MARTINEZ v. RYAN

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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 Matter of: ) ) DAVID A. MARTINEZ, ) ) Petitioner/Appellee, ) ) v. ) ) JENNIFER K. RYAN, ) ) Respondent/Appellant. ) ) 1 CA-CV 11-0485 DIVISION ONE FILED: 06/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2010-093734 The Honorable David M. Talamante, Judge AFFIRMED David A. Martinez In Propria Persona Edwards & Cherney LLP By Laura Jane Edwards Attorneys for Respondent/Appellant G O U L D, Judge Chandler Scottsdale ¶1 grant Jennifer K. Ryan ( Mother ) appeals the trial court s of custody ( Father ). of her daughter to David A. Martinez For the following reasons, we affirm. Factual and Procedural Background ¶2 In 2008, Mother and Father agreed to equal parenting time for their daughter ( Child ). Regardless, Mother typically left Child in Father s primary care, taking her overnight two nights per week. ¶3 Two years later, Mother took Child and left Arizona without Father s permission. Father located Mother, with Child, in Pennsylvania two months later. filed this lawsuit seeking In the meantime, Father had custody of Child. After an evidentiary hearing in which Mother testified that she would not relocate to Arizona, the trial court awarded sole custody to Father. Mother filed a motion for new trial which the trial court denied. ¶4 Mother timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(1) and (5)(a). Discussion ¶5 We review the trial court s child custody decision for an abuse of discretion. See In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1191 (App. 2002). 2 ¶6 Mother first argues that the trial court failed to make findings regarding domestic violence as required by A.R.S. § 25-403(A)(11) (2011). Mother maintains that the trial court has completely disregarded the issue of domestic violence.1 The record does not support Mother s contention. ¶7 At the hearing, the trial court considered Mother s claims of domestic violence. Specifically, the trial court described Mother s credibility on the issue as suspect because she did not raise this issue until after she was embroiled in this custody dispute. because it was unable Of note, the trial court was concerned to harmonize Mother s allegations of domestic violence with the relief she sought from the court. The trial court emphasized that Mother testified that Father is by and large a good dad and that she has no problems with Father having custody of Child for extended periods of time without any supervision or safeguards in place to address her supposed concerns about domestic violence.2 The trial court found no rational connection [between] what mother is alleging 1 Father cites to page 253, line 19 through page 255, line 9 as support that the trial court addressed the issue of domestic violence, not to the individual page and line numbers as Mother suggests. 2 The record also shows that Mother sought an order of protection against Father in Pennsylvania, and that order of protection was dismissed with prejudice. 3 and what she s asking the Court to do. The trial court summarized its analysis of the domestic abuse issue in its March 2, 2011, minute incorporated the entry. minute The entry trial into court the then judgment expressly from which Mother appeals. ¶8 We hold that the trial court satisfied the requirements of A.R.S. § 25-403(B) by making findings regarding domestic violence in the transcript of the hearing custody was contested and in its minute incorporated into its final judgment. entry in which which was See Diezsi, 201 Ariz. at 526, ¶ 5, 38 P.3d at 1191. ¶9 Mother next argues that the trial court s findings pursuant to A.R.S. § 25-403(A) are inadequate because the trial court makes no finding regarding domestic violence. argument fails for the same reasons set forth above. court weighed the relevant evidence and found This The trial that despite Father s acts of domestic violence towards Mother, it was in Child s best interests to award Father sole custody.3 3 Thus, the In order to deprive a parent of custody or give rise to a presumption against a parent, there must be a finding by the court that the alleged domestic violence is significant and falls into the categories set forth within the statute. See A.R.S. § 25-403.03(A), (D). In awarding Father sole custody, the trial court found that the domestic violence that occurred between the parties was limited to verbal and emotional abuse which would make co-parenting difficult. This further belies 4 trial court s award of sole custody to Father was not deficient as a matter of law. ¶10 its Mother s third argument is that the trial court abused discretion by failing to apply a presumption against awarding Father custody under A.R.S. § 25-403.03(D) (2011) due to Mother s allegations of domestic violence. ignores a key sentence contained in the Mother s argument statute. The presumption Mother invokes here does not apply if both parents have committed an act of domestic violence. 403.03(D) (emphasis added). Father See A.R.S. § 25- obtained an order of protection against Mother in 2008 and Mother obtained an order of protection against Father the next day. Because both parties committed acts of domestic violence, Mother is not entitled to the presumption set forth in A.R.S. § 25-403.03(D). ¶11 Finally, Mother argues that the trial court s award of sole legal custody to Father is not supported by the evidence. The Smith court aptly explains the appellate court s role: A child custody proceeding more than any other court hearing challenges the trial judge to view and weigh the various personalities, motives and abilities of all the parties. The trial judge observes the body movements, the facial expressions, the voice inflections, the reactions to the Mother s contention that the trial court made no finding as to domestic violence. 5 testimony and the overall demeanor of all parties and witnesses. These observations, together with the transcribed testimony, make up the fabric from which a judge will cut his decision. Our observations are limited to the transcript and we must therefore be very careful in attempting to second guess the front line trial court from our rather limited appellate vantage point. Smith v. Smith, 117 Ariz. 249, 253, 571 P.2d 1045, 1049 (App. 1977). Thus, we will not overturn a child custody decision of the trial court absent a clear showing that the judge abused his discretion. ¶12 substance Id. Mother abuse overwhelming points to issues evidence Father s and that threats of alleged sexual it not was his misconduct as in interests to award sole legal custody to Father. ¶13 suicide, Child s best We disagree. The trial court evaluated each of the eleven factors required by A.R.S. § 25-403 to determine Child s best interests. The three concerns Mother highlights as error on appeal impact only one of these eleven factors, Father s mental or physical health. The trial court weighed all of the evidence related to this factor and determined that it was still in Child s best interests for Father to have sole custody. ¶14 Father testified that although he has suicide, he has never attempted to commit suicide. threats were threatened Rather, the intended to garner a reaction from loved ones. 6 Mother provided no compelling evidence to the contrary. fact, Mother s alleged concerns regarding Father s In parenting abilities run counter to her testimony that Father is by and large a good dad and that she has no problems with Father having custody of Child. ¶15 Father admits he has struggled with substance abuse issues in the past, but provided evidence that he has repeatedly submitted to alcohol and drug testing.4 results have been negative. All of Father s test The court order forbids Father from consuming alcoholic beverages while Child is in his physical custody or while he is designated as the sole legal custodian. Additionally, Father is required to submit to random alcohol tests a minimum of 3 times per month. Thus, the trial court established will safeguards so that Mother know if Father relapses, and can seek modification of the custody order. ¶16 As for the allegations of Father s sexual misconduct with a minor, the trial court heard testimony about the alleged incident from both Father and the minor. that because inclined 4 to of find a lack that of credible Father has The trial court held evidence, engaged in it was any not sexual The trial court found it likely that Father will struggle with alcohol addiction his entire life. Though an unfortunate fact of life for those addicted to alcohol, this fact alone is not a basis to permanently deny a parent custody of his or her child. 7 misconduct. In awarding custody to Father, the trial court explained: Father has been the primary caretaker of the child and there is insufficient factual basis for this Court to determine Father has ever posed any risk of harm to the minor child. On the record before us, we cannot say that the trial court abused its discretion in so finding. Conclusion ¶17 A.R.S. The trial court weighed all of the factors required by § 25-403 and determined that it was interests that Father be awarded sole custody. in Child s best On this record, we find that the trial court did not abuse its discretion. For the foregoing reasons, we affirm. /S/ _______________________________ ANDREW W. GOULD, Judge CONCURRING: /S/ ___________________________________ JOHN C. GEMMILL, Presiding Judge /S/ ____________________________________ PETER B. SWANN, Judge 8

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