Malik v. Trinidade ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SAM MALIK, Petitioner/Appellant,
v.
RICHELLE TRINIDADE, Respondent/Appellee.
No. 1 CA-CV 19-0820 FC
FILED 6-22-2021
Appeal from the Superior Court in Yavapai County
No. V1300DO201780354
The Honorable Don C. Stevens II, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART; REMANDED
COUNSEL
Sam Malik, Phoenix
Petitioner/Appellant
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
MALIK v. TRINIDADE
Decision of the Court
C R U Z, Judge:
¶1 Appellant Sam Malik (“Father”) challenges numerous aspects
of the family court’s rulings denying him unsupervised parenting time,
finding that a house was the sole and separate property of Appellee Richelle
Trinidade (“Mother”), and awarding child support and attorneys’ fees to
Mother. For the reasons set forth below, we affirm in part, vacate in part
and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
¶2 Father filed for legal separation in August 2017 shortly after
Mother obtained an order of protection against him. The court later
converted the case from legal separation to dissolution on Mother’s request.
The parties have three minor children of the marriage. Mother sought sole
legal decision-making authority for the children, alleging that Father had a
significant history of domestic violence.
¶3 Approximately one month later, the parties reached an
agreement that Mother would receive sole legal decision-making authority
and Father would receive four hours per week of supervised parenting
time, which the court memorialized in its temporary orders. The court also
ordered Father to undergo anger management and parenting counseling.
Father twice petitioned for unsupervised parenting time, but the parties
then agreed that he would continue to receive supervised parenting time
contingent upon his continuing participation in bi-weekly counseling.
¶4 The court set a one-day trial for January 31, 2019, which was
continued pending the resolution of a criminal case against Father. The
court granted Father two hours of supervised parenting time per week with
additional parenting time “to be determined . . . based on the [parenting
time] supervisor’s reports and any agreements made between [the] Parties”
and directed counsel “to report . . . after disposition of the criminal case.”
¶5 Father again petitioned to modify the temporary orders in the
interim, alleging that Mother had engaged in “incessant and illegal
meddling” with his parenting time. Mother, meanwhile, moved for partial
summary judgment on two issues: (1) that the marriage was irretrievably
broken; and (2) that the marital home located in Black Canyon City (the
“Melanie Lane House”) was her sole and separate property.
¶6 On April 19, 2019, the court granted Father “unsupervised
parenting time . . . on Monday and Wednesday each week with one child
each day for 2 hours . . . plus one 20-minute telephone call with the child
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who did not have parenting time that week.” It later set a June 18, 2019
evidentiary hearing on Mother’s partial summary judgment motion. Father
reached a plea agreement in his criminal case before that hearing.
¶7 After hearing testimony from both parties at the June 18, 2019
hearing, the court denied Mother’s motion for summary judgment without
prejudice. It set a trial for July 9, 2019, to “address parenting time, claim to
the house, child support and legal decision making,” but noted Mother’s
request that trial be continued so her counsel could be present. The court
ordered Mother to file a motion to continue identifying dates that her
counsel would be available. She did not do so, but Father did, indicating
that his counsel had spoken with Mother regarding potential August 2019
trial dates.
¶8 Approximately one week later, the court issued a lengthy
order to address “several motions under advisement” (the “July 3, 2019
Orders”). Stating that it had “conducted several hearings with the parties
in the interim” and “reviewed and considered all of the pleadings filed by
each party, the arguments by or on behalf of each party, and all exhibits,”
the court granted Mother’s partial summary judgment motion. It also
denied several motions filed by Father, including:
(1) two motions to compel disclosure of certain medical and
school records;
(2) a motion for sanctions for Mother’s alleged interference
with his parenting time;
(3) a motion requesting a power of attorney so that he could
“address credit issues”;
(4) a motion requesting control of the children’s finances; and
(5) a motion seeking to hold Mother in contempt for violating
the preliminary injunction entered at the beginning of the
case.
¶9 The court then addressed legal decision-making authority
and parenting time, finding that “unsupervised parenting time for [Father]
would not [be] in the best interests of the children at the present” and
ordered that Mother would “continue to have sole legal decision-making
responsibility” and be the sole residential parent. It further stated that
Father’s supervised parenting time for the twelve months after the children
started the school year would be established “under terms, conditions and
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limitations to be solely determined by [Mother] and approved by the
Court.”
¶10 The court also awarded Mother $12,606 in back child support,
finding that Father “has never paid any child support” and had
intentionally withheld child support since filing his original petition “to
force [Mother] to withdraw her claims.” The court also entered a separate
$10,000 judgment against Father based on its finding that he “forced
[Mother] under the threat of having him take the children to Pakistan to
apply for credit cards and charge $5,000 on each of two cards so that [he]
could repay his mother an alleged loan.” The court also stated that it would
award Mother attorneys’ fees because she was the successful party. It then
vacated the July 9, 2019 trial, finding that “the rulings made in this Order
resolve all remaining issues that would otherwise have to be resolved
through trial,” but invited either party to file a pretrial statement if he or
she believed any issues remained unresolved.
¶11 Father did not file a pretrial statement but did move to alter
or amend the July 3, 2019 Orders, contending that the court’s decision to
vacate trial deprived him of “an opportunity to back his claims as well as
cross-examine [Mother].” The court denied that motion. It then entered a
decree on October 2, 2019, formalizing the July 3, 2019 Orders and awarding
Mother monthly child support (the “Decree”). That same day, it also issued
an “Amended Order Re Child Support, Parenting Time and Other Matters”
that largely mirrored the July 3, 2019 Orders (the “October 2, 2019 Orders”).
¶12 Five days later, the court held a hearing at which the parties
again reached agreement “as to supervised parenting time for [Father]” (the
“October 7, 2019 Orders”). The court granted Father two hours per week
of supervised parenting time and one supervised thirty-minute telephone
contact with the children each week.
¶13 Father filed a notice of appeal challenging the October 2, 2019
Orders and the Decree. Approximately one month later, Father filed an
emergency motion alleging that his visits with the children had stopped
and again seeking unsupervised parenting time. On December 3, 2019, the
court denied Father’s motion and vacated the October 7, 2019 Orders,
directing the parties to “follow the Court’s orders issued October 2, 2019”
(the “December 3, 2019 Order”).
¶14 Approximately one month later, this court stayed Father’s
appeal because neither the October 2, 2019 Orders nor the Decree were
certified as final under Arizona Rule of Family Law Procedure (“Rule”)
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78(c). Father then moved for entry of a certified order and filed a separate
“Motion to Correct” the December 3, 2019 Order, arguing, among other
things, that the October 2, 2019 Orders did not fully resolve parenting time.
He also moved this court to direct the superior court “to hold an evidentiary
hearing to uphold [his] Parenting Time.” We revested jurisdiction in the
superior court “to consider the Motion to Correct . . . and/or to resolve the
parenting time matter, and to enter a Rule 78(c) order.”
¶15 Father then filed multiple motions asking the superior court
to vacate or reconsider the parenting time schedule, enter sanctions against
Mother for interfering with his parenting time, and reinstate the October 7,
2019 Orders. The court set a March 5, 2020 evidentiary hearing that Father
did not attend. The court reset the hearing for June 18, 2020.
¶16 After the hearing, the court issued new legal decision-making
authority and parenting time findings (the “July 23, 2020 Orders”). The
court awarded Mother sole legal decision-making authority, granted Father
up to three hours of supervised parenting time on Sundays, and certified
its orders under Rule 78(c). Father filed a new notice of appeal. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-
2101(A)(1).
DISCUSSION
I. The Court Erred In Vacating the July 9, 2019 Trial.
¶17 Father contends the court’s decision to vacate the July 9, 2019
trial violated his due process rights because the July 3, 2019 Orders were
entered “without the benefit of [a] hearing, evidence, testimony or cross-
examination.” Generally, procedural due process requires an opportunity
to be heard at a meaningful time and in a meaningful manner. Comeau v.
Ariz. State Bd. of Dental Exam’rs, 196 Ariz. 102, 106-07, ¶ 20 (App. 1999). We
review whether the court afforded due process de novo. See Jeff D. v. Dep’t
of Child Safety, 239 Ariz. 205, 207, ¶ 6 (App. 2016).
¶18 The July 3, 2019 Orders state that the court had “conducted
several hearings with the parties in the interim” and had “reviewed all of
the pleadings and testimony received from the parties in this matter.” And
Father’s characterization of the June 18, 2019 hearing as a “pre-trial
hearing” appears to be inaccurate, as the court heard testimony from both
parties and a third witness Mother listed in the parties’ joint pretrial
statement. Father did not provide a transcript of this hearing. We therefore
must assume the evidence presented would support the superior court’s
findings and conclusions. Hefner v. Hefner, 248 Ariz. 54, 60, ¶ 19 (App. 2019).
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¶19 But the court’s post-hearing minute entry directing “both
parties [to] submit to the Court a proposed parenting time plan” and stating
that it still intended to conduct a trial “that will address parenting time,
claim to the house, child support and legal decision making” suggests the
evidence presented as of June 18, 2019, did not pertain to, or at least did not
completely resolve, those issues. Furthermore, the court directed the
parties to file “exhibits relating to the Motion for Summary Judgment” but
not exhibits relating to parenting time, child support, or legal decision-
making authority. As such, nothing in the record suggests the court gave
Father reasonable notice that it would decide any issues beyond those
raised in Mother’s partial summary judgment motion based on the
evidence presented as of June 18, 2019. See, e.g., Huck v. Haralambie, 122
Ariz. 63, 65 (1979) (“An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to
present their objections.”) (quoting Mullane v. Cent. Hanover Bank & Tr. Co.,
339 U.S. 306, 314 (1950)).
¶20 This does not conclude our review, as “[d]ue process errors
require reversal only if a party is thereby prejudiced.” Volk v. Brame, 235
Ariz. 462, 470, ¶ 26 (App. 2014). Prejudice is apparent here because the
court entered orders on legal decision-making authority, parenting time,
and child support while simultaneously vacating the trial at which the
parties were to present evidence on those issues. And while the July 3, 2019
Orders were not final, the court largely incorporated them into the October
2, 2019 Orders and the Decree without conducting any evidentiary hearings
in the interim.
¶21 We find there was sufficient evidence that Father’s due
process rights were violated. Further, Mother failed to file an answering
brief, which we deem a confession of reversible error as to this issue only.
Beck v. Beck, 9 Ariz. App. 77, 78 (1969); see also McDowell Mountain Ranch
Cmty. Ass’n v. Simons, 216 Ariz. 266, 269, ¶ 13 (App. 2007). The court
therefore erred in entering these orders without conducting the scheduled
trial.
II. The Court Did Not Err in Its Rulings on Mother’s Partial Summary
Judgment Motion or Father’s Various Motions or in Awarding
Attorneys’ Fees.
¶22 Not all of the July 3, 2019 Orders raise due process concerns.
Father also challenges the court’s rulings on some of his then-pending
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motions, each of which was fully briefed. We address those challenges
below as necessary.
A. Summary Judgment Re: The Melanie Lane House
¶23 Father challenges the court’s ruling granting partial summary
judgment to Mother regarding the Melanie Lane House. We review that
ruling de novo. Palmer v. Palmer, 217 Ariz. 67, 69, ¶ 7 (App. 2007). Summary
judgment should be granted only “if the facts produced in support of [a]
claim . . . have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim.” Orme School v. Reeves, 166 Ariz.
301, 309 (1990).
¶24 Father contends on appeal without citing any authority that
“social security disability/retirement payments are considered to be
community property during the marriage.” This is incorrect. See McNeel v.
McNeel, 169 Ariz. 213, 214 (App. 1991) (“Disability benefits are the separate
property of the spouse suffering the disability.”); Luna v. Luna, 125 Ariz.
120, 123 (App. 1979) (“[T]he Social Security disability benefits received by
petitioner are his separate property and no offsetting award can be made to
respondent/appellee.”). Moreover, he presented no evidence to refute
Mother’s evidence that she was the sole owner of the Melanie Lane House,
that she purchased it before the parties were married, and that she made
the mortgage payments from her Social Security disability benefits, which
she kept in a separate account.
¶25 Father also presented no evidence to support his contentions
that Mother “agreed to add [him] to the deed . . . as an equal and co-owner
of the property” or that the parties commingled community funds with
Mother’s disability benefits. He also presented no evidence to support his
“vehement” denial that Mother used her disability benefits to pay down the
mortgage. On this record, we cannot say the court erred in granting
summary judgment.
B. Denial of Father’s Motions for Access to Medical and School
Records
¶26 Father also challenges the court’s denial of his motions
seeking access to the children’s medical and school records. The court
initially granted him access to the children’s school records in the July 3,
2019 Orders but revoked that access in the October 2, 2019 Orders. It also
denied Father’s medical records requests in the October 2, 2019 Orders,
finding that he did not seek the records in good faith because “there is no
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evidence that the minor children have suffered injuries or trauma while in
[Mother’s] care, and the evidence is in fact to the contrary.” The court
further found that Father was “likely to use any information he can obtain
to support his attacks of [Mother].”
¶27 Father does not challenge these findings on appeal, nor does
he develop his arguments beyond quoting a portion of Arizona’s Parents’
Bill of Rights. See A.R.S. § 1-602(A). He therefore has waived them. Sholes
v. Fernando, 228 Ariz. 455, 461, ¶ 16 (App. 2011).
C. Denial of Father’s Motion Alleging Violations of the
Preliminary Injunction
¶28 Father also challenges the court’s denial of his motion for
contempt and for sanctions for Mother’s alleged violations of the
preliminary injunction.
¶29 The alleged violations he presented to the superior court
related to the Melanie Lane House, which we address above. Father adds
new allegations on appeal that Mother “removed [him] from the auto
insurance, medical insurance as well as sell his personal property in yard
sales,” but cites no record support. He therefore has waived these
arguments as well. Sholes, 228 Ariz. at 461, ¶ 16.
D. Attorneys’ Fee Award to Mother
¶30 Father also challenges the court’s attorneys’ fee award to
Mother. We address the award separately from the due process issues
discussed above because the court may consider awarding fees “from time
to time.” A.R.S. § 25-324(A). We review the award for an abuse of
discretion. Murray v. Murray, 239 Ariz. 174, 179, ¶ 20 (App. 2016).
¶31 Father did not respond to Mother’s fee application. He cannot
raise new objections for the first time on appeal. See K.B. v. State Farm Fire
& Cas. Co., 189 Ariz. 263, 268 (App. 1997). We note, however, that the court
awarded Mother fees because she was “the successful party.” Fee recovery
under § 25-324(A) does not hinge on a party’s success, but rather on
consideration of both parties’ financial resources and the reasonableness of
their positions. A.R.S. § 25-324(A); Quijada v. Quijada, 246 Ariz. 217, 222,
¶ 15 (App. 2019).
¶32 Nonetheless, the court made multiple findings on Father’s
unreasonable positions, stating that he had “acted in bad faith at almost
every stage in these proceedings,” “intentionally withheld child support to
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force [Mother] to withdraw her claims,” and filed multiple motions that
were “not well taken, not supported by the facts or the law, and not made
in good faith.” The court also found Mother’s decision to retain counsel
was “reasonable and necessary due to [Father’s] actions.” We therefore
reject Father’s bald contention that the court did not “determine if his
positions were reasonable.”
¶33 Father also contends the court ignored that he was
“destitute.” The court considered and discredited his claim of poverty.
¶34 Father also contends the court did not find that he filed his
petition in bad faith, without factual or legal grounds, or for an improper
purpose under § 25-324(B). The court need not make § 25-324(B) findings
to award fees under § 25-324(A). See Cruz v. Garcia, 240 Ariz. 233, 238, ¶ 19
(App. 2016) (treating subsections (A) and (B) as separate matters). For these
reasons, we affirm the fee award.
E. Father Does Not Challenge the July 23, 2020 Parenting Time
Orders
¶35 As noted above, the court entered new parenting time orders
on July 23, 2020, following a separate evidentiary hearing. Father does not
challenge these orders on appeal and did not provide the relevant hearing
transcript. Those orders therefore are affirmed. See Hefner, 248 Ariz. at 60,
¶ 19 (“Because we are unable to review the evidence, we assume it would
support the court’s findings and conclusions.”).
CONCLUSION
¶36 We vacate the Decree, the October 2, 2019 Orders, and the July
3, 2019 Orders on all issues except those affirmed in sections II(A)-(E) of this
decision and remand for an evidentiary hearing. We do not award
attorneys’ fees or costs because Father was not represented by counsel in
this appeal and Mother did not file an answering brief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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