Opinion
No. 1 CA-CV 14-0662 FC
12-08-2015
In re the Matter of: CANDICE MARIE EATON, Petitioner/Appellant, v. MICHAEL JAMES EATON, Respondent/Appellee.
COUNSEL Candice Marie Eaton, Simi Valley, CA Petitioner/Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC2010-004685
The Honorable Jay R. Adleman, Judge
AFFIRMED
COUNSEL Candice Marie Eaton, Simi Valley, CA
Petitioner/Appellant
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined. HOWE, Judge:
¶1 Candice Marie Eaton ("Mother") appeals the family court's post-decree order modifying parenting time. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Michael James Eaton ("Father") married in 2001, but in 2010, Mother petitioned for dissolution of marriage with children. The family court dissolved the marriage and ordered that Mother and Father would have joint legal custody of their three minor children, but that Mother would have final decision-making authority. The family court also ordered that Father would have parenting time every other weekend and on certain holidays.
¶3 In December 2013, Mother notified Father that she intended to move to California with the children. Father did not initially object to the move, but just before the move, he petitioned to modify legal decision-making and parenting time. Father argued that the family court should order that he have primary caregiving custody and final decision-making authority over the children because relocation was not in their best interests and because Mother's boyfriend spanked them when they were in Mother's care.
¶4 Mother counter-petitioned to modify parenting time, arguing that traveling to and from California every other weekend was not in the children's best interests. Before conducting an evidentiary hearing, the family court required Mother and Father to participate in a parenting conference. At that conference, Mother and Father agreed to joint legal decision-making authority and on a parenting time schedule for the school year, but did not reach agreements on the issues of summer parenting time, corporal punishment, and with whom the children should live. However, Father stated that he would be willing to "offer as much as three weeks of Parenting Time" to Mother during the summer months as part of a modified agreement.
¶5 The family court allotted three hours for an evidentiary hearing to resolve the disputed issues. At the hearing, the court stated that it did not want to change the agreements that Mother and Father had reached at the parenting conference and stated that the purpose of the hearing was to resolve the issues they did not agree on. The family court acknowledged that it had reviewed Mother's pretrial statement and that Mother had exhibits to admit. During the proceedings, however, Mother did not move to admit any exhibits.
¶6 During the court's discussion with Mother and Father, the court repeatedly asked them if either had additional matters they needed to address. Mother then raised Father's past domestic violence and his sending the children to be with family in another county during his parenting time. The family court responded that those issues were better directed to a parenting coordinator and that Mother should try to be "accommodating" toward Father because her move to California effected his parenting time.
¶7 After discussing the issues, Mother and Father agreed that (1) the children could relocate with Mother to California, (2) neither party would engage in excessive corporal punishment or permit others to use corporal punishment, and (3) Father's summer parenting time would begin the first Saturday after the school year and end seventeen days before the new school year. The family court twice stated during the one and a half hour hearing that it had extended beyond its allotted time and asked if it could "call it a day" after addressing the last issue. Mother agreed. Mother then requested attorneys' fees for when she briefly had the assistance of counsel to reply to Father's petition, but the family court found no good cause to award fees and denied the request. The family court again asked if it could "call it a day," and Mother replied "Yes, Your Honor." The family court subsequently issued an order consistent with the agreements made at the hearing. Mother timely appealed.
DISCUSSION
1. Due Process
¶8 Mother first argues that the family court denied her due process by not conducting the evidentiary hearing for the full allotted three hours, not allowing her to present evidence, and not allowing her to make opening and closing statements. We review constitutional claims de novo. State v. McGill, 213 Ariz. 147, 159 ¶ 53, 140 P.3d 930, 942 (2006). However, because Mother failed to raise this issue to the family court, we review only for fundamental error. Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 239 ¶ 15, 282 P.3d 437, 440 (App. 2012). Fundamental error is error that goes to the foundation of the case, takes from the complaining party a right essential to prove her claim, and is of such magnitude that she could not possibly have received a fair trial. Id. at 239 ¶ 16, 282 P.3d at 440. To prevail on a claim of fundamental error, Mother must establish that error occurred, the error was fundamental, and the error caused her prejudice. Id. Mother has not met this burden.
Father did not file an answering brief. We may regard a failure to file an answering brief as a confession of reversible error, Blech v. Blech, 6 Ariz. App. 131, 132, 430 P.2d 710, 711 (1967), but are not required to, In re Marriage of Diezsi, 201 Ariz. 524, 525 ¶ 2, 38 P.3d 1189, 1190 (App. 2002). In our discretion, we decline to do so, Nydam v. Crawford, 181 Ariz. 101, 101, 887 P.2d 631, 631 (App. 1994), and have reviewed the record and elected to address the merits of Mother's claims, Ariz. R. Civ. App. P. 15(a)(2). --------
¶9 Here, Mother has not shown that error—much less fundamental error—exists and in any event has not shown that the family court's actions caused her prejudice. Although the family court did not use the three hours it had originally allotted for the hearing, Mother does not cite to any authority—nor has this Court found any—stating that failing to use all of the court's allotted time constitutes error. Nor does she show that the failure to use all of the allotted time went to the foundation of her case, deprived her of a right essential to prove her claim, or was of such magnitude that she could not have possibly received a fair trial. Mother did not object or otherwise notify the family court of the timing misstatement, and when the family court asked several times if additional issues needed to be discussed, Mother did not inform the court of any issues relating to the petitions. In fact, Mother agreed to "call it a day" at the end of the hearing.
¶10 Mother further claims that the family court's failure to conduct the hearing for three hours deprived her of the opportunity to present evidence and make opening and closing statements, but this is not so. The family court has broad discretion in imposing reasonable time limits on all proceedings and is only required to afford parties adequate time to present their evidence. Volk v. Brame, 235 Ariz. 462, 468 ¶¶ 19-20, 333 P.3d 789, 795 (App. 2014). The family court here provided Mother with that adequate time, but she did not use that hour and a half to admit any evidence. Finally, Mother did not request to make either an opening or a closing statement at the hearing, and the family court was not otherwise required to allow her to make such statements. See Fuentes v. Fuentes, 209 Ariz. 51, 57 ¶ 31, 97 P.3d 876, 882 (App. 2004). Accordingly, because Mother has not shown that fundamental error exists or that she was prejudiced, the family court did not deny Mother due process.
2. Family Court Impartiality
¶11 Mother also argues that the family court was biased against her because the family court stated that Mother should be accommodating to Father, prevented Mother from testifying to prior issues with Father, and granted Father all but seventeen days of summer parenting time instead of all but "three weeks" as he had offered during the parenting conference. However, judges are "presumed to be free of bias and prejudice. A party must show by a preponderance of the evidence that the judge was, in fact, biased." Cook v. Losnegard, 228 Ariz. 202, 206 ¶ 22, 265 P.3d 384, 388 (App. 2011). Mother failed to meet her burden of showing judicial bias here, and nothing in the record reflects impropriety or prejudice in the family court's conduct or statements. Instead, the record shows that the family court impartially considered the agreements Mother and Father made during their parenting conference, helped them reach agreements during the hearing, and entered orders consistent with those agreements. In fact, Mother prevailed on the significant contested issues, including her relocation request, and she agreed to the amount of summer parenting time Father received. Thus, the family court was not biased against Mother.
3. Corporal Punishment
¶12 Mother argues finally that the family court erred by introducing the issue of corporal punishment sua sponte. But Father raised the issue in his petition to modify parenting time, which initiated the hearing. Mother and Father also discussed the issue at the parenting conference, and Mother agreed to the terms regarding corporal punishment at the hearing. Accordingly, the family court did not err.
CONCLUSION
¶13 For the foregoing reasons, we affirm.