R. Fam. Law P. 49(G), 76(C)(1)(e)-(f), (D)(1).

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would have shown or argue on appeal that the time limits prevented him
from presenting a sufficient case).

¶17 Mother also claims the superior court denied her due process
by proceeding with trial even though she had taken prescription
medication that day and was therefore under a disability. The court
observed that Mother appeared to be under the influence of a substance at
trial and noted Mother said she was taking Percocet because of a recent
surgery. Mother, however, did not request a continuance or otherwise
claim that her medical condition or use of prescription medication on the
day of trial rendered her unable to proceed, as she now does on appeal.
Accordingly, she has waived this issue. Cullum v. Cullum, 215 Ariz. 352, 355
n.5, ¶ 14 (App. 2007) (stating parties waive issues raised for the first time
on appeal). Even if the issue is not waived, Mother has not shown that she
suffered any prejudice, as she has not identified any evidence or testimony
that she was unable to present because of her condition on the day of trial
and how the absence of that evidence adversely affected her case. County
of La Paz v. Yakima Compost Co., 224 Ariz. 590, 598, ¶ 12 (App. 2010) (stating
an appellate court will only reverse a due process error if it prejudiced a
party); Gamboa, 223 Ariz. at 402-03, ¶¶ 17-18.

IV. Best Interests Findings

¶18 Finally, Mother challenges the superior court’s rulings
regarding legal decision-making and parenting time, arguing the court
improperly abdicated its responsibility by simply adopting the CAA’s
recommendations. We review the court’s order for an abuse of discretion.
Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013).

¶19 Arizona law requires the superior court to consider several
factors in determining legal decision-making and parenting time. A.R.S.
§ 25-403(A). The court must “make specific findings on the record about all
relevant factors and the reasons for which the decision is in the best interests
of the child.” A.R.S. § 25-403(B).

¶20 Here, the superior court provided detailed and specific
findings about the relevant statutory factors and the reasons supporting its
best interests determination. Mother does not challenge any of those
findings, but insists the court abdicated its responsibility to decide A.R.’s
best interests by relying on the CAA’s report. There is no indication the
court failed to make an independent judicial decision simply because its
ultimate findings were consistent with those of the CAA and the court
adopted the CAA’s recommendation. We find no abuse of discretion.

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CONCLUSION

¶21 For the foregoing reasons, we affirm. We award costs to
Father subject to his compliance with Arizona Rule of Civil Appellate
Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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