Pappas v. Darby

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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:

FLORA FAWN PAPPAS, Petitioner/Appellee,

v.

PETER T. DARBY, Respondent/Appellant.

No. 1 CA-CV 20-0700 FC
FILED 1-25-2022

Appeal from the Superior Court in Maricopa County
No. FC 2016-001415
The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

Sullivan Law Office PLLC, Mesa
By Dianne Nicole Sullivan
Counsel for Petitioner/Appellee

Kimerer Law Group PC, Phoenix
By Teri D. McCall
Counsel for Respondent/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Brian Y. Furuya joined.

B R O W N, Judge:

¶1 Peter Darby (“Father”) appeals the superior court’s order
granting Flora Pappas (“Mother”) final legal decision-making authority
over medical and mental health issues for their oldest child. For the reasons
stated below, we affirm.

BACKGROUND

¶2 Under a 2016 consent decree of dissolution, Mother and
Father agreed to joint legal decision-making authority over their two
children, and equal parenting time. Three years later, Mother petitioned
for final legal decision-making authority, alleging that Father refused to
increase the oldest child’s medication for Attention Deficit/Hyperactivity
Disorder (“ADHD”). Mother also filed an emergency motion without
notice seeking temporary final legal decision-making authority and an
order that Father comply with all doctor-recommended treatment for the
child. After a one-hour hearing, the court awarded Mother temporary final
legal decision-making authority for the oldest child’s medical issues.

¶3 Father then moved to appoint a court advisor based on
significant conflicts between the parties. In his motion, Father made several
allegations about Mother’s sexual behavior that he claimed warranted
further investigation. According to Father, the children’s babysitter
reported that Mother had engaged in inappropriate behavior in the
children’s presence. Father also made these allegations in his response to
Mother’s petition to modify. In support, Father submitted a notarized letter
from the babysitter with the motion and response.

¶4 Mother denied these allegations and questioned the
authenticity of the babysitter’s letter. She moved for sanctions and asked
the superior court to strike the allegations from Father’s pleadings as
frivolous, groundless, and unjustified. In response, Father argued that he
had sufficient information to support the allegations and that issues of
credibility should be decided at a hearing. Father also sought attorneys’

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fees, asserting that Mother wrongfully accused him of making false
allegations. The court denied Mother’s motions without comment,
appointed an advisor, and later denied Father’s request for attorneys’ fees.

¶5 Although the superior court originally set a three-hour
hearing on Mother’s petition, court staff emailed the attorneys less than two
hours before the scheduled hearing to notify them that the hearing time
would be reduced to 45 minutes per side.1 Father filed a written objection
immediately before the hearing, but neither party objected at the hearing.
The court granted Mother’s petition and awarded her final legal decision-
making authority for the older child’s medical issues. Father timely
appealed, and we have jurisdiction under A.R.S. § 12-2101(A)(2).

DISCUSSION

A. Reduction in the Hearing Time

¶6 Father argues the superior court abused its discretion and
violated his due process rights by cutting the hearing time in half on short
notice. He contends the reduction was unreasonable and prevented him
from adequately presenting his case because there were several witnesses
and numerous exhibits, and the issues centered on the parties’ credibility.
Due process claims are issues of law we review de novo. Mack v. Cruikshank, 196 Ariz. 541, 544, ¶ 6 (App. 1999).

¶7 The superior court has discretion to impose reasonable time
limits for an evidentiary hearing. Brown v. U.S. Fid. & Guar. Co., 194 Ariz.
85, 90–91, ¶ 29 (App. 1998). But the court must exercise that discretion
consistent with due process, which requires that parties have “a reasonable
opportunity to present testimony whenever resolution of a material
contested issue hinges on credibility.” Volk v. Brame, 235 Ariz. 462, 466,
¶ 14 (App. 2014). Time limits may be unreasonable if, during the hearing,
“it becomes apparent that the court lacks sufficient time to receive adequate
testimony . . . to perform its essential tasks.” Id. at 468, ¶ 21.

¶8 Despite the reduced hearing time, the parties had over two
hours combined to present evidence on two issues: (1) whether to grant
Mother final legal decision-making authority for the oldest child’s medical
issues and (2) attorneys’ fees. Contrary to Father’s contentions, the superior
court did not decide the issues solely on exhibits unsupported by any
testimony; it heard testimony from the parties and three other witnesses.

1 Despite the superior court’s reduction of the hearing time to 90
minutes, the hearing ended up lasting over two hours.

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Nonetheless, Father argues the shortened hearing prevented him from
adequately addressing the admitted exhibits and refuting Mother’s
allegations.

¶9 Specifically, Father contends he could not adequately address
Mother’s allegation that he refused to agree to medicate the child or to allow
a change in the child’s medication. The record belies his contention.
Throughout his testimony, Father made clear that he was not opposed to
medicating the child, but wanted to increase the dose slowly and consider
supplemental treatments. He also stated that, unlike Mother, he did not
think changes in the child’s behavior warranted an immediate change or
increase in medication.

¶10 Father also argues he was unable to show that the doctors
based their recommendations solely on Mother’s statements about the
child’s symptoms. Yet, Mother admitted that the doctors relied on her
statements about the child’s behaviors. Mother told the doctors what the
child’s teachers, babysitters, and relatives reported, but she did not provide
the doctors any letters from those third parties. Father also testified that
one doctor increased the child’s medication based on Mother’s statements,
which failed to provide a complete picture of the information from the
child’s school.

¶11 The parties also disputed whether Mother sought to increase
the child’s medication without consulting Father. Although Father
contends he could not challenge Mother’s testimony on this issue due to
time restraints, his attorney specifically asked Mother about the matter.
According to Mother, she called the doctor to schedule an appointment to
discuss the child’s medication and did not ask to increase the dose. Mother
claimed the doctor increased the dose immediately and she called back to
express her concern about how Father would react. Father pointed out that
in his view, the medical record related to this call contradicted Mother’s
testimony. He testified that Mother asked the doctor to increase the dose
without Father’s consent.

¶12 Father also argues Mother’s attorney asked leading questions,
comparing it to a trial by avowal that violates due process. See Volk, 235
Ariz. at 469, ¶ 23. Although Father’s attorney objected to the leading
questions, she apparently withdrew the objection after Mother’s attorney
agreed she could ask the same questions. Thus, we decline to consider this
argument.

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¶13 Our review of the record shows that contrary to his assertions
on appeal, Father adequately addressed the factual disputes and challenged
Mother’s credibility on these issues. To prevail, Father must show an abuse
of discretion and prejudice as a result of the time limitation. Brown, 194
Ariz. at 91, ¶ 30. Although the timing and manner of the court’s decision
to reduce the time previously allotted to the parties created an unnecessary
risk of violating the parties’ rights to due process, Father has failed to show
he was prejudiced by the reduction.

B. Father’s Request for Sanctions

¶14 Father argues the superior court abused its discretion and
violated due process by excluding testimony related to his claim for
attorneys’ fees under A.R.S. § 25-415(A).2 We review evidentiary rulings
for an abuse of discretion, see E.R. v. Dep’t of Child Safety, 237 Ariz. 56, 60,
¶ 19 (App. 2015), and review due process claims de novo, Mack, 196 Ariz.
at 544, ¶ 6.

¶15 Father’s motion and response alleged that Mother engaged in
inappropriate behavior in the children’s presence. Mother denied these
allegations and sought sanctions because she believed that Father knew the
allegations were groundless. She also accused Father of coercing the
babysitter to make false statements to support his request for a change in
legal decision-making and parenting time. In response, Father argued that
Mother knew her accusation that he made false statements was untrue,
asserting the babysitter’s deposition testimony confirmed his allegations.
Father asserted he was entitled to attorneys’ fees because Mother
knowingly accused him of making a false claim that she knew was true,
failed to notify Father of a canceled deposition, and provided untruthful
testimony. See A.R.S. § 25-415(A)(2).

2 Section 25-415(A) provides, in relevant part:

The court shall sanction a litigant for costs and reasonable
attorney fees incurred by an adverse party if the court finds
that the litigant . . . (1) [k]nowingly presented a false claim
under § 25-403, 25-403.03 or 25-403.04 with knowledge that
the claim was false [or] (2) [k]nowingly accused an adverse
party of making a false claim under § 25-403, 25-403.03 or 25-
403.04 with knowledge that the claim was actually true.

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¶16 The superior court found that neither party acted
unreasonably in the litigation and neither party knowingly made false
claims about the other, nor did they accuse each other of making false
claims they knew to be true. Our review of the record shows, contrary to
Father’s contention, that the court did not exclude relevant evidence about
his allegations regarding Mother’s behavior or rely solely on the exhibits to
decide issues of credibility. The court resolved credibility issues to make
these findings, and only excluded testimony that described Mother’s
alleged inappropriate behavior because it predated the consent decree. The
court heard evidence from the parties regarding the truth of the allegations
raised in the pleadings, which was the pertinent issue under § 25-415(A). It
did not abuse its discretion by excluding the testimony describing the
alleged behavior.

¶17 Father also argues the reduced hearing time prevented him
from adequately presenting his claim for attorneys’ fees, which turned on
issues of credibility. But Father did not explain what other evidence he
would have presented to challenge Mother’s credibility, nor did he ask
Mother any questions about this issue on cross-examination. Thus, Father
has not shown how he was prejudiced by the reduced time. See Brown, 194
Ariz. at 91, ¶ 30.

C. Evidence Supporting the Court’s Findings

¶18 Father contends the superior court abused its discretion
because the evidence does not support several findings.3 We review the
court’s legal decision-making orders for an abuse of discretion and accept

3 Father makes several trivial, if not frivolous, assertions about the
superior court’s findings. Nothing in the court’s ruling indicates that such
findings influenced the court’s overall decision, which was based on the
parties’ significant conflict over how to best treat the child’s ADHD. As
such, we summarily reject Father’s arguments that (1) the evidence does not
support the finding that Mother maintains the children’s relationship with
their paternal grandparents because Father is estranged from his parents;
(2) the record shows he has a wife, not a girlfriend; and (3) the court’s
finding that Mother is the “driving force” in the child’s daily activities was
based on solely Mother’s pretrial statement. Father also argues the
evidence does not support Mother’s contention that he does not follow
doctor recommendations and that this harms the child. However, the court
made no such finding.

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the findings of fact absent clear error. Engstrom v. McCarthy, 243 Ariz. 469,
471, ¶ 4 (App. 2018).

¶19 Father argues the evidence does not support the court’s
finding that he advocated for the use of naturopathic medications to treat
the child in lieu of prescription medication. Contrary to Father’s
contention, the court did not make such a finding. Instead, it found:

[The child] has [ADHD] of a sufficiently significant nature
that it requires medical intervention to treat to ensure he
succeeds in school. This is the one area where the parent[s’]
conflict is the most extreme. Mother wishes to treat the
condition using traditional methods, including prescription
medications. Father, who has [ADHD], is advocating for the
use of naturopathic medications, likely encouraged by his
girlfriend, who is studying to be a naturopath. Given the lack
of large scale, scientifically rigorous studies on the use of
naturopathic medicines to successfully treat children with
[ADHD], the Court finds it appropriate to allow Mother to
take the lead on this issue.

Nowhere did the court find that Father advocated for naturopathic
treatments in lieu of prescription medication. The evidence showed that
Father did, in fact, advocate for naturopathic treatment to supplement
traditional medication. Mother testified that there was no naturopathic
treatment protocol for ADHD, and Father confirmed that none of the child’s
doctors recommended only natural treatments.

¶20 Father also contends there was evidence in the record
showing that he acted reasonably regarding the child’s medical treatment.
However, we do not reweigh the evidence on appeal. See Hurd v. Hurd, 223
Ariz. 48, 52, ¶ 16 (App. 2009). The record supports the court’s finding that
the parties have significant conflict over how to treat the child’s ADHD due,
in part, to Father’s desire to supplement medication with other
naturopathic treatments.

¶21 Father challenges the finding that his allegations about
Mother’s behavior increased the cost of litigation and confused the issues.
Initially, Father argued that Mother’s pre-decree conduct warranted
modification of the parenting plan and a court-appointed advisor.
Although he later withdrew his assertion that modification of the existing
orders was necessary based on Mother’s alleged inappropriate behavior,
his allegations still complicated the issues and thus increased the cost of

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litigating what was otherwise a single-issue petition to modify medical
decision-making.

¶22 Given the uncontroverted evidence that the child was
responding well to the traditional medication protocol and the significant
parental conflict, we cannot say the court abused its discretion in awarding
Mother final legal decision-making authority over the child’s medical
issues.

CONCLUSION

¶23 We affirm the order granting Mother final legal decision-
making authority for the older child’s medical issues. Both parties request
attorneys’ fees on appeal under A.R.S. § 25-324. In our discretion, we deny
both requests. As the successful party on appeal, Mother is awarded
taxable costs on appeal upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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