Opinion
No. 2 CA-CV 2018-0026-FC
03-06-2019
RENÉ ALCOVERDE JR., Petitioner/Appellant, v. ELAINE RODRIGUEZ, Respondent/Appellee.
René S. Alcoverde Jr., Vail In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. SP20081827
The Honorable Jane A. Butler, Judge Pro Tempore
AFFIRMED
René S. Alcoverde Jr., Vail
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 In this domestic-relations case, René Alcoverde Jr. challenges the trial court's orders denying and partially granting several of the requests contained in his petition to enforce, his motion for contempt, and his subsequent motion for new trial and to amend the court's ruling on his petition. He argues: (1) the court misapplied Rule 2(a), Ariz. R. Fam. Law P.; (2) the court abused its discretion in making various evidentiary rulings at the hearing on his petition; (3) the court failed to make several findings; and (4) the court did not have jurisdiction after he filed a notice of appeal. We affirm.
In filings in this court, Alcoverde, who serves as a judge in another jurisdiction, has repeatedly used "Hon." before his name. This litigation, in which Alcoverde represents himself, is unconnected to Alcoverde's judicial service. The use of the appellation in these circumstances is disturbing, and we instruct Alcoverde not to do so in any future filings. See Ariz. R. Sup. Ct. 81, Canon 1, Rule 1.3 cmt. 1.
The Arizona Rules of Family Law Procedure were amended effective January 1, 2019. See Ariz. Sup. Ct. Order R-17-0054 (Aug. 30, 2018). Because none of those revisions are material to our resolution on appeal, we cite to the rules currently in effect.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the trial court's rulings." Henderson v. Henderson, 241 Ariz. 580, ¶ 2 (App. 2017). In July 2017, Alcoverde filed a "Petition to Enforce and for Contempt; Motion for Make Up Parenting Time on Specific Weekend to Allow Child to Attend a Family Event; Request for Child Support Audit." Alcoverde and Elaine Rodriguez share joint legal and physical custody of their daughter, T.A. On August 11, the trial court held an expedited hearing on his motion for make-up parenting time, which it subsequently granted. The court set another hearing for November 7, to address Alcoverde's remaining complaints regarding enforcement, contempt, and child support.
¶3 At the August 11 hearing, Alcoverde orally moved to invoke strict compliance with the Arizona Rules of Evidence at the November hearing, pursuant to Rule 2(a), Ariz. R. Fam. Law P. The trial court directed him to file a motion concerning the request. On August 31, Alcoverde served Rodriguez with his amended petition and a separate notice that he was invoking strict compliance with the Arizona Rules of Evidence. But he did not file either with the court until September 12.
¶4 On August 16, at Alcoverde's request, the trial court accelerated the November 7 hearing to October 13. At the October 13 hearing, the court denied his request for strict compliance with the Arizona Rules of Evidence, concluding his notice was untimely. In response, Alcoverde moved to bifurcate the issue of contempt, which the court also denied. The court explained that "in terms of impartiality and fairness it's required that judges make reasonable accommodations for self-represented litigants . . . . So even if you had timely invoked [R]ule 2 I would have to make exceptions." After both parties presented evidence on the issues, the court determined that Alcoverde was entitled to nineteen days of make-up parenting time. The court denied his request to hold Rodriguez in contempt, ordered the parties to comply with their uncovered medical expenses reimbursement obligations, denied Alcoverde's request for court costs, and ordered Rodriguez to provide Alcoverde a tax exemption release form.
¶5 Alcoverde filed a motion for new trial and to amend the trial court's ruling. The court denied the motion for new trial and to amend the ruling, but it set a hearing for January 2018, concerning the reimbursement of uncovered medical expenses and a review of the child support ledger. Alcoverde filed a notice of appeal and requested the court vacate the January hearing. The court instead affirmed the hearing because "the family court must resolve all issues before the filing of an appeal," finding that Alcoverde's notice of appeal was premature. Alcoverde then filed an amended notice of appeal and "remind[ed] the trial court that . . . it ha[d] been divested of jurisdiction" to proceed with the hearing. The court proceeded with the January hearing, at which neither Alcoverde nor Rodriguez appeared, and it found that Alcoverde had waived his opportunity to review child support payments and unreimbursed medical expenses. This appeal followed; we have jurisdiction as discussed below. A.R.S. §§ 12-120.21(A)(4), 12-2101; Ariz. R. Civ. App. P. 9(e).
The court also denied Alcoverde's request for the judge's voluntary recusal.
Non-Appealability of Contempt Ruling
¶6 "[W]e have an independent duty to determine whether we have the authority to consider an appeal." McCleary v. Tripodi, 243 Ariz. 197, ¶ 7 (App. 2017). As noted, Alcoverde challenges, among other things, the trial court's order denying his request to hold Rodriguez in contempt of court. But a civil contempt order is not appealable. See Peace v. Peace, 243 Ariz. 546, ¶ 4 (App. 2014); Danielson v. Evans, 201 Ariz. 401, ¶ 35 (App. 2001). "[C]ivil contempt adjudications may only be reviewed by means of a special action." Lund v. Donahoe, 227 Ariz. 572, ¶ 16 (App. 2011). In our discretion, we decline to exercise special action jurisdiction to address the contempt issue here. See Potter v. Vanderpool, 225 Ariz. 495, ¶ 6 (App. 2010).
Arizona Rules of Family Law Procedure 2(a)
¶7 Alcoverde argues the trial court erred in its application of Rule 2(a), Ariz. R. Fam. Law P. Rule 2(a) provides that "[a]ny party may file a notice to require compliance with the Arizona Rules of Evidence at a hearing or trial. A party must file the notice at least 45 days before the hearing or trial." However, "[i]f a hearing or trial is set fewer than 60 days in advance, the notice is deemed timely if a party files it within a reasonable time after the party is notified of the hearing or trial date." Ariz. R. Fam. Law P. 2(a). We review "questions involving the application and interpretation of court rules de novo." Duckstein v. Wolf, 230 Ariz. 227, ¶ 8 (App. 2012) (emphasis omitted); see also Aksamit v. Krahn, 224 Ariz. 68, ¶ 8 (App. 2010).
¶8 Alcoverde argues that the trial court set the hearing on his petition on less than sixty days' advance notice and, therefore, it "should have allowed testimony and argument regarding the timeliness of [his] filed notices for strict compliance." He asserts the court erred by denying his request for strict compliance and should have made specific findings as to why the notices were untimely.
¶9 The trial court originally set the hearing concerning the issues of enforcement, contempt, and child support for November 7. As noted, on August 16, at Alcoverde's request, the court accelerated the hearing to October 13. The court, therefore, set the accelerated hearing with fifty-eight days' notice. Because the court had provided less than sixty days, Alcoverde was required to file his notice concerning compliance with the rules of evidence within a "reasonable time" after he received notice of the accelerated hearing date. See Ariz. R. Fam. Law P. 2(a). Alcoverde, however, did not file his notice until September 12.
¶10 The trial court denied Alcoverde's request for strict compliance because "rule 2[(a)] requires 45 days advance notice," so it was "not timely." This was in error because in this instance the standard was whether Alcoverde had filed his notice within a reasonable time. In response to the court, however, Alcoverde merely asserted that he had given the court oral notice at the prior hearing, and moved to bifurcate the issues if the court still intended to deny the request. The court denied his request to bifurcate and noted that Rule 2(a) provides the notice must be "filed."
¶11 We conclude Alcoverde has waived the issue of compliance with Rule 2(a). "A litigant must object to inadequate findings of fact and conclusions of law at the trial court level so that the court will have an opportunity to correct them." Elliott v. Elliott, 165 Ariz. 128, 134 (App. 1990). And, failure to do so results in waiver. Id. At the October hearing, Alcoverde did not object to the trial court's lack of findings about whether the notice was filed within a "reasonable time." He concedes he did not raise the issue until his motion for new trial. An issue is deemed waived when raised for the first time in a motion for new trial. See Conant v. Whitney, 190 Ariz. 290, 293 (App. 1997). We find this issue waived.
Admission and Exclusion of Evidence
¶12 Alcoverde argues the trial court abused its discretion by both admitting and excluding certain evidence at the October 13 hearing. We "will affirm a trial court's admission or exclusion of evidence absent a clear abuse of discretion or legal error and resulting prejudice." Belliard v. Becker, 216 Ariz. 356, ¶ 13 (App. 2007) (quoting Yauch v. S. Pac. Transp. Co., 198 Ariz. 394, ¶ 10 (App. 2000)). Whether due process was afforded to a party is a question of law we review de novo. See Jeff D. v. Dep't of Child Safety, 239 Ariz. 205, ¶ 6 (App. 2016).
¶13 Specifically, Alcoverde argues he "echoed, over and over again, [his] need to be protected from hearsay, especially hearsay attributable to [his] mother, and the prejudice that would result." He contends the trial court erred "by allowing hearsay, by directing the use of a never-disclosed text message, by refusing [his] demand to cross examine [his] mother regarding attributed hearsay, by denying [his] request to call rebuttal witnesses, and by not allowing [him] to question and cross examine [Rodriguez]."
¶14 In the absence of an effective Rule 2(a) notice, certain evidentiary rules are inapplicable to a family law case, including Rule 802, Ariz. R. Evid., the general proscription against admission of hearsay, even while others, such as Rules 401, 402, and 403 remain applicable. See Ariz. R. Fam. Law P. 2(b). Rule 402 states the general proposition that "[r]elevant evidence is admissible." As stated in Rule 401, relevant evidence is evidence that has any tendency to make a fact of consequence more or less probable, that is, probative. Rule 403 allows the court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
¶15 The only alleged instance of hearsay Alcoverde specifically identifies is a text-message exchange between his mother and Rodriguez. Because Rule 2(b) applied, however, the text-message exchange only needed to be relevant and probative and not otherwise subject to exclusion. On this record, the trial court could properly conclude that the exchange was relevant and probative to the issue of make-up parenting time and not subject to exclusion.
¶16 In arguing he was prejudiced by admission of the text messages, Alcoverde also relies on Rule 106, Ariz. R. Evid., asserting the messages were "incomplete" and "unfair." However, the trial court did allow Alcoverde to introduce evidence "that in fairness ought to be considered" when he presented other text messages he had with his mother on the same issue. See Ariz. R. Evid. 106. Finally, Alcoverde challenges the messages offered by Rodriguez because they were "never disclosed." Even assuming the text-message exchange Rodriguez produced was inadequately and untimely disclosed, Rule 65(b), Ariz. R. Fam. Law P., provides courts with broad discretion concerning whether and in what fashion to sanction non-disclosure. Moreover, Alcoverde cannot show the introduction of the text-message exchange prejudiced him, see Belliard, 216 Ariz. 356, ¶ 13, because the court awarded him all eight make-up parenting days he had requested for the occasion at issue, notwithstanding the text messages. We cannot say the court erred by admitting the text-message exchange.
¶17 Alcoverde also contends the trial court violated his due process rights by not allowing him to cross-examine his mother, call his wife as a rebuttal witness, or cross-examine Rodriguez. He appears to raise these points, at least in part, in connection with the court's ruling on his petition for a finding of contempt. As noted, however, a civil contempt order is not appealable. See Peace, 243 Ariz. 546, ¶ 4; Danielson, 201 Ariz. 401, ¶ 35. Moreover, the court can "exercise reasonable control over the mode and order of examining witnesses and presenting evidence," Ariz. R. Evid. 611(a), and it is expressly authorized to "impose reasonable time limits appropriate to the proceedings," Ariz. R. Fam. Law P. 22(a).
¶18 Here, Alcoverde was given "an opportunity to explain his own evidence and dispute [Rodriguez's] evidence." Cf. Volk v. Brame, 235 Ariz. 462, ¶¶ 22, 26 (App. 2014) (court found due process violation where party not allowed to testify about submitted documents). Concerning the make-up parenting time issue, the trial court allowed him to first present his evidence, and then present impeachment evidence after Rodriguez finished presenting her evidence. Further, although Alcoverde noted that his mother was "not [there] for [him] to cross-examine" about text messages she had sent to Rodriguez, he conceded they were from her and went on to explain other messages he had exchanged with his mother. Alcoverde also stated, "I'll call my wife as a rebuttal witness," but he then went on to testify about the "truth" himself rather than "let [his] wife give the details." Alcoverde never asked to cross-examine Rodriguez. We conclude the court acted within its discretion in the admission and exclusion of evidence and did not violate Alcoverde's due process rights.
Trial Court Findings
¶19 Alcoverde argues the trial court further abused its discretion by not making several required findings. Specifically, he asserts the court failed to make findings regarding his allegations of: (1) communication parameter violations; (2) Rodriguez's refusal to provide a child exemption release form; (3) unpaid, uncovered medical expenses; and (4) Rodriguez's refusal to accept service. He also asserts the court failed to identify the basis for denying his request for costs. Alcoverde, however, bases these assertions on Rule 92, Ariz. R. Fam. Law P., which deals with civil contempt. As noted, a civil contempt order is not appealable. See Peace, 234 Ariz. 546, ¶ 4; Danielson, 201 Ariz. 401, ¶ 35. Thus, we do not address the issue.
Alcoverde failed to ask the court, before or after the hearing, to make the findings. Thus, even if the issue was appealable, it would be waived. See Elliott, 165 Ariz. at 134 (failure to object to inadequate findings of fact at trial court level constitutes waiver); cf. Trantor v. Fredrikson, 179 Ariz. 299, 301 (1994) (findings waivable whether specifically required or not).
Trial Court Jurisdiction
¶20 Finally, Alcoverde argues "the trial court had no jurisdiction to proceed once [he] filed [his] notice of appeal." We review de novo the court's exercise of its jurisdiction as a question of law. See State ex rel. Dep't of Econ. Sec. v. Tazioli, 226 Ariz. 293, ¶ 7 (App. 2011).
¶21 Generally, when a party files a notice of appeal from a final judgment, it "divests the trial court of jurisdiction to proceed except in furtherance of the appeal." Sw. Gas Corp. v. Irwin, 229 Ariz. 198, ¶ 8 (App. 2012) (quoting Castillo v. Indus. Comm'n, 21 Ariz. App. 465, 467 (1974)). However, "a notice of appeal filed in the absence of a final judgment, or while any party's time-extending motion is pending before the trial court, is 'ineffective' and a nullity." Craig v. Craig, 227 Ariz. 105, ¶ 13 (2011). "[T]he purpose behind this rule is to give trial courts a bright-line rule that will make their jurisdiction clear and easy to determine and avoid disruptions to the trial process." In re Marriage of Johnson & Gravino, 231 Ariz. 228, ¶ 8 (App. 2012). After a notice of appeal has been filed, the trial court "may determine its own jurisdiction if the issue of jurisdiction is clear." Id. ¶ 9.
¶22 After the trial court ruled on Alcoverde's petition, he filed a motion for a new trial and to amend the ruling. The court found he was entitled to a hearing on two limited issues, and denied the remainder of his motion. Alcoverde filed his notice of appeal and amended notice of appeal before the date set for the additional hearing. The court reviewed the notice of appeal and determined it was premature. In doing so, the court cited Natale v. Natale, which held that "the family court must 'resolve all issues raised in a post-decree petition before the filing of an appeal.'" 234 Ariz. 507, ¶ 11 (App. 2014) (quoting In re Marriage of Kassa, 231 Ariz. 592, ¶ 4 (App. 2013)). The court then held the hearing, and with both parties absent, denied relief with respect to the two issues.
Here, we revested jurisdiction in the trial court and suspended the appeal for thirty days because the court's order resolving the last two issues at the new hearing was not signed. After Alcoverde failed to get a signed order, we dismissed the appeal since it appeared further matters were pending and there was no order with finality language. We granted Alcoverde's subsequent motion to reconsider and reinstate the appeal because the additional matters were not pending when the court entered the order resolving the last two issues, nor when the court subsequently signed that order. Alcoverde filed a second amended notice of appeal after the court signed the order.
¶23 Alcoverde asserts "the trial court was divested of jurisdiction after [he] filed [his] notice and amended notices of appeal." However, as in Marriage of Johnson, the "court had jurisdiction to complete the case and enter a final, appealable judgment," and we have jurisdiction on appeal. 231 Ariz. 228, ¶ 14. In Marriage of Johnson, the trial court entered an order disposing of all issues except one. Id. The petitioner filed her notice of appeal, but the court determined it was premature because one issue was unresolved and its order did not have language pursuant to Rule 78(b), Ariz. R. Fam. Law P. Id. The court went on to resolve the remaining issue, and the petitioner filed a supplemental notice of appeal. Id. The first notice of appeal was deemed a nullity. Id.
Rule 78(b) states that a trial court has discretion to enter final judgment as to "one or more, but fewer than all, claims or parties only if the court expressly determines there is no just reason for delay and recites that the judgment is entered under Rule 78(b)." Absent the requisite express determination, a judgment is not final unless it disposes of all claims. See Reeck v. Mendoza, 232 Ariz. 299, ¶ 6 (App. 2013).
¶24 Here, the trial court correctly retained jurisdiction because two issues pertaining to Alcoverde's petition were still unresolved pending the new hearing the court set when it ruled on his motion for new trial and to amend judgment. See In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 8 (App. 2012) (notice of appeal filed while time-extending motion is pending before trial court is ineffective and nullity); see also Ariz. R. Civ. App. P. 9(e)(1)(C) (filing of Rule 83, Ariz. R. Fam. Law P., motion to amend judgment extends time for appeal). Therefore, the court was not "divested of jurisdiction," and it did not err in proceeding with the hearing.
Disposition
¶25 For the foregoing reasons, we affirm the trial court's orders and deny Alcoverde's request for costs on appeal.