Opinion
No. 2 CA-CV 2014-0017
07-22-2014
IN RE THE MARRIAGE OF: LESA M. MORTENSEN, Petitioner/Appellee, and AFTON VAN MORTENSEN, Respondent/Appellant.
Law Office of Michael D. Peterson, P.C., Safford By Travis W. Ragland Counsel for Respondent/Appellant
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NOT FOR PUBLICATION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); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Graham County
No. DO2006127
The Honorable D. Corey Sanders, Judge Pro Tempore
AFFIRMED
COUNSEL
Law Office of Michael D. Peterson, P.C., Safford
By Travis W. Ragland
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Vásquez concurred. KELLY, Presiding Judge:
¶1 In this appeal, Afton Van Mortensen ("Van") challenges the trial court's order awarding his former spouse Lesa Michelle Mortensen ("Lesa") reimbursement for Van's share of medical expenses for their minor children, T.M. and M.M. Van claims the court erred because the bills were not timely presented to him, and there was insufficient evidence to document the medical expenses. He also argues the court erred by not barring Lesa's claims under the doctrines of laches and estoppel. Finally, Van maintains the court erred by not awarding him attorney fees. We affirm the court's judgment.
Lesa did not file an answering brief. Although the failure to file an answering brief may constitute a confession of error, we exercise our discretion to address the merits of Van's arguments. See Gibbons v. Indus. Comm'n, 197 Ariz. 108, ¶ 8, 3 P.3d 1028, 1031 (App. 1999).
Factual and Procedural Background
¶2 Van and Lesa were divorced in Kansas in 2003. In 2006, Lesa registered the child support order in Graham County Superior Court, where she resides with T.M. and M.M. Both Van and Lesa agree that venue in Arizona was appropriate.
¶3 In August 2013, Lesa filed a Petition to Modify Child Custody, Parenting Time, and Child Support as to M.M. only. In the petition, Lesa requested payment for "all past due medical bills [she had] received no payment for." Van responded that no remedy was available for the vast majority of the bills because they were incurred more than 180 days prior to filing. He also sought attorney fees.
¶4 Following an evidentiary hearing, the trial court awarded Lesa $6,143.46 for Van's share of the children's medical expenses and offset that amount by $2,684.39 for Van's travel expenses. Van timely appealed the court's judgment.
Van appeals only from that part of the order awarding Lesa $6,143.46 for unpaid medical expenses.
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Discussion
¶5 Van argues that there was insufficient evidence to support the trial court's award reimbursing Lesa for his share of medical expenses for their children. "In reviewing sufficiency of the evidence, the trial court's findings of fact are binding on an appellate court unless they are clearly erroneous or unsupported by any credible evidence." SDR Assocs. v. ARG Enters., Inc., 170 Ariz. 1, 4, 821 P.2d 268, 271 (App. 1991).
¶6 Section 9(A) of the Arizona Child Support Guidelines states in pertinent part, "Except for good cause shown, any request for payment or reimbursement of uninsured medical, dental and/or vision costs must be provided to the other parent within 180 days after the date the services occur." A.R.S. § 25-320(9)(A). At the evidentiary hearing, Lesa testified she provided timely notice of the uninsured expenses to Van. Specifically, she testified she sent a September 2012 hospital bill for M.M. to Van in February 2013. She also testified she sent a doctor's bill to Van within 180 days of the date of service. Lesa further testified Van was aware of the bill for T.M.'s orthodontia because he made one payment toward that bill. With respect to the bill for M.M.'s orthodontia, Lesa testified she had sent Van an e-mail in June 2009 asking him to cover the payment for that month, and M.M.'s orthodontia started in 2009. She offered as exhibits the medical bills from providers and e-mails to Van, but because she had not responded to Van's requests for production, the court did not admit the documents.
¶7 Van asserts that Lesa's testimony alone was insufficient to establish that she gave notice within 180 days that the medical bills existed, the amount of the bills, or that Lesa paid the bills. We apply an abuse of discretion standard when the "'[trial] court's decision is based upon a determination of disputed questions of fact or credibility.'" Hilgeman v. Am. Mortg. Sec., Inc., 196 Ariz. 215, ¶ 7, 994 P.2d 1030, 1033 (App. 2000), quoting Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 185, 188, 836 P.2d 398, 401 (App. 1992). The trial court is in the best position to judge the credibility of witnesses and the weight of evidence. Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 171, 481 P.2d 536, 541 (1971).
¶8 We find no abuse of discretion in the trial court's decision to award Lesa reimbursement for Van's share of the uninsured medical expenses. In addition to her testimony, Lesa attached to her petition an itemization of the uninsured medical expenses. Van did not challenge the existence of the bills, the amount of the bills, or that Lesa had paid them. The court's statement that it accepted Lesa's testimony as "credible and sufficient evidence of timely notice to the father of the uncovered medical expenses for which she seeks reimbursement" suggests that the court accepted her testimony that the bills existed in the stated amounts and that Lesa had paid them. Van's argument amounts to a request to reweigh the evidence, but "[w]e will not reweigh the evidence or substitute our evaluation of the facts." Castro v. Ballesteros-Suarez, 222 Ariz. 48, ¶ 11, 213 P.3d 197, 201 (App. 2009). The trial court's determination was not clearly erroneous and was supported by credible evidence. See SDR Assocs., 170 Ariz. at 4, 821 P.2d at 271.
¶9 Van argues that the trial court erred by not barring Lesa's claims for reimbursement for uninsured medical expenses under the doctrine of laches. "We review a trial court's decision on laches for abuse of discretion." McLaughlin v. Bennett, 225 Ariz. 351, ¶ 5, 238 P.3d 619, 621 (2010). In a child support case, "laches bars the collection of arrearages only upon a finding of clear and compelling evidence" and requires a showing that the parent seeking payment unreasonably delayed bringing a claim for arrearages and the other parent was prejudiced by this delay. State ex rel. Dep't of Econ. Sec. v. Dodd, 181 Ariz. 183, 187-88, 888 P.2d 1370, 1374-75 (App. 1994). Section 25-500(9), A.R.S., provides the statutory definition of child support and "unambiguously includes unreimbursed medical expenses." Keefer v. Keefer, 225 Ariz. 437, ¶ 11, 239 P.3d 756, 759 (App. 2010). That section and Child Support Guideline 9(A) "treats those expenses as binding obligations of parents subject to child support orders." Id.
¶10 Van asserts he believed the parties had an agreement that he would pay all travel expenses and Lesa would pay all uncovered medical expenses. He contends he relied on this belief and on Lesa's not having asked for reimbursement for the medical expenses for five years. In Dodd, we found that the mother did not unreasonably delay bringing her claim for arrearages, even though the child support payments were more than eight years overdue, where she had agreed to accept reduced payments due to the father's financial constraints and had made several attempts to recover the arrearages. 181 Ariz. at 188, 888 P.2d at 1375. Here, Lesa testified that she had been "sending [Van] things for all this time to pay it," and she thought they could work out the payment issue. The record shows that Lesa did not unreasonably delay bringing her claim for reimbursement for uninsured medical expenses. The trial court did not abuse its discretion by rejecting the doctrine of laches to bar Lesa's claims for reimbursement.
¶11 Van also argues the trial court erred by not applying the doctrine of equitable estoppel to bar Lesa's claims. We review a court's decision not to apply equitable estoppel for an abuse of discretion. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 27, 156 P.3d 1149, 1155 (App. 2007). "The elements of estoppel are: 1) conduct by which one induces another to believe in certain material facts; and 2) the inducement results in acts in justifiable reliance thereon; and 3) the resulting acts cause injury." Dodd, 181 Ariz. at 186, 888 P.2d at 1373. Like laches, equitable estoppel requires a finding of "clear and compelling evidence." Id. at 187, 888 P.2d at 1374.
¶12 Van claims he relied on an agreement between the parties that Lesa would pay for the uncovered medical expenses and he would pay for his travel expenses, and he was harmed because he did not retain records of his travel expenses that would have entitled him to a larger offset of the amount he owed for the uninsured medical expenses. Although Van testified it was his understanding that Lesa was paying the uncovered medical expenses and he was paying for the travel expenses, the court stated that it did not believe they could reach such an agreement "without reducing [it] to a written order." The court did not specifically address Van's equitable estoppel argument in its ruling, but it necessarily rejected the argument, because it awarded Lesa all of the uncovered medical expenses she requested. We find no abuse of discretion in the court's decision not to apply equitable estoppel to bar Lesa's claims.
¶13 Van claims the trial court erred by not awarding him attorney fees and costs pursuant to A.R.S. § 25-324. That section allows a court, after considering the financial resources of the parties and the reasonableness of each party's position, to award reasonable costs and fees to the party least able to pay. Countryman v. Countryman, 135 Ariz. 110, 111, 659 P.2d 663, 664 (App. 1983). Van argues that Lesa's position that she was entitled to reimbursement for his share of the children's uninsured medical expenses for the past five years was unreasonable. "A trial court's denial of attorneys' fees—whether requested as sanctions or under A.R.S. section 25-324 — is reviewed under an abuse of discretion standard." Graville v. Dodge, 195 Ariz. 119, ¶ 56, 985 P.2d 604, 616 (App. 1999).
¶14 As noted above, the obligation to pay for uninsured medical expenses is part of Van's child support obligation. See Keefer, 225 Ariz. 437, ¶ 11, 239 P.3d at 759. Section 25-503(J), A.R.S., provides that the obligee parent may make efforts to collect a child support debt until ten years after the emancipation of the youngest child subject to the child support order. Thus, Lesa's presentation of her claims to the court was timely under the statute. In addition, because the court credited Lesa's testimony that she provided notice of the expenses to Van within 180 days of the date she incurred the expenses, and rejected Van's laches argument, it necessarily concluded that Lesa's position was not unreasonable.
Disposition
¶15 For the above reasons, the trial court's order is affirmed.