Johnson v. Provoyeur , 426 P.3d 1218 ( 2018 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
REBECCA L. JOHNSON, Petitioner/Appellant,
v.
JAMES PROVOYEUR, Respondent/Appellee.
No. 1 CA-CV 17-0276 FC
FILED 7-26-18
Appeal from the Superior Court in Maricopa County
No. FC2013-000701
The Honorable Michael J. Herrod, Judge
AFFIRMED
COUNSEL
Gillespie Shields Durrant & Goldfarb, Phoenix
By DeeAn Gillespie Strub, Mark A. Shields
Counsel for Petitioner/Appellant
Mushkatel, Robbins & Becker, PLLC, Sun City
By Zachary Mushkatel
Counsel for Respondent/Appellee
JOHNSON v. PROVOYEUR
Opinion of the Court
OPINION
Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.
C A M P B E L L, Judge:
¶1 Petitioner Rebecca L. Johnson (“Mother”) appeals the
superior court’s order denying her petition to modify the primary physical
residence of the parties’ children. Mother argues the court abused its
discretion by precluding her expert’s supplemental report due to her failure
to timely disclose the report pursuant to the scheduling order and the Rules
of Family Law Procedure. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and respondent James Provoyeur (“Father”) married
and had two children in Rhode Island. In 2012, Mother moved to Arizona
with the children. After Mother arrived, she learned she was pregnant with
the parties’ third child. After Mother gave birth in June 2013, she filed for
dissolution in Arizona.
¶3 The parties conceptually agreed to a parenting plan under
which the children would live with the primary residential parent during
the school year and with the other parent during summer and alternating
school breaks. Mother and Father each sought appointment as the primary
residential parent. After an evidentiary hearing in July 2014, the superior
court found it was in the children’s best interests for Father to be the
primary residential parent and for the children to reside principally in
Rhode Island.1
¶4 In April 2016, Mother filed a petition to modify the children’s
primary physical residence, asserting Father had failed to fulfill his
responsibility as the primary residential parent and, as a result, the children
1 Mother challenged the superior court’s ruling on appeal and, after a
remand for further proceedings, this court affirmed the decision. Johnson v.
Provoyeur, 1 CA-CV 15-0086 FC, 2016 WL 359444 (Ariz. App. Jan. 28, 2016)
(mem. decision); Johnson v. Provoyeur, 1 CA-CV 16-0403 FC, 2017 WL
1506569 (Ariz. App. Apr. 27, 2017) (mem. decision).
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JOHNSON v. PROVOYEUR
Opinion of the Court
were suffering in his care. The superior court scheduled an evidentiary
hearing for November 21, 2016, and ordered the parties to exchange
updated disclosure statements, including all documents and exhibits, at
least 60 days before the hearing. At the parties’ request, the court
implemented a scheduling order requiring disclosure of experts’ identities
and opinions on or before October 14, 2016, and completion of all discovery
(except expert depositions) by November 1, 2016. Mother disclosed the
report of her expert, Carol Mellen, Ph.D., on October 21, 2016 (“Original
Report”)—a week after the court-ordered deadline.
¶5 A few days before the scheduled evidentiary hearing, the
court granted Father’s motion to continue, resetting the hearing for March
6, 2017. The request for a continuance was necessitated by Mother’s
untimely disclosure of witnesses and voluminous documents, again after
the court-imposed deadline. When granting the continuance, the court
reaffirmed its earlier discovery and disclosure order requiring the parties
to make all disclosures at least 60 days before the hearing.
¶6 On February 21, 2017, Mother again violated the court’s
scheduling order and the Rules of Family Law Procedure by disclosing
Dr. Mellen’s supplemental report, dated February 13, 2017 (“Supplemental
Report”). The Supplemental Report included summaries of Dr. Mellen’s
December 27 and 30, 2016 interviews and observations of the parties’
children. Mother did not alert the court or Father of the expected report, nor
did she request a continuance based on her late disclosure. On February 27,
2017, Father moved in limine to exclude the Supplemental Report and
Dr. Mellen’s related testimony because Mother had failed to timely disclose
the Supplemental Report. He asserted the presentation of the newly
disclosed information would cause him prejudice. Mother argued the
disclosure was timely and not prejudicial to Father; she also asserted that it
would be an abuse of the court’s discretion to exclude the Supplemental
Report because it contained information regarding the children’s best
interests. The court granted Father’s motion and excluded Dr. Mellen’s
Supplemental Report, but admitted her timely disclosed Original Report
and allowed Dr. Mellen to testify about the opinions therein.
¶7 Ultimately, the court denied Mother’s petition to modify,
determining she failed to show a substantial and continuing change of
circumstances that would justify a change in the children’s primary
physical residence.
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JOHNSON v. PROVOYEUR
Opinion of the Court
DISCUSSION
¶8 The superior court has broad discretion in ruling on
disclosure and discovery matters, and this court will not disturb an
evidentiary ruling absent a clear abuse of discretion and resulting prejudice.
Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14 (App. 2013); Gemstar Ltd. v. Ernst
& Young, 185 Ariz. 493, 506 (1996).
A. Mother Did Not Timely Disclose the Supplemental Report
¶9 Arizona Rule of Family Law Procedure (“Rule”) 49(H)
requires each party to disclose, at least 60 days before trial, all information
regarding any expert witness he or she intends to call at trial. Here, the
superior court also ordered the parties to complete all disclosures at least
60 days before trial. Mother was therefore required to disclose any
supplemental report on or before January 5, 2017, and her February 21, 2017
disclosure of Dr. Mellen’s Supplemental Report was not timely.2
B. The Untimely Disclosure Prejudiced Father
¶10 If a party fails to timely disclose information, he or she “shall
not, unless such failure is harmless, be permitted to use as evidence at trial,
at a hearing, or in support of a motion, the information or the testimony of
a witness not disclosed, except by leave of court for good cause shown.”
Ariz. R. Fam. Law P. 65(C)(1).3
2Mother’s suggestion that the disclosure was timely because it
occurred on the date the parties agreed to exchange trial exhibits is without
merit.
3 If the disclosure occurs less than 30 days prior to trial, the party
must also establish that he or she disclosed the information “as soon as
practicable” after its discovery and obtain leave of court to extend the time
for disclosure. Ariz. R. Fam. Law P. 65(C)(2). Mother received the
Supplemental Report on February 17, 2017, but did not provide it to Father
until almost 5 p.m. on February 21, 2017. She also did not file a motion,
supported by an affidavit, to extend the time for disclosure as required by
Rule 65(C)(2). Instead, Mother contends her opposition to Father’s motion
in limine was, in substance, a request under Rule 65(C)(2) that the superior
court extend the disclosure deadline.
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JOHNSON v. PROVOYEUR
Opinion of the Court
¶11 Mother argues her late disclosure was harmless and caused
no prejudice to Father. We disagree. The untimely disclosure deprived
Father of a fair opportunity to obtain Dr. Mellen’s notes, to schedule and
complete a deposition, or to allow his expert witness the necessary time to
prepare a rebuttal report. Further, we reject Mother’s argument that Father
had ample time to cure this prejudice and his failure to depose Dr. Mellen
in the two weeks before trial constituted “lying in wait” and using the
discovery rules as a “weapon.” Arizona’s disclosure rules do not require an
opposing party to undertake new discovery the week prior to trial to
remediate or avoid prejudice caused by the other party’s disclosure
violation. See Ariz. R. Fam. Law P. 65(C)(1) (requiring the party making a
late disclosure to seek “leave of court for good cause shown” to use the
evidence at trial).4 Additionally, Mother was aware the Supplemental
Report was forthcoming and neither gave Father advance warning nor
sought leave from the court to disclose the report when it became available.
¶12 Moreover, we discern no dilatory conduct by Father. He filed
his motion in limine to exclude the Supplemental Report four business days
after he received it. The circumstances of this case are therefore
distinguishable from the cases Mother cites. See Allstate Ins. Co. v. O’Toole,
182 Ariz. 284, 258 (1995) (defendant, aware that unrepresented plaintiffs
had failed to serve their disclosure statement, did nothing to remind
plaintiffs of their obligations and deliberately did not continue with other
discovery); Bryan v. Riddel, 178 Ariz. 472, 476-77 (1994) (plaintiff failed to
make adequate disclosures of expected witness testimony, but defendant
had obtained the relevant information via other discovery methods).
C. Mother Did Not Establish Good Cause for Her Late
Disclosure
¶13 Mother asserted in the superior court that her late disclosure
occurred because of illnesses, staff turnover and absences at her counsel’s
office in February 2017, and Mother’s inability to pay Dr. Mellen to prepare
the Supplemental Report until February 2017. Even accepting Mother’s
explanation, Mother was aware a report would be forthcoming but failed
to either request a continuance or alert anyone to the impending disclosure
or the issues she encountered in producing the document. Accordingly, the
superior court rejected her argument and excluded the report based on
4Mother’s argument that court-appointed experts routinely provide
their reports on the eve of trial does not persuade us that it was Father’s
burden to cure Mother’s discovery violation.
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JOHNSON v. PROVOYEUR
Opinion of the Court
Mother’s disclosure violation. We find no abuse of discretion. See Marquez
at 441, ¶ 14 (trial court has broad discretion when ruling on disclosure
matters); Zimmerman v. Shakman, 204 Ariz. 231, 236, ¶ 16 (App. 2003) (“[I]f
a trial is set and imminent, the possibility of prejudice increases. In such a
case the trial judge possesses considerable latitude in determining whether
good cause has been shown for late disclosure. If there is no good cause,
barring the introduction of evidence not previously disclosed may be a
reasonable sanction.”).5
D. The Court Was Not Required to Admit the Supplemental
Report Simply Because It Concerned the Children’s Best
Interests
¶14 Mother—citing Hays v. Gama, 205 Ariz. 99 (2003)—argues that
despite her disclosure violation, the superior court improperly excluded the
Supplemental Report because “a trial court abuses its discretion when it
excludes evidence that impacts a child’s best interests.” Mother asserts that
Hays stands for the proposition that a court commits reversible error by
precluding any information regarding the child’s best interests.
¶15 Hays is distinguishable from this case. In Hays, the superior
court precluded evidence from a child’s therapeutic counselor in a
contested child custody proceeding as a contempt sanction because the
child’s mother had violated certain court orders. Id. at 101, ¶¶ 9-10. The
Arizona Supreme Court vacated the sanctions, explaining the discovery
rules did not authorize the exclusion because “[n]either the superior court
nor any party ha[d] identified any discovery order that Mother failed to
obey,” and thus, “the sanctions were imposed pursuant to the court’s
inherent contempt power.” Id. at 101-02, ¶¶ 14-16. The court further held
that excluding the evidence “effectively preclude[d] potentially significant
information from being considered in the custody determination” and
5 We do not consider Mother’s argument, first raised in her reply
brief, that good cause existed for her noncompliance with Rule 49(H) based
on the Arizona Supreme Court’s interpretation of “good cause” under
analogous Arizona Rule of Civil Procedure 26.1 in O’Toole, 182 Ariz. at 257-
58. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13 (App. 2000)
(failure to raise an issue in the trial court generally constitutes waiver on
appeal); Romero v. Sw. Ambulance, 211 Ariz. 200, 204 n.3, ¶ 7 (App. 2005)
(issues first raised in reply brief are waived).
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JOHNSON v. PROVOYEUR
Opinion of the Court
impacted the superior court’s ability to consider the child’s best interests. Id.
at 103-04, ¶ 22.
¶16 In contrast to Hays, here, Mother failed to comply with Rule
49(H) and failed to show good cause for her non-compliance. Arizona Rule
of Family Law Procedure 65(C) therefore authorized the superior court to
exclude the untimely disclosed Supplemental Report.6 Further, unlike the
evidentiary sanctions in Hays, the superior court did not exclude any
evidence that had an “especially significant effect” on its ability to
determine the child’s best interests. The court admitted Dr. Mellen’s
Original Report, and she testified that the children had adjusted poorly to
Father’s home, their relationship with Mother had been disrupted, and
Mother was more “attuned” to the children’s needs. Mother argues the
Supplemental Report contained new information critical to her case. In
particular, she cites Dr. Mellen’s summaries of her interviews and
observations of the children and her opinions that the children were
suffering from their removal from Mother’s primary care at young ages.
She also criticized Father’s expert’s methodology and opinion that the
6 Mother asserts that Arizona courts have applied Hays even outside
the context of contempt sanctions. The cases she cites, however, did not
concern a trial court’s exclusion of untimely disclosed evidence. See Dep’t of
Child Safety v. Beene, 235 Ariz. 300, 304, ¶ 9 (App. 2014) (noting a child’s best
interests are paramount in dependency and severance proceedings and
citing Hays for the proposition that a child’s best interests are paramount in
a custody determination); Ariz. Dep’t of Econ. Sec. v. Lee ex rel. Cty. of
Maricopa, 228 Ariz. 150, 155, ¶ 23 (App. 2011) (holding superior court erred
by ordering child returned to mother as a sanction for ADES’ failure to
follow statutory procedure and citing Hays for the proposition that a court
must consider the child’s best interests in deciding whether to impose
contempt sanctions in a custody case); Alvarado v. Thomson, 240 Ariz. 12,
15-17, ¶¶ 17, 21 (App. 2016) (holding superior court properly set aside a
fraudulent acknowledgement of paternity that was used to avoid the
judicial best-interests determination required for an adoption and citing
Hays for the proposition that a child’s best interests are paramount in a
custody determination); Navajo Nation v. Ariz. Dep’t of Econ. Sec., 230 Ariz.
339, 350, ¶¶ 44-48 (App. 2012) (rejecting argument that the trial court
considered the Navajo Nation’s alleged lack of diligence as a factor when
deciding child’s placement after severance proceedings and citing Hays for
the proposition that “the conduct of one of the parties in litigation is not to
be sanctioned in a manner that will affect the best interests determination
for the child”).
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JOHNSON v. PROVOYEUR
Opinion of the Court
children were well-adjusted to Father’s home. Dr. Mellen’s Original Report
contained similar concerns regarding the children’s poor adjustment to
being separated from Mother and her conclusion that Father was not
attuned to the children’s needs.
¶17 Nevertheless, the court permitted Dr. Mellen to testify about
those subjects contained in the Original Report. Further, with respect to the
child interviews in which the middle child allegedly expressed a desire to
live with Mother and the oldest child allegedly expressed frustration about
the quality of her education in Rhode Island, the court found, as part of its
best interests analysis, the children were too young for it to give weight to
their preferences.7 This testimony, coupled with the parties’ testimony and
other evidence concerning the children’s adjustment to Father’s home, gave
the court sufficient information to assess the children’s best interests.
Accordingly, as suggested by Mother, the holding in Hays did not require
the superior court to admit the Supplemental Report despite Mother’s
untimely disclosure.
¶18 Similarly, Mother’s reliance on Reid v. Reid, 222 Ariz. 204(App. 2009), is misplaced. In that case, the parties received the results of a
court-ordered custody evaluation just 16 days before trial. Id. at 206, ¶ 7.
Eight days before the hearing, the mother disclosed an expert witness she
intended to call to rebut the custody evaluation. Id. The trial court permitted
the testimony over the father’s objection. Id. This court ruled that, under the
circumstances (where the evidence was not compelling but had some
relevance, the father chose not to seek a continuance to depose the expert,
and the timing of the late disclosure was not the mother’s fault), the trial
court had not abused its discretion by allowing the mother’s expert to
testify. Id. at 207, ¶ 10. Reid did not hold that the trial court would have
abused its discretion if it had excluded the evidence under those, or similar,
circumstances. See also Nold v. Nold, 232 Ariz. 270, 272-73, ¶¶ 9-10 (App.
2013) (declining to apply the discretionary doctrine of waiver to Father’s
argument challenging parenting time ruling, which must be based on the
children’s best interests).
7 Mother claims the exclusion of the Supplemental Report prejudiced
her because the superior court relied on the absence of corroborating
evidence to discredit her. The court’s ruling does not indicate that it
discredited or disbelieved Mother’s statement that the children were
distressed to leave her.
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JOHNSON v. PROVOYEUR
Opinion of the Court
¶19 Further, this court’s recent opinion in James A. v. Dep’t of Child
Safety, does not alter our analysis. 1 CA-JV 17-0195, 2018 WL 1542028 (Ariz.
App. March 29, 2018). In that case, we held that the juvenile court abused
its discretion by precluding a potentially outcome-determinative bonding
assessment report disclosed by the father two days late. Id. at *2-3,
¶¶ 10-13. The juvenile court had reason to know the report could have a
significant impact on its determination of the child’s best interests, and the
father possessed no other evidence that could substitute for the report. Id.
at *3, ¶¶ 11-12. Moreover, this court noted that the father’s failure to
complete the bonding assessment before the deadline was not the product
of bad faith, but rather because the father resided in a mountainous region
of northern Nevada and had been unable to get to Arizona due to severe
winter weather and concerns over losing his job. Id. at *2, ¶ 10. Additionally,
all parties and the court were aware the report was forthcoming, as the
court had specifically ordered the father to disclose the results of the
bonding assessment and had made scheduling adjustments to facilitate its
completion. Id. at *1, ¶¶ 3-4.
¶20 In contrast, here, the superior court did not exclude any
evidence that had an “especially significant effect” on its ability to
determine the children’s best interests and admitted other relevant
evidence supporting Mother’s claims. Supra ¶ 16. Furthermore, Mother did
not establish good cause for her late disclosure, supra ¶ 13, and she failed to
either request a continuance or even alert the superior court to her
purported difficulties in producing the Supplemental Report. While a court
must generally hear any competent and potentially significant evidence
pertaining to the best interests of a child, id. at *2, ¶ 8 (citing Hays, 205 Ariz.
at 103-04, ¶¶ 21-23), a parent may not rely on Hays as a means to flout
multiple disclosure deadlines without good cause, as Mother did here.
¶21 Accordingly, the superior court did not abuse its discretion
by excluding the Supplemental Report.
CONCLUSION
¶22 For the foregoing reasons, we affirm.
¶23 Both parties request an award of attorney fees on appeal
pursuant to Arizona Revised Statues section 25-324 based on
their respective financial positions and the alleged unreasonableness of the
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JOHNSON v. PROVOYEUR
Opinion of the Court
other’s conduct. In our discretion, we grant Father reasonable attorney fees
and costs upon his compliance with Arizona Rule of Civil Appellate
Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: JT
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