SCOTT v. CUSICK
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NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DAYNA MARIE SCOTT, Petitioner/Appellee,
v.
TIM JAMES CUSICK, Respondent/Appellant.
No. 1 CA-CV 12-0829
FILED 12-17-2013
Appeal from the Superior Court in Maricopa County
No. FC2010-001544
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
Dayna Marie Scott, Phoenix
Petitioner/Appellee In Propria Persona
McCulloch Law Office, Tempe
By Diana McCulloch
Counsel for Respondent/Appellant
SCOTT v. CUSICK
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.
C A T T A N I, Judge:
¶1
Tim Cusick appeals the denial of his petition to modify child
custody and request for attorney’s fees. For reasons that follow, we
affirm.
PROCEDURAL AND FACTUAL HISTORY
¶2
Tim Cusick (“Father”) and Dayna Scott (“Mother”) are
parents of a son born in 2004. As the result of a 2011 consent decree and
stipulated parenting plan, Father and Mother have shared joint legal and
physical custody of their son. In May 2012, Father filed an emergency
petition seeking sole legal custody and an order that Mother have
supervised parenting time as a result of her arrest for extreme DUI and
other episodes of excessive drinking.
¶3
After a return hearing on the emergency petition, the family
court declined to modify joint custody or parenting time. The court
ordered, however, that Mother undergo random alcohol testing not less
than twice a week. The court further directed that, if Mother were to test
positive or miss an alcohol test, her parenting time would be suspended.
¶4
Prior to the scheduled evidentiary hearing on Father’s
petition, Mother asked the court to terminate the random alcohol testing
requirement because she was planning to travel abroad and would have
an ignition interlock device on her car when she was not traveling. Father
objected, and the court denied Mother’s request.
¶5
After Mother missed a scheduled alcohol test in June, Father
filed an emergency request to suspend her parenting time. The court
denied the request, but affirmed Mother’s obligation to test regardless of
her location. Father filed another notice when Mother missed another
scheduled test. Mother admitted missing the two scheduled tests, and the
court granted the parties’ stipulated request for supervised parenting time
until the scheduled evidentiary hearing.
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¶6
On September 27, 2012, the court conducted an evidentiary
hearing, at which both parties testified, as did Mother’s doctor, who
evaluated Mother for alcohol use and possible dependence. The doctor
noted that Mother’s DUI appeared to be an isolated incident of alcohol
abuse, and he opined that Mother was not dependent on alcohol. He also
offered his view that Mother exercised poor judgment by drinking while
in Europe and while still subject to court-ordered random alcohol testing.
The doctor recommended an additional six months of monitoring and
random testing.
¶7
After considering the testimony presented, the court
concluded that continuing joint legal custody was in the child’s best
interest. The court reaffirmed its prior orders regarding custody and
parenting time, conditioned on Mother’s complete abstinence from
alcohol and compliance with a treatment program and random alcohol
testing six times per month for at least six months. The court denied both
parties’ requests for attorney’s fees.
¶8
Father filed a notice of appeal of the order denying his
petition to modify and his request for attorney’s fees. He also filed a
motion for reconsideration that was subsequently denied. We have
jurisdiction over Father’s appeal of the order denying the petition to
modify and the request for attorney’s fees. See Ariz. Rev. Stat. (“A.R.S.”) §
12-2101(A)(2). 1
DISCUSSION
I.
Sufficiency of Findings.
¶9
We review a family court’s decision regarding child custody
issues under an abuse of discretion standard. See In re Marriage of Diezsi,
201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1191 (App. 2002). Father argues that
the court abused its discretion by failing to make findings required under
A.R.S. §§ 25-403 (Supp. 2012), 25-403.01 (2007), and 25-403.04 (2007). 2 See
Absent material revisions after the relevant date, statutes cited refer
to the current version unless otherwise indicated.
1
Effective January 1, 2013, sections 25-403 and 25-403.04 were
modified and section 25-403.01 was repealed. See 2012 Ariz. Sess. Laws
Ch. 309 §§ 5, 6, 10. We apply the statutory language in effect at the time
the trial court issued its order.
2
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Owen v. Blackhawk, 206 Ariz. 418, 421-422, ¶ 12, 79 P.3d 667, 670-71 (App.
2003); Diezsi, 201 Ariz. at 526, ¶ 5, 38 P.3d at 1191. We conclude that the
family court made the required findings under § 25-403 and § 25-403.04,
and that findings under § 25-403.01(B) were not required under the
circumstances presented here.
A.
A.R.S. §§ 25-403(A) and 25-403.01 Findings.
¶10 Section 25-403(A) provides that “[t]he court shall determine
custody, either originally or on petition for modification, in accordance
with the best interests of the child.” Relevant factors, which must be
addressed in specific written findings where custody is contested, include
the following:
1.
The wishes of the child’s parent or parents as to
custody.
2.
The wishes of the child as to the custodian.
3.
The interaction and interrelationship of the child with
the child’s parent or parents, the child’s siblings and any
other person who may significantly affect the child’s best
interest.
4.
The child’s
community.
adjustment
to
home,
school
and
5.
The mental and physical health of all individuals
involved.
6.
Which parent is more likely to allow the child
frequent and meaningful continuing contact with the other
parent. [ ] .
7.
Whether one parent, both parents or neither parent
has provided primary care of the child.
8.
The nature and extent of coercion or duress used by a
parent in obtaining an agreement regarding custody.
9.
Whether a parent has complied with [domestic
education programs set forth in A.R.S. § 25-351 et seq.].
10.
Whether either parent was convicted of an act of false
reporting of child abuse or neglect [ ].
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11.
Whether there has been domestic violence or child
abuse [ ].
A.R.S. § 25-403(A).
¶11
Section 25-403.01(B) provides that in awarding child
custody, “[t]he court may issue an order for joint custody over the
objection of one of the parents if the court makes specific written findings
of why the order is in the child’s best interests.” The statute further
provides that the best interests determination should be made after
considering the factors set forth in § 25-403(A), as well as the following
four factors:
1.
The agreement or lack of an agreement by the parents
regarding joint custody.
2.
Whether a parent’s lack of agreement is unreasonable
or is influenced by an issue not related to the best interests of
the child.
3.
The past, present and future abilities of the parents to
cooperate in decision-making about the child to the extent
required by the order of joint custody.
4.
Whether joint custody is logistically possible.
A.R.S. § 25-403.01(B).
¶12
The family court here made express written findings
regarding the § 25-403(A) factors, but did not specifically address the §
25-403.01(B) factors. Father challenges the “clarity” of the § 25-403(A)
findings, arguing that the court was required to state how much weight it
gave each factor and why joint custody was in the child’s best interests.
Father relies on Reid v. Reid, in which the family court considered evidence
in addition to statutory factors, but did not state which evidence
influenced its decision. 222 Ariz. 204, 207, ¶ 13, 213 P.3d 353, 356 (App.
2009). This court found an abuse of discretion because “the court’s
cursory findings did not indicate how it weighed [the custody evaluation]
and other relevant evidence to reach [its] conclusion.” Id.
¶13
Unlike in Reid, the family court’s findings in this case are not
cursory, nor do they refer to evidence in addition to the statutory factors,
or reject a custody evaluator’s recommendation without explanation. See
id. The findings discuss each of the relevant factors and state which
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factors are relevant and why. Where the evidence regarding a particular
factor was disputed or not clearly neutral, the findings detail how the
factor was considered. For example, in addressing § 25-403(A)(3), the
family court noted that, as a result of Mother’s conduct, her contact with
the child had been limited; in discussing § 25-403(A)(5) the court noted
Mother’s alcohol abuse; and when discussing § 25-403(A)(6), the court
noted Mother’s disregard of certain court orders. The findings also
expressly reference the parties’ history of cooperative joint custody and
the importance of having two participating and physically present parents
where possible.
¶14
Father disputes the weight the court attributed to Mother’s
failure to follow court orders, her expert’s testimony, the parties’ ability to
communicate, and the temporary modification of Mother’s parenting time
in August 2012. But we do not reweigh the evidence on appeal, and we
defer to the family court’s position as fact finder. Mary Lou C. v. Ariz.
Dep’t of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004). The
findings were sufficient for this court to ascertain the basis for the family
court’s order and thus satisfied the requirements of A.R.S. § 25-403.
¶15
The family court did not make specific written findings
regarding the factors set forth in § 25-403.01. Father did not object,
however, or otherwise request that the court make findings under this
section. Accordingly, Father has waived this issue. See Trantor v.
Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59 (1994) (finding that,
absent extraordinary circumstances, defects in a trial court’s order must be
challenged in that court or will be deemed waived on appeal); Banales v.
Smith, 200 Ariz. 419, 420, ¶ 8, 26 P.3d 1190, 1191 (App. 2001) (holding that
a failure to object to a lack of findings regarding one of the A.R.S. § 25403(A) factors waives the issue on appeal); cf., Nold v. Nold, 232 Ariz. 270,
272, ¶ 9, 304 P.3d 1093, 1095 (App. 2013) (declining to apply doctrine of
waiver when the family court made no findings regarding § 25-403
factors).
¶16
Furthermore, unlike § 25-403, which by its express terms
applies not only to initial custody determinations, but also to petitions to
modify custody orders, § 25-403.01 contains no such express provision.
Absent a claim raised before the family court that one or more of the § 25403.01(B) factors are relevant to a petition to modify a prior order, we
conclude that the family court need not make written findings regarding
those factors.
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¶17
Moreover, even assuming written findings were required,
any error in not making such findings was harmless. The first two § 25403.01(B) factors relate to whether the parties have agreed or disagreed
regarding custody, and whether a parent’s failure to agree was
unreasonable. Here, the family court was obviously aware that there was
no agreement regarding joint custody because it was addressing a
contested petition to modify a prior custody order.
And, the
reasonableness of the parents’ positions was necessarily considered in
determining whether to modify the prior order.
¶18
The final two § 25-403.01(B) factors relate to the parents’
ability to cooperate in decision making and whether joint custody is
logistically possible. In seeking to modify the prior joint custody
arrangement, Father did not raise these issues or otherwise suggest
logistical problems or a problem with cooperative decision making;
instead, the basis for the petition to modify was Mother’s alcohol abuse.
Thus, the final two § 25-403.01(B) factors were not relevant to the custody
modification decision.
¶19
Finally, although the family court did not specifically discuss
the § 25-403.01(B) factors, the court noted that it had considered the case
history – which included the fact that the parties shared joint custody for
over a year prior to this proceeding. The case history suggested that the
parties were able to make decisions jointly and that joint custody was
logistically possible. Accordingly, the court was aware of and considered
the parents’ ability to cooperate and the logistics of joint custody before
deciding to continue the joint custody arrangement.
B.
A.R.S. § 25-403.04 Findings.
¶20
A.R.S. § 25-403.04(A) creates a rebuttable presumption that it
is contrary to a child’s best interests to award sole or joint custody to a
parent who has been convicted of specific drug and alcohol offenses,
including an extreme DUI offense, within twelve months before the
petition or request for custody is filed. Although Mother’s extreme DUI
conviction occurred just days after Father’s petition was filed, the
presumption is nevertheless applicable. See Diezsi, 201 Ariz. at 526-27, ¶¶
8-9, 38 P.3d at 1191-92.
¶21
In determining whether the presumption has been rebutted,
under § 25-403.04(A), the court must consider whether “the custody or
parenting time arrangement ordered by the court appropriately protects
the child.” The court should also consider the absence of a conviction for
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any other “drug offense” in the past five years and the “[r]esults of
random drug testing for a six month period that indicate that the person is
not using [illegal] drugs.” See A.R.S. § 25-403.04(B).
¶22
Father contends that the court failed to make the required
finding that court-ordered custody or parenting time “appropriately
protects the child.” See A.R.S. § 25-403.04(A)(2). Although the family
court did not expressly cite § 25-403.04, the court acknowledged Mother’s
conviction for extreme DUI, and its concern that Mother’s alcohol abuse
“might negatively impact her ability to safely parent [the child].” The
court conditioned all of Mother’s parenting time on her continued
complete abstinence from alcohol and her complete compliance with all
rules of a six-month treatment program, including random alcohol testing.
Additionally, the court ruled that Mother’s parenting time would be
automatically suspended if she consumed alcohol or failed to comply with
the treatment requirements.
¶23
The family court has discretion to determine the degree of
protection warranted in a particular case, and, absent an abuse of that
discretion, we will not substitute our judgment on appeal. We conclude
that the conditions imposed on Mother satisfied the statutory requirement
that the court state how its custody or parenting time orders appropriately
protect the child.
¶24
Father further contends the family court lacked sufficient
information about the treatment program it ordered, pointing to several
alleged deficiencies with the program and to concerns regarding Mother’s
post-hearing conduct. But Father did not raise these deficiencies below,
and we will therefore not consider them on appeal. See Dillig v. Fisher, 142
Ariz. 47, 51, 688 P.2d 693, 697 (App. 1984) (an argument not raised in the
trial court cannot be raised for the first time on appeal).
¶25
Finally, Father contends that there is no evidence supporting
a finding that Mother rebutted the presumption against joint custody.
Father argues in particular that the factor set forth in § 25-403.04(B), six
months of negative drug testing, could not have been met because Mother
admitted drinking during the four months between the date Father filed
his petition and the hearing.
¶26
Assuming, without deciding, that § 25-403.04(B) applies not
only to drug testing, but also to alcohol testing, the statute requires only
that the court “consider” evidence of the test results; it does not require
the court to find that the test results mandate a particular custody
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determination. Here, Mother testified that she drank only when on
vacation in Europe when the child was not present, and her failures to test
occurred while she was on vacation. Mother’s expert, who testified
regarding her ability to parent and regarding alcohol dependence, opined
that Mother was not a danger to her child. The expert also opined that
Mother’s recent alcohol use was an isolated incident and that she was not
alcohol dependent. In light of this evidence, we conclude that the family
court did not abuse its discretion by concluding that Mother rebutted the
presumption against awarding her joint custody.
II.
Equal Parenting Time Order.
¶27
Father argues that, because the court should not have
awarded Mother joint custody, it follows that the award of equal
parenting time was also an abuse of discretion. Because we have
concluded that the trial court did not abuse its discretion in awarding joint
custody, this argument is moot.
III.
Denial of Attorney’s Fees.
¶28
The family court denied Father’s request for attorney’s fees
after finding that neither party acted more unreasonably than the other.
We review the family court’s decision to deny Father’s request for
attorney’s fees under an abuse of discretion standard. Mangan v. Mangan,
227 Ariz. 346, 352, ¶ 26, 258 P.3d 164, 170 (App. 2011). Father claims he is
entitled to an award of fees pursuant to A.R.S. § 25-324(A), which states
that the court may award fees after considering the parties’ financial
resources and the reasonableness of each party’s positions. Father argues
that Mother’s extreme DUI conviction, as well as her objections to and
failure to comply with the temporary testing orders, constituted
unreasonable conduct. Father also seeks fees pursuant to A.R.S. § 25324(B), which mandates an award of fees if the opposing party’s petition
was not filed in good faith, not grounded in law or fact, or filed for an
improper purpose.
¶29
Although we do not condone the conduct that precipitated
these proceedings, Mother’s pleadings did not appear to have been
without a basis in fact or to have been filed to harass Father, delay the
proceedings or increase the cost of litigation. Accordingly, we conclude
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that the trial court did not abuse its discretion by denying Father’s request
for fees. 3
ATTORNEY’S FEES AND COSTS ON APPEAL
¶30
Both parties request an award of attorney’s fees and costs on
appeal pursuant to A.R.S. § 25-324. Father also cites A.R.S. § 12-349 in
support of his request. Neither party took unreasonable positions on
appeal, and in our discretion, we deny both parties’ requests for fees. As
the successful party on appeal, Mother is entitled to an award of costs
under A.R.S. § 12-342.
CONCLUSION
¶31
We affirm the family court’s orders. Mother is entitled to
her costs on appeal upon compliance with ARCAP 21, but each party shall
bear their own attorney’s fees on appeal.
:mjt
Father also raises the denial of his motion for reconsideration as an
issue on appeal. But the family court’s denial of that motion is not
properly before us.
The court did not consider the motion for
reconsideration until after Father filed his notice of appeal; thus the notice
of appeal does not encompass the order denying the motion for
reconsideration. Furthermore, the denial of a motion for reconsideration
is not an appealable order unless it meets certain requirements not met
here. See Arvizu v. Fernandez, 183 Ariz. 224, 226-27, 902 P.2d 830, 832-33
(App. 1995) (holding that, to be appealable, a post-judgment order must
address issues different from those in the underlying judgment and must
affect the judgment by enforcing it or staying its execution).
3
10
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