Opinion
No. 2 CA-CV 2017-0097-FC
05-30-2018
NATALIE REED, Petitioner/Appellee, and JEFFREY FARMER, Respondent/Appellant.
COUNSEL Solyn Law, PLLC, Tucson By Melissa Solyn Counsel for Petitioner/Appellee West, Longenbaugh & Zickerman, P.L.L.C, Tucson By Joseph Mendoza 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NOT FOR PUBLICATION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)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. SP20151172
The Honorable James E. Marner, Judge
AFFIRMED
COUNSEL Solyn Law, PLLC, Tucson
By Melissa Solyn
Counsel for Petitioner/Appellee West, Longenbaugh & Zickerman, P.L.L.C, Tucson
By Joseph Mendoza
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Jeffrey Farmer appeals from the trial court's denial of his motion for relief from judgment in this paternity action. He argues the court erred by initially finding it lacked jurisdiction to rule on his motion. He additionally argues the court erred in its subsequent ruling on the merits of his motion by finding he had failed to establish appellee Natalie Reed's income and unreimbursed medical costs differed from the evidence presented at trial, and by awarding Reed her attorney fees and costs. For the following reasons, we affirm.
Factual and Procedural Background
¶2 Reed and Farmer are parents to three-year-old J.F. Reed filed a paternity action in November 2015, requesting a court order addressing child support, certain unreimbursed medical expenses, J.F.'s medical and dental insurance, and tax issues. In August 2016, following a one-day trial, the trial court issued a written ruling, which ordered, in part, that Farmer pay child support to Reed and reimburse her for certain medical expenses.
¶3 About two months later, the trial court denied Farmer's motion for reconsideration and clarification in an unsigned minute entry. Farmer then submitted a proposed ruling and order on his motion for reconsideration. The court "decline[d] to sign it," again in an unsigned ruling, noting that it had already ruled on the motion and it "neither requested nor desire[d] the proposed form of order."
¶4 After the trial court issued its ruling on Farmer's proposed order, he filed a notice of appeal. He then issued several subpoenas related to Reed's employment and medical records. At a hearing on Reed's motions to quash the subpoenas, the court found it lacked jurisdiction to enter a ruling because of Farmer's pending appeal.
¶5 In February 2017, Farmer filed a motion for relief from the August 2016 judgment pursuant to Rule 85(C)(1)(c), Ariz. R. Fam. Law P. He alleged that the trial court's previous finding as to Reed's income was incorrect and that he "reasonably believe[d]" Reed had committed misconduct "by failing to produce her current income pay stubs and a current [affidavit of financial information]." He further argued Reed had committed misconduct by not disclosing "proper billing records from the hospital."
¶6 This court dismissed Farmer's appeal for lack of jurisdiction in April 2017. Later that month, the trial court, in an unsigned minute entry, denied Farmer's motion for relief from judgment, stating it continued to lack jurisdiction to enter a ruling due to the still-pending appellate proceedings. See In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 10 (App. 2012) ("[A]n appellate proceeding, including one in which an appeal is dismissed for lack of jurisdiction, does not terminate until the appellate court's mandate issues."). Farmer subsequently filed a notice of appeal from that denial. Our mandate issued in June.
¶7 After the mandate in the first appeal issued, this court suspended the appeal from the trial court's April ruling and revested jurisdiction in that court to enter a "final, appealable order on the merits" of Farmer's Rule 85 motion. The court did so, denying Farmer's motion, quashing the pending subpoenas, and awarding Reed her attorney fees and costs as a sanction pursuant to A.R.S. § 25-324(B). In so doing, it found that Farmer's motion "was not filed in good faith[,] . . . was not grounded in fact or based on law," and "was filed for purposes of harassment and to increase the cost of litigation for [Reed]." Farmer filed a supplemental notice of appeal from that ruling. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
April 2017 Ruling
¶8 Farmer first argues the trial court erred by finding it did not have jurisdiction to rule on his motion for relief from judgment. But because the court did ultimately address the merits of Farmer's motion, and we do so on appeal, his challenge to the April 2017 ruling is moot. See Contempo-Tempe Mobile Home Owners Ass'n v. Steinert, 144 Ariz. 227, 229 (App. 1985) (appellate court will not address issues rendered moot by resolution of other claims).
Rule 85 Motion
Standard of Review
¶9 We review a trial court's ruling on a motion for relief from judgment for an abuse of discretion. See Clark v. Kreamer, 243 Ariz. 272, ¶ 10 (App. 2017). The court does not abuse its discretion unless the reasons given "are 'clearly untenable, legally incorrect, or amount to a denial of justice.'" Ezell v. Quon, 224 Ariz. 532, ¶ 15 (App. 2010), quoting State v. Chapple, 135 Ariz. 281, 297 n.18 (1983). Because his motion was based on Rule 85(C)(1)(c), Farmer bears the burden of showing both that Reed committed misconduct and that he was precluded from presenting a meritorious defense based on that misconduct. See Ariz. R. Fam. Law P. 85(C)(1)(c) (party may be relieved from final judgment for "misconduct of an adverse party"); Estate of Page v. Litzenburg, 177 Ariz. 84, 93 (App. 1993); see also Lawwill v. Lawwill, 21 Ariz. App. 75, 78 (1973) ("party seeking relief" bears "burden of proving the grounds relied upon").
The language of Rule 85 is based on Rule 60, Ariz. R. Civ. P. See Ariz. R. Fam. Law P. 85 cmt. Case law interpreting Rule 60 is therefore applicable here. Ariz. R. Fam. Law P. 1 cmt.
Reed's Income
¶10 Farmer argues the trial court erred in denying his motion based on Reed's alleged misconduct related to her income. In his motion, Farmer asserted that Reed had failed to produce her "current income pay stubs and a current [affidavit of financial information], result[ing] in the denying [of Farmer's] right to fully present his case on this issue of [Reed's] income." The court, however, found that Farmer had not presented "any evidence to suggest that the income information that was considered by the Court when calculating child support . . . was inaccurate." Further, it noted that Farmer had not objected to the admission of the exhibits related to Reed's income at trial, he had not filed a motion to compel further information related to her income, and had not "otherwise indicate[d] that there was insufficient disclosure" on the issue.
¶11 The trial court did not abuse its discretion by denying Farmer's motion on this issue. See Ezell, 224 Ariz. 532, ¶ 15. Prior to and at trial, Farmer never disputed Reed's income. The court admitted, without objection, Reed's pay stubs from March 2015, and January through February 2016. Reed explained that she was a salaried employee and "nothing[ had] changed" to her income during the intervening time. It also admitted Reed's 2014 and 2015 tax returns. Further, both Farmer's and Reed's child support worksheets attributed the same monthly income to Reed, which the court relied upon to calculate child support. Farmer has not shown that the income considered by the court—with which he agreed—was in any way inaccurate. See Lawwill, 21 Ariz. App. at 78 (court has "no authority to grant relief without some evidence to support the claim").
¶12 Farmer points to Reed's testimony on cross-examination acknowledging that he had requested more recent pay stubs, but she had been unable to retrieve them before trial. He contends this "admission . . . is enough to allow [him] relief under the rule." See Estate of Page, 177 Ariz. at 93 (party's misconduct "may include even accidental omissions"). But Farmer did not subpoena Reed's employment records before trial, request that Reed be compelled to produce additional pay stubs, or argue that her failure to provide updated pay stubs interfered with his ability to present his case. Based on Reed's undisputed testimony that her salary had not changed from her most recently disclosed pay stubs, Farmer cannot show how the failure to provide more current ones "substantially interfered with [his] ability fully and fairly to prepare for, and proceed at, trial." Estate of Page, 177 Ariz. at 93, quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 926 (1st Cir. 1988); see Lawwill, 21 Ariz. App. at 78. Farmer's reliance on this testimony is therefore unavailing.
In his opening brief, Farmer states that the pay stubs had "in fact, . . . been requested months before" despite Reed's testimony she had received the request only the previous week. He does not point to anything in the record, however, that would support this assertion and he did not dispute Reed's testimony on this basis at trial.
¶13 Farmer further argues that his own testimony suggested Reed received a bonus in 2016, despite her testimony that she had not. At trial, Reed testified she had received a bonus in 2014, but not in 2015 or 2016. Farmer testified that Reed's mother, at a custody exchange, stated, "[Reed] has almost burned through her entire bonus paying for these attorney's fees." But Farmer did not raise this issue in his Rule 85 motion below and has therefore waived it on appeal. See Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382, ¶ 12 (App. 2011) (arguments not presented to trial court waived on appeal); see also Romero v. Sw. Ambulance, 211 Ariz. 200, ¶ 7 (App. 2005). Moreover, in the absence of any evidence that Reed did receive a bonus in 2016, this was simply a determination of credibility for the trial court, and we will not revisit that assessment on appeal. See Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13 (App. 1998).
Medical Costs
¶14 Farmer next argues the trial court erred in denying his Rule 85 motion based on Reed's alleged misconduct related to the medical expenses associated with her pregnancy and J.F.'s birth. Farmer attached to his Rule 85 motion billing records from the hospital where J.F. was born. He argued the records demonstrated that Reed's medical expenses were far lower than what she claimed at trial and also that Farmer had in fact paid some of those expenses, when Reed testified he had not.
¶15 The trial court first noted that Farmer had made "no attempt to itemize the bills or otherwise explain how the numerous attached pages support his position." Additionally, it pointed out that the "medical bills appear limited only to the actual birth of the child and do not cover prenatal and postnatal bills from other care providers." The court explained that Farmer "had ample opportunity when preparing for trial to address this" issue but had failed to "present any persuasive evidence" supporting his position. In sum, it found that Farmer had "fail[ed] to adequately support his claim that the amount owed should be something other than what was ordered."
¶16 The trial court did not abuse its discretion in denying Farmer's motion on this basis. See Ezell, 224 Ariz. 532, ¶ 15. Farmer asserts the medical records show payments he made to the hospital, but those records only show that payments were made, not by whom. Moreover, Farmer had other means of presenting evidence at trial that he had paid some of those expenses, for example through his own receipts or bank statements. And despite Farmer's conclusory claim that the records depict "all Pre and Post Natal costs," the dates of Farmer's records only span J.F.'s birthdate and his subsequent hospitalization, with the exception of a prenatal ultrasound and a prenatal lab test. At trial, Reed provided billing statements covering the duration of her pregnancy, which also included several other care providers besides the hospital. Farmer has not addressed that exhibit, instead mischaracterizing it as a "self-serving spreadsheet." Farmer has failed to meet his burden of showing he had a "meritorious defense" that "he was prevented from fully presenting." Estate of Page, 177 Ariz. at 93, quoting Green v. Foley, 856 F.2d 660, 665 (4th Cir. 1988).
The first page of Reed's exhibit does include a spreadsheet that she had created, summarizing the invoices and total medical costs. The exhibit also contains, however, the corresponding billing statements.
Attorney Fees and Costs
¶17 Farmer next argues the trial court abused its discretion by awarding Reed her attorney fees and costs as a sanction pursuant to § 25-324(B) after finding his Rule 85 motion was "not filed in good faith and was not grounded in fact or based on law." The court further found, "given its familiarity with the . . . case," that Farmer's motion "was filed for purposes of harassment and to increase the cost of litigation for [Reed]." We review the court's ruling for an abuse of discretion. See Myrick v. Maloney, 235 Ariz. 491, ¶ 6 (App. 2014); MacMillan v. Schwartz, 226 Ariz. 584, ¶ 36 (App. 2011).
¶18 Farmer argues only that "the documents submitted and the record" show his Rule 85 motion "clearly . . . was filed in good faith." As discussed above, however, Farmer's Rule 85 motion was without merit and the medical records he attached did not support his position. And both issues he raised could easily have been resolved through pretrial discovery, rather than waiting until after trial to issue subpoenas. Consequently, Farmer has not demonstrated the court abused its discretion in finding his motion was not filed in good faith. See Myrick, 235 Ariz. 491, ¶ 6; MacMillan, 226 Ariz. 584, ¶ 36.
¶19 Moreover, Farmer has failed to address the trial court's additional findings that his motion was filed for the purposes of harassment and to increase Reed's litigation costs, which provided additional bases for the award. See § 25-324(B)(3). Indeed, the court had previously cautioned Farmer against his "combative," "confrontational," and "in some cases, immature" behavior. It also noted in its August 2016 ruling on the paternity action that "[t]he level of hostility in this case borders on the ridiculous" and Farmer was "primarily responsible for the toxic atmosphere that exists in [J.F.'s] life." We therefore cannot say the court abused its discretion by awarding Reed her attorney fees and costs pursuant to § 25-324(B). See Myrick, 235 Ariz. 491, ¶ 6; MacMillan, 226 Ariz. 584, ¶ 36.
Attorney Fees and Costs on Appeal
¶20 Reed has requested her attorney fees and costs incurred on appeal pursuant to § 25-324(B) and Rule 21, Ariz. R. Civ. App. P. She has further requested fees as a sanction under Rule 25, Ariz. R. Civ. App. P. That rule allows this court to "impose sanctions on an attorney or a party if it determines that an appeal or a motion is frivolous, or was filed solely for the purpose of delay." Id. "In imposing sanctions pursuant to Rule 25, our courts have analogized the Rule 25 duty to the duty under E.R. 3.1[, Ariz. R. Sup. Ct. 42,] to avoid claims 'for which there is no justification.'" In re Levine, 174 Ariz. 146, 153 (1993), quoting Johnson v. Brimlow, 164 Ariz. 218, 222 (App. 1990). We impose Rule 25 sanctions only "with 'great reservation.'" Ariz. Tax Research Ass'n v. Dep't of Revenue, 163 Ariz. 255, 258 (1989), quoting Molever v. Roush, 152 Ariz. 367, 375 (App. 1986).
¶21 Despite his current insistence that Reed's pay stubs and medical billing records were critical to his case, Farmer did not seek those documents until months after the final ruling was issued. Notably, as to Reed's income, both he and Reed attributed her with the same income on their child support worksheets, calling into question the genuineness of his recent insistence on the importance of those documents. He has offered no justification for why, if these records were so important, he did not seek them sooner. As to the medical expenses, we agree with the trial court that the records he did obtain do not support his position. Indeed, there appears to be no credible reason for the subpoenas or the Rule 85 motion other than, as the court found, to harass Reed and increase her litigation costs. Moreover, Farmer attached to his Rule 85 motion billing records from the hospital where J.F. was born, which contained both Reed's and J.F.'s unredacted confidential personal information. See Ariz. R. Fam. Law P. 43(G) (before filing document with court, party must "omit or otherwise redact" any "sensitive data," such as "social security numbers . . . and other financial account and personal identifying numbers").
In his opening brief, Farmer contends Reed's "medical records, including her billing records, were specifically requested prior to trial, but never disclosed." As support, he points to a motion to continue he filed on the ground that Reed had failed to provide her "complete medical records." However, the letter to Reed's attorney attached to Farmer's motion did not request medical records from the hospital. It therefore appears Farmer did not, in fact, request the billing records he later subpoenaed. Even assuming the request did include those records, Reed's response asserted that she had provided all requested and relevant medical records since Farmer had filed that motion. Farmer did not file any other motions related to Reed's medical records, did not object to the admission of those records at trial, and did not contend they were inadequate.
The trial court later granted Reed's motion to seal the documents produced in response to the subpoenas.
¶22 Farmer continued the same behavior on appeal. He twice filed notices of appeal from unsigned minute entries, and then, while his first appeal was pending, continued to file motions in the trial court, including his Rule 85 motion, while failing to address the fact that the court had been divested of jurisdiction because of his own appeal. In his opening brief, Farmer challenged the trial court's order that it lacked jurisdiction upon remand from this court but before our mandate had issued. See supra ¶ 8. And his arguments related to the denial of his Rule 85 motion were without merit and not supported by any reasonable legal theory or the record in this case. Farmer's behavior throughout this case supports our conclusion that he has continued his combative and litigious behavior. We therefore grant Reed's request for her attorney fees and costs pursuant to § 25-324(B) upon her compliance with Rule 21(b), Ariz. R. Civ. App. P. Further, in our discretion pursuant to Rule 25, Ariz. R. Civ. App. P., we grant that award against Farmer and his attorney, jointly and severally. See Villa de Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 27 (App. 2011).
We remind counsel of his ongoing duty to bring matters and arguments with a "good faith basis in law and fact" and his obligation of candor to the court, and strongly caution him to more carefully consider his arguments in relation to his ethical duties in the future. Ariz. R. Sup. Ct. 42, ER 3.1, 3.3. --------
Disposition
¶23 For the foregoing reasons, we affirm the trial court's judgment.