Sparks v. Cobb

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENDELL SPARKS, Plaintiff/Appellant,

v.

JOHN CHRISTOPHER COBB, Defendant/Appellee.

No. 1 CA-CV 23-0102
FILED 4-23-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-013391
The Honorable Brian Kaiser, Commissioner

AFFIRMED

COUNSEL

Crider Law PLLC, Mesa
By Brad J. Crider
Counsel for Plaintiff/Appellant

Udall Shumway PLC, Mesa
By Steven H. Everts
Counsel for Defendant/Appellee
 SPARKS v. COBB
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.

C A T L E T T, Judge:

¶1 Kendell Sparks (“Mother”) petitioned to change her
daughter’s (“Child”) last name to include Mother’s maiden name (Sparks).
After hearing testimony and considering other evidence, the superior court
denied Mother’s petition “without prejudice.” On appeal, Mother argues
only that the court violated her due process rights by not allowing Child to
testify during the hearing. But, contrary to that argument, Mother agreed
that Child would not testify. Mother never subsequently sought to call
Child as a witness or make a due process argument to the superior court.
Mother, therefore, has waived the only argument she makes on appeal, and
we affirm the superior court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2 Mother and Father had Child during their marriage. Now
divorced, Mother and Father share legal decision-making authority over
Child. When Child was eight years old, Mother petitioned to change
Child’s last name from “Cobb” to “Sparks-Cobb.” Father objected, so the
superior court scheduled a hearing to resolve Mother’s petition.

¶3 Before that hearing, Father submitted a motion requesting
that the court not permit Child to testify. When the hearing began, the court
asked if the parties planned to have Child testify. Mother’s counsel
responded that she thought Child should testify about Child’s preference
regarding her name, which would allow the court to determine whether
Child was mature enough to decide for herself. But Mother’s counsel also
indicated that she was open to a compromise. Father’s counsel thought it
would be “inappropriate” for Child to testify but acknowledged the court
might need her testimony to make a credibility determination.

¶4 The court explained that, based on its family court experience,
“having a kid testify with Mom and Dad in the courtroom is probably the
worst possible idea on planet Earth.” Mother’s counsel responded,
“Agreed.” The court also stated that given Child’s age, her preference was

2
 SPARKS v. COBB
Decision of the Court

“of relatively low importance in comparison to the other factors.” The court
indicated a willingness to interview Child but provided an alternative
option—both parents could testify as to Child’s previous statements and
preferences.

¶5 After offering that option, the court asked if Mother still
wanted Child to testify. Mother’s counsel conferred with Mother and then
stated, “So long as Mom’s testimony is considered for the child’s desire,
then we’re fine with the child not testifying.” After further discussion about
how the parties could proffer Child’s out-of-court statements, the court
suggested Mother and Father could “stand[] in for the child” and that they
would not make hearsay objections to exhibits reflecting Child’s writings.
Mother did not object nor did she subsequently make any additional
requests for Child to testify. Notably, Mother never suggested that the
hearing would violate Mother’s due process rights without Child’s
testimony.

¶6 Mother offered documents where Child wrote “Sparks Cobb”
or “S.C.” for her last name and provided Child’s handwritten reasons for
why she wanted to change her last name. Father offered exhibits where
Child wrote only “Cobb” or “C.” for her last name.

¶7 Mother then testified. She began by explaining that she had
wanted Child to testify so the court could hear Child’s reasons for changing
her last name to Sparks-Cobb. Mother then explained those reasons.
Mother testified that Child “doesn’t feel it’s fair to have one name or the
other” and that Father said he would “never” let her add “Sparks” to her
last name. Mother also testified that, on one occasion, Mother had difficulty
picking up Child from daycare because Child does not share Mother’s last
name. Father testified that he recently learned of the name issue and that
Child “want[s] to do this to please both of her parents as a peacekeeper.”

¶8 After the testimony, the court discussed the six factors
relevant to a juvenile name-change petition, found Mother “failed to meet
her burden,” and denied the petition “without prejudice.” The court
advised Mother and Father to “have a discussion . . . and reach some kind
of a conclusion” while considering the “team effort to try to help this child
grow up in the best way possible.”

¶9 Mother did not file a post-hearing motion arguing that the
superior court violated her due process rights. Mother instead appealed.
This court stayed the appeal to allow the superior court to issue a signed
order with Rule 54(c) finality language. After the superior court signed

3
 SPARKS v. COBB
Decision of the Court

such an order, indicating it was a final judgment and that no further matters
remained pending, this court lifted the stay.

JURISDICTION

¶10 Though Father does not challenge our jurisdiction, “we are
obligated to examine our jurisdiction over an appeal.” Kool Radiators, Inc.
v. Evans, 229 Ariz. 532, 534 ¶ 8 (App. 2012) (alterations and citation omitted).
The court indicated in its ruling that it denied Mother’s petition “without
prejudice,” but it later included finality language. “The general rule is that
an appeal lies only from a final judgment.” Davis v. Cessna Aircraft Corp., 168 Ariz. 301, 304 (App. 1991); see also A.R.S. § 12-2101. Rule 54(c) finality
language “does not render an otherwise non-appealable order or judgment
appealable as a final judgment.” Brumett v. MGA Home Healthcare, LLC, 240
Ariz. 420, 426 ¶ 6 (App. 2016). Typically, when the superior court
“express[es] an opinion on the merits and dismiss[es] ‘without prejudice,’
the inconsistency is resolved in favor of a dismissal without prejudice.”
Oldenburger v. Del E. Webb Dev. Co., 159 Ariz. 129, 133-34 (App. 1988).

¶11 But this case is not one where the superior court merely
expressed an opinion on the merits. The court, here, decided the merits.
The court heard testimony, admitted other evidence, and made factual
findings. The court most likely included the “without prejudice” language
so that the ruling would not preclude a future name-change application.
Regardless, because the ruling fully adjudicated Mother’s name-change
petition on the merits, it is a final judgment. We have jurisdiction under
A.R.S. § 12-2101(A).

DISCUSSION

¶12 Mother argues only that the court denied her due process
because Child “was not allowed to testify” at the name-change hearing.
“We review constitutional questions, including compliance with due
process, de novo.” Ariz. Dep’t of Transp. v. Ariz. Motor Vehicle, LLC, 255 Ariz.
139, ___ ¶ 14 (App. 2023).

¶13 Mother claims the superior court “exclud[ed]” Child’s
testimony and implies it granted a protective order. Mother’s
characterization is inaccurate and misleading. True, the court expressed a
1

strong preference that Child would not testify in front of her parents, but it

1 Mother also did not comply with Arizona Rule of Civil Appellate
Procedure 13(a)(4), (5) by failing to cite the record in her “Statement of the
Case and Facts.”

4
 SPARKS v. COBB
Decision of the Court

never issued a protective order (or any order) saying whether Child could
or could not testify; nor did the court “exclud[e]” Child from testifying. By
claiming otherwise, Mother gives the impression that she formally sought
to call Child as a witness during the hearing and that the court issued an
order stopping her from doing so. Neither happened.

¶14 To the contrary, Mother stated she was open to a compromise
and ultimately agreed to the court’s suggestion that both parents would
testify, and neither would object to other hearsay evidence reflecting
Child’s position on the requested name change. Mother did not
subsequently seek to call Child as a witness or make a due process objection
during the hearing. Following the hearing, Mother did not move for
reconsideration or a new trial based on due process concerns.

¶15 Because Mother agreed Child would not testify, did not later
seek to call Child as a witness, and did not argue due process to the superior
court, she has waived the only issue she presents on appeal. See In re
Maricopa Cnty. Mental Health No. MH2009-002120, 225 Ariz. 284, 287 ¶ 7
(App. 2010) (“We generally do not consider issues, even constitutional
issues, argued for the first time on appeal.”); State v. Armstrong, 208 Ariz.
345, 357 n.7 ¶ 59 (2004) (stating that the invited error doctrine exists to
prevent a party from injecting error into the record and then profiting from
that error on appeal); In re MH–1140–6–93, 176 Ariz. 565, 568 (App. 1993)
(finding alleged due process violations were waived as arguments because
they were raised for the first time on appeal).

ATTORNEY FEES

¶16 Father requests attorney fees and costs under Arizona Rule of
Civil Appellate Procedure 25. Under that Rule, we “may impose sanctions
on . . . a party” if an appeal is “frivolous” or for violating the Rules of Civil
Appellate Procedure. Ariz. R. Civ. App. P. 25. Frivolous means groundless.
Rogone v. Correia, 236 Ariz. 43, 50 ¶ 22 (App. 2014).

¶17 Mother’s appeal is groundless. Mother fails to cite the record
appropriately and mischaracterizes parts of the record. Mother’s opening
brief omits that she agreed to the court’s suggestion. Mother also does not
acknowledge that the court allowed Mother to testify about statements
Child had purportedly made about the requested name change and to offer
other evidence reflecting Child’s reasons for seeking a name change. And
Mother does not expressly acknowledge that she never changed her mind
and later asked to call Child as a witness, or that she did not make a due
process objection during or after the hearing. We, therefore, sanction

5
 SPARKS v. COBB
Decision of the Court

Mother by awarding Father a portion of his reasonable attorney fees and
costs on appeal. We will determine the appropriate amount of the award
upon Father’s compliance with Arizona Rule of Civil Appellate Procedure
21.

CONCLUSION

¶18 We affirm the superior court’s judgment.

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

6