In re the Matter of: REBECCA L. JOHNSON, Petitioner/Appellant,
JAMES PROVOYEUR, Respondent/Appellee.
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
Mushkatel, Robbins & Becker, PLLC, Sun City By Zachary
Mushkatel Counsel for Respondent/Appellee
Jennifer B. Campbell delivered the opinion of the Court, in
which Presiding Judge Lawrence F. Winthrop and Judge Paul J.
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.
AND PROCEDURAL BACKGROUND
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.
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
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.
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
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
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 ...