SUPREME COURT OF ARIZONA

En Banc

ELIZABETH K. HAYS, ) Arizona Supreme Court

) No. CV-02-0316-PR

Petitioner, )

) Court of Appeals

v. ) Division One

) No. 1 CA-SA 02-0157

THE HONORABLE J. RICHARD GAMA, )

JUDGE OF THE SUPERIOR COURT OF ) Maricopa County

THE STATE OF ARIZONA, in and for ) Superior Court

the County of MARICOPA, ) No. DR 2000-010206

)

Respondent Judge, )

)

) OPINION

DONALD T. HAYS, )

)

Real Party in Interest. )

)

__________________________________)

Special Action from the Superior Court of Maricopa County

The Honorable J. Richard Gama, Judge

RELIEF GRANTED IN PART

Patterson & Simiele Tempe

by Scott L. Patterson

Attorneys for Petitioner Elizabeth K. Hays

John R. Zarzynski Mesa

Attorney for Real Party in Interest Donald T. Hays

Dianne Post Phoenix

Attorney for Amici Curiae Arizona Coalition

Against Domestic Violence Inc. and

Arizona Voice for Crime Victims, Inc.
1 Father has been charged with criminal sexual misconduct;

the criminal case against Father is currently pending. The

superior court has deferred a final custody determination until the

resolution of the criminal action.

2

HURWITZ, Justice

¶1 This case involves the dissolution of a marriage and a

hotly contested child custody dispute. We granted review to

consider whether certain contempt sanctions imposed on a party for

disobeying an order improperly interfered with the superior court’s

duty to determine the best interests of the child in awarding

custody.

I.

¶2 On June 9, 2000, Elizabeth K. Hays (“Mother”) filed a

petition in superior court to dissolve her marriage to Donald T.

Hays (“Father”). The couple had a five-year-old daughter

(“Daughter”), and the issue of child custody became the subject of

bitter dispute. On November 28, 2000, the superior court appointed

a psychologist, Dr. John Moran, to perform a custody evaluation.

¶3 Wendy Dutton, a forensic interviewer at the Child Abuse

Assessment Center at St. Joseph’s Hospital, subsequently told Dr.

Moran that Daughter may have been sexually abused by Father and

others.1 Dr. Moran accordingly recommended to the superior court

that Daughter visit a therapeutic clinician, both to provide

counseling and to make recommendations regarding custody and
3

visitation to the court. The superior court then appointed Diana

Vigil, Dr. Moran’s spouse, as the child’s therapeutic counselor.

¶4 At an evidentiary hearing held on January 29, 2001,

Father and Mother agreed that Ms. Vigil should not serve as

Daughter’s counselor because of the potential for a conflict of

interest in Dr. Moran’s evaluation of any recommendations that

might come from his spouse. At Father’s request, the superior

court appointed Dr. Brian Yee in Ms. Vigil’s place. Mother did not

object to the appointment of Dr. Yee at the January 29 hearing.

¶5 On February 22, 2001, however, Mother moved for

reconsideration of the appointment of Dr. Yee. In support of this

motion, Mother submitted an affidavit from the forensic

interviewer, Wendy Dutton, alleging that Daughter would be better

served by a female therapist. Ms. Dutton recommended Mary

Livingston, whom she called “one of the finest therapists in

Maricopa County.” In a minute entry dated March 26, 2001, the

superior court denied Mother’s motion for reconsideration, finding

Dr. Yee qualified to be the child’s counselor.

¶6 Despite the superior court’s denial of her motion,

Mother, who had temporary custody of Daughter, did not take her to

see Dr. Yee. Instead, in April 2001, Mother began taking the child

to Ms. Livingston for counseling.

¶7 After Father learned that Daughter had been seeing Ms.

Livingston and not Dr. Yee, he moved for sanctions against Mother.
4

Prior to the sanctions hearing, Dr. Yee opined that it would not be

in Daughter’s best interest to begin a new therapy regime with him

if a positive therapeutic relationship had developed with Ms.

Livingston. In turn, Dr. Moran opined that such a positive

therapeutic relationship had been established, and that changing to

Dr. Yee midstream would therefore be “disruptive and possibly

harmful.” Father consequently did not request that Mother be

ordered to take Daughter to Dr. Yee.

¶8 The hearing on the sanctions motion was held on September

19, 2001. After hearing argument, the superior court found that

Mother “knew of the Court’s order, intentionally violated the Court

order, and has been in noncompliance with the Court order.” It

accordingly held Mother “in contempt of this Court for her willful

failure to comply with the prior Court order.”

¶9 While the superior court agreed with the parties that

Daughter’s therapeutic relationship with Ms. Livingston should not

be disturbed, it ordered that three immediate sanctions be imposed

as a result of Mother’s disobedience of its order. First, Mother

was ordered to pay all fees “incurred by counselor Mary

Livingston.” Second, Mother was ordered to pay Father’s attorney

fees and costs associated with the motion for sanctions. Third,

the superior court ordered in a minute entry that “the opinions of

Dr. [sic] Livingston will not be allowed in the proceedings in this

matter.”
5

¶10 At the September 19 hearing, the superior court raised

the possibility of a fourth sanction. It requested memoranda from

counsel as to whether “mental health professionals” should be

prohibited from using “as a basis for their opinions the records of

Mary Livingston.” On December 7, 2001, after receiving the

requested memoranda, the superior court further ordered that “the

clinical records of Mary Livingston may not be used directly or

indirectly as evidence in this matter, nor shall they form the

basis for any expert opinions expressed on child custody/access

issues presented in this matter.”

¶11 On March 29, 2002, Dr. Moran wrote to Mother’s counsel,

stating that “the Standard of Practice, both nationally and in

Maricopa County, and my standard of practice is, when alleged

victims of sexual abuse are involved in therapy, to request the

records from that therapist and to request a telephonic

consultation with the therapist.” He further advised that the

order barring him from interviewing Ms. Livingston is “an unusual

practice, and, I believe, contrary to the best clinical practices

that I can pursue in completing this evaluation.”

¶12 Armed with this opinion, Mother moved for reconsideration

of the sanctions excluding the opinions of Ms. Livingston from the

proceedings in the child custody matter and the order that Ms.

Livingston’s records may not be used to form the basis for any

expert opinions expressed on child custody/access issues. Mother
2 The court did not refer to Rule 37(b)(2) in its minute

entry of December 7, 2001, which ordered that Ms. Livingston’s

clinical records not be used directly or indirectly in the case,

nor used as the basis of any expert opinions.

6

also asked for reconsideration of the sanctions order requiring her

to pay Father’s attorney fees. The superior court denied the

motion for reconsideration.

¶13 Mother then filed a special action petition in the court

of appeals, arguing that the sanctions imposed were an abuse of

discretion because they are contrary to the best interests of the

child. The court of appeals declined jurisdiction. We thereafter

granted Mother’s petition for review. We have jurisdiction

pursuant to Article 6, Section 5(3) of the Arizona Constitution,

Arizona Rule of Civil Appellate Procedure 23, and Arizona Revised

Statutes (“A.R.S.”) section 12-120.24 (1992).

II.

¶14 Both at the hearing on the sanctions motion and in its

subsequent minute entry, the superior court cited Rule 37(b)(2) of

the Arizona Rules of Civil Procedure as a basis for excluding Ms.

Livingston’s testimony.2 Notwithstanding the superior court’s

reference to Rule 37(b)(2), it is clear that its evidentiary

sanctions, as well as the monetary ones, could not properly have

been imposed pursuant to the discovery rules.

¶15 Rule 37(b)(2) applies only when a “party fails to obey an

order to provide or permit discovery.” Neither the superior court
3 While Rule 35(a) of the Arizona Rules of Civil Procedure

permits a court under certain circumstances to order a mental or

physical examination of a party or a person in the custody of a

party, the order appointing Dr. Yee was plainly not entered

pursuant to this discovery rule. Rule 35(a) provides that such an

order for examination “may be made only on motion for good cause

shown.” No such motion was made in this case. Moreover, a Rule

35(a) order must “specify the time, place, manner, conditions, and

scope of the examination;” no such specifications were made here.

7

nor any party has identified any discovery order that Mother failed

to obey. The orders appointing Ms. Vigil and substituting Dr. Yee

were not discovery orders, but rather orders to allow the superior

court to obtain professional advice in determining child custody.

See A.R.S. § 25-405(B) (Supp. 2002) (allowing superior court to

seek professional advice on child custody issues); see also A.R.S.

§ 25-406 (2000) (providing for investigations and reports on child

custody issues).3

¶16 Rather, as the superior court made plain at the September

19, 2001 hearing, the sanctions were imposed pursuant to the

court’s inherent contempt power. The only basis cited by the

superior court for the sanctions was Mother’s “willful failure to

comply” with the order appointing Dr. Yee as the therapist, and the

court expressly held Mother “in contempt of this Court” for that

failure to comply. Similarly, in its December 19, 2001 minute

entry, the superior court explicitly noted that its decision to

exclude Ms. Livingston’s records from direct or indirect use at
4 The superior court could not have treated Mother’s

failure to produce Daughter for a Rule 35(a) mental or physical

examination as contempt of court. See Ariz. R. Civ. P. 37(2)(D).

The superior court’s express finding that Mother’s disobedience of

the order appointing Dr. Yee was a contempt of court is thus

inconsistent with any notion that the order was entered pursuant to

Rule 35(a).

8

trial was a result of Mother’s noncompliance with the order

appointing Dr. Yee.4

¶17 We therefore must determine whether the superior court

abused its discretion in imposing the sanctions on Mother under its

inherent contempt power. See Danielson v. Evans, 201 Ariz. 401,

412, ¶ 40, 36 P.3d 749, 760 (App. 2001) (superior court’s contempt

order reviewed for abuse of discretion). We begin from the premise

that contempt sanctions should generally be limited to “the least

possible power adequate to the end proposed.” Ong Hing v.

Thurston, 101 Ariz. 92, 100, 416 P.2d 416, 424 (1966) (quoting

Harris v. United States, 382 U.S. 162, 165 (1965)). This is

especially true when a contempt sanction impacts an innocent third

party. See, e.g., Franklin Township Bd. of Educ. v. Quakertown

Educ. Ass’n, 643 A.2d 34, 38 (N.J. Super. Ct. App. Div. 1994)

(noting that when a court sanctions a party pursuant to a rule

requiring compliance with court orders, the court must consider

“the sanction’s impact on innocent third parties”); cf. McGregor v.

Chierico, 206 F.3d 1378, 1385-86 (11th Cir. 2000) (holding that a

court cannot use its contempt power to forfeit assets of a

contemnor also owned by a third party).
9

¶18 In this case, a very important third party is impacted by

the contempt sanctions--the child. In a child custody case, A.R.S.

§ 25-403(A) (Supp. 2002) mandates that the superior court make its

determination “in accordance with the best interests of the child.”

We have repeatedly stressed that the child’s best interest is

paramount in custody determinations. See, e.g., Clifford v.

Woodford, 83 Ariz. 257, 262, 320 P.2d 452, 455 (1957) (child’s best

interest is the “primary consideration” and the “pole star” for the

court); Dickason v. Sturdavan, 50 Ariz. 382, 384, 72 P.2d 584, 586

(1937) (same); see also In re Marriage of Gove, 117 Ariz. 324, 328,

572 P.2d 458, 462 (App. 1977) (“In a custody case the primary duty

of the court is to safeguard the best interests and welfare of the

children.”); Hoffman v. Hoffman, 4 Ariz. App. 83, 85, 417 P.2d 717,

719 (1966) (refusing to apply a court rule regarding the effect of

a mother’s failure to file an answering brief in a child custody

appeal, because doing so would have an adverse effect on the

children, who were unrepresented but most interested in the

proceeding). Thus, it is necessary to consider in this case

whether the various contempt sanctions imposed by the superior

court unnecessarily interfered with its duty to consider the

child’s best interests in determining custody.
5 Nothing in the size of the monetary sanctions renders

them an abuse of discretion. The order requiring Mother to pay Ms.

Livingston’s fees actually affected Mother only to the extent of

one-half of these fees, since the superior court’s previous orders

required both Father and Mother each to pay half of the counselor’s

fees. The award of attorney fees amounted to $1474.50, a

(continued...)

10

III.

¶19 The superior court imposed four contempt sanctions here.

Two imposed monetary obligations on Mother, and two excluded

evidence from direct or indirect use at trial.

¶20 The two monetary sanctions were narrowly and specifically

tailored to address the direct consequences of Mother’s contempt.

These sanctions simply required Mother to bear responsibility for

costs directly occasioned by her disregard of the superior court’s

order--Ms. Livingston’s fees and Father’s attorney fees incurred in

bringing the sanctions motion. More importantly, these monetary

sanctions did not in any way restrict the superior court’s

overriding obligation to consider the best interests of the child

in determining custody. Cf. Woodworth v. Woodworth, 202 Ariz. 179,

183, ¶¶ 20-21, 42 P.3d 610, 614 (App. 2002) (interpreting A.R.S. §

25-408(D), and holding that the statutory prohibition of sanctions

for disobedience of an order involving parenting time rights

“affecting custody or visitation does not limit the trial court’s

ability to impose financial or other appropriate sanctions”). The

two monetary sanctions were therefore well within the discretion of

the superior court.5
5(...continued)

substantially lower amount than the $2500.00 Father originally

requested.

6 The latter sanction was ordered notwithstanding an

argument by Mother’s counsel that excluding Ms. Livingston’s

testimony would require Daughter to be interviewed by Dr. Moran,

thereby forcing the child to relive her abuse and, accordingly,

cause her unnecessary trauma. In response to counsel’s statement

that “I just don’t want to traumatize [Daughter],” the superior

court replied, “I respectfully submit mother’s noncompliance with

my order has traumatized me. She created the problem that we’re

dealing with.” While we recognize that the superior court was

concerned with Mother’s disobedience of its order, this statement

was inappropriate.

11

¶21 The two evidentiary sanctions, which excluded the

testimony and notes of Daughter’s therapeutic counselor from

consideration both at trial and by the custody evaluator, are quite

a different matter.6 The statute governing custody determinations,

A.R.S. § 25-403(A), provides that “[t]he court shall consider all

relevant factors.” (Emphasis added.) We have similarly cautioned

that “[w]hen custody of children is involved in a court proceeding,

it seems to us to be the duty of the trial court to hear all

competent evidence which may be offered.” Johnson v. Johnson, 64

Ariz. 368, 370, 172 P.2d 848, 849 (1946). Any contempt sanction

excluding evidence in a child custody dispute necessarily conflicts

with these overriding principles. Cf. In the Interest of P.M.B.,

2 S.W.3d 618, 625 (Tex. App. 1999) (vacating discovery sanction

excluding evidence in child custody dispute, because “the exclusion

of any important evidence as a... sanction can only produce a
7 Father also argues that Ms. Livingston’s testimony and

records should be excluded because they are untrustworthy or

because there may be better qualified experts. The superior court,

however, did not exclude the evidence on these grounds; the court

did not consider any specific testimony or records in entering its

sanctions. The sole reason the superior court gave for its

evidentiary sanctions was Mother’s disobedience of its orders.

12

less-informed decision, contrary to the best interest of the

child”).7

¶22 In this case, the two evidentiary sanctions imposed by

the superior court have an especially significant effect on the

ability of the court to determine the child’s best interests. Both

parties agree that the testimony and records of the child’s

therapist are relevant to the custody proceedings. Both parties

further agree that sending Daughter to another therapist after she

has established a relationship with Ms. Livingston would be

contrary to her best interests. Thus, the trial court’s

evidentiary sanctions will effectively preclude potentially

significant information from being considered in the custody

determination. The court’s own custody evaluator, Dr. Moran,

expressly indicated that “best clinical practices” require that he

have access to this information in completing his evaluation. Cf.

A.R.S. § 25-406(B) (“In preparing his report concerning a child,

the investigator may consult any person who may have information

about the child or his potential custodial arrangements.”).

¶23 Under these circumstances, the superior court erred in

imposing the two evidentiary sanctions. These sanctions were not
8 Father cannot reasonably argue that he will be unduly

prejudiced by the admission of testimony from Ms. Livingston or use

of her records by Dr. Moran and other experts. Because of the

pending criminal charges against Father, the superior court has

deferred indefinitely any trial on the issue of custody. Father

therefore has ample time to investigate, by way of formal discovery

or otherwise, any potential testimony from Ms. Livingston and to

devise any strategy necessary to counter the evidence she may

offer.

13

necessary to vindicate the court’s authority; the trial judge

plainly had at his disposal sufficient other sanctions to punish

Mother’s contempt without also impacting his ability to consider

the best interests of the child. For example, in addition to the

monetary sanctions that we have upheld today, the superior court

could have, if necessary, also imposed community-service related

penalties. See Woodworth, 202 Ariz. at 182, ¶ 16, 42 P.3d at 613;

cf. In the Interest of P.M.B., 2 S.W.3d at 625 (holding that the

exclusion of evidence in a child custody proceeding as a discovery

sanction “should be resorted to only where lesser sanctions are

either impracticable or have been attempted and proven

unsuccessful”).8

IV.

¶24 For the foregoing reasons, we vacate the sanctions

imposed by the superior court excluding the opinions of Mary

Livingston and preventing Dr. Moran and other experts from

considering Ms. Livingston’s testimony and records in rendering

their opinions. We affirm the sanctions requiring Mother to pay

all of Ms. Livingston’s fees and the attorney fees incurred by
14

Father in connection with the motion for sanctions. Both Mother

and Father have requested attorney fees incurred on appeal pursuant

to A.R.S. § 25-324 (2000); in the exercise of our discretion, we

deny both fee applications.

_______________________________

Andrew D. Hurwitz, Justice

CONCURRING:

Charles E. Jones, Chief Justice

Ruth V. McGregor, Vice Chief Justice

Rebecca White Berch, Justice

Michael D. Ryan, Justice