Christodoulakis v. Vu
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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In Re The Marriage of: ) ) THEO CHRISTODOULAKIS, ) ) Petitioner-Appellee, ) ) v. ) ) QUYNH CHI VU, ) ) Respondent-Appellant. ) ) 1 CA-CV 10-0243 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2007-092203 The Honorable James P. Beene, Judge REVERSED IN PART; AFFIRMED IN PART; REMANDED Theo Christodoulakis, Appellee In Propria Persona Chandler Quynh Chi Vu, Appellant In Propria Persona Chandler W E I S B E R G, Judge ¶1 Quynh designating Theo Chi Vu ( Mother ) Christodoulakis appeals ( Father ) from as an the order primary residential parent of the parties two minor children, ordering her to pay child support in the amount of $470 per month, and entering a judgment against her for child support arrearages in the amount of $119,000. For the reasons stated, we reverse the custody order and the judgment on arrearages, affirm the child support order, and remand the matter to the trial court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND ¶2 the The parties were divorced in New Jersey in 1999. time together. the decree was entered, the parties were At living Father was designated the primary residential parent, and Mother was ordered to pay $1,500 per month until September 2000 and $1,000 per month thereafter in child support. The final decree provided that the custody and child support terms would not take effect until the parties separated. ¶3 Father moved to Arizona in 1999, but returned to visit the family. Mother and the children moved to Arizona in 2001 and the parties lived together until either 2005 or 2006. When the parties finally separated, both children lived with Father. However, two months later, the daughter moved in with Mother and the son stayed with Father. Mother has not paid any child support to Father. ¶4 Mother filed a petition to modify parenting time, and child support orders. child custody, Father responded and filed a cross-petition seeking to hold Mother in contempt for 2 retaining custody of the daughter and failing to pay child support as ordered in the decree. ¶5 The court set an evidentiary hearing on the custody issues and children. ordered The conciliation court services temporarily to designated interview Mother the as the primary residential parent for the daughter, and Father remained the primary issues were residential deferred parent until for the the son. evidentiary Child support hearing. After receiving the conciliation services report, the court appointed a custody evaluator. Prior to the evidentiary hearing, Father filed an emergency motion for custody of the daughter because she had been caught drinking alcohol at a school function and Mother could not be reached. The court awarded Father temporary sole legal custody of the daughter. ¶6 The trial court held an custody, child support, and arrearages. evidentiary hearing on The parties were given joint legal custody, and Father was named primary residential parent of both children. The court found that Mother earned $3,000 per month and Father earned $3,200 per month, and ordered Mother to pay child support in the amount of $470 per month. The court found that Mother owed child support arrearages in the amount of $119,000. Mother filed a motion for reconsideration, 3 Mother filed a timely notice of appeal. 1 which the court denied. We have jurisdiction pursuant to Arizona Revised Statutes section 12-2101(C) (2003). DISCUSSION Custody ¶7 Mother argues that the court abused its discretion in awarding primary physical custody to Father because the court did not consider the children s wishes. is not in the children s parenting time and parenting issues. regarding child to best give We custody interest Father review for an She also argues that it final the to authority trial abuse of limit court's discretion. Mother s on major decision In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1190 (App. 2002). ¶8 One factor the trial court must consider in determining the best interests of the children is the wishes of the child (Supp. 1 as 2010). to the The custodian. trial court See found A.R.S. there § was 25-403(A)(2) no evidence Father contends that Mother s appeal was untimely. Because Mother filed her notice of appeal less than thirty days from the entry of final judgment, the appeal is timely. See ARCAP 9(a). Father also claims that Mother did not send him a copy of the opening brief. However, Mother s brief contains a signed certificate of service stating that the brief was mailed to Father at the address of record. Also, Father failed to raise this issue when he received notice from this court that his answering brief was overdue and that he had not paid his filing fee. Therefore, Father s objection is untimely. 4 presented regarding this factor. failed to consider the custody evaluation. ¶9 The evidence. Mother contends that the court conciliation services report and the We agree. conciliation services report was admitted into It includes a summary of the children s interviews in which the son expressed a desire to live with Father and the daughter expressed a desire to live with Mother. findings do not refer to this evidence. to have overlooked it because it The court s Indeed, the court seems found that there was no evidence regarding the children s wishes. ¶10 Additionally, there was a custody evaluation prepared approximately five months before trial. report, but the court did not rule Father objected to the on his objection. The custody evaluation is in the record on appeal as an exhibit to Mother s motion for reconsideration. It was not offered as an exhibit at the evidentiary hearing, and Mother did not provide a transcript of the hearing. Therefore, we cannot ascertain if the court considered the custody evaluation at the evidentiary hearing. ¶11 Generally an appellant is responsible for making certain that the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal. See ARCAP 11(b) (appellant 5 is responsible for ordering all relevant transcripts). When a party fails to do so, we assume the missing portions of the record would support the trial court's findings and conclusions. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). However, in this case, at least the conciliation services report was part of the record, and it is apparent that the court failed to consider evidence regarding the children s wishes as required by A.R.S. § 25-403(A)(2). physical For this reason, we reverse the order regarding custody. We remand to the trial court for reconsideration of its order in light of evidence regarding the children s wishes. 2 Child Support ¶12 Mother next contends that the child support order was based on erroneous findings regarding the parties incomes. Mother claims she earns far less than $3,000 per month and that Father earns more than $3,200 per month as found by the trial court. The only evidence in the record regarding Mother s income is her tax returns from 2003 through 2008. exception of 2007, these returns reflect earning capacity of $3,000 per month. that With the Mother has an Additionally, given the absence of a trial transcript, we will presume that the evidence 2 Although Mother challenges the custody order on other grounds as set forth above, because we are remanding this matter for further proceedings, we need not address those arguments. 6 offered at the trial supports the trial court s findings and conclusions regarding the parties incomes. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). Therefore, as to the child support order, there was no abuse of discretion. note, however, that if the trial court modifies the We primary residential parent designation, the current child support order must be reexamined as well. Child Support Arrearages ¶13 The trial court found that Mother owed child support arrearages of $119,000 for unpaid child support from April 1, 1999 through June 30, 2007. not paid Mother any child contends, Mother did not dispute that she has support however, since that the pursuant decree to the was entered. terms of the decree, her child support obligation did not begin until the parties separated, which Mother alleges was in July 2006. ¶14 Mother also relies on a prior ruling by a commissioner entered after the Arizona Department of Economic Security made an appearance determination. in the case and moved for an arrears The commissioner found that the parties agree that they lived together from the time of the divorce in 1999 until 2006 and that between August 2007, they divided custody equally. 2006 through April The commissioner concluded that Mother did not owe Father past due child support. 7 of Father filed a motion for reconsideration of the commissioner s ruling, but the commissioner never ruled on that motion. The trial court did not refer to this earlier ruling in its order, nor did it make specific findings regarding the parties living arrangements during this period. ¶15 On appeal, Mother argues that the evidence shows the parties lived together most of [the] time between April 1, 1999 and June 30, 2007. different dates separated. regarding The pleadings in the record contain when the parties claim they were Father has alleged that he lived with Mother and the children in Arizona from 2001 until December 2005 or 2006, while Mother has claimed that they lived together until July 2006. Because Father has conceded that the parties resided together from sometime between 2001 until at least 2005, and pursuant to the terms of the divorce decree, Mother was not obligated to pay child support to Father during such period. conclusion regarding arrearages, therefore, The trial court s was factual assumption that was clearly erroneous. based on a See Hrudka v. Hrudka, 186 Ariz. 84, 91, 919 P.2d 179, 186 (App. 1995) (we will sustain a trial court s factual finding unless it is clearly erroneous). Thus, we remand the matter to the trial court to determine when the parties were permanently separated, with whom 8 each child then resided, and to redetermine child support Mother requests an award of costs on appeal. Mother arrearages accordingly. 3 Costs on Appeal ¶16 was only partially successful on her appeal. her request. Therefore, we deny Each party shall bear his or her own costs. CONCLUSION ¶17 For the foregoing reasons, we reverse the order appointing Father as primary residential parent and the judgment on arrearages. We affirm the child provisions of the trial court s order. support and all other We remand the matter to the trial court for further proceedings consistent with this court s decision. /s/__________________________ SHELDON H. WEISBERG, Judge CONCURRING: /s/_________________________________ DONN KESSLER, Presiding Judge /s/_________________________________ DIANE M. JOHNSEN, Judge 3 Mother also argues that the trial court did not have jurisdiction to reconsider the commissioner s prior ruling on arrearages because the prior ruling was law of the case. However, because of our resolution of this matter, we need not decide this issue. 9
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