Huey v. Huey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANNE HUEY, Petitioner/Appellee,

v.

BRYAN B. HUEY, Respondent/Appellant.

No. 1 CA-CV 20-0547 FC
FILED 7-26-2022

Appeal from the Superior Court in Maricopa County
No. FC2018-001203
The Honorable Justin Beresky, Judge

AFFIRMED IN PART

COUNSEL

Hallier & Lawrence PLC, Phoenix
By Angela K. Hallier, Jason David Brierley
Co-Counsel for Petitioner/Appellee

Jones Skelton & Hochuli PLC, Phoenix
By Eileen Dennis GilBride
Co-Counsel for Petitioner/Appellee

Jaburg & Wilk PC, Phoenix
By David P. Uffens
Counsel for Respondent/Appellant
 HUEY v. HUEY
Decision of the Court

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which Chief
Judge Kent E. Cattani and Judge Samuel A. Thumma joined.

F U R U Y A, Judge:

¶1 Bryan Huey (“Father”) appeals the decree of dissolution
dissolving his marriage to Anne Huey (“Mother”). Father claims his due
process rights were violated when the superior court denied his motion to
continue trial until it could be held in-person. Father also challenges the
court’s orders concerning legal decision-making authority, parenting time,
relocation, child support, spousal maintenance, division of property, and
an award of attorneys’ fees to Mother.

¶2 We resolve Father’s challenge of the court’s decree as to the
limited issues of spousal maintenance and division of property (in part) in
a separate opinion filed concurrently with this decision. As to all other
matters raised by Father in his appeal, we affirm for the following reasons.

FACTS AND PROCEDURAL HISTORY

¶3 Father and Mother married in 2006 and share two minor
children (the “Children”). In March 2018, Mother petitioned for legal
separation, later converted to a petition for dissolution in November 2018.
Although Father requested an in-person trial, the court conducted a two-
day virtual trial in May 2020. In June 2020, the court entered a decree of
dissolution.

¶4 Father timely appealed, and we have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Due Process Claim

¶5 Father contends his due process rights were violated when
the court denied his motion to continue the two-day virtual trial until it
could be held in-person. He asserts that the virtual trial impaired
“appropriate credibility finding[s]” by the court and left him with
insufficient time to testify due to technological issues. We review the court’s

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denial of a motion to continue trial for an abuse of discretion, Dykeman v.
Ashton, 8 Ariz. App. 327, 330 (1968) (citations omitted), but review de novo
whether the court afforded Father due process, Jeff D. v. Dep’t of Child Safety,
239 Ariz. 205, 207, ¶ 6 (App. 2016). Father must show prejudice sufficient to
establish reversible error based on the record. Roberto F. v. Ariz. Dep’t of
Econ. Sec., 232 Ariz. 45, 50, ¶ 18 (App. 2013).

¶6 “The touchstone of due process under both the Arizona and
federal constitutions is fundamental fairness.” State v. Melendez, 172 Ariz.
68, 71 (1992). Due process requires an opportunity to be heard “at a
meaningful time and in a meaningful manner,” Mathews v. Eldridge, 424 U.S.
319, 333 (1976), as well as to offer evidence and question adverse witnesses,
Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11 (App. 2016). However, due process is
“flexible and calls for such procedural protections as the particular situation
demands.” Mathews, 424 U.S. at 334.

¶7 In March 2020, Arizona’s Governor declared a statewide
emergency in response to the COVID-19 outbreak. See Candice B. v. Dep’t of
Child Safety, 1 CA-JV 20-0207, 2021 WL 345396, at *3, ¶ 13 (Ariz. App. Feb.
2, 2021) (mem. decision). The Arizona Supreme Court then issued
administrative orders suspending in-person proceedings in all Arizona
courts “to the greatest extent possible consistent with core constitutional
rights” and urging presiding superior court judges to limit “in-person
courtroom contact as much as possible by using available technologies,”
including videoconferencing. See id. (citing Ariz. Super. Ct. Admin. Ord.
2020-47, In the Matter of Authorizing Limitation of Court Operations During a
Public Health Emergency (Mar. 16, 2020) (updated by subsequent
administrative orders, and currently A.O. 2022-34 (April 1, 2022))).

¶8 During April and May 2020 status conferences in this case,
and again after Father moved to continue trial, the parties discussed the
practicality of holding a virtual trial. Given the two years of litigation
leading up to trial, and because trial had been continued twice in the past,
Mother objected to any continuation. Based on the ongoing pandemic,
Mother’s counsel also expressed her inability to attend an in-person trial,
given that she lived with a “high-risk person.” Although the court
expressed some technical and practical concerns about a virtual trial, it
noted virtual trial was feasible and denied Father’s motion to continue.

¶9 During the two-day virtual trial in May 2020, Father cross-
examined Mother’s witnesses, including Mother herself, called his own
witnesses, testified on his behalf, admitted evidence, and was able to object
to the admission of evidence. The court indicated that the online platform

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(which included audio and video technology) provided sufficient visual
access to the parties and witnesses for purposes of “judging credibility.”
The court was able to clearly view the faces of the parties, witnesses, and
attorneys, and in its under-advisement ruling, the court expressed no
difficulty judging witness credibility. At the end of trial, the court noted
that despite a few minor technical issues, the parties were able to
adequately present their case. Thus Father has not established that the
virtual trial impeded the court’s ability to make credibility determinations.

¶10 Regarding Father’s claim of insufficient time to testify, he fails
to articulate how additional time for his further redirect examination would
have altered the court’s rulings. See Gamboa v. Metzler, 223 Ariz. 399, 402–
03, ¶¶ 12–18 (App. 2010) (concluding that time limitations imposed by the
superior court did not merit reversal when the plaintiff failed to
demonstrate how those limitations harmed his case). Moreover, Father did
not request additional trial time. See id. at ¶ 16. On this record, Father has
shown neither error, nor resulting prejudice. Thus, his due process claim
fails.

II. Legal Decision-Making Authority, Parenting Time, & Relocation

¶11 Father challenges the court’s orders regarding legal decision-
making, parenting time, and relocation on various grounds, all of which we
review for an abuse of discretion. See DeLuna v. Petitto, 247 Ariz. 420, 423, ¶
9 (App. 2019) (legal decision-making, parenting time); Murray v. Murray,
239 Ariz. 174, 176, ¶ 5 (App. 2016) (relocation). A court abuses its discretion
“when it commits legal error” or “when the record is devoid of competent
evidence to support the court’s decision.” Woyton v. Ward, 247 Ariz. 529,
531, ¶ 5 (App. 2019) (quotations omitted). We will not disturb the court’s
factual findings unless they are clearly erroneous. Strait v. Strait, 223 Ariz.
500, 502, ¶ 6 (App. 2010). “A finding of fact is not clearly erroneous if
substantial evidence supports it, even if substantial conflicting evidence
exists.” Kocher v. Dep’t of Revenue, 206 Ariz. 480, 482, ¶ 9 (App. 2003). We
view the evidence in the light most favorable to sustaining the court’s
rulings, Lehn v. Al-Thanayyan, 246 Ariz. 277, 283, ¶ 14 (App. 2019), given it
“is in the best position to judge the credibility of witnesses and resolve
conflicting evidence,” Vincent v. Nelson, 238 Ariz. 150, 155, ¶ 18 (App. 2015).

¶12 Father argues the court abused its discretion in awarding
Mother sole legal decision-making authority without first determining if
Father was an unfit parent. But Father fails to cite any authority requiring
the court to find a parent “unfit” before it can award sole legal decision-
making authority to the other parent, and we are unaware of any. In any

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event, the court examined the factors enumerated in A.R.S. §§ 25-403(A)(1)–
(11), -403.01, and -403.03–.05 in resolving the legal decision-making issue.
This was sufficient, and we decline to impose an additional prerequisite not
found in statute.

¶13 The balance of Father’s argument regarding legal decision-
making takes issue with the court’s reliance on Mother’s evidence.
However, we do not reweigh evidence on appeal. See Lehn, 246 Ariz. at 284,
¶ 20. Moreover, the record reflects the court’s detailed examination of the
factors that Father acknowledges were based upon evidence received at
trial, though construed in Mother’s favor.

¶14 Father next argues the court abused its discretion in awarding
Father less parenting time “than either party requested.” However, the
court is not bound by parties’ parenting time requests but must adopt a
parenting time plan consistent with a child’s best interests. See A.R.S. § 25-
403.02(B).

¶15 Here, the court acknowledged that while Mother was
awarded sole legal decision-making, Father remained entitled to reasonable
parenting time, and it adopted a plan that would maximize his parenting
time with the Children after their relocation to Iowa. See A.R.S. § 25-
403.01(D). Subject to certain necessary preconditions, the court determined
that Father was entitled to one additional weekend of parenting time in
Iowa, as well as parenting time with the Children in Arizona for their
Thanksgiving break, winter break—the first half in odd years, the second
half in even years—spring break, and for two non-consecutive weeks
during summer break. The court’s parenting-time plan is supported by
findings based on the record, consistent with the best interests of the
Children, and Father has shown no abuse of discretion.

¶16 Father further argues the court failed to properly weigh the
evidence in granting Mother’s request to relocate the Children to Iowa.
Again, we will not reweigh evidence on appeal. See Lehn, 246 Ariz. at 284,
¶ 20. The court considered the relevant statutory relocation factors under
A.R.S. § 25-408(I), including the best-interests factors under A.R.S. § 25-403.
See Hurd v. Hurd, 223 Ariz. 48, 52–53, ¶¶ 20–26 (App. 2009). Specifically, the
court found Mother would have a substantial support system in Iowa she
did not otherwise have in Arizona, including an extensive network of
family members and friends who lived in Iowa and could offer support for
the parties’ autistic child. The cost of living in Iowa would be less than if
Mother remained in Arizona. And Father would have, under Mother’s
proposal, more parenting time on a long-distance basis than he had

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experienced in the two years leading up to trial—having only seen the
Children in a supervised setting for two hours a week up until January
2020, when parenting time increased to three hours per week. In sum, the
court found relocation to Iowa would improve Mother’s and the Children’s
quality of life and have a positive impact on the Children’s emotional,
psychological, and developmental needs. These findings are supported by
the record, and the court did not abuse its discretion in making its relocation
determination.

¶17 Father also challenges the court’s allocation of the majority of
travel expenses related to relocation to him, despite the parties’ agreement
to split costs evenly. We review the allocation of travel expenses for an
abuse of discretion. See Cook v. Losnegard, 228 Ariz. 202, 204, ¶¶ 8–9 (App.
2011). Absent evidence the court exceeded bounds of reason, we cannot
substitute our discretion for that of the trial judge. Id. at 205, ¶ 11 (citing
Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571 (1985)). Further, the
parties’ stipulation on any given matter is not binding upon the court until
it approves such an agreement. Ariz. R. Fam. Law P. 69(b).

¶18 Although the parties apparently agreed in principle to evenly
divide costs, the court ultimately ordered Father to pay for costs associated
with any parenting time he chose to exercise in Iowa. Father is also required
to pay seventy-five percent of the airline costs necessary to fly the Children
and Mother to Arizona for Father’s parenting time with Children—until
their daughter turns fourteen, when she can fly accompanied only by her
brother. If Mother thereafter chooses to fly with the Children, Mother must
pay for her own airline ticket.

¶19 In allocating travel expenses, the Arizona Child Support
Guidelines require the court to “consider the means of the parents.” A.R.S.
§ 25-320 app. § 18 (2018) (the “Guidelines”). The court received evidence
demonstrating vast disparity in the parties’ gross monthly income and that
Mother was incapable of working. Based upon the evidence presented, the
court reasonably could have concluded that Father should bear
responsibility for most travel expenses. See Cook, 228 Ariz. at 205, ¶ 11. Thus,
Father has shown no abuse of discretion in the court’s allocation of the
majority of travel expenses to him.

III. Child Support Worksheet

¶20 Citing the Guidelines § 5(A), Father argues the court erred
when it increased his child support obligation by attributing to him an
incorrect gross monthly income figure on the child support worksheet.

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Specifically, Father asserts the bonuses he had earned in previous years
were improperly used to increase his gross monthly income, despite
evidence such bonuses were not guaranteed or even expected in 2020.

¶21 We interpret the Guidelines de novo, Nia v. Nia, 242 Ariz. 419,
422, ¶ 7 (App. 2017), but will affirm the court’s findings regarding Father’s
income if they are supported by sufficient evidence and not clearly
erroneous, see Pearson v. Pearson, 190 Ariz. 231, 235 (App. 1997).

¶22 Under the Guidelines, gross income includes income from
any source, including commissions or bonuses, though “[i]ncome from any
source which is not continuing or recurring in nature need not necessarily be
deemed gross income for child support purposes.” Guidelines § 5(A)
(emphasis added).

¶23 Here, Father listed a gross monthly income of $12,001 in his
financial affidavit filed a week before trial, which was admitted into
evidence. But the court found Father’s gross monthly income exceeded
$16,000 per month in 2019, which is consistent with Father’s financial
affidavit, reflecting a gross income of $195,797 in 2019. The court further
found Father was on track to exceed that monthly average, given his April
2020 paystub showing year-to-date earnings of $111,623. In view of such
evidence, the court did not abuse its discretion in attributing Father
approximately $16,800 in gross monthly income and requiring him to pay
Mother $1,590 in monthly child support.

¶24 Father also argues the court abused its discretion by listing a
contradictory amount of parenting time days on the child support
worksheet (30 days) compared to the dissolution decree (85 days). The
record reflects otherwise. The decree awarded Father twenty-four days of
parenting time (one weekend per month) until therapeutic intervention
services or supervision were no longer necessary. But ultimately, the court
credited Father with thirty days of parenting time for purposes of
calculating child support and acknowledged that this number could
change. Father has shown no abuse of discretion given the state of his
parenting-time. See Cummings v. Cummings, 182 Ariz. 383, 385 (App. 1994)
(reviewing child support awards for an abuse of discretion).

IV. Division of Property – Fidelity Account

¶25 As part of its decree, the court determined that an investment
account maintained with Fidelity was community property subject to
division. The Fidelity investment account was initially Father’s sole and
separate property. But after marriage, this account received deposits of

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community assets and was used to pay for community obligations and
acquisitions. Father argues, however, that the court abused its discretion in
finding the account to be “irreversibly commingled.” Father maintains his
expert’s report and testimony traced what funds belonged to the
community and what funds were his sole and separate property. We review
the court’s orders concerning division of property for an abuse of discretion
but review the court’s characterization of property de novo. Helland v.
Helland, 236 Ariz. 197, 199, ¶ 8 (App. 2014).

¶26 The character of property as separate or community is
generally fixed at the time of acquisition; however, separate property may
be transformed into community property when there is commingling to
such an extent that “the identity of the property as separate or community
is lost.” Potthoff v. Potthoff, 128 Ariz. 557, 562 (App. 1981). Thus, when
“community property and separate property are commingled, the entire
fund is presumed to be community property unless the separate property
can be explicitly traced.” Cooper v. Cooper, 130 Ariz. 257, 259 (1981) (citations
omitted). The burden lies with the party “claiming that the commingled
funds, or any portion of them, are separate to prove that fact and the
amount by clear and satisfactory evidence.” Id. at 259–260 (citations
omitted).

¶27 Here, the court received conflicting evidence from the parties
on the issue of whether the post-marriage transactions could be sufficiently
traced. Mother’s expert testified the volume of activity over an
approximately thirteen-year marriage rendered it impossible to distinguish
what were separate versus community funds. Father’s expert testified to
the contrary. The court resolved this issue against Father, finding that
tracing was not possible. Father’s position would require us to reweigh the
conflicting testimony and reports offered by the parties’ financial experts,
which we will not do. See Lehn, 246 Ariz. at 284, ¶ 20; Sandretto v. Payson
Healthcare Mgmt., Inc., 234 Ariz. 351, 359, ¶ 24 (App. 2014) (explaining that
the weight given to expert testimony is within the sole province of the fact
finder). Thus, we affirm the court’s decision as to the Fidelity investment
account.

V. Attorneys’ Fees Award

¶28 Father challenges the court’s partial award of attorneys’ fees
to Mother under A.R.S. § 25-324(A), which we review for an abuse of
discretion. See Democratic Party of Pima Cnty. v. Ford, 228 Ariz. 545, 547, ¶ 6
(App. 2012).

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¶29 Section 25-324(A) requires the court to consider “the financial
resources of both parties and the reasonableness of the positions each party
has taken throughout the proceedings” in determining whether to award a
party attorneys’ fees. Here, the court found that Father had “considerably
more resources” than Mother, the instant matter “was over litigated by both
sides,” and Father had made an unreasonable “eleventh hour” assertion
that Mother suffered from Munchausen syndrome, which required a
continuation of the trial date and caused Mother to incur significant
additional fees. In view of its findings, the court awarded Mother
approximately half of her requested attorneys’ fees. Since the record
supports the court’s findings, Father has shown no abuse of discretion in
making this award.

CONCLUSION

¶30 The superior court did not violate Father’s due process rights.
Further, those portions of the parties’ dissolution decree that concern legal
decision-making authority, parenting time, relocation, child support, the
Fidelity investment account, and the award of attorneys’ fees to Mother are
affirmed. As noted, we decide the issues raised by Father regarding spousal
maintenance and remaining property division issues by separate opinion
filed concurrently with this decision.

¶31 On appeal, both parties request an award of their respective
attorneys’ fees under A.R.S. § 25-324, as well as taxable costs on appeal. In
our discretion, we award Mother her reasonable attorneys’ fees on appeal
pursuant to A.R.S. § 25-324(A), given the disparity of the parties’ financial
resources and the positions they have taken on appeal. We additionally
award Mother her taxable costs. Mother’s award of fees and costs shall be
contingent upon her compliance with ARCAP 21.

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

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