Lewis v. Lynch ( 2016 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
SHIRLEY ANNE LEWIS,
Petitioner/Appellee,
v.
MARTIN DANIEL LYNCH,
Respondent/Appellant.
No. 1 CA-CV 15-0241 FC
FILED 5-31-2016
Appeal from the Superior Court in Maricopa County
No. FC 2011-002533
The Honorable Jay R. Adleman, Judge
AFFIRMED
COUNSEL
Martin Daniel Lynch, Tempe
Counsel for Respondent/Appellant
LEWIS v. LYNCH
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
O R O Z C O, Judge:
¶1 Martin Daniel Lynch (Father) appeals a family court’s order
affirming a parenting coordinator’s recommendation, and allocating 100%
of the costs of the parenting coordinator’s fees to Father.
¶2 David Weinstock, Ph.D., was assigned by family court as a
parenting coordinator (PC) for Shirley Anne Lewis (Mother) and Father in
April 2013. As part of his appointment as PC, the court authorized Dr.
Weinstock to recommend an alternate allocation of PC fees when one of the
parties used the services unnecessarily, acted in bad faith or failed to
comply with court orders. In January 2014, Dr. Weinstock filed his report
and recommended that the family court consider a reallocation of fees for
PC services based on Father’s conduct. In that same report, Dr. Weinstock
requested he be removed as PC. Mother requested affirmation of Dr.
Weinstock’s recommendations, and asked the court to allocate all fees from
Dr. Weinstock and any future PC to Father. The court ordered removal of
Dr. Weinstock as PC, and allocated all PC costs “identified in the January 2,
2014 report” to Father.
¶3 Father timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (A.R.S.) sections 12–120.21.A.1 and -2101.A (West 2016).1
DISCUSSION
¶4 Father argues the February 20, 2014 order confirming the PC
report should be set aside because the report was fraudulent. He makes no
argument that the court erred in denying the “no less than (7) motions
largely related to the parenting coordinator” in its February 20, 2015 order.
1 We cite to the current version of applicable statutes absent any
change material to our decision.
2
LEWIS v. LYNCH
Decision of the Court
¶5 We review the court’s reconsideration of the February 20,
2014 ruling for an abuse of discretion. See Davis v. Davis, 195 Ariz. 158, 162,
¶ 14 (App. 1999) (citation omitted). Pursuant to A.R.S. § 25-406.B costs
associated with a court-ordered PC should be allocated “based on the
financial circumstances of both parties.” At the time of its decision, Rule
74.D, Arizona Rules of Family Law Procedure, provided the family court
discretion to “determine the allocation of fees between the parties.”2 An
award of fees is within the family court’s discretion and will not be
disturbed absent an abuse of that discretion. In re Marriage of Berger, 140
Ariz. 156, 167 (App. 1983).
¶6 In September 2012, Father filed an “urgent request” that the
family court order appointment of a PC. The court granted Father’s request
in October 2012, requiring Mother and Father to each pay half of the PC’s
costs. After the first PC resigned as a result of the voluminous emails from
the parties, Dr. Weinstock was appointed. During his appointment as PC,
Dr. Weinstock submitted reports and recommendations based on his
interactions with Mother and Father. In his final submission to the court as
PC, Dr. Weinstock described Father as disrespectful and threatening,
reporting that he frequently violated court ordered email communication
rules. In support of his opinions, Dr. Weinstock attached several emails
from Father. Finally, Dr. Weinstock recommended a reallocation of PC fees,
2 Rule 74 has since been amended to provide clearer language relating
to the court’s authority to allocate costs related to PC’s. Rule 74.F.3 now
provides that:
Where one parent is reasonably believed to be using
parenting coordinator services excessively or to harass the
other parent, a parenting coordinator or a parent can
recommend, as a sanction, an adjustment to the allocation of
the parenting coordinator’s fees. Any recommendation must
be filed with the court in writing and must explain in detail
the reason for the recommended fee reallocation. The
recommendation must be provided to each parent or counsel,
if represented, if filed by the parenting coordinator, and if
filed by a parent, to the parenting coordinator and the other
parent or counsel, if represented. The non-recommending
parent may file an objection to the recommendation within 20
days after the date the written recommendation is filed. If an
objection is filed, the court must hold a hearing before
reallocating fees.
3
LEWIS v. LYNCH
Decision of the Court
reporting that “the recent services, such as the email interventions, the
request for the upcoming teleconference, and this correspondence were
necessitated solely by Father’s inappropriate behavior.” In affirming
Dr. Weinstock’s report, the court decided to “reallocate to Father
responsibility for 100% of the fees for the [PC’s] services.”
¶7 Father argues that Dr. Weinstock’s report is fraudulent, but
he does not contend the attached emails are not an accurate representation
of what he sent. Nor does Father argue the family court was without
authority to make such an allocation of fees. Instead, Father provides an
annotated version of Dr. Weinstock’s report, with his hand written analysis
and commentary. Essentially Father is requesting that we reweigh the
evidence, something we do not on appeal. Castro v. Ballesteros-Suarez, 222
Ariz. 48, 52, ¶ 11 (App. 2009).
¶8 The family court acted within its discretion under the rules in
effect at the relevant time to determine the distribution of PC fees. On this
record, we cannot say the court abused its discretion.
CONCLUSION
¶9 We affirm the family court’s allocation of PC fees.
:AA
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