Sprinkle v. Sprinkle
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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: ) ) MICHAEL DEE SPRINKLE, ) ) Petitioner/Appellee, ) ) v. ) ) VALENTYNA RUZICH SPRINKLE, ) ) Respondent/Appellant. ) ) 1 CA-CV 10-0439 DIVISION ONE FILED: 06/21/2011 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause Nos. FC2005-011856 and FC2006-053575 (Consolidated) The Honorable Helene F. Abrams, Judge AFFIRMED Law Office of John E. Herrick By John E. Herrick Attorneys for Petitioner/Appellee Phoenix Valentyna Ruzich Sprinkle Appellant in propria persona Phoenix O R O Z C O, Judge ¶1 Valentyna Ruzich Sprinkle (Mother) appeals from an order denying her request to terminate supervised parenting time and granting sole custody of the parties two minor children to Michael Dee Sprinkle (Father). For the following reasons, we affirm the order. PROCEDURAL AND FACTUAL BACKGROUND1 ¶2 The parties have six-year old twins. The parties marriage was dissolved in 2008 and they were awarded joint legal custody of the minor children. parenting time. Father was awarded unsupervised At that time, Mother and the children resided in Utah and Father lived in Arizona. ¶3 As a result of Father filing a motion to enforce the parenting time orders, the family court held a hearing in April 2008. The court found that Mother was attempting to alienate the children from Father and temporarily granted Father sole custody of the children in Arizona and ordered that Mother have up to six hours a week of supervised parenting time. The court further ordered Mother to undergo a psychological evaluation and recommended a particular psychologist in Arizona, Dr. Almer. Instead, Mother saw Dr. Mejia, a clinical psychologist in Utah. 1 Mother s appellate briefs do not contain appropriate references to the record and include some documents that were not presented to the trial court. We will not consider documents submitted on appeal that were not considered by the trial court. See G.M. Dev. Corp. v. Cmty. Am. Mortgage Corp., 165 Ariz. 1, 4-5, 795 P.2d 827, 830-31 (App. 1990). However, contrary to Father s contention, Mother did submit a transcript of the April 7, 2010 custody hearing which was considered. 2 ¶4 Dr. Mejia s report to the court indicated that he saw Mother pursuant to the April 2008 order. Dr. Mejia recommended that Mother receive psychological treatment focused on treating paranoia and anxiety, which if successful children to have access to both parents. that her treatment focus on ensuring would permit the He also recommended the children s welfare following Mother s divorce from Father and overcoming the issues that led to her making unfounded allegations, which might be emotionally damaging to the children. ¶5 The court held a status conference following receipt of this report. At that time, the court noted there may be some financial impediments which make it difficult for Mother to exercise her supervised parenting time. Nonetheless, the court ordered supervised parenting time to continue and offered other options to assist Mother in exercising her parenting time. The court also encouraged Mother recommended by Dr. Mejia immediately. would reconsider parenting time whether after the Mother to therapy as The court stated that it was therapist commence ready provided for unsupervised reports to the court. ¶6 Mother saw several different psychologists over the next year. time in She began regularly exercising supervised parenting September 2008. The parties 3 were unable to agree whether any of Mother s therapists provided the appropriate counseling as recommended by Dr. Mejia and as ordered by the court. As a result, Mother continued to have supervised parenting time. ¶7 Mother filed a motion to terminate supervised parenting time more than a year after Father obtained temporary sole custody. Father responded and asked the court to make the temporary custody orders permanent and enforce the prior order requiring Mother to undergo psychological treatment prior to any unsupervised parenting time. The court held an evidentiary that the therapy hearing. ¶8 The family court found Mother obtained over the past year did not address issues regarding parental alienation and unfounded allegations of abuse. Rather, the court found the treatment Mother received focused on her being a victim of domestic violence. The parenting coordinator also recommended that Mother have a psychiatric evaluation and possibly medication prior to any unsupervised parenting time. Based on these findings, the trial court denied Mother s request to terminate considered all supervised the parenting relevant time. factors The under court Arizona also Revised Statutes (A.R.S.) section 25-403 (Supp. 2010), and determined that awarding permanent sole custody 4 to Father was in the children s best interests.2 prior order directing Finally, the court affirmed its Mother to undergo a psychological evaluation with either Dr. Almer or a mutually agreed upon mental health professional. ¶9 Mother order. filed a timely notice of appeal from this We have jurisdiction pursuant to A.R.S. § 12-2101.B, .C (2003). DISCUSSION ¶10 trial Mother contends that the evidence does not support the court s interests to decision award that Father supervised parenting time. and parenting time it sole was in the custody children s and continue best her We review the trial court s custody decisions under an abuse of discretion standard. In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1190 (App. 2002). A court abuses its discretion when the record is devoid of competent evidence to support its decision. Borg v. Borg, 3 Ariz. App. 274, 277, 413 P.2d 784, 787 (1966) (quoting Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668 (1963)). An abuse of discretion also occurs when a court commits a legal error in the process of exercising its 2 We cite to the current version of applicable statutes when no revisions material to this decision have since occurred. 5 discretion. Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004). ¶11 Mother contends that a modification of the custody order is justified under A.R.S. § 25-411.D (Supp. 2010) because the current children s custody physical, arrangement mental, seriously moral, and endangers emotional the health. Mother argues that Father does not have any health or dental insurance coverage for the children in violation of a court order. Mother testified that at her supervised visits, the children had bruises and used inappropriate language. She testified that they came in shoes that were too small and often had skin rashes. ¶12 and Mother s briefs cite several allegations of physical emotional abuse and mistreatment of Father obtained sole custody in April 2008. the children since Mother testified to some of these incidences during the hearing. Mother admitted that she has called Child Protective Services (CPS), Phoenix Police Department, and the Maricopa County Sheriff s Office to check on the children s welfare because the children swear and cry during her visits and do not eat enough. ¶13 Father testified that he has received about twenty calls from various agencies to follow up on reports from Mother since he gained custody of the children in April 2008. 6 Father testified that all reports were inquiries frighten the children. unsubstantiated and the The CPS and law enforcement reports found no evidence of abuse or neglect. The parenting coordinator explained that frequent welfare checks would indeed be traumatizing to young children. ¶14 Mother also claims that Father does not always answer when she calls the children, and when she talks to the children, it appears someone is coaching them. Father testified that Mother s calls upset the children when she asks if they want to come to her house which is not allowed under the orders. ¶15 Mother repeats allegations of Father s drug use, domestic violence, and other questionable conduct that pre-date the April 2008 custody order. Mother argues that this is contrary to the best interests of the children and the court should not have awarded sole custody to Father. Father s 2007 drug conviction no longer creates a presumption that awarding sole custody to Father is not in the children s best interests. The presumption against awarding custody to a parent with a drug conviction only applies to drug convictions within twelve months of the request for custody. See A.R.S. § 25-403.04.A (2007). Additionally, in 2007 and again in 2008, the court explicitly considered Father s domestic violence and drug convictions and concluded that Father either rebutted the statutory presumptions 7 against awarding him custody, or else the presumption did not apply. Mother cannot now complain about these rulings. ¶16 The family court concluded that the reports made since Father has had substantiated. parenting custody The of evidence coordinator also the children supports expressed this have not been conclusion. The concern that Mother s repeated unsubstantiated reports to the authorities traumatize the children. Mother s current therapist, Dr. Andrews, was not aware of the dates Mother filed any reports with the authorities and did not offer any opinion as to the appropriateness of Mother s actions. ¶17 We agree with the trial court that there was no credible evidence that Father actually abused or mistreated the children. regarding The court appropriately considered and made findings the statutory factors in A.R.S. evidence supports each of these findings. § 25-403.A. The The trial court having had the opportunity of observing the demeanor of the parties was in a far better position to determine what would be in the best interest of the [children] and we will be most reluctant to change compelling of reasons. that determination absent the most Young v. Bach, 107 Ariz. 180, 181, 484 P.2d 176, 177 (1971). 8 ¶18 Implicit in Mother s argument that Father should no longer have custody is the contention that her parenting time need no longer be supervised. The family court denied Mother s request to terminate her supervised parenting time because the counseling Mother has received since Dr. Mejia s report did not focus on the issues necessary to successfully exercise unsupervised parenting time; i.e., issues regarding alienation and unfounded allegations. ¶19 The reports participated in has court not unfounded that the adequately and repeated Thus, we family are Mother s follow up checks are traumatizing to the children. the authorities that subsequent with the established the agree to evidence counseling addressed Mother the has issues preventing Mother from exercising unsupervised parenting time. The order for supervised parenting time, therefore, was appropriate. ATTORNEYS FEES AND COSTS ON APPEAL ¶20 Father requests an award of his attorney s fees and costs on appeal pursuant to A.R.S. § 25-324 (Supp. 2010). In the exercise of our discretion, we deny his request because there is no current financial information in the record. 9 CONCLUSION ¶21 For the above mentioned reasons, we affirm the custody and parenting time orders. We also deny Father s request for an award of attorney s fees and costs on appeal. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ DONN KESSLER, Judge /S/ ____________________________________ MICHAEL J. BROWN, Judge 10
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