ELLIOTT v. GUERRERO

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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: ) ) SHARON LEIGH ELLIOTT, ) ) Petitioner/Appellant, ) ) v. ) ) GREGORY JOHN GUERRERO, ) ) Respondent/Appellee. ) __________________________________) DIVISION ONE FILED: 1/22/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-CV 11-0820 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2010-001471 The Honorable Thomas L. LeClaire, Judge AFFIRMED IN PART; VACATED AND REMANDED IN PART S. Alan Cook P.C. By S. Alan Cook Sharon Ottenberg Attorneys for Petitioner/Appellant Phoenix Phoenix School of Law Family Pro Bono Project By Penny L. Willrich Attorneys for Amicus Curiae Phoenix D O W N I E, Judge ¶1 Sharon Leigh Elliott ( Mother ) appeals certain provisions of a divorce decree entered by the family court, as well as the partial denial of her motion for new trial. Because the record does not support findings made regarding Mother s mental health, we vacate the custody and parenting time orders and remand for reconsideration of those matters. In all other respects, we affirm the family court s orders. FACTS AND PROCEDURAL HISTORY 1 ¶2 Mother and Gregory John Guerrero ( Father ) have three minor daughters. Father sought joint legal custody children, and Mother requested sole custody. of the Mother alleged considerable domestic violence by Father during the marriage. ¶3 The parties agreed to temporary parenting time orders, with Father s time being supervised. Mother later sought temporary sole custody, alleging that Father s parenting time was not being fully struck the children. supervised and that his girlfriend had After a hearing, the court ruled: THE COURT FINDS that there is compelling evidence to suggest paternal grandparents are supervising Father s parenting time. Therefore, IT IS ORDERED denying Mother s March 3, 2011 Emergency Petition for Pre-Decree Temporary Sole Custody with Notice. IT IS FURTHER ORDERED awarding Father two and one-half hours of additional parenting time to compensate for Mother s failure to 1 We view the evidence in the light most favorable to sustaining the family court s findings . . . . Gutierrez v. Gutierrez, 193 Ariz. 343, 346, ¶ 5, 972 P.2d 676, 679 (App. 1998). 2 follow court orders, as advised by counsel, regarding Father s parenting time. ¶4 The court appointed a Therapeutic Interventionist ( TI ) to work on restoring the relationship between Father and the oldest child. parenting time It granted Father s request to modify his with the two younger girls but deemed modification as to the oldest premature, electing to wait until some degree relationship. of success was achieved in restoring that The court lifted the requirement that Father s parenting time be supervised and stated: [T]he Court is concerned about the many ways in which [Mother] seems to be placing obstacles between [Father] and the children. The Court did not find an allegation of [Father s] girlfriend allegedly assaulting one of the children to be substantiated. Actions taken early in this litigation showed [Mother] unilaterally withholding parenting time. That alone would not suffice to alter the Court s earlier ruling; however, the Court learned at the March 10th hearing that [Mother] had unilaterally modified the Court s Order regarding parenting time by withholding the children on the date of the hearing. As a result, the Court admonished [Mother], directed that the children be immediately turned over to [Father] following the hearing, and granted extended parenting time on that date for the time improperly withheld. The Court has significant concerns about [Mother s] ability to set aside her personal feeling about [Father], follow the orders of the Court, and focus on the best interests of the children, not [Mother s] view of what the best interests are, but the objective best interests of the children. 3 ¶5 Meanwhile, an order of protection obtained against Father in May 2010 expired. that Mother had Mother sought new orders of protection in June and July 2011, but her requests were denied. ¶6 After dissolution. a trial, the entered a decree of Mother moved for a new trial or, alternatively, to alter or amend the decree. The court granted Mother s motion in part and denied it in part. jurisdiction court pursuant to Mother timely appealed. Arizona Revised Statutes We have ( A.R.S. ) section 12-2101(A)(2), (5)(a). DISCUSSION ¶7 Mother raises several issues Father did not file an answering brief. 2 in her opening brief. Although his failure to appear could be treated as a confession of reversible error, Swift Transportation v. Industrial Commission of Arizona, 189 Ariz. 10, 11, 938 P.2d 59, 60 (App. 1996), we prefer to address custody and parenting time disputes on the merits where possible. 2 An amicus curiae brief was filed by the Phoenix School of Law Family Pro Bono Project. Although that brief raises interesting and thoughtful issues, appellate courts confine their review to arguments that the parties themselves advance. See Ruiz v. Hull, 191 Ariz. 441, 446, ¶ 15, 957 P.2d 984, 989 (1998) (appellate court addresses legal issues raised by the parties, not those asserted by amici curiae). Mother has not argued that A.R.S. § 25-403.03 is impermissibly vague. And, as discussed infra, ¶ 23, the statute does not require the family court to make findings of fact on the record. 4 I. Mental Health Finding ¶8 Mother contends the court erroneously found that she suffers from bipolar disorder. The decree states: Mother admits that she is bi-polar and previously took medication for the condition. Mother states that she does not currently take any medication for this condition. Paternal Grandfather also stated that during the Grandparents visits to the parties home prior to the separation, Mother would remain in her bedroom ten out of twelve visits. He further stated that he did not know what Mother s mood would be when they visited and that the mood of the house was sporadic. Paternal Grandfather depicts Mother as having mood issues and that tension in the house resulted from Mother s moods. If the testimony of the Paternal Grandparents is accurate, Mother has had some difficulties with her bi-polar disorder that interfered with her ability to parent the children and to care for the home. ¶9 been Nothing in the record suggests that Mother has ever diagnosed with bipolar disorder medication for that condition. or that she has taken Mother testified at trial that she was treated for situational depression on two occasions. No other witness testified that Mother has bipolar disorder, and the trial exhibits do not support such a finding. ¶10 The court discussed Mother s alleged bipolar disorder in resolving disputed custody and parenting time issues. stated appeared that to difficulties interfere with associated Mother s 5 with ability that to It condition parent the children and to care for the home, and it mentioned that Mother no longer takes medication for that condition. As noted, though, the record does not support the underlying premise that Mother has ever suffered from bipolar disorder. Because we cannot determine whether the court would have entered the same orders absent such a finding, we vacate the existing custody and parenting time orders and remand for reconsideration of those matters without reliance on a mental health condition that is unsupported by the record. The superior court shall determine on remand whether the existing record is adequate for purposes of reconsideration or whether additional proceedings are necessary. II. Delegation of Decision-Making ¶11 Mother asserts the family court erred in delegating its authority to make parenting time orders to the therapeutic interventionist. The decree reads, in pertinent part: IT IS ORDERED that the parties shall have equal parenting time with the minor children, except that parenting time of [oldest child] shall occur when the relationship has been normalized as indicated by the TI. Upon a restoration of the parent/child relationship between [Father] and [oldest child], parenting time as indicated here shall apply to [oldest child]. ¶12 890 DePasquale v. Superior Court (Katz), 181 Ariz. 333, P.2d 628 (App. 1995), upon 6 which Mother relies, is distinguishable. best-interests In DePasquale, the trial court did not make a determination, instead stating it would award custody to whomever the psychologist recommended, which it later did. Id. at 335-36, 890 P.2d at 630-31. In the case at bar, the court made detailed findings regarding the children s best interests and the relevant custody and parenting time factors. See A.R.S. § 25-403(A). Further, in ruling on Mother s motion for new trial, the court clarified: The Court is not delegating its authority to the Therapeutic Interventionist. The Court has made a parenting time determination. There is an ongoing estrangement or strained relationship between child and the parent. The Court is requesting the TI to provide information to the Court when the parenting time already awarded may be implemented from a therapeutic perspective. The TI has no role in determining the amount or duration of parenting time. ¶13 The court considered the current state of the relationship between Father and the oldest child and ruled that upon restoration of that relationship - a therapeutic benchmark - its previously-determined parenting time orders would become effective as to that child. III. Child Support ¶14 time Mother argues the court erred in applying a parenting adjustment [for child support] parenting schedule not then in effect. based on a prospective Specifically, the court gave Father credit for essentially equal time with all three 7 children, although the eldest child spends significantly less time with him. ¶15 In parenting her time motion credit for new should trial, reflect Mother the number oldest child actually spends with Father. argued he had been following the TI s contended of days the the In response, Father recommendations, that great progress had been made in restoring the relationship with his oldest daughter, and that the reunification plan had come to a halt due to the mother s refusal to pay her portion of the TI s bill, a direct violation of the court s order, thus preventing implementation of the parenting time already in place for the two younger girls. Without comment, the family court refused to revisit its parenting time allocation. ¶16 Child support awards are highly discretionary, appellate courts review them deferentially. Pacific, 168 Ariz. 460, 463, 815 P.2d and In re Marriage of 7, 10 (App. 1991). Although Mother presented a colorable claim about the parenting time credit, we cannot say the family court clearly abused its discretion by continuing concern relationship inference rejecting over between from it. the the The Mother s children record is record conveys willingness and Father. that but to the court s encourage A for a reasonable Mother s recalcitrance, the oldest child would be spending essentially equal time with Father. Given the unique circumstances of this 8 case, we cannot conclude that the court abused its discretion in calculating child support. 3 IV. Domestic Violence ¶17 Mother contends Father s acts of domestic violence Section 25-403.03(A) 4 reads, preclude an award of joint custody. in pertinent part: Notwithstanding subsection D of this section, joint custody shall not be awarded if the court makes a finding of the existence of significant domestic violence pursuant to § 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant history of domestic violence. ¶18 Mother alleged that Father domestic violence during the marriage. perpetrated significant She testified at trial regarding several incidents and introduced documentary evidence regarding some of them. Father admitted some of the conduct, but disputed other claims by Mother. ¶19 The court found there has been domestic violence in the marriage convictions perpetrated for two by Father, incidents. and it Nonetheless, cited the Father s court was unconvinced . . . that the domestic violence was significant. 3 If the court modifies its custody or parenting time orders on remand, it should re-examine child support as well. 4 This statute was revised effective January 2013. We quote the version of statutes that is applicable to the court s ruling. 9 It discussed the trial evidence and commented on certain witnesses credibility, including: Mother offered the testimony of the Maternal Grandmother on this point as well. The Court does not credit Maternal Grandmother s statements. Maternal Grandmother did not testify truthfully to the Court s question about her daughter s alleged suicide attempt, which occurred at age sixteen. ¶20 The about court Father s unconvincing labeled the aggressive and instead maternal behavior accepted family s testimony on this point. as relatives around more the credible testimony children Father s It also noted the maternal grandmother simply would not testify in any manner that she saw as less than complimentary of her daughter. The court rejected the contention that Father s conduct precluded joint custody, reiterating that although some domestic violence had occurred, it was not significant. ¶21 We review discretion. custody decisions for an abuse of Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003) (citation omitted). In reviewing for an abuse of discretion, [t]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have reason. made the ruling without exceeding the bounds of We cannot substitute our discretion for that of the trial judge. Associated Indem. Corp. v. Warner, 143 Ariz. 567, 10 571, 694 P.2d 1181, 1185 (1985) (quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954) (Windes, J., specially concurring). ¶22 Credibility played a clear role in the family court s decision. Even if we might have reached a different conclusion regarding the level of domestic violence, we cannot say that the court ruled without fairly considering the evidence before it. See Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007) ( A court abuses its discretion if discretionary considering error of it commits an conclusion, the law, it evidence, or the error of reaches it commits record fails law a reaching conclusion some to in a without other substantial provide substantial evidence to support the trial court s finding. ). ¶23 that The record also does not support Mother s assertion the awarding violence. court custody failed to to a consider parent who See A.R.S. § 25-403.03(D). the has presumption against perpetrated domestic Courts must consider the factors listed in A.R.S. § 25-403.03(E) in determining whether the presumption require findings has of been fact rebutted, on the but the record. statute does Compare not A.R.S. § 25-403(B) (requiring the court to make specific findings on the record in contested custody cases). And neither parent requested findings of fact or conclusions of law pursuant to 11 Rule 82. Nevertheless, the court did discuss the relevant factors and stated: [Father] admitted the act of domestic violence to which he pleaded guilty and has acknowledged its adverse impact on the relationship of the parties. The Court is impressed, though, that [Father] attended a twenty-six week Domestic Violence Program, which the administrator of the program specifically noted was a difficult program to complete given its length. She also noted [Father s] perfect attendance. In § terms of the 25-403.03(E)(1), children s the court best voiced interests, misgivings see A.R.S. about Mother hamper[ing] Father s relationship with the children if given sole custody, and specifically found Father was the parent more likely to allow frequent and meaningful contact with the other parent. The court also expressed concern about multiple petitions for orders of protection, stating: Mother seeks to have this Court issue a new Order of Protection (OOP) after the existing order lapsed. This matter was brought before the Superior Court less than two weeks before this trial and Mother s request was rejected by the presiding Commissioner. The Court finds no basis to reassess the earlier Court ruling. In the past, the existence of the OOP has been an impediment to Father exercising parenting time. Whether this was a calculated result or merely a misinterpretation of the manner in which the OOP operates is irrelevant to its factual impact. There was no evidence offered at the trial to suggest that there is an ongoing threat to [Mother] from [Father]. The only relevant post-filing evidence suggests that [Father] has sought 12 Mother s significant assistance in addressing his anger issues and has been successful in that goal.[5] Moreover, this Court has previously expressed its concern with actions taken by Mother that impeded Father s parenting time and in one instance was in contravention of a Court Order. ¶24 Appellate courts do not re-weigh conflicting evidence, but instead give due regard to the trial court s opportunity to judge the credibility of the witnesses. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009). The family court s superior ability to view the witnesses and assess the conflicting trial evidence, coupled with its detailed ruling, and its ongoing involvement with the case over a 16-month period, persuade us that it did not exercise its discretion in a manifestly unreasonable fashion. See Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App. 1982) ( abuse of discretion is discretion manifestly unreasonable or exercised on untenable grounds, or for untenable reasons ). 5 We disagree with Mother s claim that nothing in the record supports the finding that Father has sought significant assistance in addressing his anger issues and has been successful in that goal. A report from the TI discusses Father s past anger management issues and his progress in addressing them. The record also includes Father s certificate of completion for a domestic violence diversion program and a letter from the course instructor documenting Father s compliance. 13 V. Evidentiary Issues ¶25 Mother contends the court erred by refusing to admit exhibit 15 evidence into over evidence her and by objection. admitting We review exhibit the 42 trial into court s evidentiary rulings for a clear abuse of discretion; we will not reverse unless unfair prejudice incorrectly applied the law. resulted or the court Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6, 995 P.2d 281, 283 (App. 2000). 6 ¶26 Exhibit counselor who 15 worked consisted with the of notes parties. from a Mother marriage waived privilege attached to the records, but Father did not. family court ruled the records inadmissible, but the The permitted Mother to testify about the therapy and to testify that she had discussed the history of domestic violence and Father s control issues with the therapist. ¶27 On appeal, Mother argues the exhibit supported [her] testimony that she had complained of physical abuse domestic violence, during the marriage. However, she was allowed to testify regarding this point, and Mother has not explained why the document was admissible over Father s assertion of a legal privilege. The court did not err in excluding the exhibit. 6 As Mother notes in her opening brief, neither party invoked strict compliance with the Arizona Rules of Evidence. See Rule 2(B), Rules of Family Law Procedure. 14 ¶28 card Exhibit statements 42 consists June for of July service of the petition. and two American 2010, Express around the credit time of Mother objected to the exhibit because Father had not timely disclosed it. The court overruled her objection. ¶29 Mother asked the court to divide the parties property and debt, and she noted in her pretrial statement that Father had an American Express account should be required to pay. during the marriage that he The court advised Mother at trial that it could not fairly apportion the parties debt without considering exhibit 42. It ultimately held the parties equally responsible for the American Express debt and a Visa card within its account balance in Mother s name. ¶30 The discretion disclosure. family by court precluding would exhibit have 42 acted based on its untimely On the other hand, as the court noted, its duty was to fairly allocate the parties assets and debts. [S]o long as the trial court acts equitably, it is allowed great discretion in the allocation of community debts. Luna v. Luna, 125 Ariz. 120, 126, 608 P.2d 57, 63 (App. 1979). Mother did not request a continuance or an opportunity to conduct further discovery regarding the American Express debt, and she has raised only speculative claims of prejudice stemming from the admission of 15 exhibit 42. Under the circumstances presented, we find no abuse of discretion in the court s evidentiary ruling. VI. Attorneys Fees ¶31 Mother requests an award of attorneys fees and costs on appeal pursuant to A.R.S. § 25-324 and ARCAP Rule 23. only stated unreasonable basis for opposition the to requests her motion is for Father s new Her allegedly trial family court and his evidentiary objections at trial. in the We deny Mother s requests. CONCLUSION ¶32 We vacate the family court s custody and parenting time orders and remand for reconsideration of those matters. In all is other respects, the judgment of the family court affirmed. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ JOHN C. GEMMILL, Acting Presiding Judge /s/ DIANE M. JOHNSEN, Judge 16

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