Smith v. Lewis ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
KEITH SMITH, Petitioner/Appellant,
v.
LASHANA LEWIS, Respondent/Appellee.
No. 1 CA-CV 17-0762 FC
FILED 8-9-2018
Appeal from the Superior Court in Maricopa County
No. FC2017-001477
The Honorable Ronee Korbin Steiner, Judge
AFFIRMED
APPEARANCES
Keith Smith, Lynwood, IL
Petitioner/Appellant
Lashana Lewis, Protected Address
Respondent/Appellee
SMITH v. LEWIS
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge David D. Weinzweig
joined.
H O W E, Judge:
¶1 Keith Smith (“Father”) appeals various provisions of the
family court’s decree on his petition to establish legal decision-making and
parenting time. He also appeals the family court’s attorneys’ fees and costs
award to Lashana Lewis (“Mother”). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Father and Mother are the biological parents of K.S. born in
March 2014. After living together in Illinois, Mother moved to Arizona with
K.S. in summer 2015. Father led Mother to believe that he would also move
to Arizona but instead remained in Illinois. After moving to Arizona, K.S.
visited Father twice in Illinois and Father came to visit K.S. in Arizona in
March 2016.
¶3 In February 2017, Father petitioned to establish legal decision-
making and parenting time. Mother responded to Father’s petition,
requesting sole legal decision-making authority because of Father’s alleged
domestic violence issues and the current order of protection in effect against
Father. Mother also requested that Father pay child support.
¶4 At a status conference, the court entered temporary orders
requiring that (1) Mother and Father share legal decision-making, (2) Father
undergo a domestic violence assessment, and (3) a court advisor be
appointed. Father participated in the domestic violence assessment and the
counselor recommended that Father attend twelve individual counseling
sessions “due to the nature of the accusations, the admitted verbally
abusive behaviors, the need to gain communication skills . . . and the ability
to address any concerns that [Mother] has.” The Court-Appointed Advisor
(“CAA”) interviewed Father and Mother and found that many of Mother’s
allegations against Father were unsubstantiated but that “Father’s
communication with Mother has at times been hostile, aggressive, and
threatening.”
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SMITH v. LEWIS
Decision of the Court
¶5 In October 2017, the court held an evidentiary hearing on
Father’s petition. In its under advisement ruling, the court awarded Mother
and Father joint legal decision-making. The court found that Father had
committed domestic violence against Mother and others and that he had
“engaged in a pattern of behavior for which a court could (and, in fact did)
issue an ex parte order to protect Mother.” As such, the court ordered that
Father participate in twelve individual counseling sessions.
Notwithstanding the domestic violence finding, the court ordered a
parenting time schedule that would ensure that Father would have
substantial, frequent, meaningful, and continuing contact with K.S. The
court then prepared a child support worksheet and ordered Father to pay
$734 per month effective October 2017 and $752 per month in past support
from August 2015 through September 2017. Finally, the court granted
Mother’s request for half her attorneys’ fees under A.R.S. § 25–324. The
court found that no financial disparity between the parties existed but that
Father acted unreasonably in the litigation by (1) failing to file a pretrial
statement, (2) failing to produce exhibits before trial, (3) refusing to provide
discovery despite reasonable requests, and (4) lying to Mother about certain
items of discovery.
¶6 Father moved for reconsideration arguing that the court erred
in calculating its child support award because it did not consider Father’s
child support obligations for his other children. The court denied Father’s
motion, ruling that Father failed to provide evidence contradicting the child
support worksheet the court used to calculate child support. During this
time, Mother’s counsel submitted her attorneys’ fees and costs affidavit.
After the time for objection passed, the court awarded Mother $3,635.84 in
attorneys’ fees and costs. Father timely appealed.
DISCUSSION
¶7 Father raises three issues in his opening brief.1 Father
contends that the court erred by requiring him to undergo twelve
individual counseling sessions for his domestic violence “when there were
no domestic violence findings” between the parties. That is not so. The
family court specifically found that Father had committed domestic
violence against Mother and others and that Mother had an order of
1 As a preliminary matter, Father’s opening brief fails to comply with
Arizona Rule of Civil Appellate Procedure (“ARCAP”) 13(a). The opening
brief does not reference the record or cite to any legal authority. See ARCAP
13(a)(7) (appellant’s opening brief must contain citations of legal authorities
and appropriate references to the record).
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SMITH v. LEWIS
Decision of the Court
protection against Father. Because Father failed to provide this Court with
the transcript of the evidentiary hearing, we assume the evidence supports
the family court’s findings. See Kohler v. Kohler, 211 Ariz. 106, 108 n.1 ¶ 8
(App. 2005). Additionally, although the CAA reported that many of
Mother’s allegations against Father were unsubstantiated, she noted that at
times, Father’s communications with Mother were hostile, aggressive, and
threatening. Therefore, Father’s argument is without merit.
¶8 Father next argues that the family court erred in calculating
the child support award because it failed to consider his other child support
obligations. “Generally, we review child support awards for abuse of
discretion.” Engel v. Landman, 221 Ariz. 504, 510 ¶ 21 (App. 2009). Father
raised this issue with the family court in his motion for reconsideration and
the court found that Father had failed to provide any evidence
contradicting the financial information contained in the child support
worksheet it used. Because we assume the transcript supports the family
court’s ruling and because Father did not present any contrary evidence,
the trial court did not abuse its discretion.
¶9 Father argues for the first time on appeal that the court
awarded attorneys’ fees due to his failure to object to Mother’s affidavit and
that he failed to object because he never received the affidavit. Seven days
after the court awarded Mother attorneys’ fees, Father submitted to the trial
court a scanned copy of an envelope from Mother’s counsel’s law firm that
stated, “return to sender,” as proof that he did not receive the affidavit in
time to object. The next day, Father appealed to this Court. Because Father
has not first raised this issue with the family court, we will not consider it.
See Harris v. Cochise Health Sys., 215 Ariz. 344, 349 ¶ 17 (App. 2007)
(“Generally, an appellate court will not consider issues not raised in the trial
court.”).
CONCLUSION
¶10 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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