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In re Johnson

Court of Appeals of Arizona, First Division

July 26, 2018

In re the Matter of: REBECCA L. JOHNSON, Petitioner/Appellant,
v.
JAMES PROVOYEUR, Respondent/Appellee.

          Appeal from the Superior Court in Maricopa County No. FC2013-000701 The Honorable Michael J. Herrod, Judge.

          Gillespie Shields Durrant & Goldfarb, Phoenix By DeeAn Gillespie Strub, Mark A. Shields Counsel for Petitioner/Appellant

          Mushkatel, Robbins & Becker, PLLC, Sun City By Zachary Mushkatel Counsel for Respondent/Appellee

          Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.

          OPINION

          CAMPBELL, Judge.

         ¶1 Petitioner Rebecca L. Johnson ("Mother") appeals the superior court's order denying her petition to modify the primary physical residence of the parties' children. Mother argues the court abused its discretion by precluding her expert's supplemental report due to her failure to timely disclose the report pursuant to the scheduling order and the Rules of Family Law Procedure. For the following reasons, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Mother and respondent James Provoyeur ("Father") married and had two children in Rhode Island. In 2012, Mother moved to Arizona with the children. After Mother arrived, she learned she was pregnant with the parties' third child. After Mother gave birth in June 2013, she filed for dissolution in Arizona.

         ¶3 The parties conceptually agreed to a parenting plan under which the children would live with the primary residential parent during the school year and with the other parent during summer and alternating school breaks. Mother and Father each sought appointment as the primary residential parent. After an evidentiary hearing in July 2014, the superior court found it was in the children's best interests for Father to be the primary residential parent and for the children to reside principally in Rhode Island.[1]

         ¶4 In April 2016, Mother filed a petition to modify the children's primary physical residence, asserting Father had failed to fulfill his responsibility as the primary residential parent and, as a result, the children were suffering in his care. The superior court scheduled an evidentiary hearing for November 21, 2016, and ordered the parties to exchange updated disclosure statements, including all documents and exhibits, at least 60 days before the hearing. At the parties' request, the court implemented a scheduling order requiring disclosure of experts' identities and opinions on or before October 14, 2016, and completion of all discovery (except expert depositions) by November 1, 2016. Mother disclosed the report of her expert, Carol Mellen, Ph.D., on October 21, 2016 ("Original Report")-a week after the court-ordered deadline.

         ¶5 A few days before the scheduled evidentiary hearing, the court granted Father's motion to continue, resetting the hearing for March 6, 2017. The request for a continuance was necessitated by Mother's untimely disclosure of witnesses and voluminous documents, again after the court-imposed deadline. When granting the continuance, the court reaffirmed its earlier discovery and disclosure order requiring the parties to make all disclosures at least 60 days before the hearing.

         ¶6 On February 21, 2017, Mother again violated the court's scheduling order and the Rules of Family Law Procedure by disclosing Dr. Mellen's supplemental report, dated February 13, 2017 ("Supplemental Report"). The Supplemental Report included summaries of Dr. Mellen's December 27 and 30, 2016 interviews and observations of the parties' children. Mother did not alert the court or Father of the expected report, nor did she request a continuance based on her late disclosure. On February 27, 2017, Father moved in limine to exclude the Supplemental Report and Dr. Mellen's related testimony because Mother had failed to timely disclose the Supplemental Report. He asserted the presentation of the newly disclosed information would cause him prejudice. Mother argued the disclosure was timely and not prejudicial to Father; she also asserted that it would be an abuse of the court's discretion to exclude the Supplemental Report because it contained information regarding the children's best interests. The court granted Father's motion and excluded Dr. Mellen's Supplemental Report, but admitted her timely disclosed Original Report and allowed Dr. Mellen to testify about the opinions therein.

         ¶7 Ultimately, the court denied Mother's petition to modify, determining she failed to show a substantial and continuing change of circumstances that would justify a ...


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