Prouty v. Hughes

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANA NICOLE PROUTY, Petitioner/Appellant,

v.

BRADLEY HUGHES, Respondent/Appellee.

_________________________________
In re the Matter of:

DANA NICOLE PROUTY, Petitioner/Appellant,

v.

ADAM TIMOTHY KAFKA, Respondent/Appellee.

Nos. 1 CA-CV 16-0397 FC
1 CA-CV 16-0402 FC
(Consolidated)
FILED 12-11-2018

Appeal from the Superior Court in Maricopa County
Nos. FC2012-053300
FC2012-094898
The Honorable Jay M. Polk, Judge

AFFIRMED
 COUNSEL

The Nathanson Law Firm, Scottsdale
By Philip J. Nathanson
Counsel for Petitioner/Appellant

Bishop Law Office P.C., Tempe
By Daniel P. Beeks
Counsel for Respondents/Appellees

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maurice Portley1 joined.

C R U Z, Judge:

¶1 Dana Nicole Prouty (“Mother”) appeals from orders
awarding sole legal decision-making authority and physical custody of two
of her children to their respective fathers, Bradley W. Hughes (“Hughes”)
and Adam Timothy Kafka (“Kafka”). Mother also appeals the child
support order entered in favor of Hughes and the award of attorneys’ fees
to both fathers. Because our resolution of only one issue from Mother’s
appeal merits publication, we have addressed that argument in a separate
published opinion issued simultaneously with this memorandum decision.
See Ariz. R. Sup. Ct. 111(h). For the reasons stated below, and for reasons
addressed in the opinion, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mother has three children; only the two oldest are involved in
this appeal. Mother and Kafka are the parents of M.P. (“Daughter”), born
in 2008. Two years later, Mother and Kafka entered into a custody
agreement in Illinois, where Mother lived, which awarded her sole legal
decision-making authority and primary physical custody of Daughter, and

1 The Honorable Maurice Portley, Retired Judge of the Arizona Court
of Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.

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provided Kafka with unspecified parenting time, given that he lived in
Nebraska.

¶3 In October 2010, Mother and Daughter moved to Arizona
after Mother became involved with Hughes. Mother and Hughes had a
son, M.H. (“Son”), in 2011.

¶4 In September 2012, Mother filed a petition to establish
paternity and custody of Son. A month later, Mother filed a request to
relocate to Illinois, which Hughes opposed. In December 2012, Hughes
obtained another order of protection that included Son, alleging Mother
threatened to kill herself and her children.

¶5 During that month, Kafka filed the Illinois custody order in
Arizona with a petition to modify that order, along with a motion for
temporary orders without notice for custody of Daughter. In support of his
motion, Kafka cited Mother’s threats to harm herself and Daughter.
Pursuant to the parties’ agreement, the superior court granted temporary
physical custody of both children to Hughes, with Mother having
supervised parenting time and Kafka having parenting time with Daughter
in Arizona once a month and quashed the order of protection. Mother
subsequently became pregnant with her third child, who is not a party to
this appeal.

¶6 In May 2013, Kafka petitioned to modify the temporary
orders and establish a parenting time schedule with Daughter. In July 2013,
the superior court, on its own motion, ordered Kafka to register the Illinois
custody order in Arizona. Shortly thereafter, Mother took the children to
Illinois without notice or permission. The court ordered Mother to return
with the children to Arizona after she gave birth to her third child, but no
later than September 30, 2013. The court awarded temporary physical
custody of Daughter and Son to Hughes and joint legal decision-making
authority to Mother for both children. Mother did not return to Arizona
with the children as ordered, alleging her third child was born with medical
complications requiring them to remain in Illinois. Hughes took physical
custody of Son in Illinois around this time, but Daughter remained in
Illinois with Mother.

¶7 In November 2013, the superior court issued a warrant for
Kafka to take temporary physical custody of Daughter. Kafka filed a
contempt petition in March 2014 after Mother had not complied with the
order to place Daughter with Kafka. The court then ordered Mother to
appear in Arizona on July 1, 2014, with Daughter and show good cause for

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Mother’s failure to comply with its November 2013 order. When she failed
to appear the court again ordered Mother to bring Daughter to Arizona for
an October 1, 2014 evidentiary hearing. Mother failed to appear again, and
the court awarded Kafka temporary sole legal decision-making authority.
Kafka obtained physical custody of Daughter on January 5, 2015.

¶8 Following a two and a half-day trial in January 2016, the
superior court awarded Kafka sole legal decision-making authority as to
Daughter and awarded Hughes sole legal decision-making authority as to
Son. Mother was ordered to undergo counseling prior to exercising
supervised parenting time with both children. The court calculated
Mother’s child support obligation based on attributed income of $32.00 per
hour and awarded attorneys’ fees to Kafka and Hughes.

¶9 Mother filed timely notices of appeal from the final orders in
both cases. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) section 12-2101(A)(1).2

DISCUSSION

I. Trial Time Limitations

¶10 Mother argues the superior court violated her due process
rights by imposing time limitations that precluded her from effectively
cross-examining Hughes and Kafka. Specifically, Mother contends that the
time limitations were unreasonable because she was given less time to
present her case than Hughes and Kafka combined, and because she ran
out of time to cross-examine the fathers. Further, Mother asserts that the
court treated her unfairly when it added two hours on a third day but did
not allocate any of that time to Mother. Hughes and Kafka counter that the
allocation of trial time was reasonable under the circumstances and, in any
event, Mother failed to show any prejudice.

¶11 A superior court has broad discretion to impose time
limitations on trial proceedings. Volk v. Brame, 235 Ariz. 462, 468, ¶ 20 (App.
2014); see also Ariz. R. Fam. Law P. (“Rule”) 77(B)(1). Any such limitations
must be reasonable under the circumstances. Gamboa v. Metzler, 223 Ariz.
399, 402, ¶ 13 (App. 2010). We therefore review a superior court’s
imposition of time limitations for an abuse of discretion. Id.

2 This court consolidated the appeals at Mother’s request.

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¶12 The record reflects that significant time was spent on the first
day of trial addressing pretrial matters and trial management issues.
Mother used a fair amount of this time rearguing temporary orders and
other prior court orders. The superior court repeatedly cautioned Mother
that she was spending time on issues that had been previously decided and
this was her time to present evidence relevant to permanent custody orders.
Mother had used two hours of her allotted time before she began to present
her case. As a result, the court shortened the trial time allotted to all parties.

¶13 Mother later used additional time when she was late
returning from a break. The superior court offered to accommodate
Mother, noting the delays were all attributable to her, including her failure
to submit exhibits on time.

¶14 Although Mother’s time management shortened her
presentation at trial, Mother examined Hughes and Kafka, and cross-
examined a parenting time supervisor. Mother also presented evidence
calling into question the allegations in Hughes’ petition for an order of
protection. She offered favorable mental health evaluations and reports
from parenting time supervisors, and also disputed Kafka’s allegations of
parental alienation. The record supports the superior court’s finding that
Mother made inefficient use of time and failed to timely file her exhibits
and pretrial statements. See Volk, 235 Ariz. at 469, ¶ 22 (in applying time
limitations, court need not “indulge inefficient use of time by parties or
their counsel”).

¶15 Moreover, to merit reversal on these grounds, Mother must
show prejudice—that she “incurred some harm as a result of [a] court’s time
limitations.” Gamboa, 223 Ariz. at 402, ¶ 17 (citation and quotation omitted);
see also Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 91, ¶ 30 (App. 1998)
(holding that a party asserting that the superior court denied her right to
due process must show how the lack of additional time harmed her case).
Mother, however, has made no showing of prejudice, as she does not
identify 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 (rejecting
appellant’s argument that time limitations harmed him because he did not
make an offer of proof stating with reasonable specificity what additional
evidence would have shown). Mother’s inability to manage her trial time
in an efficient manner does not constitute a denial of due process. See Volk,
235 Ariz. at 469, ¶ 22. On this record, we conclude Mother had a meaningful
opportunity to be heard.

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II. Admission of Dr. Moran’s Report

¶16 Mother argues that the superior court abused its discretion
when it considered a custody evaluation by John Moran, Ph.D., because he
did not personally observe the children before creating his report. Mother
also argues the court violated her rights to due process, as the report lacked
foundation because no party called Dr. Moran to testify.3 We will not
disturb a superior court’s ruling on the admissibility of evidence absent a
clear abuse of discretion and resulting prejudice. Fuentes v. Fuentes, 209
Ariz. 51, 56, ¶ 24 (App. 2004) (citation omitted).

¶17 The superior court appointed Dr. Moran to perform a custody
evaluation, ordering the three parties to each pay one-third of the
evaluation costs. The court warned Mother that if she failed to comply with
the order to pay Dr. Moran, his report would be based on information he
had received to date, which did not include an interview with the children.
Mother did not pay her portion of the evaluation costs; thus, Dr. Moran’s
report did not include interviews with the children. He did, however,
review several documents Mother provided.

¶18 Although the superior court admitted Dr. Moran’s report, it
did not rely exclusively on the report in making its findings. The findings
relating to the children were also supported by other evidence in the record,
specifically, reports of other mental health professionals who treated,
interacted with, or interviewed the children, including Conciliation
Services interviewers and three mental health professionals in Illinois, one
in Arizona, and one in Nebraska. The parties had also agreed to have
Conciliation Services observe the children and parents as a cost-saving
measure, and the court referred to these reports in its findings.
Additionally, the court considered the children’s school and medical
records.

¶19 The superior court did not cite Dr. Moran’s report in
discussing the statutory factors that applied to the children. See A.R.S. § 25-
403(A)(1), (2), (3), (8). The court, however, referred to Dr. Moran’s report—

3 In addition, Mother argues that Dr. Moran failed to follow
professional standards and raises objections to his report based on Arizona
Rule of Evidence 702. Because Mother did not raise these issues in the
superior court, they are deemed waived. Leathers v. Leathers, 216 Ariz. 374,
378, ¶ 19 (App. 2007) (holding that issues not raised in the pretrial statement
are waived).

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and other evidence—when addressing the parents’ mental health. See
A.R.S. § 25-403(A)(5). Notably, Dr. Moran interviewed the parents.

¶20 Custody evaluations without a personal interview of the
children are not the norm. However, in this case, we find no prejudice or
abuse of discretion because other evidence existed, see supra ¶ 17. When a
court proceeding involves the custody of children, it is the duty of a
superior court to hear all competent evidence which may be offered. Hays
v. Gama, 205 Ariz. 99, 103, ¶ 21 (2003) (citation omitted). Excluding the
report in its entirety would have deprived the court of other relevant
information regarding the parties and their ability to parent the children.

¶21 Mother also contends Dr. Moran’s report contains findings
contrary to other mental health providers. This court, however, does not
reweigh evidence on appeal, and will defer to the weight that the superior
court gives to conflicting evidence. Gutierrez v. Gutierrez, 193 Ariz. 343, 347,
¶ 13 (App. 1998). The superior court, having considered reports from
several other mental health professionals, found that the absence of any
interview with the children went to the weight the court would give Dr.
Moran’s report, not its admissibility. The court provided a lengthy and
thoughtful explanation of the evidence supporting its conclusion that it was
in the children’s best interests to award sole legal decision-making
authority to Hughes and Kafka and supervised parenting time to Mother.
The record supports these conclusions. We find no abuse of discretion.

¶22 Mother argues the report lacked foundation because Dr.
Moran did not testify. However, she was not precluded from calling Dr.
Moran. Mother was on notice that Dr. Moran’s report would be admitted,
but failed to make a timely foundation objection, and failed to call him as a
witness.

III. Child Support Order

¶23 Mother argues that the superior court erred in calculating
child support by precluding her from presenting any evidence relating to
her income, financial resources, or the health of her youngest child, whom
she claimed had medical needs that required her to stay at home and not
work. Under Rule 65(B)(2)(b), if a party fails to obey an order to provide
discovery, the court may enter “an order refusing to allow the disobedient
party to support or oppose designated claims or defenses, or prohibiting
that party from introducing designated matters in evidence[.]” See also Rule
76(D)(1). We review the imposition of discovery sanctions for an abuse of
discretion. Hays, 205 Ariz. at 102, ¶ 17.

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¶24 Mother did not comply with discovery requests relating to
her financial resources and her youngest child’s special medical needs
despite repeatedly being ordered to do so. Because of Mother’s failure to
comply with orders to produce this information, the superior court did not
allow Mother to offer related evidence at trial and attributed to Mother a
monthly income of $5,546.67, based on Mother’s 2010 earnings and an
October 2012 job offer. Mother did not establish why her failure to comply
with the discovery requests or orders was reasonable. Therefore, the
sanctions were appropriate pursuant to Rules 65(B)(2)(b) and 76(D)(1).

¶25 Mother also contends the income attributed to her conflicts
with an October 2012 order that found Mother and Hughes were indigent.
The superior court found Mother’s testimony was, overall, not “reliable,
credible, or persuasive.” More specifically, the court found Mother’s claim
that she was unable to work not credible based on sworn statements she
made in juvenile court proceedings in 2013. “We will defer to the trial
court’s determination of witnesses’ credibility[.]” Gutierrez, 193 Ariz. at 347,
¶ 13. According to her 2013 sworn statements, Mother was able to find
work. The 2012 indigency finding, which predated these statements, is,
therefore, not inconsistent. There was no other evidence to support
Mother’s claim that she was unable to work. Therefore, the court did not
abuse its discretion in attributing income to Mother. See Arizona Child
Support Guidelines, A.R.S. § 25-320 app. § 5(E).

IV. Attorneys’ Fees

¶26 Mother argues the superior court abused its discretion in
awarding fees to Hughes and Kafka because she is indigent. An award of
attorneys’ fees is mandatory when the court makes the necessary findings
under §§ 25-324(B), -415(A), and Rule 65(A)(4)(a). When reviewing a
mandatory award of attorneys’ fees, we apply a clearly erroneous standard
to findings of fact, but a de novo standard when reviewing the application
of a statute. Fisher v. Nat’l Gen. Ins. Co., 192 Ariz. 366, 370, ¶ 13 (App. 1998).

¶27 The superior court awarded attorneys’ fees to Hughes and
Kafka pursuant to A.R.S. § 25-324(B), finding Mother’s petitions or motions
were not filed in good faith, not grounded in fact or law, or filed for an
improper purpose. The court also awarded fees pursuant to § 25-415(A),
finding Mother falsely accused Hughes and Kafka of sexual assault.
Finally, the court found fees were appropriate under Rule 65 as a sanction
for Mother’s repeated violations of discovery orders.

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¶28 The fee awards were not based on § 25-324(A), which
considers the parties’ relative financial resources. Income disparity is not
relevant when considering whether a fee award is warranted under §§ 25-
324(B), -415(A), and Rule 65. The record supports the award of fees on these
grounds; therefore, we affirm the award of attorneys’ fees to Hughes and
Kafka.

ATTORNEYS’ FEES AND COSTS ON APPEAL

¶29 The parties request attorneys’ fees and costs on appeal
pursuant to § 25-324(A). Hughes and Kafka also request fees on appeal
pursuant to §§ 25-324(B), -414(C), and -415(A). Although Mother engaged
in conduct prohibited under these statutes at trial, her brief on appeal does
not mandate an award of fees in favor of Hughes and Kafka. Each party
shall bear his or her attorneys’ fees on appeal. As the successful parties on
appeal, Hughes and Kafka are entitled to an award of reasonable costs upon
compliance with Arizona Rule of Civil Appellate Procedure 21. See A.R.S.
§ 12-342.

¶30 We affirm the court’s orders.

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

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