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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 DENNIS RAY SMITH, Petitioner/Appellee,

                                        v.

                ROSE MARIE SMITH, Respondent/Appellant.

                         No. 1 CA-CV 16-0012 FC A
                               FILED 6-9-2016


           Appeal from the Superior Court in Maricopa County
              Nos. FC2010-004944; FN2010-001617 (Cons.)
                  The Honorable Dewain D. Fox, Judge

   AFFIRMED IN PART; REVERSED IN PART; AND REMANDED


                                   COUNSEL

Gillespie, Shields, Durrant & Goldfarb, Mesa
By Mark A. Shields, Robert Newell
Counsel for Petitioner/Appellee

The Harrian Law Firm P.L.C., Glendale
By Daniel Riley
Counsel for Respondent/Appellant
                            SMITH v. SMITH
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Andrew W. Gould joined.


H O W E, Judge:

¶1            Rose Marie Smith (“Wife”) appeals the family court’s orders
dismissing her petition to modify spousal maintenance with prejudice and
denying her motion for a new trial. For the following reasons, we affirm in
part, but reverse the family court’s order dismissing Wife’s petition with
prejudice and remand for proceedings consistent with this decision.

                    FACTS AND PROCEDURAL HISTORY

¶2            In June 2010, after nine years of marriage to Wife, Dennis Ray
Smith (“Husband”) petitioned for dissolution of marriage with a minor
child. They subsequently entered into an agreement resolving most of their
issues. After a hearing resolving the remaining issues, the family court
entered a final decree dissolving the marriage and ordering Husband to pay
Wife $850 per month in spousal maintenance for 42 months beginning
August 1, 2010.

¶3             In December 2013, Wife petitioned to modify the duration
and amount of spousal maintenance, alleging that she had experienced a
significant and ongoing change in circumstances. Wife alleged that, since
the entry of the order, she had “suffered medical maladies that have
significantly reduced her income and her earning potential.” Wife further
alleged that the conditions were not present when the court entered the
original order and that they were “significant and ongoing.”

¶4            Husband denied Wife’s allegations and argued that Wife
provided no information regarding her alleged medical maladies and that
Wife had not alleged that she was “currently” suffering from the medical
maladies. Husband also denied that Wife had suffered a change in
circumstances, arguing that she had an adequate salary to live on and had
a live-in boyfriend who contributed to her household expenses. Husband
also requested attorneys’ fees and expenses under A.R.S. § 25–324.

¶5           On July 31, 2014, Husband sent Wife a letter requesting that
she provide a list of her health care providers and that she sign a medical


                                     2
                            SMITH v. SMITH
                           Decision of the Court

release for her records for each provider. Husband also subpoenaed Wife’s
employer for her employment records. Six days later, Wife’s counsel
objected to the subpoena as overbroad and seeking irrelevant information
and proposed that Husband amend the subpoena. Wife’s counsel also said
Wife would not sign the releases because it was not her attorney’s “practice
to do so.” Instead, Wife’s counsel explained that he was collecting Wife’s
medical records and that after review, he would disclose them. Counsel
stated that if he determined that any records were non-disclosable, he
would provide a log identifying the document and the basis of his objection.

¶6            The next day, Husband responded in a letter that Wife put her
employment history at issue by alleging that she was suffering generally
from medical maladies, which caused a significant reduction in her income
and earning potential. Husband also stated that, because Wife had put her
medical condition at issue, he had a right to prepare a complete defense to
her allegations and was entitled to all her medical records. Husband stated
that if Wife did not agree to sign the medical releases by August 12, he
would seek a court order compelling her to do so.

¶7            On August 12, Wife responded by inviting Husband to file a
motion to compel. After Husband requested clarification about the releases,
Wife confirmed that she would not provide them. That same day, Husband
moved to compel Wife to provide a list of her medical providers, to sign a
release for each provider, and to allow release of her employment records.
Husband also requested attorneys’ fees and costs associated with making
the motion. Husband included an affidavit by his attorney stating that
“after personal consultation and good faith efforts to do so, [counsel] has
been unable to satisfactorily resolve the matter.”

¶8            Wife responded that Husband failed to comply with Arizona
Rule of Family Law Procedure 65, which requires that before a motion be
brought, the moving party certify that, “after personal consultation and
good faith efforts to do so,” the parties have been unable to resolve the
matter. Wife’s counsel argued that Husband’s counsel made no attempt to
personally consult with him about the matter. Wife also argued that
Husband’s motion was premature because Wife offered to provide him a
privilege log. Wife further argued that the court should impose sanctions
under A.R.S. § 25–324 because Husband’s income was more than Wife’s
and Husband had taken an unreasonable position by claiming that Wife
refused to provide her medical records.

¶9          On August 19, the family court granted Husband’s motion to
compel, ordering Wife to disclose her health care providers, sign the


                                     3
                            SMITH v. SMITH
                           Decision of the Court

medical releases, and allow release of her employment records. The court
deferred ruling on Husband’s requests for sanctions. Husband then moved
to preclude Wife from offering testimony or other evidence about her health
and also requested that the “facts regarding Wife’s health should be taken
in accordance with Husband’s claim that there has not been a substantial
and continuing change in circumstances.” Husband argued that Wife had
repeatedly refused to provide him with the medical releases and her
medical providers and that her actions constituted failure to disclose
damaging or unfavorable information. Husband therefore requested
attorneys’ fees and expenses.

¶10           Wife responded to Husband’s motion, arguing that she had
already provided a list of her medical providers and her relevant medical
records. Wife also petitioned for special action relief from this Court and
our supreme court. Wife argued that Husband had not complied with
Arizona Rule of Family Law Procedure 65 to engage in personal
consultation and good faith efforts to resolve the matter and that the family
court had violated the confidentiality of her medical records by ordering
her to sign the releases. This Court and the Arizona Supreme Court
declined to accept jurisdiction.

¶11            On August 21, 2015, after a status conference, the family court
denied Husband’s motion in limine, but ordered that (1) Wife sign the
medical releases for all her medical providers; (2) if she failed to do so,
Husband could file a notice of non-compliance; and (3) Wife’s failure to
comply would result in a dismissal of her petition with prejudice. The court
found that on August 19, 2014, Wife was ordered to disclose her health care
providers and sign the medical releases and that Wife conceded in her
response to the motion in limine that she did not sign the releases as the
August 19 order required. The court also found that Wife’s disclosure of the
medical records herself did not allow Husband to confirm the completeness
of the records as the August 19 order authorized and therefore was not a
valid excuse for failing to comply with the order. The court further found
that Wife’s failure to comply was not substantially justified. Thus, the court
sanctioned Wife by awarding Husband his attorneys’ fees and costs. The
court found that under A.R.S. § 25–324(A), Wife took unreasonable
positions and failed to comply with its August 19 order and under A.R.S.
§ 25–324(B)(3), Wife caused unnecessary delays and unnecessarily
increased Husband’s litigation costs.

¶12          Husband subsequently notified the court that Wife had not
complied with its order and requested that Wife’s petition be dismissed
with prejudice. On October 1, the court dismissed Wife’s petition with


                                      4
                            SMITH v. SMITH
                           Decision of the Court

prejudice. On October 20, however, the court modified its order to retain
jurisdiction to determine the attorneys’ fees amount; on October 21, the
court awarded Husband fees and costs. On November 2, Wife moved for a
new trial under Arizona Rule of Family Law Procedure 83 and explained
that she had not received a copy of the court’s October 1 order and that she
had found out about that order from the October 20 order. Wife argued that
the family court erred in granting Husband’s motion to compel because
Husband had not served Wife with a discovery request for her medical
records as Arizona Rule of Family Law Procedure 65 required and because
Rule 49 did not mandate the production of her medical records. Wife also
argued that Husband did not comply with Rule 65 because he did not
engage in “personal consultation and good faith efforts” to resolve the
issue. Consequently, Wife further argued, the sanctions were improper.
Wife requested that the family court vacate its orders dismissing her
petition with prejudice and awarding Husband attorneys’ fees and costs.

¶13           Husband responded that Wife’s motion for a new trial was
untimely because it was not filed within 15 days of entry of judgment as
Arizona Rule of Family Law Procedure 83 required. On November 30, the
family court denied Wife’s motion for a new trial, concluding that she had
not proved a ground for granting it. In doing so, the court found that the
motion was timely because the court had no record that its October 1 order
was mailed to the parties’ counsels. Wife appealed the court’s order on
December 11. Wife moved for an accelerated disposition under Arizona
Rule of Civil Appellate Procedure 29; this Court granted the motion.

                                DISCUSSION

              1. Jurisdiction

¶14         Before we address Wife’s arguments, we first address
Husband’s argument that this Court does not have jurisdiction because
Wife untimely filed her motion for a new trial.1 Husband argues that


1      Husband moved in this Court to strike a portion of Wife’s reply brief.
Husband contends that his answering brief addressed the untimeliness of
the motion for a new trial whereas Wife’s reply brief addressed the
untimeliness of the notice of appeal; therefore, Husband contends, Wife’s
argument was raised for the first time in her reply brief and should be
struck. Motions to strike are disfavored, see Engel v. Landman, 221 Ariz. 504,
509 ¶ 15 n.2, 212 P.3d 842, 847 n.2 (App. 2009), and we deny Husband’s
motion because Husband’s distinction between the parties’ arguments



                                      5
                              SMITH v. SMITH
                             Decision of the Court

because Wife filed her motion for a new trial 32 days after the October 1
order was entered, her motion was untimely and this Court does not have
jurisdiction. But we have jurisdiction because Wife timely filed her notice
of appeal. Generally, a notice of appeal must be filed no later than 30 days
after entry of the judgment or order from which the appeal is taken. Ariz.
R. Civ. App. P. 9(a). “[T]he timely filing of a notice of appeal is a
jurisdictional prerequisite to appellate review.” In re Marriage of Gray, 144
Ariz. 89, 90, 695 P.2d 1127, 1128 (1985).

¶15            Husband’s contention that the October 1 order was the final
appealable order is erroneous because the family court had not resolved the
attorneys’ fees issue and the order did not contain an Arizona Rule of
Family Law Procedure 78 certification of finality. See Natale v. Natale, 234
Ariz. 507, 509 ¶ 9, 323 P.3d 1158, 1160 (App. 2014) (providing that a family
court ruling that resolves some but not all pending issues and does not have
certification of finality is not final and appealable). The family court entered
its final order on October 21, and Wife timely filed her motion for a new
trial on November 2, thereby extending the time for filing a notice of appeal.
See Ariz. R. Civ. App. P. 9(a); In re Marriage of Dougall, 234 Ariz. 2, 5 ¶ 7, 316
P.3d 591, 594 (App. 2013) (providing that Rule 9(e) extends time to file a
notice of appeal until after court rules on certain timely filed motions,
including a motion pursuant to Arizona Rule of Family Law Procedure
83(A)). The family court clerk filed the court’s ruling on the motion for a
new trial on November 30, restarting the 30-day period for Wife to file her
notice of appeal. See Ariz. R. Civ. App. P. 9(e)(1) (“[T]he time to file a notice
of appeal for all parties begins to run from the entry by the superior court
clerk of a signed written order disposing [of the time-extending] motion.”).
Because Wife filed her notice of appeal on December 11, we have
jurisdiction.

              2. Motion to Compel

¶16          Wife argues that the family court erred in denying her motion
for a new trial because the court erred in granting Husband’s motion to


about this Court’s jurisdiction is one without a difference. Husband raised
the jurisdictional issue in his answering brief. In fact, his brief states that
“[b]ecause the motion for new trial was untimely, the appeal date began to
run immediately after October 1. . . . [The notice of appeal] was not filed
until December 11. . . . Accordingly, this Court has no jurisdiction over the
appeal.” Wife reasonably construed that Husband’s argument was about
the untimeliness of the motion and notice of appeal. Consequently, Wife’s
argument in her reply brief was proper.


                                        6
                             SMITH v. SMITH
                            Decision of the Court

compel. We review an order denying a motion for new trial for an abuse of
discretion. Pullen v. Pullen, 223 Ariz. 293, 296 ¶ 10, 222 P.3d 909, 912 (App.
2009). We likewise review a ruling on a motion to compel for an abuse of
discretion. Romely v. Schneider, 202 Ariz. 362, 363 ¶ 5, 45 P.3d 685, 686 (App.
2002). A court abuses its discretion if it makes an error of law in reaching
its discretionary decision. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 455–56,
652 P.2d 507, 528–29 (1982). We review de novo issues of statutory and rule
interpretation, however. Bobrow v. Herrod, 239 Ariz. 180, 182 ¶ 7, 367 P.3d
84, 86 (App. 2016). We look to the statute’s or rule’s plain language as the
best indicator of the drafters’ intent, and if the language is clear and
unambiguous, we give effect to that language and do not employ other
methods of statutory construction. Id. Because the family court did not err
in granting Husband’s motion to compel, it did not err in denying Wife’s
motion for a new trial.

                      2(a). Discovery Requirements

¶17            Wife first argues that the family court erred in granting the
motion to compel because Arizona Rule of Family Law Procedure 49 does
not mandate the production of a party’s medical records in circumstances
such as these. Rule 49 provides that when spousal maintenance is at issue,
a party must disclose an affidavit of financial information and proof of
income, including tax returns, pay stubs, and other financial records. Ariz.
R. Fam. L. P. 49(C)–(D). But Rule 49 was not the basis of Husband’s request
for the releases; Husband sought the releases to use in subpoenaing Wife’s
medical providers pursuant to Rule 52. In her petition to modify spousal
maintenance, Wife alleged that she “suffered medical maladies that have
significantly reduced her income and her earning potential.” Accordingly,
the releases Husband asked Wife to sign were appropriate so that he could
pursue discovery of her medical and employment records.

¶18           Wife also argues that the family court erred in granting the
motion to compel because no underlying discovery request existed to
enforce. But Wife’s refusal to provide the releases Husband sought raised a
discovery issue appropriate for resolution by way of a motion to compel.
Here, Wife failed to comply with the family court’s August 19 order to
disclose her medical providers and sign releases for the providers. Only
after Wife confirmed that she would not provide the releases did Husband
move to compel.

¶19          Wife further argues that the family court erred in granting the
motion to compel because the parties did not engage in good faith personal
consultation as Rule 65 requires. Specifically, Wife argues that the family


                                       7
                             SMITH v. SMITH
                            Decision of the Court

court should have required “actual two-way communication.” But Rule 65
states that no motion will be considered, “unless a statement of the moving
party is included in the motion certifying that, after personal consultation
and good faith efforts to do so, counsel[s] have been unable to satisfactorily
resolve the matter.” Ariz. R. Fam. L. P. 65(A)(2)(c) (emphasis added).

¶20             Here, Husband complied with Rule 65. Husband’s counsel
certified that counsel personally consulted with Wife’s counsel in good faith
to resolve the matter. Moreover, the record shows that Husband’s counsel
consulted with Wife’s counsel to resolve the matter and that the parties
engaged in two-way communication. Husband’s counsel sent a letter to
Wife’s counsel requesting a list of Wife’s medical providers, medical
releases for the providers, and a release for her employment records. Wife’s
counsel responded that it was not his “practice” to have his client execute
medical releases and that he would review the documents and provide a
privilege log if he deemed any of the documents objectionable. Husband’s
counsel replied that because Wife put her employment and medical
condition at issue, Husband had a right to prepare a complete defense to
her allegations, which required that he have all her medical records.
Counsel stated that she would seek a court order compelling production if
Wife did not provide the releases. Wife’s counsel invited Husband’s
counsel to do so. Only after verifying with Wife’s counsel that Wife would
not sign the releases did Husband’s counsel move for a court order,
resulting in the August 19 order.

                     2(b). Privileged Medical Records

¶21            Wife next argues that the family court violated “her right to
the confidentiality of her medical records by compelling her to sign a
medical release that was not tailored to the actual condition at issue in the
litigation.” Husband counters that this Court and the Arizona Supreme
Court have already rejected Wife’s argument because we declined to accept
jurisdiction of Wife’s special actions. But the “exercise of our jurisdiction to
address an issue raised by special action is discretionary—we may decline
jurisdiction and therefore render no decision on the merits at all,” State v.
Felix, 214 Ariz. 110, 112 ¶ 10, 149 P.3d 488, 490 (App. 2006), as was the case
here. Because we have not rendered a decision on the merits of this issue,
Wife may present this argument on appeal. Thus, whether and to what
extent a privilege exists is a question of law that we review de novo.
Carondelet Health Network v. Miller, 221 Ariz. 614, 617 ¶ 8, 212 P.3d 952, 955
(App. 2009). Because privilege statutes “impede the truth-finding function
of the courts, [they] are strictly construed.” Id. at 616 ¶ 7, 212 P.3d at 954.



                                       8
                              SMITH v. SMITH
                             Decision of the Court

Because Wife put her “medical maladies” at issue, the family court did not
err in ordering her to disclose her medical providers and sign the releases.

¶22            “Unless otherwise provided by law, all medical records and
payment records, and the information contained in medical records and
payment records, are privileged and confidential.” A.R.S. § 12–2292(A).
This privilege is not absolute, however, and the patient, the holder of the
privilege, may expressly or implicitly waive it. Duquette v. Superior Court,
161 Ariz. 269, 272, 778 P.2d 634, 637 (App. 1989). A party consents to
disclosure of privileged information by (1) expressly waiving the privilege
in writing or in open court testimony, A.R.S. § 32–2085(A), or (2) implicitly
waiving the privilege by pursuing a course of conduct inconsistent with the
privilege, such as by placing the underlying condition at issue as a claim or
defense, affirmative or otherwise, Blazek v. Superior Court, 177 Ariz. 535, 541,
869 P.2d 509, 515 (App. 1994); Danielson v. Superior Court, 157 Ariz. 41, 43,
754 P.2d 1145, 1147 (App. 1987). The scope of the wavier “only extends to
privileged communications concerning the specific condition which has
been voluntarily placed at issue by the privilege holder.” Bain v. Superior
Court, 148 Ariz. 331, 335, 714 P.2d 824, 828 (1986).

¶23               However, “the privilege cannot be used as both a sword and
a shield, . . . [t]hat is, a party cannot, by selective invocation of the privilege,
disclose documents or testimony favorable to that party while failing to
disclose cognate material unfavorable to that party.” Danielson, 157 Ariz. at
43, 754 P.2d at 1147 (internal quotation marks and citations omitted).
Implied waiver prevents a party from “asserting a particular factual
position and then invoking the privilege” not only to support that position,
but also to “prevent the opposing party from impeaching or otherwise
challenging it.” State v. Wilson, 200 Ariz. 390, 396 ¶ 16, 26 P.3d 1161, 1167
(App. 2001). In other words, “waiver can be implied when a party injects a
matter that, in the context of the case, creates such a need for the opponent
to obtain the information allegedly protected by the privilege that it would
be unfair to allow that party to assert the privilege.” State Farm Mut. Auto.
Ins. Co. v. Lee, 199 Ariz. 52, 61 ¶ 23, 13 P.3d 1169, 1178 (2000).

¶24           Here, Wife put her medical condition at issue when she
petitioned to modify spousal maintenance and stated generally that she had
“suffered medical maladies that have significantly reduced her income and
her earning potential.” The “specific condition” that Wife put at issue when
petitioning for modification was the unspecified “medical maladies” that
she claimed she was suffering. In responding to Wife’s petition, Husband
emphasized that Wife only claimed that she suffered from “medical
maladies.” Husband requested that Wife provide a list of her medical


                                         9
                             SMITH v. SMITH
                            Decision of the Court

providers and sign a medical release for each provider. Instead of objecting
to the medical releases as being overly broad, as she had done for the
employer release, Wife refused to sign the medical releases and stated that
she would disclose any records she deemed non-objectionable.

¶25            Further, Wife is using the privilege as “both a sword and a
shield.” Danielson, 157 Ariz. at 43, 754 P.2d at 1147. Although Wife put her
medical condition at issue and used it as the reason for asking the court to
modify the duration and amount of spousal maintenance, Wife would not
provide Husband the information necessary for him to either adequately
challenge Wife’s condition or offer evidence showing that the medical
maladies she suffered from were not what she claimed. Most importantly,
nothing in the record indicates that at this point of the litigation, Wife stated
that she suffered from anything more specific than “medical maladies.” On
appeal Wife argues that the reason her earning potential was curtailed was
a foot injury, but Wife never made clear to the family court that the medical
basis for her petition to modify was limited to her foot—neither in her
petition to modify nor in any of her filings on this issue. Wife argues
nonetheless that she disclosed her foot injury in her disclosure statement,
but such a statement was not filed with the family court. Accordingly, the
family court did not err in ordering Wife to disclose her health care
providers and to sign the releases.

              3. Dismissal with Prejudice

¶26            Wife argues finally that the family court erred in dismissing
her petition without entering express findings as Wayne Cook Enterprises,
Inc. v. Fain Properties Ltd. Partnership, 196 Ariz. 146, 993 P.2d 1110 (App.
1999), requires. On appeal from a dismissal based upon discovery
violations, we will affirm a family court’s order unless the record reflects a
clear abuse of discretion. Rivers v. Solley, 217 Ariz. 528, 530 ¶ 11, 177 P.3d
270, 272 (App. 2008). The family court’s discretion in dismissing a case for
discovery violations is more limited than when it employs lesser sanctions,
however, and the court’s “power to employ the ultimate sanction[] of
dismissal . . . is circumscribed by due process considerations.” Seidman v.
Seidman, 222 Ariz. 408, 411 ¶ 18, 215 P.3d 382, 385 (App. 2009). Accordingly,
before a court may dismiss an action, due process requires that the court
hold an evidentiary hearing and make express findings that (1) “a party, as
opposed to . . . counsel, has obstructed discovery” and (2) “the court has
considered and rejected lesser sanctions as a penalty.” Wayne Cook, 196 Ariz.
at 149 ¶ 12, 993 P.2d at 1113.




                                       10
                            SMITH v. SMITH
                           Decision of the Court

¶27           Here, although the family court made factual findings after a
status conference, the court held no evidentiary hearing regarding whether
Wife’s petition should be dismissed with prejudice and made no express
findings regarding the two critical issues here. Consequently, we reverse
the family court’s order dismissing Wife’s petition with prejudice and
remand the matter to the family court with directions to conduct an
evidentiary hearing. On remand, the court should consider (1) whether
Wife’s counsel was responsible for Wife’s not signing the releases and
(2) whether less severe sanctions are appropriate before dismissing the
petition with prejudice.

             4. Attorney’s Fees on Appeal

¶28            Husband requests attorneys’ fees pursuant to Arizona Rule of
Family Law Procedure 31 and A.R.S. § 12–349 because Wife has a “record
of blatant disobedience to court orders and other misconduct” and Wife did
not engage in good faith litigation in filing this appeal. Aside from his
allegations, Husband has not shown by a preponderance of the evidence a
ground for sanctions. See A.R.S. § 12–349(A)(1)–(4); Phoenix Newspapers, Inc.
v. Dep’t of Corr., 188 Ariz. 237, 244, 934 P.2d 801, 808 (App. 1997). We
therefore deny his request.

                              CONCLUSION

¶29           For the foregoing reasons, we affirm in part, but reverse the
family court’s order dismissing Wife’s petition with prejudice and remand
for proceedings consistent with this decision.




                                  :AA




                                     11
