Garner v. Daurio

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AMY J. GARNER, Petitioner/Appellant,

v.

STEVEN L. DAURIO, Respondent/Appellee.

No. 1 CA-CV 18-0224 FC
FILED 3-5-2019

Appeal from the Superior Court in Maricopa County
No. FC2010-004881; FC2011-002723 (Consolidated)
The Honorable James D. Smith, Judge

AFFIRMED

APPEARANCES

Alongi Law Firm, PLLC, Phoenix
By Thomas P. Alongi
Counsel for Petitioner/Appellant

Steven L. Daurio, Phoenix
Respondent/Appellee
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MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Judge
Kent E. Cattani and Chief Judge Samuel A. Thumma joined.

B E E N E, Judge:

¶1 Amy J. Garner (“Mother”) appeals the superior court’s
November 30, 2017 ruling denying her petition to modify legal decision-
making, parenting time, and child support and the March 6, 2018 denial of
her motion for new trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Steven L. Daurio (“Father”) divorced in 2012. In
August 2016, Mother petitioned to modify legal decision-making, parenting
time, and child support for their minor child, A.D. In her petition, Mother
alleged Father had been physically abusive to A.D., that the abuse had
resulted in a criminal investigation1 and an investigation by the
Department of Child Safety (“DCS”). DCS initially proposed a
substantiated finding of abuse, see Arizona Administrative Code (“AAC”)
R21-1-501(14), but after Father sought review, DCS amended the finding to
unsubstantiated on November 9, 2017, see AAC R21-1-504(A)(1). Father
disclosed DCS records relating to the investigation on November 7, 2017,
and he disclosed the amended finding to Mother the same day he received
written notice from DCS.

¶3 The superior court set an evidentiary hearing on the petition
to modify for November 20, 2017. Five days before the hearing and eight
days after receiving Father’s disclosures, Mother moved to continue the
hearing, asserting Father had violated his mandatory disclosure obligations
by withholding information regarding DCS’s amendment of the proposed

1 The criminal investigation was referred to the Maricopa County
Attorney’s Office, but the County Attorney declined to prosecute.

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substantiation. See Ariz. R. Fam. Law P. 49(B)(4) (2016).2 The court denied
the motion.

¶4 During Father’s testimony at the evidentiary hearing, while
discussing an interview he had with a DCS official, Father referred to an
audio recording of the interview that he had not disclosed to Mother. He
testified, however, that previously-admitted DCS records reflected the
contents of the recording. The court ordered Father to provide a copy of
the recorded testimony, and Father disclosed the recording the next day.

¶5 In its November 30, 2017 ruling, the superior court considered
the factors of Arizona Revised Statutes (“A.R.S.”) § 25-403(A) and awarded
sole legal decision-making authority to Father. The court concluded that
unrestricted parenting time with Mother would “harm the child’s mental,
moral, and/or physical health,” and it instituted a parenting time plan that
included intensive intervention and several phases that introduced
unsupervised parenting time for Mother. Regarding legal decision-
making, the court rejected Mother’s requested change, finding in relevant
part, that Mother did not establish by a preponderance of the evidence that
Father committed an act of child abuse in July 2016.

¶6 Mother moved for a new trial in December 2017, arguing that
the court’s refusal to grant a continuance constituted an irregularity in the
proceedings and an abuse of discretion, and that Father’s misconduct had
deprived her of a fair trial. See Ariz. R. Fam. Law P. 83(A)(1), (2) (2016). She
also asserted the court’s denial of a continuance constituted deprivation of
procedural due process and that several of the court’s findings were not
warranted by the record. See id. at (6). Mother then amended her motion,

2 The Arizona Supreme Court significantly revised the Arizona Rules
of Family Law Procedure (“Rules”) effective January 1, 2019. See Ariz. R.
Fam. Law P., Prefatory Cmt. to the 2019 Amendments. The new and
amended rules apply to all actions pending on January 1, 2019, unless the
court in the affected action determines that applying the amended rule
would be infeasible or work an injustice. Order Amending the Arizona
Rules of Family Law Procedure and Rule 9, Arizona Rules of Civil
Appellate Procedure (2018). Because the changes to the Rules are
significant, we apply the rules in place at the time of the superior court
proceedings.

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asserting additional claims regarding the court’s factual findings. The court
set oral argument, and, after argument, denied the motion.

¶7 In its March 6, 2018 ruling, the superior court found that the
audio recording was new evidence that was not available at trial, but it
ultimately concluded that a new trial was not warranted because Father’s
failure to disclose the recording did not affect the decision. The court found
that “[t]he essential elements of Father’s version of events in the DCS
records align[ed] with the recording,” and that “[t]he other purported
inconsistencies among Father’s trial testimony, statements to investigators,
Court filings, and the recording [were] minor (at best).” The court rejected
Mother’s challenges to its factual findings, and it awarded Father a portion
of his reasonable fees and costs in the amount of $50,000.00.3

¶8 Mother timely appealed. We have jurisdiction pursuant to
A.R.S. section 12-2101(A)(1), (5)(a).

DISCUSSION

¶9 Mother argues the superior court abused its discretion by: (1)
denying her request for a continuance (including claiming that the court’s
ruling resulted in a denial of her due process rights); and (2) refusing to set
a supplemental evidentiary hearing after the audio recording’s disclosure.
She further argues that the court abused its discretion by failing to find that
Father abused A.D.4

3 The superior court based its fee award “entirely on Mother’s
unreasonableness because Father earns more than twice what Mother
earns.” The court considered Father’s failure to disclose the audio
recording when awarding him only a portion of his requested fees and
costs.
4 On appeal, Mother also seeks to raise other issues that were not
raised at trial or in her motion for new trial and are therefore waived. Nold
v. Nold, 232 Ariz. 270, 273, ¶ 10 (App. 2013) (stating that generally a party
waives an issue if it fails to raise the issue in the trial court); Cook v. Cook,
209 Ariz. 487, 493 n.6, ¶ 20 (App. 2005) (finding waiver of constitutional
issues that were not raised in the superior court).

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I. The Superior Court Did Not Abuse its Discretion or Violate
Mother’s Procedural Due Process Rights by Denying Her Request
for a Continuance.

¶10 “We review the [superior] court’s decision to grant a
continuance for an abuse of discretion, and any related factual findings for
clear error.” Kimberly D.-D. v. Ariz. Dep’t of Econ. Sec., 234 Ariz. 207, 208,
¶ 5 (App. 2013). We review constitutional issues de novo. In re Marriage of
Friedman and Roels, 244 Ariz. 111, 114, ¶ 11 (2018).

A. The superior court did not abuse its discretion by denying
Mother’s request for a continuance.

¶11 “When an action has been set for trial, hearing or conference
on a specific date by order of the court, no continuance of the trial, hearing,
or conference shall be granted except upon written motion setting forth
sufficient grounds or good cause . . . .” Ariz. R. Fam. Law P. 77(C)(1) (2016).
In determining whether good cause for a continuation exists, courts should
evaluate the facts of the case, including prior delays and their reasons,
hardship to the movant, the good faith of the movant, and the conduct of
the movant. See 17 Am. Jur. 2d Continuance § 6 (2019). “[T]he decision to
grant or deny a continuance is in the sound discretion of the trial court.”
McDowell Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 5 (1997); Ariz.
R. Fam. Law P. 1 (“If language in these rules is substantially the same
language as language in civil rules, case law interpreting the language of
the civil rules will apply to these rules.”).

¶12 “In a case in which child custody or parenting time is an issue,
unless good cause is shown,” certain documents must be timely disclosed
to the other party. Ariz. R. Fam. Law P. 49(B). These include “[t]he date,
description, location and documentation of any Department of Child Safety
investigation or proceeding involving any party . . . occurring within ten
years of the filing of the petition.” Id. This duty to disclose is a “continuing
duty, and each party shall make additional or amended disclosures
whenever new or different information is discovered or revealed.” Id. at (I).
“Such additional or amended disclosures shall be made not more than
thirty (30) days after the information is revealed to or discovered by the
disclosing party.” Id. Additionally, if the disclosure occurs less than thirty
days before trial, the party seeking to use the document must obtain leave
of court by motion. See Ariz. R. Fam. Law P. 65(C)(2) (2016).

¶13 Mother contends the court erred in light of Father’s alleged-
late disclosure of three items: (1) correspondence from Father’s attorney

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that included a September 20 letter from DCS; (2) a November 6 order
continuing Father’s administrative hearing until December 18; and (3) a
November 9 letter from DCS stating it had revoked the substantiation.
Mother has not shown the superior court abused its discretion by denying
her request for a continuance.

¶14 Several factors support the court’s denial of a continuance. As
an initial matter, Mother has not shown that Father failed to timely disclose
the November 6 order or the November 9 letter. Father disclosed these
documents on November 7 and 9, respectively, well within the thirty-day
deadline imposed by Rule 49(I). Additionally, assuming without deciding
that the September 20 letter was not timely disclosed, 5 any resulting
hardship to Mother was minimal because the letter did not significantly
affect Mother’s knowledge regarding Father’s administrative appeal. The
document was a DCS notice regarding the date of Father’s administrative
hearing, and Mother was aware Father was seeking administrative review
of the substantiated finding.

¶15 In addition, by the time Mother requested the continuance,
more than a year had passed since the filing of the petition to modify. This
was due in part to DCS’s late delivery of DCS records. However, the court
had already granted a previous continuance to Mother, and she received a
three-week stay in the spring of 2017 to allow her to file a special action. In
light of these facts, Mother has not shown that the court abused its
discretion.

B. The court’s refusal to grant a continuance did not violate
Mother’s procedural due process rights.

¶16 The superior court “enjoys broad discretion to ‘impose
reasonable time limits on all proceedings or portions thereof and [to] limit
the time to scheduled time.’” Volk v. Brame, 235 Ariz. 462, 468, ¶ 20 (App.

5 The DCS records show that these records were delivered on
September 6, 2017, which would indicate an October deadline for
disclosure. See Ariz. R. Fam. Law P. 49(I). However, the letter in question,
which was included within this packet of documents, bore the date
September 20, 2017. This indicates that either the mailing date of the
documents or the date of the letter may have been a scrivener’s error.

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2014) (quoting Ariz. R. Fam. Law P. 22(1) (2014)).6 However, “[p]rocedural
due process . . . requires the court to afford litigants adequate time to
present their evidence.” Id. at ¶ 19. “[W]hen the resolution of an issue
before the court requires an assessment of credibility, the court must afford
the parties an opportunity to present sworn oral testimony, and [it] may not
rely solely on avowals of counsel.” Id. at 464, ¶ 1. The court, however, need
not “indulge inefficient use of time by parties or their counsel.” Id. at 469,
¶ 22.

¶17 The court’s denial of a continuance did not violate Mother’s
due process rights. Mother does not develop her due process argument
beyond attempting to distinguish this case from Volk by arguing that “the
gross volume of time does not matter so much as whether it suffices to get
the job done.” Volk, in fact, recognizes this, explaining that the court
violates the parties’ due process rights when it “allows no time to hear
testimony, or when the time available for each necessary witness does not
allow for meaningful direct testimony and efficient but adequate cross-
examination.” Id. at 468, ¶ 21. We conclude that in this case, Mother had
ample time and opportunity to present testimony by witnesses and to cross-
examine Father’s witnesses. Furthermore, Mother did not seek additional
time before trial, did not object to the court’s proposed schedule on the day
of trial, exceeded the time that was originally scheduled for her
presentation, and, when asked whether she needed additional time, stated
she anticipated she could finish her presentation without needing an
additional hearing. The court did not violate Mother’s due process rights
by declining to grant a continuance.

II. The Superior Court Did Not Abuse Its Discretion by Failing to Set
a Supplemental Evidentiary Hearing.

¶18 Mother next argues the superior court erred by failing to set a
supplemental evidentiary hearing or a new trial after she discovered the
existence of the audio recording. We review rulings on the issues raised in
a motion for new trial for an abuse of discretion. Kent v. Carter-Kent, 235
Ariz. 309, 312, ¶ 13 (App. 2014). We review constitutional issues de novo.
Marriage of Friedman, 244 Ariz. at 114, ¶ 11.

¶19 “A ruling, decision or judgment may be altered or amended,
or vacated and a new trial granted, on motion of the aggrieved party” for

6 The language of former Rule 22(1) is substantially similar to the
language of the new Rule 22(a). Compare Rule 22(1) (2014) with Rule 22(a)
(2019).

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several grounds “materially affecting that party’s rights[.]” Ariz. R. Fam.
Law P. 83(A). These grounds include: (1) an “irregularity in the
proceedings of the court or a party, or abuse of discretion, whereby the
moving party was deprived of a fair trial”; (2) “misconduct of a party”; and
(3) “the ruling, decision, findings of fact, or judgment is not justified by the
evidence or is contrary to law.” Id. at (A)(1), (2), and (6). “On a motion for
new trial, the court may . . . take additional testimony, amend or alter
findings of fact and conclusions of law or make new findings and
conclusions, and direct the entry of a new ruling, decision or judgment.”
Id. at (B). A motion for new trial for newly-discovered evidence should be
granted only if “(1) the newly discovered evidence could not have been
discovered before the granting of the judgment despite the exercise of due
diligence, (2) the evidence would probably change the result of the
litigation, and (3) the newly discovered evidence was in existence at the
time of the judgment.” Boatman v. Samaritan Health Servs., Inc., 168 Ariz.
207, 212 (App. 1990); Ariz. R. Fam. Law P. 83 cmt. (stating Rule 83 is based
on Arizona Rule of Civil Procedure 59).

¶20 The court was not required to hold a supplemental hearing on
Mother’s motion for new trial. See Rule 83(B) (providing the “court may . . .
take additional testimony, amend or alter findings of fact and conclusions
of law or make new findings and conclusions, and direct the entry of a new
ruling, decision or judgment”) (emphasis added). The court, however,
scheduled oral argument on the motion, during which the parties discussed
the recording and presented argument. The court also independently
reviewed the audio recording, determined the recording was “new
evidence that was not available at trial,” and concluded that “a new trial
[was] not warranted because the failure to disclose the recording did not
affect the decision.” The superior court did not abuse its discretion by
failing to offer Mother a supplemental evidentiary hearing.

III. The Court Did Not Abuse its Discretion by Declining to Find that
Father Abused A.D.

¶21 Mother argues the superior court abused its discretion by
declining to find that Father abused A.D. She asserts the court improperly
relied on photographs of A.D. smiling not long after the alleged abuse, the
County Attorney’s decision not to prosecute, and the absence of photos
showing injury to A.D.’s arm. She also argues the court did not properly
scrutinize “DCS’ long chain of refusals to substantiate abuse.”

¶22 We review the court’s findings of fact for clear error, giving
“due regard . . . to the trial court’s opportunity to judge the credibility of

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witnesses.” Ariz. R. Fam. Law P. 82(a)(5). “A finding of fact is not clearly
erroneous if substantial evidence supports it, even if substantial conflicting
evidence exists.” Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51-52, ¶ 11 (App.
2009) (quotation omitted). “Evidence is substantial if it allows a reasonable
person to reach the trial court’s result.” Id. (quotation omitted). We defer
to the court’s determination of the weight to give conflicting evidence. Nia
v. Nia, 242 Ariz. 419, 424, ¶ 14 (App. 2017).

¶23 When determining legal decision-making and parenting time,
the court must consider several factors in determining the best interests of
the child in question. A.R.S. § 25-403(A). One of the factors is “[w]hether
there has been . . . child abuse pursuant to § 25-403.03.” Id. A finding of
child abuse pursuant to § 25-403.03 must be established by a preponderance
of the evidence. In determining whether the finding is established by a
preponderance of the evidence, the court must consider “all relevant
factors” including findings from another court of competent jurisdiction;
police and medical reports; DCS, domestic violence shelter, and school
records; and witness testimony. § 25-403.03(C).

¶24 The court did not abuse its discretion by declining to find that
Father abused A.D. In its ruling, the superior court considered the factors
of A.R.S. §§ 25-403(A) and -403.03(C) as required, and substantial evidence
supports the court’s conclusion despite the existence of conflicting
evidence. DCS records relating to the July 2016 incident, which were
properly considered by the court under A.R.S. § 25-403.03(C)(4), showed
that DCS had amended the finding of abuse to unsubstantiated. DCS only
amends a proposed substantiated finding if it “[d]etermine[s] there is no
probable cause that the alleged perpetrator committed child abuse or
neglect.” AAC R21-1-504(A). Furthermore, the DCS employee who
initially proposed substantiation testified that the “deciding factor” for her
was the referral of the criminal investigation to the County Attorney. The
County Attorney, however, declined to prosecute, indicating that “the
chances of successful termination of the prosecution” were insufficient. See
State v. Stewart, 103 Ariz. 457, 458 (1968) (recognizing that a “prosecutor
may use discretion in deciding which offenses” to prosecute and that this
involves “weigh[ing] the evidence, the law and the facts, and the chances
of successful termination of the prosecution”). The court was permitted to
consider police reports pursuant to A.R.S. § 25-403.03(C)(2), and we must
defer to its resolution of conflicting evidence. Nia, 242 Ariz. at 424, ¶ 14.

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¶25 Additionally, witness testimony supported the court’s
conclusion that Father had not abused A.D. in July 2016. Dr. Moran, a
health professional appointed by the court to complete a comprehensive
evaluation of the family, provided a report in which he stated that “there
[were] no persuasive third-party data to support the conclusion that Father
ha[d] committed clinically significant child abuse or maltreatment of
[A.D.]” Further, Child’s paternal grandmother testified that Child and
Father came to paternal grandparents’ house after the alleged incident, and
she stated Child was happy and behaving normally. This testimony was
supported by photographs, which the court properly considered in
conjunction with witness testimony.

¶26 Finally, and perhaps most importantly, the court did not find
Mother’s version of events credible. It also found that there were several
inconsistencies between Mother’s version of events, the version Child
presented to DCS, and the version Mother presented to the Phoenix Police.
We defer to the court’s opportunity to judge the credibility of witnesses.
Ariz. R. Fam. P. Law 82(a)(5). Because the superior court reviewed the
proper factors and substantial evidence supports the court’s conclusion, the
court did not abuse its discretion by declining to find that Father abused
A.D.

IV. Attorneys’ Fees and Costs.

¶27 Mother and Father request an award of their costs and
attorneys’ fees pursuant to A.R.S. §§ 25-324(A) (allowing court to “order a
party to pay a reasonable amount to the other party for the costs and
expenses of maintaining or defending any proceeding under this chapter”
or in matters involving legal decision-making and parenting time)
and -415(A)(2) (requiring the court to “sanction a litigant for costs and
reasonable attorney fees . . . if the court finds that the litigant has . . .
[k]nowingly accused an adverse party of making a false claim under § 25-
403, 25-403.03 or 25-403.04 with knowledge that the claim was actually
true”). We do not find A.R.S. § 25-415(A)(2) applicable to this case and
accordingly do not award sanctions pursuant to that section. In the exercise
of our discretion, see Myrick v. Maloney, 235 Ariz. 491, 496, ¶ 16 (App. 2014),
we decline to award costs or fees to either party pursuant to A.R.S. § 25-
324(A).

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CONCLUSION

¶28 For the foregoing reasons, we affirm the superior court’s
November 30, 2017 ruling and March 6, 2018 denial of Mother’s motion for
new trial.

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

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