Brevetti v. Brevetti

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALICIA LOREN BREVETTI, Petitioner/Appellant,

v.

FRANCESCO GERARDO BREVETTI, Respondent/Appellee.

No. 1 CA-CV 21-0569 FC
FILED 7-20-2023

Appeal from the Superior Court in Maricopa County
No. FC2020-093239
The Honorable John L. Blanchard, Judge

AFFIRMED

APPEARANCES

Alicia Loren Wharton, Phoenix
Petitioner/Appellant

Law Offices of Matthew S. Schultz, P.C., Tempe
By Matthew S. Schultz
Counsel for Respondent/Appellee
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MEMORANDUM DECISION

Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Samuel A. Thumma and Judge Cynthia J. Bailey joined.

G A S S, Chief Judge:

¶1 This appeal involves the superior court’s rulings on two post-
decree petitions: (1) father’s amended petition to move the parties’ two
children to California with father, and to modify legal decision making,
parenting time, and child support; and (2) mother’s petition to enforce child
support and arrears, spousal maintenance and arrears, medical insurance
coverage, and medical expense reimbursement. Because the record
supports the superior court’s rulings, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court views the facts in the light most favorable to
affirming the superior court. See Lehn v. Al-Thanayyan, 246 Ariz. 277, 283
¶ 14 (App. 2019).

¶3 Mother and father married in 2010 and share three minor
children. The children lived mainly with mother in Florida from 2012 to
2018, when mother and the children moved to Arizona. Father lived mainly
in Italy and moved to California in October 2017.

¶4 In 2018, Florida acquired original, continuing jurisdiction
over the children under the Uniform Child Custody Jurisdiction
Enforcement Act (UCCJEA) when mother petitioned for dissolution in
Florida. As a result, Florida issued a temporary parenting plan granting
mother sole legal decision-making and father parenting time as agreed by
the parents. The Florida court also established father’s child support
obligation. While mother’s petition for dissolution was still pending in
Florida, she and the children moved to Arizona. Father tried to visit the
children, but mother consistently denied him access. Because of mother’s
actions, the Florida court found mother in contempt and awarded father
make-up parenting time.

¶5 The Arizona superior court became involved in February
2020, when father tried to register the temporary Florida orders in Arizona.

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Father’s filings prompted the superior court to hold a UCCJEA conference
with the Florida court in July 2020. During the UCCJEA conference, the
Florida and Arizona courts agreed Florida would keep jurisdiction until
either mother or father registered a final Florida decree in Arizona. At that
point, Florida would cede jurisdiction to Arizona. In October 2020, the
Florida court entered an “Amended Final Judgment of Dissolution of
Marriage,” dissolving the marriage and approving the original 2018
parenting plan and child support orders.

¶6 About six months later, on March 2, 2021, father registered the
Florida Amended Final Judgment in Arizona. Mother and father began
post-decree proceedings. Father filed a motion for temporary orders; an
amended petition to modify legal decision-making, parenting time, and
child support; and an accelerated request to reinstate parenting time and
for hearing on contempt. Mother petitioned to enforce child support,
spousal maintenance, and medical expenses.

¶7 In May 2021, the superior court confirmed father had
properly registered the Florida Amended Final Judgment and child support
orders as of March 2021. The parties agree Arizona acquired UCCJEA and
Uniform Interstate Family Support Act jurisdiction at that time.

¶8 The superior court held two hearings in very short order in
June 2021: the first on June 17 for father’s temporary orders request, and the
second just five days later on June 22 for mother’s motion for
reconsideration of the June 17 temporary orders.

¶9 During the temporary orders hearing, the superior court
considered father’s accelerated request to reinstate parenting time and
contempt. Following the temporary orders hearing, the superior court
awarded father temporary sole legal decision-making and ordered the
children live with father in California. The superior court awarded mother
a weekly 90-minute phone call with the children. The superior court,
however, did not find mother in contempt at this hearing.

¶10 During the motion for reconsideration hearing, mother did
not appear, and father was 24 minutes late. Mother never explained her
failure to appear. Father’s counsel explained father’s late arrival because
father was traveling from California and experienced a flight delay. The
superior court moved forward with the hearing after finding mother did
not show good cause for her absence. The superior court denied mother’s
motion. The superior court then held mother in contempt for refusing to
comply with the June 17, 2021 temporary orders.

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¶11 Father then moved to consolidate the trial on all remaining
pending matters. The superior court granted the motion and set a July 29,
2021 trial.

¶12 Seven days before the scheduled trial date, mother moved to
continue the trial for six months, claiming a medical emergency. The
superior court scheduled a status conference to discuss mother’s motion.
Mother again failed to appear. The superior court proceeded with the status
conference, explaining it could not “simply . . . cancel a hearing or change
a hearing, or frankly, do anything without credible evidence of a
condition.” The superior court said it would reserve time at the beginning
of the trial to discuss mother’s motion to continue and any
accommodations.

¶13 On the date of trial, Mother again did not appear. After
waiting an hour, the superior court denied mother’s motion to continue
because mother “unreasonably and unlawfully” withheld the children from
father, did not appear at the status conference, did not appear at trial, and
filed “unreasonable motions that appeared designed only to delay or
disrupt [the] proceedings.” The superior court then dismissed mother’s
petition to enforce child support arrears, spousal maintenance, and medical
expenses. The superior court proceeded with the trial on father’s petition to
modify, the sole remaining unresolved request for relief.

¶14 During the trial, father testified, had a court-appointed
advisor (CAA) testify, and offered other evidence. Father’s evidence
showed mother consistently refused to follow court orders throughout the
history of the Florida and Arizona cases. The CAA testified she was
concerned about “damage” mother had caused and “will continue” to
cause the children. At the end of the trial, the superior court issued
temporary orders and took the matter under advisement.

¶15 The superior court then issued a 20-page under-advisement
ruling concluding several material changes in circumstances warranted
modifying the Florida decree and related orders. The changes included:
“conflict and confusion caused by the current Florida orders,” and mother’s
“aggressive alienation activities, . . . unrelenting and baffling defiance of the
superior court orders, and . . . unstable and irrational behavior.”

¶16 The superior court made extensive findings under A.R.S.
§§ 25-403.A, -403.01, -403.03, -403.04, -403.05, and -408.I, and awarded father
sole legal decision-making authority and allowed the children to relocate to
California to live with father but prohibited father from taking the children

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outside the United States. The superior court awarded mother parenting
time in California after a time and “with the assistance of a therapeutic
intervention or therapy.” The superior court said it would consider
unsupervised parenting time after mother completed the previously
ordered “forensically informed psychological evaluation.” The superior
court awarded father $421 per month in child support. And though the
superior court dismissed mother’s petition, it ordered father to pay
$118,065.87 in child support arrearages, a ruling father has not appealed.

¶17 This court has jurisdiction over mother’s timely appeal under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1
and -2101.A.2.

ANALYSIS

¶18 Mother raises several issues on appeal, including jurisdiction,
due process, and sufficiency of the evidence. For the first time on appeal,
mother also alleges “abusive litigation” by father. We address each issue in
turn.

I. The superior court acquired UCCJEA jurisdiction on March 2,
2021.

¶19 Mother argues the superior court “erred by moving forward
with proceedings in Arizona while Florida maintained jurisdiction” over
the child custody determination. Mother contends Arizona “did not have
jurisdiction to enforce or modify the Florida orders” until the Florida orders
had been finalized and “proceedings continu[ed] and a new hearing [was]
set in Arizona.” Mother is correct. Under the UCCJEA, Florida maintained
jurisdiction until March 2, 2021—when jurisdiction transferred to Arizona
because father registered Florida’s Amended Final Judgment. See A.R.S. §
25-1032.A.2. Because the Arizona superior court lacked jurisdiction before
March 2, 2021, any substantive Arizona orders entered before that date are
a nullity. See In re Marriage of Dougall, 234 Ariz. 2, 6 ¶ 12 (App. 2013)
(explaining judgments and orders are void if the court entering them lacks
jurisdiction) (citation omitted).

¶20 As to the June and August 2021 orders, the Arizona superior
court obtained jurisdiction on March 2, 2021, after Florida issued the
Amended Final Judgment and father registered it in Arizona. At that point,
Florida ceded its original jurisdiction to Arizona.

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II. The superior court did not violate mother’s due process or civil
rights.

¶21 Mother argues the superior court violated her due process
rights (including her civil rights) when it did not grant her motion to
continue the August 2021 hearing based on her alleged medical emergency.

¶22 Due process gives parties the right to notice of proceedings
and the opportunity to present their case. Cruz v. Garcia, 240 Ariz. 233, 236
¶ 11 (App. 2016). The superior court must ensure parties examine witnesses
and present evidence in a mode and order “so as to . . . avoid wasting time.”
Ariz. R. Evid. 611(a)(2); see also Backstrand v. Backstrand, 250 Ariz. 339, 347
¶29 (App. 2020) (explaining courts have discretion to decide “whether
additional time is necessary”). This court reviews issues of due process de
novo. Jeff D. v. Dep’t of Child Safety, 239 Ariz. 205, 207 ¶ 6 (App. 2016). This
court will reverse a decision based on a due process violation only if the
error prejudices a party. Volk v. Brame, 235 Ariz. 462, 470 ¶ 26 (App. 2014).

¶23 Seven days before the trial, mother moved to continue and the
superior court immediately scheduled a status conference, allowing her to
appear virtually. When mother did not appear, the superior court said it
would reserve time at the beginning of the trial to discuss accommodations
including video-appearance, frequent breaks, and changes to how parties
object. But mother did not appear at the trial, once again missing any
opportunities to discuss any potential accommodation.

¶24 On this record, mother has not shown the superior court
abused its discretion when it denied her motion to continue and held the
trial in her absence. Because mother had proper notice and two
opportunities to discuss her motion, the superior court did not violate
mother’s due process rights.

¶25 Lastly, mother argues the superior court denied her due
process when it did not enforce earlier child support orders, though she
“had been trying for years” to secure enforcement. But the superior court
did not acquire jurisdiction until March 2, 2021. And even though the
superior court dismissed mother’s petition to enforce when mother did not
appear for the trial, the superior court entered a child-support-arrearage
judgment of $118,065.87 in her favor, granting mother the very relief she
sought. On this record, mother has shown no denial of her due process or
civil rights.

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III. Sufficient evidence supports the superior court’s findings and
orders.

¶26 Mother argues the superior court erred for two reasons: (1) it
did not consider certain evidence; and (2) it relied on fraudulent evidence.

¶27 This court will affirm a superior court ruling on legal
decision-making and parenting time unless the superior court abused its
discretion. See Ertl v. Ertl, 252 Ariz. 308, 315 ¶ 25 (App. 2021). The superior
court acts within its discretion if substantial evidence supports its
judgment. See Hurd v. Hurd, 223 Ariz. 48, 52 ¶ 16 (App. 2009). This court
reviews de novo the sufficiency of evidence but does not reweigh conflicting
evidence or redetermine the preponderance of evidence. See State v. West, 226 Ariz. 559, 562 ¶ 15 (2011); Hurd, 223 Ariz. at 52 ¶ 16. And because the
superior court is in the best position to determine witness credibility and
resolve conflicting evidence, this court generally defers to its findings. See
Vincent v. Nelson, 238 Ariz. 150, 155 ¶ 18 (App. 2015).

A. Sufficient evidence supports the superior court’s findings
father did not engage in domestic violence or use illicit
drugs.

¶28 Mother argues the superior court erred by disregarding
father’s alleged domestic violence and failure to complete drug testing.

¶29 As to father’s alleged domestic violence, mother claims the
superior court ignored evidence she provided, including a Department of
Child Safety investigation, the children’s statements, and Florida orders of
protection. The superior court considered mother’s allegation father
committed domestic violence and reviewed the evidence as required by
statute. See A.R.S. § 403.03.B, .C. But mother did not appear at the July 29,
2021 trial and presented no evidence. The superior court heard testimony
from father and the CAA who investigated mother’s claims. Father denied
all domestic violence allegations, and the CAA reported no evidence
supporting mother’s claims. The superior court also considered the lack of
domestic violence allegations in mother’s July 2017 petition for dissolution.
This record does not support mother’s argument that the superior court
erred in disregarding evidence of father’s alleged domestic violence. On
this record, sufficient evidence supported the superior court’s finding
father had not committed domestic violence against mother. See Hurd, 223
Ariz. at 52 ¶ 16.

¶30 As to father’s alleged drug use, mother argues the superior
court should have found father “guilty of [illicit] drug use” because he did

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not follow an order for hair follicle testing. Mother cites no authority to
support her argument.

¶31 If the superior court “determines that a parent has abused
drugs or alcohol or has been convicted of [specific] drug offense[s,]” it must
apply “a rebuttable presumption that sole or joint legal decision-making by
that parent is not in the child’s best interests.” A.R.S. § 25-403.04.A. In
considering whether a parent has rebutted that presumption, the superior
court must at least consider: (1) “[t]he absence of any conviction of any
other drug offense during the previous five years”; (2) “[r]esults of random
drug testing for a six month period that indicate that the person is not using
drugs as prescribed by title 13, chapter 34”; and (3) “[r]esults of alcohol or
drug screening provided by a facility approved by the department of health
services.” A.R.S. § 25-403.04.B.

¶32 The record contains no evidence of father’s drug use or any
relevant convictions. And though mother alleges she had tried for years to
bring forward his drug-use, she offered no evidence beyond her own
allegations to show her attempts or father’s alleged drug use. True, father
did not complete the court-ordered hair follicle test, but he did complete a
urine test which showed only use of marijuana—legal in Arizona at the
time. No other evidence showed any history of illicit drug-use or drug-
offense convictions. Mother has not shown the superior court abused its
discretion or otherwise erred in applying A.R.S. § 25-403.04.

B. Mother has shown no fraud or perjury.

¶33 Mother argues the superior court relied on fraudulent
evidence of father’s failure to complete a hair follicle test, the CAA report,
and her credibility.

¶34 First, mother argues father’s counsel committed fraud on the
court by lying to the superior court to avoid completing a hair follicle test.
Fraud on the court occurs “[w]hen a party obtains a judgment by concealing
material facts and suppressing the truth with the intent to mislead the
court.” Cypress on Sunland Homeowners Ass’n v. Orlandini, 227 Ariz. 288, 299
¶ 42 (App. 2011).

¶35 Mother bases her argument on the conclusion father’s
attorney intended to mislead the superior court by saying father was late
for the motion for reconsideration hearing because his flight was delayed
when, instead, father was drug testing. But Mother offered no evidence
relevant to this argument or how it was fraudulent. To be sure, the record
shows father arrived 24 minutes late for the hearing and took a urine test

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about 30 minutes before the originally scheduled time. Mother, however,
has shown no fraud on the court.

¶36 Second, mother argues the superior court erred because it
“adopted the majority of the [CAA’s report]” and the report, she argues,
was based mainly on “perjured testimony” from father and information
from father’s counsel.1 Mother also argues the superior court erred by
ignoring testimony her own expert witness gave at the June 2021 hearing.
Though the superior court did not reference mother’s expert in the final
orders, the superior court had the discretion to disregard the expert’s earlier
testimony at a different hearing. See Vincent, 238 Ariz. at 155 ¶ 18. Moreover,
mother’s expert did not testify at trial, and because mother did not appear
at trial, she did not ask the superior court to consider the expert’s earlier
testimony.

¶37 Third, mother argues the superior court should have adopted,
or been bound by, the Florida court’s credibility findings. She provides no
authority supporting this argument. And on the record presented, in
essence, mother asks this court to reweigh the evidence and judge the
credibility of witnesses, something this court will not do. See Hurd, 223 Ariz.
at 52 ¶ 16; Vincent, 238 Ariz. at 155 ¶ 18.

¶38 On this record, mother has shown no fraud or perjury.

IV. Mother waived any “abusive litigation” claim.

¶39 Mother argues father engaged in—and the superior court
allowed—abusive litigation. Mother says father and the superior court
made defamatory, prejudicial, and biased remarks about her. She also
argues the superior court caused her harm by ignoring her medical
emergency when it denied her motion to continue. Mother did not support
any argument that father engaged in sanctionable conduct or that the
superior court acted improperly.

¶40 Even if mother’s “abusive litigation” claim is an “abuse-of-
process” claim, that claim fails on the merits. Abuse of process, an
independent tort claim, is a willful act in the use of judicial process for an
ulterior purpose not proper in the regular conduct of the proceedings.

1One day before this court conferenced this case, mother filed a “Motion to
Supplement the Record/Request to Take Judicial Notice of Formal
Complaint Against Court-Appointed Advisor Holly K. Judge in FC2020-
093239,” attaching eight emails and one letter. This court, in its discretion,
denies mother’s request to take judicial notice. Ariz. R. Evid. 201(c), (f).

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Crackel v. Allstate Ins. Co., 208 Ariz. 252, 257 ¶ 11 (App. 2004); see also
Nienstedt v. Wetzel, 133 Ariz. 348, 353 (App. 1982). Mother did not raise
abuse of process in her petition, did not modify her petition to include such
a claim, and did not appear at trial and seek to raise such a claim. Because
she did not properly raise an abuse-of-process claim, she has waived it on
appeal. See BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 594 ¶ 25 (App.
2021) (explaining parties waive issues on appeal if the superior court had
no opportunity to address the merits of the issue).

ATTORNEY FEES AND COSTS

¶41 Father and mother request attorney fees and costs under
ARCAP 21 and A.R.S. § 25-324. This court exercises its discretion and
declines to award father his attorney fees. See A.R.S. § 25-324.A. Mother, a
self-represented party, is ineligible for attorney fees. See Munger Chadwick,
P.L.C. v. Farwest Dev. and Constr. Of the Sw., LLC, 235 Ariz. 125, 126 ¶ 5 (App.
2014). As the prevailing party, we award father his costs upon compliance
with ARCAP 21. See A.R.S. § 12-341.

CONCLUSION

¶42 We affirm.

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

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