Phillips v. Cabrera ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:
RAFE A. J. PHILLIPS, Petitioner/Appellee,
v.
VANESSA N. CABRERA, Respondent/Appellee,
___________________________________________
MARGARET PHILLIPS, Intervenor/Appellant.
No. 1 CA-CV 17-0390 FC
FILED 3-27-2018
Appeal from the Superior Court in Maricopa County
No. FC2015-005693
The Honorable Ronee F. Korbin Steiner, Judge Pro Tempore
AFFIRMED
COUNSEL
Vanessa N. Cabrera, Gilbert
Respondent/Appellee
Margaret S. Phillips Attorney at Law, Tucson
By Margaret S. Phillips
Counsel for Intervenor/Appellant
PHILLIPS v. CABRERA, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.
J O N E S, Judge:
¶1 Margaret Phillips appeals the family court’s order denying
her petition to establish grandparent visitation and awarding Vanessa
Cabrera (Mother) attorneys’ fees and costs. For the following reasons, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Rafe Phillips (Father) were married in August
2010 and divorced in October 2015.1 At the time of the divorce, the parties’
two minor children (the Children), were ages five and four. In May 2016,
Phillips, the Children’s paternal grandmother and a licensed Arizona
attorney, petitioned for grandparent visitation. Shortly thereafter, Mother
petitioned for a permanent modification of the legal decision-making
authority and parenting time based upon concerns regarding Father’s
mental health, substance abuse, and threats of self-harm and domestic
violence. Father then agreed to suspend his parenting time while he
participated in an inpatient substance abuse rehabilitation program.
¶3 At the May 2017 evidentiary hearing, Phillips admitted she
had not seen the Children since 2011. Phillips testified she tried,
unsuccessfully, to visit the Children during Father’s parenting times but
admitted she had not even spoken with Mother since before the younger
child was born and had not otherwise attempted to establish a relationship
with the Children. Phillips blamed the circumstances on a falling out with
Mother in 2010, long before the divorce decree entered. Although Phillips
claimed to have sent gifts to the Children, most recently in 2013, the
packages were addressed from Father. Phillips did not provide any
1 “We view the facts in the light most favorable to sustaining the
family court’s ruling.” Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 522 n.1,
¶ 1 (App. 2007) (citing Kohler v. Kohler, 211 Ariz. 106, 107, ¶ 2 (App. 2005)).
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PHILLIPS v. CABRERA, et al.
Decision of the Court
admissible evidence to suggest Mother was an unfit parent at the time of
the hearing.
¶4 Mother testified she did not believe contact with Phillips was
in the Children’s best interests; indeed, the Children had no idea who
Phillips was because she had not attempted to establish a relationship with
them. Father’s statements on the issue were inconsistent; his testimony that
Phillips “deserved” grandparent visitation came just four months after he
sent a message to Mother stating otherwise. He did not comment on what
arrangement he believed to be in the Children’s best interests.
¶5 After taking the matter under advisement, the family court
denied Phillips’ request and awarded Mother her attorneys’ fees and costs
incurred in opposing the petition.2 Within its findings, the court found
Mother “significantly more credible than [Phillips]” because Phillips lacked
any personal knowledge regarding the Children, relying instead upon
information from Father, “who by all accounts, has had alcohol issues and
. . . used drugs in the past.” Phillips timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1)3 and -2101(A)(1).
DISCUSSION
I. Requests for Production
¶6 Phillips argues the family court erred in entering a protective
order preventing her from recovering records related to Mother’s health,
employment, and other activities in 2010. The court may enter an order
protecting information from discovery where “justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense.” Ariz. R. Fam. Law P. 53(A); see also Ariz. R. Civ. P.
26(c). “A trial court has broad discretion in ruling on discovery issues, and
we will not disturb its ruling absent a clear abuse of discretion” — that is,
if the court “commits legal error in reaching a discretionary conclusion, or
if the record lacks substantial evidence to support its ruling.” Tritschler v.
2 The family court also awarded Mother sole legal decision-making
authority over the Children and ordered Father’s parenting time be
supervised. These orders were not appealed.
3 Absent material changes from the relevant date, we cite a statute’s
current version.
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Allstate Ins., 213 Ariz. 505, 518, ¶ 41 (App. 2006) (citing Perguson v. Tamis,
188 Ariz. 425, 427 (App. 1996)). We find no abuse of discretion here.
¶7 When questioned about the relevance of the requested
documents, Phillips asserted they would illustrate “a series of lies” that
prevented Phillips from maintaining a relationship with Mother, and, by
extension, the Children. The family court determined that these records,
which predated the parents’ marriage and the birth of the younger child,
were not relevant to the Children’s best interests or Mother’s ability to
parent. See A.R.S. § 25-409(C) (authorizing the court to order grandparent
visitation if it finds, among other things, “the visitation is in the child’s best
interests”); Chapman v. Hopkins, 243 Ariz. 236, 244, ¶ 28 (App. 2017)
(directing the court, in evaluating whether grandparent visitation is
appropriate, to grant “robust deference” to a fit parent’s opinion as to her
children’s best interests) (citing Goodman v. Forsen, 239 Ariz. 110, 113, ¶ 13
(App. 2016)). “Whether the time is too remote to be relevant is a question
to be decided by the trial court, whose action in passing on the matter will
not be reviewed, unless an abuse of discretion appears” under the facts of
the particular case. Burnett v. State, 34 Ariz. 129, 138 (1928) (citations
omitted). Phillips has shown no abuse of discretion here.
¶8 Phillips asserts this information from 2010 was critical to
attack Mother’s credibility. We disagree. “As evidence of the witness’[s]
condition becomes more remote in time, it has proportionately less bearing
on the credibility of the witness.” State v. Fleming, 117 Ariz. 122, 125-26
(1977). Without any indication that Mother’s veracity was compromised at
the time of the 2017 hearing, we cannot say the court abused its discretion
in determining that events occurring in 2010 had any bearing upon her
credibility. See id. at 126 (finding the witness’s two-day stay in a mental
institution three years prior to the relevant transaction had no bearing on
his credibility).
¶9 Phillips also argues the family court erred in ordering her to
reimburse Mother for her attorneys’ fees expended in filing the motion for
protective order. However, the Arizona Rules of Family Law Procedure
specifically direct the court to award the party requesting the protective
order “the reasonable expenses incurred in opposing the motion [for
discovery], including attorneys’ fees, unless the court finds that the making
of the motion was substantially justified or other circumstances make an
award of expenses unjust.” Ariz. R. Fam. Law P. 53(A), 65(A)(4)(b). The
court did not make any findings excepting Phillips from this directive, and
we find no error.
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II. Due Process and Time Limitations
¶10 Phillips argues she was deprived of due process when the
family court refused to grant her additional time to present her case.
Whether a party is afforded adequate due process presents a question of
law reviewed de novo. Savord v. Morton, 235 Ariz. 256, 260, ¶ 16 (App. 2014)
(quoting Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999)). “The
determination of when additional time is necessary is normally committed
to the discretion of the trial court.” Volk v. Brame, 235 Ariz. 462, 469, ¶ 22
(App. 2014).
¶11 The family court “enjoys broad discretion to ‘impose
reasonable time limits on all proceedings or portions thereof and to limit
the time to scheduled time.’” Id. at 468, ¶ 20 (quoting Ariz. R. Fam. Law P.
22(1), and citing Ariz. R. Evid. 611, cmt. to 2012 amendment, and Findlay v.
Lewis, 172 Ariz. 343, 346 (1992)). Time limits are unreasonable if they
deprive the litigants of due process — that is, the opportunity to be heard
at a meaningful time, in a meaningful manner, through the presentation of
evidence and testimony and confrontation of adverse witnesses. Id. at 468-
69, ¶¶ 21-22, 24. Thus, the court must remain “sufficiently flexible in its
allotment of time to preserve due process.” Id. at 469, ¶ 22. The court is
not, however, required to “indulge inefficient use of time by parties or their
counsel.” Id.¶12 We cannot say the family court acted unreasonably here.
Shortly before trial, the court addressed Phillips’ request for additional
time, noting the parties had agreed at a status conference held only three
weeks prior that the hour and fifteen minutes allotted to the issue of
grandparent visitation was sufficient.4 The ensuing minute entry order
stated that the court would entertain motions to enlarge the trial time if
based upon good cause. But Phillips made no attempt to explain “why she
suddenly believe[d] more time [wa]s needed,” and the motion was denied.
4 Although Phillips argues she did not agree to the allotment of time,
she did not include a complete transcript from the status conference within
the record on appeal. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995)
(explaining the appellant “is responsible for making certain the record on
appeal contains all transcripts or other documents necessary for [the court]
to consider the issues raised on appeal”); accord ARCAP 11(b). In the
absence of a complete record, we presume substantial evidence exists to
support the court’s findings. See Renner v. Kehl, 150 Ariz. 94, 97 n.1 (1986)
(citing Auman v. Auman, 134 Ariz. 40, 42-43 (1982), and Visco v. Universal
Refuse Removal Co., 11 Ariz. App. 73, 76 (1969)).
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PHILLIPS v. CABRERA, et al.
Decision of the Court
Phillips did not renew her motion at trial. She offers new arguments on
appeal as to why additional time was warranted, but they have been
waived. See Crowe v. Hickman’s Egg Ranch, Inc., 202 Ariz. 113, 116, ¶ 16
(App. 2002) (“Issues not properly raised below are waived.”) (citing
ARCAP 13(b)(3), and R.E. Monks Constr. Co. v. Aetna Cas. & Sur. Co., 189
Ariz. 575, 578 (App. 1997)).
¶13 Phillips also fails to prove a due process violation. Phillips
bore the burden of proving grandparent visitation was in the Children’s
best interests. Phillips admitted she had not seen the Children for at least
five years but argued Mother thwarted Phillips’ attempts to establish a
relationship with them in retaliation for a dispute that occurred between
2009 and 2011. Phillips devoted her presentation of evidence, testimony,
and cross-examination, to those events. She did not present any evidence
or testimony, or list any witnesses or exhibits within her pretrial statement,
suggesting that she would have addressed the issue of grandparent
visitation being in the Children’s best interests or necessary to protect them
had she been granted additional time. Rather, Phillips’ position from the
beginning was that she had “as much of a right to be with the minor
children as does the family of the mother.” And even if proven, Phillips’
desire to share in the company of the Children would not suffice, in and of
itself, to warrant grandparent visitation. See A.R.S. § 25-409(C).
¶14 Moreover, Phillips listed only one witness in her pretrial
statement — Father — and her proposed exhibits included only
photographs of the Children, “internet reports” regarding health
conditions Mother purportedly experienced in 2009, and documentation
regarding gifts for the Children that Mother ultimately acknowledged she
had received (albeit under Father’s name). Nothing within Phillips’ filings,
or her brief on appeal, suggests that anything relevant and non-cumulative
would have been introduced at trial had she been given additional time.
¶15 Phillips argues the time restriction prevented her from
presenting an opening statement or closing argument that “would have
aided the trial court in understanding and appreciating [her] position.”
Phillips does not cite any authority suggesting due process requires an
opening or closing statement, and the record reflects Phillips had ample
opportunity to present her theory of the case. The family court specifically
advised Phillips she “certainly” could choose to “use some of her allotted
time to provide an opening and closing statement” and also reminded her
it had “required pretrial statements from the parties which may serve the
same purpose.” Indeed, Phillips advanced her retaliation theory within
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Decision of the Court
both her pretrial statement and her trial presentation, and the court
accurately summarized this position within its findings.
¶16 On this record, we find no error in the limitations placed upon
Phillips’ presentation at trial.
III. Sufficiency of the Evidence
¶17 Phillips argues various errors exist within the family court’s
findings and analysis. Legal issues and those involving statutory
interpretation are reviewed de novo, but factual findings will be affirmed
unless clearly erroneous. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51-52,
¶¶ 11-12 (App. 2009) (citations omitted). A finding of fact is not clearly
erroneous if substantial evidence supports it — even if substantial
conflicting evidence exists — giving due regard to the opportunity of the
court to judge the credibility of the evidence. Id. at ¶ 11 (quoting Kocher v.
Dep’t of Revenue, 206 Ariz. 480, 482, ¶ 9 (App. 2003), and then Davis v. Zlatos,
211 Ariz. 519, 524, ¶ 18 (App. 2005)).
¶18 Phillips argues the family court erred by failing to afford
Father’s opinion regarding visitation any weight. The court found that
Father’s opinion was not entitled to deference because he was not a fit
parent. See In re Marriage of Friedman & Roels, 242 Ariz. 463, 467, ¶¶ 13, 21
(App. 2017) (noting that the special weight afforded to a parent’s opinions
concerning grandparent visitation applies only to a fit parent) (citing
McGovern v. McGovern, 201 Ariz. 172, 177-78, ¶¶ 17-18 (App. 2001)).
Although Phillips suggests this finding was in error, the record reflects that
at the time of trial Father had no legal decision-making authority and had
not seen the Children for over a year while he sought treatment for alcohol
abuse, drug abuse, and mental health issues that are well-documented
within his psychiatric records.
¶19 Phillips argues the family court erred by concluding her type-
written journal of events was unpersuasive. We do not reweigh evidence
on appeal. Castro, 222 Ariz. at 52, ¶ 11 (citing Cauble v. Ossalaer, 150 Ariz.
256, 258 (App. 1986)). Nor do we find error in the court’s reluctance to
afford Phillips’ self-serving evidence any great weight. See Aranda v.
Cardenas, 215 Ariz. 210, 219, ¶ 34 (App. 2007) (noting self-serving testimony
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Decision of the Court
is not conclusive, but rather, becomes “a matter of credibility for the fact-
finder to determine”).5
¶20 Phillips also argues the family court erred in finding she
suffered from alcohol abuse and mental health issues without the aid of
expert witness testimony and in the face of contradicting evidence. The
record does not support this argument. Although the court noted that
Father had reported that Phillips had issues with mental health and alcohol
use, it made no findings to this effect. Nor were they necessary to sustain
the court’s ultimate conclusion that grandparent visitation was not in the
Children’s best interests.
¶21 Phillips argues the family court erred in failing to consider
Mother’s motive to deny visitation as retaliation for Phillips’ “reaction to
this long list of lies and manipulation.” This argument is likewise
unsupported by the record. The court specifically considered “[t]he
motivation of the person objecting to visitation” and concluded “Mother is
motivated by the best interest of the children.” The court’s disagreement
with Phillips’ position does not mean it did not consider the arguments she
presented; to the contrary, we presume the fact-finder considered all
relevant, competent evidence presented in reaching its conclusions. See
Fuentes v. Fuentes, 209 Ariz. 51, 55-56, ¶ 18 (App. 2004) (citing Able Distrib.
Co. v. James Lampe, Gen. Contractor, 160 Ariz. 399, 409 (App. 1989)). Phillips
fails to prove error on this basis.
¶22 Finally, Phillips argues the family court’s findings were
hastily produced, generally unreliable, and reflect bias against her. Our
review of the record reveals otherwise. Reasonable evidence supports the
court’s findings, and the findings justify denial of grandparent visitation to
Phillips.
IV. Attorneys’ Fees and Costs
¶23 Phillips argues the family court erred in awarding Mother her
attorneys’ fees and costs incurred in objecting to Phillips’ request for
grandparent visitation. Section 25-324(A) authorizes a court “from time to
5 On appeal, Phillips asserts she would have corroborated the
information contained within her journal entries, had she been granted
additional time at trial, “through three witnesses who were ready to testify
and through exhibits.” But Phillips did not identify any witnesses or
exhibits within her pretrial statement that would have served this purpose.
See supra ¶ 14.
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Decision of the Court
time, after considering the financial resources of both parties and the
reasonableness of [their] positions . . . [to] order a party to pay a reasonable
amount to the other party for the costs and expenses of maintaining or
defending any proceeding under this chapter.” We review an award of
attorneys’ fees under this statute for an abuse of discretion. Myrick v.
Maloney, 235 Ariz. 491, 494, ¶ 6 (App. 2014) (citing Mangan v. Mangan, 227
Ariz. 346, 352, ¶ 26 (App. 2011)).
¶24 The family court found no substantial disparity in income, but
awarded fees based upon the unreasonableness of Phillips’ position.
Specifically, the court found Phillips: (1) “knew she lacked a relationship
with the children yet she has requested excessive parenting time,”
(2) “made no contact with Mother to attempt to get to know the children”
or otherwise “focused on building the relationship,” and (3) “claimed
Mother was unfit yet failed to produce any credible or tangible evidence to
support her position,” thereby “knowingly present[ing] a false claim.”
¶25 On appeal, Phillips argues her position was reasonable
because she was born and raised “in a different culture.” Although cultural
differences may, under proper circumstances, explain a grandparent’s
unwillingness to interfere in the parents’ relationship during marriage, they
do not excuse Phillips’ decision to proceed with a petition for grandparent
visitation under the circumstances presented here. The court did not abuse
its discretion in awarding fees and costs.
CONCLUSION
¶26 The family court’s orders are affirmed.
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