Parenting plan agreement with parenting time and legal decision-making terms adopted by court. Mother ordered into addiction recovery in post-decree child custody modification; with discovery sanctions and attorneys fees awarded to Father.
Modified California Child Custody Orders in Arizona
Under the stipulated terms of the parties’ California divorce in 2007, the parents had joint legal decision-making and “flexible co-parenting” time. They moved to Arizona. Mother then petitioned to modify parenting time and child support. In February 2009, she was awarded final decision-making over education with majority parenting time. In November 2009, she again petitioned for modified custody, seeking sole legal decision-making authority. Father counter-petitioned in December, seeking the status quo terms or, alternatively, to be awarded sole legal decision-making.
The child custody evaluator recommended equal parenting time, that Father be awarded legal decision-making for the children’s education and medical matters, with Mother continuing recovery program for drug and alcohol addiction. After three years of proceedings, parents entered into a stipulated Rule 69 Agreement which the family court adopted. Mother was ordered to continue drug testing, counseling, and weekly AA meetings. Father was awarded half his attorneys’ fees and costs (his total fees and costs were $181,996.08 of which Mother was ordered to pay $96,918.83). Mother was ordered to pay $10,750.00 in discovery sanctions, too. (Sanctioned $200.00 “for each day Mother did not comply with the court’s orders requiring discovery responses.”)
Mother appealed. The Arizona Court of Appeals affirmed the family court’s final judgment.
One Year Before Custody Orders Can Be Modified
On appeal, the Mother first argued that ARS § 25-411 requires a year pass before custody orders can be modified. Because less than a year had passed (February 2009 to November 2009), insufficient time under the statute, the court violated Arizona law in issuing modified custody orders.
The Court of Appeals held that Mother’s delayed allegation – three years after costly litigation and a 200-page custody evaluator’s report – was “untimely and unavailing.” Also, vacating the family court’s order could adversely impact the children’s best interests. ARS § 25-411’s one-year requirement is procedural, not jurisdictional. Citing In re Marriage of Dorman, 198 Ariz. 298, P3d 329 (Ariz. Ct. App. 2000).
Due Process Violation of Party’s Right to Cross Examine
Secondly, Mother argued her due process rights were violated when Father’s hired psychiatrist reviewed Mother’s mental health information. The psychiatrist provided Father with a report which opined on Mother’s history of drug, alcohol, and nicotine use, and on “any potential danger [Mother posed] to the children resulting from exposure to the same.” Father testified about the psychiatrist and the doctor’s report was admitted into evidence. The psychiatrist did not testify as a witness, therefore Mother had no opportunity to cross-examine. The family court admitted the psychiatrist’s report upon which the custody evaluator relied in preparing the forensic evaluation.
The appeals court held that, although the evaluator’s reliance upon the psychiatrist’s report was proper under Arizona Rule of Evidence 703, given Mother’s objection, the family court erred in allowing the report with Father’s testimony. However, the improper admission of the report evidence was harmless error.
Due Process Violation of Party’s Right to Equal Hearing Time
Third, Mother argued the family court violated her due process rights by not giving her equal time at the evidentiary hearing. Initially, the hearing was scheduled for two days. When the parties reached their Rule 69 Agreement, the court shortened the hearing to one day. At the hearing, Father testified, the custody evaluator testified, but Mother’s attorney went way over his time limit and Mother did not testify. Her lawyer motioned for continuance so Mother could testify, but did not make an offer of proof. Mother’s motion to continue was denied.
The appellate court held that there was no reversible error. The hearing transcript confirmed the family court “misallocated the time in favor of Father,” but without an offer of proof regarding the substance of the testimony Mother sought to present, there is no way to determine whether that error was prejudicial.
Attorney Fee Award and Discovery Sanctions
Lastly, the Court of Appeals affirmed the attorneys’ fees award and discovery sanctions against the Mother. The trial court made specific findings showing Mother had been “significantly unreasonable in the course of this unnecessarily lengthy litigation.”
Krieger v. Duick, 1 CA-CV 14-0036 (Ariz. Ct. App. January 20, 2015) memorandum decision.
For precise language, read the court’s original opinion. Legal citations omitted.
For more information about post-decree modification of orders in Arizona child custody law, read our discussion on Modifying Terms of Divorce Orders.