Jordan v. Mudrack
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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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE THE MATTER OF: ) ) TOMIE JUSTINE JORDAN, ) ) Petitioner/Appellant, ) ) v. ) ) VICTOR LOUIS MUDRACK, ) ) Respondent/Appellee. ) ) DIVISION ONE FILED: 05/20/10 PHILIP G. URRY,CLERK BY: JT 1 CA-CV 09-0429 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2005-051120 The Honorable Carey Snyder Hyatt, Judge AFFIRMED Tomie Justine Jordan Petitioner/Appellant Pro Per Phoenix Victor Louis Mudrack Respondent/Appellee Pro Per Phoenix I R V I N E, Presiding Judge ¶1 family Tomie court s Justine order Jordan denying ( Mother ) her petition custody. For the following reasons, we affirm. appeals to from modify the child FACTS AND PROCEDURAL HISTORY ¶2 Mother and Victor Louis Mudrack ( Father ) were married in 2001 and had one child. Mother petitioned for divorce and the marriage was officially dissolved in December 2005. The decree awarded joint custody with Mother serving as the primary residential parent. In May 2006, Father filed a petition to modify custody due to Mother s alleged alcohol and drug abuse. After a hearing on the motion, the court found that Father established a substantial and continuing change that justifies a change of custody and parenting time and awarded him sole legal custody. The court noted that it hopes that Mother s continued progress with her rehabilitation will permit her to demonstrate in the future that an additional parenting time modification may be appropriate. The court ordered that Mother shall be entitled to unsupervised parenting time . . . so long as she installs an ignition interlock device on any vehicle she drives, wears an effective SCRAM bracelet, and submits to a hair follicle drug test every ninety days. 1 ¶3 From 2006 to 2008, Mother and Father filed multiple letters, motions, and petitions with the court. On November 20, 2009, the court held an evidentiary hearing to review parenting 1 In a subsequent minute entry, the court stated that Mother has consistently mislead the Court regarding ordered alcohol testing, has failed to test as ordered and has been suspected of tampering with alcohol monitoring devices. 2 time and child support issues. At the hearing, the court adopted the recommendation of the appointed Best Interests Attorney and affirmed sole custody to Father. The court ordered supervised parenting time unsupervised for Mother parenting time and and stated: some Mother overnights may at earn Father s discretion if she provides proof to Father and the Court of three (3) months of random twice weekly negative, non-diluted tests at TASC with no failures to test along with proof of three (3) months participation in the substance abuse treatment program. The court also stated that Mother must file proof that she has completed twelve consecutive months of a substance abuse program before filing any future petitions to modify custody. ¶4 Mother timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes section 12-2101(C) (2003). DISCUSSION ¶5 its Mother argues that the family court s order, affirming previous custody determination, constituted cruel and unusual punishment. The United States Supreme Court has clearly proclaimed that the Eighth Amendment does not apply to civil proceedings: An Amendment the and examination of the decisions of this history Court of the Eighth construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. Olson v. Walker, 162 Ariz. 174, 182-83, 3 781 P.2d 1015, 1023-24 (App. 1989) (citing Ingraham v. Wright, 430 U.S. 651, 665 (1977)). Therefore, Mother s argument fails because the family court s order granting Father sole custody was not a criminal sanction. ¶6 Because we have not been provided the transcript or recording evidence of the evidentiary presented at the hearing, hearing we presume supported that the the court s findings. See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). Here, the record reflects multiple occasions when Mother did not submit to drug testing as ordered by the court. The family court consistently noted its desire to extend Mother s parenting time once she addresses her substance abuse issues. 2 The court, however, never guaranteed an expansion or modification in parenting time. On the record before us, we conclude that the family court did not abuse its discretion in affirming its previous child custody determination. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003) ( We review the [family] court s decision regarding child custody for an abuse of discretion. ). 2 Throughout 2008, Mother s parenting time varied between supervised and unsupervised. In one instance, the court permitted Father to grant more parenting time in his discretion due to Mother s negative, non-diluted alcohol tests; however, due to Mother s refusal to test at TASC, the court ordered supervised parenting time. 4 CONCLUSION ¶7 For the foregoing reasons, we affirm. /s/ ________________________________ PATRICK IRVINE, Presiding Judge CONCURRING: /s/ _____________________________________ MICHAEL J. BROWN, Judge /s/ _____________________________________ DONN KESSLER, Judge 5
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