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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
KRISTAN LANDRY, Petitioner/Appellant,
v.
RICHARD F. LANDRY, Respondent/Appellee.
No. 1 CA-CV 16-0665 FC
FILED 8-8-2017
Appeal from the Superior Court in Maricopa County
Nos. FC2009-006390, FC2009-094448 (Consolidated)
The Honorable Kristin Culbertson, Judge
The Honorable Justin Beresky, Judge Pro Tempore
AFFIRMED
COUNSEL
Alongi & Donovan Law, PLLC, Tempe
By Thomas P. Alongi, Phoenix
Counsel for Petitioner/Appellant
Royer Law Office, P.C., Phoenix
By Kenneth G. Royer, Phoenix
Counsel for Respondent/Appellee
LANDRY v. LANDRY
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Diane M. Johnsen joined.
B E E N E, Judge:
¶1 Kristan Landry (“Mother”) appeals the superior court’s order
awarding Richard Landry (“Father”) legal decision-making authority and
parenting time of their child E.L. The court awarded Father sole legal
decision-making authority over E.L. and ruled that Mother’s parenting time
with E.L. be exercised at E.L.’s discretion. For the following reasons, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In December 2014, Mother and Father agreed to joint legal
decision-making authority regarding their children. They also agreed to
work with a therapeutic interventionist (“TI”), who would help determine
appropriate parenting time.
¶3 In December 2015, Mother sought an order of protection
against Father. The request was denied. Father then filed a motion to
enforce the parenting time agreement, claiming Mother was preventing
E.L. from visiting Father. The superior court issued a temporary order
allowing E.L. to determine a parenting time schedule with her parents, and
ordered Conciliation Services to conduct a confidential interview of each of
the children. Neither party was permitted to review the interview reports,
and neither party raised an objection to the court’s consideration of the
reports or admittance at the subsequent trial.
¶4 In March 2016, the superior court held a status conference,
which Mother did not attend.1 At the conference, the court, sua sponte,
awarded Father temporary sole legal decision-making authority over E.L.
¶5 At a hearing in May 2016, the superior court scheduled an
evidentiary hearing to determine whether Father should be granted sole
1 Mother was present in court on February 5, 2016, when the court
scheduled the March 11, 2016 status conference.
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Decision of the Court
legal decision-making authority over E.L., and affirmed its temporary
orders in the interim. After the evidentiary hearing was held in July 2016,
the court awarded Father permanent legal decision-making authority over
E.L. and joint legal decision-making authority over C.L.2 The court also
ordered that E.L.’s parenting time with Mother be exercised at E.L.’s
discretion.
¶6 Mother timely appealed the superior court’s decision. We
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1) (2017).3
DISCUSSION
¶7 Mother argues that the superior court erred by not making the
confidential child interviews available for review. Mother also contends
that the superior court violated her due process rights when it awarded
Father temporary legal decision-making authority. We review an order
modifying parenting time and legal decision-making authority for an abuse
of discretion resulting in prejudice, but review de novo questions involving
the interpretation of procedural rules. Baker v. Meyer, 237 Ariz. 112, 116, ¶
10 (App. 2015); Manuel M. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 205, 210, ¶ 18
(App. 2008); Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 24 (App. 2004); In re
Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 2002).
¶8 Mother failed to raise an objection regarding the confidential
child interviews at trial. Generally, an argument not raised before the trial
court cannot be raised for the first time on appeal. Dillig v. Fisher, 142 Ariz.
47, 51 (App. 1984). However, “[i]f application of a legal principle, even if
not raised below, would dispose of an action on appeal and correctly
explain the law, it is appropriate for us to consider the issue.” Evenstad v.
State, 178 Ariz. 578, 582 (App. 1993). Therefore, we address the issue on the
merits.
¶9 Rule 12 of the Arizona Rules of Family Law Procedure
requires that “[t]he record of the interview must be made available to the
parties, unless they have stipulated otherwise[.]” (Emphasis added.) The plain
language of Rule 12 requires the court make confidential child interviews
available to both parties unless they stipulate otherwise.
2 Mother was present with her attorney at the May 2016 hearing.
3 Absent material revisions after the relevant date, we cite a statute’s
current version.
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LANDRY v. LANDRY
Decision of the Court
¶10 Here, Mother argues she did not agree that the children’s
interviews would be kept confidential from her and Father. Father
contends that both parties stipulated to non-disclosure of the reports, but
does not cite any record evidence of such agreement. Because the record is
devoid of any stipulation that the interviews would be kept confidential
from the parents, the superior court was required to make “[t]he record of
the interview . . . available to the parties[.]” Ariz. R. Fam. Law P. 12(A).
¶11 Despite the court’s error, Mother was not prejudiced. Based
on all the evidence, the superior court determined that it was in E.L.’s best
interests for Father to have sole legal decision-making authority, and that
parenting time between E.L. and Mother be at the child’s discretion. The
superior court heard testimony from Mother and Father. Father testified
that E.L. did not request any parenting time with Mother and Mother had
previously coerced E.L. into not visiting Father. Father also testified that
E.L.’s health and grades were improving while living with him.
¶12 Evidence received by the court included a Gilbert Police
Department report and the TI reports from December 2015 and February
2016. In pertinent part, the police report found that:
[E.L.] stated her mother preps her for her therapy session
telling [her] what to say when she goes to them.
[E.L.] stated her mother also hides an audio recorder in her
pant pocket to capture the content of the therapy session
while she attends them.
[E.L.] stated if she says something wrong, her mother
confronts her . . . and she is afraid of her mother’s
confrontation.
****
[E.L.] stated on one occasion, [E.L.] was told by her mom to
“jump out of the car and run home” when they arrived at the
restaurant for dinner with [Father] and on another occasion
she was told by her mom to stay in the car.
The TI reports found, as relevant here, that:
[E.L.] seemed anxious and fearful as she spoke about her
verbal and physical interactions with her mother.
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LANDRY v. LANDRY
Decision of the Court
[E.L.] stated she was afraid of being punished by her mother
if she told this TI about what she experienced.
****
[E.L.] described specific incidences of physical and emotional
abuse inflicted upon her by her mother.
****
[E.L.’s] statements about the domestic violence she suffered
at the hands of her mother matched those she reported to . . .
the Gilbert Police Department.
[E.L.] has been hiding the abuse she has received from her
mother because she fears retaliation from her mother.
****
Father seems to be able to provide a safe and protective
environment to [E.L.].
¶13 The evidence supported the court’s findings that Mother
“engaged in a variety of actions aimed at alienating the children from
Father,” including coaching E.L. for TI meetings and coercing E.L. into
making false allegations against Father to police. Importantly, when the
court allowed E.L. to decide parenting time, she chose to live at Father’s
home and not spend any time with Mother. A review of E.L.’s confidential
interview establishes E.L. made statements that were consistent with other
evidence before the court. As such, the superior court’s failure to comply
with Rule 12 did not prejudice Mother because the information contained
in E.L.’s confidential interview was cumulative. See Fuentes, 209 Ariz. at 57,
¶ 28. Moreover, the evidence before the court, including the confidential
child interview, constituted sufficient support for the superior court’s
ruling.
¶14 Mother also asserts that the superior court violated her due
process rights when it granted Father temporary sole legal decision-making
authority over E.L. without notice and without conducting an evidentiary
hearing.
¶15 Whether the court properly awarded temporary legal
decision-making authority and parenting time to Father is now a moot
question. “A case becomes moot when an event occurs which would cause
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Decision of the Court
the outcome of the appeal to have no practical effect on the parties.” Sedona
Private Prop. Owners Ass’n v. City of Sedona, 192 Ariz. 126, 127, ¶ 5 (App.
1998). As a policy of judicial restraint, we do not address moot questions.
Lana A. v. Woodburn, 211 Ariz. 62, 65, ¶ 9 (App. 2005).
¶16 Mother had notice of the evidentiary hearing set to finally
determine Father’s request to modify legal decision-making authority and
parenting time. Mother was represented by counsel at the hearing and fully
participated in the proceeding. Because Mother was afforded these
procedural safeguards, whether the superior court acted improperly during
previous temporary order hearings is moot and therefore will not be
addressed.
¶17 Mother requests attorneys’ fees and costs on appeal pursuant
to A.R.S. § 25-324, -403(A)(7), or -415(A)(1). After review of the parties’
respective financial resources pursuant to A.R.S. § 25-324(A), there is a
significant financial disparity. As such and because Mother’s positions
were reasonable, she is awarded reasonable attorneys’ fees and costs on
appeal contingent on her compliance with ARCAP 21.
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court’s
order modifying legal decision-making authority and parenting time with
respect to E.L.
AMY M. WOOD • Clerk of the Court
FILED: AA
6