Meadows v. Sells

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 02-23-2010 PHILIP G. URRY,CLERK BY: DN IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: ) ) MARK A. MEADOWS, ) ) Petitioner/Appellee, ) ) v. ) ) TEJA SELLS, ) ) Respondent/Appellant. ) ) ) __________________________________) 1 CA-CV 09-0038 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC 2008-002685 The Honorable Randall H. Warner, Judge AFFIRMED Mark A. Meadows Petitioner/Appellee Phoenix Teja Sells Respondent/Appellant Phoenix O R O Z C O, Judge ¶1 court s Appellant, Teja Sells (Mother), appeals from the family judgment awarding joint legal custody to Mother and Appellee, Mark Meadows (Father). For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 On May 29, 2008, Father filed a petition for paternity, child custody, parenting time and child support regarding two children. In Mother s response to the petition, she conceded Father was the natural father of the children. Mother requested the children, court award her sole custody of the order supervised parenting time with Father, and order Father to pay child support and past medical expenses incurred for the care and treatment of the children. ¶3 The family court held a trial on November 10, 2008, and subsequently ordered the following: (1) that both parties complete an approved parent education program and file proof of completion of the program with the family court before December 15, 2008; (2) that based on the parties stipulation and the evidence presented, Father was the natural father of the children; (3) that the parties take all necessary steps to amend J.S. s birth certificate to reflect his true paternity; (4) that pursuant to Arizona Revised Statutes (A.R.S.) sections 25-403 (Supp. 2009)1 and -403.01 (2007) it was in the best interests of 1 We cite to the current version of the applicable statutes because no revisions material to this decision have since occurred. 2 the children to award the parties joint legal custody, with the children living with Mother and Father being entitled to substantial parenting time; and (5) that Father pay child support to Mother in the amount of $293.00 per month. timely notice of appeal. Mother filed a We have jurisdiction pursuant to A.R.S. §§ 12-120.21.A.1 and -2101.B (2003). DISCUSSION ¶4 Mother states that she is appealing the family court s final judgment regarding custody and parenting time due to the parental denial, non-communication and lack of visitation. 2 We review a [family] court s decision regarding child custody for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). Specifically, Mother cites four reasons why she is appealing: (1) Father has not completed a parental cooperated education in program adding his as ordered; name to (2) the Father has children s not birth certificates; (3) Father has not fully utilized his entitlement to visitation and parenting time as awarded; and (4) Father has become unsatisfied about paying child support. 2 Father did not file an answering brief in response to this appeal, which we may regard as a confession of error. We decline to do so, on this record. See Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982) ( Although we may regard [the] failure to respond as a confession of reversible error, we are not required to do so. ). 3 ¶5 arising Mother s arguments on appeal are based on allegations after the family court s November 13, 2008 judgment. Essentially, Mother is arguing that the family court s judgment should be modified because Father has allegedly failed to comply with the family court s judgment. Because the facts on which Mother relies were not part of the record before the family court, we cannot consider her arguments on appeal. Ness v. W. Sec. Life Ins. Co., 174 Ariz. 497, 500, 851 P.2d 122, 125 (App. 1992) (stating that an appellate court cannot consider evidence outside the record); GM Dev. Corp. v. Cmty. Am. Mortgage Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990) (stating appellate court s review is limited to the record before the trial court and reviewing court cannot consider any evidence that was not part of the record before the trial court at the time it entered the decision that is the subject of the appeal). contentions family involve court arguments in events entered the the family that allegedly judgment, court, by occurred 4 after the raise her petition for Mother must filing a modification or a petition to enforce the judgment. Fam. L. P. 91. Because her See Ariz. R. CONCLUSION ¶6 For the above stated reasons, we affirm the family court s judgment. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ DIANE M. JOHNSEN, Judge /S/ ____________________________________ JON W. THOMPSON, Judge 5

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