RASSUCHINE v. BALL

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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: ) ) JASON E. RASSUCHINE, ) ) Petitioner/Appellant, ) ) v. ) ) LAURA L. BALL, ) ) Respondent/Appellee. ) __________________________________) DIVISION ONE FILED: 3/14/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0135 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause Nos. FC2010-071650 and FC2010-094622 (Consolidated) The Honorable Timothy J. Ryan, Judge AFFIRMED IN PART, VACATED IN PART, REMANDED Shick Law Offices, LLC by Jennifer W. Shick Attorneys for Petitioner/Appellant Glendale Fromm Smith & Gadow, P.C. by Sandra J. Fromm James L. Cork II Attorneys for Respondent/Appellee Phoenix P O R T L E Y, Judge ¶1 Jason rulings issued contends visits Rassuchine the with after family his the court ( Husband ) divorce erred stepdaughter, by challenges trial. Specifically, denying granting certain his Laura request Ball he for ( Wife ) presumptive decision-making authority and naming her primary residential parent for their biological child, and awarding Wife attorneys fees. For the reasons that follow, we affirm in part, vacate in part, and remand. FACTS AND PROCEDURAL HISTORY ¶2 Husband and Wife were married on June 9, 2009. They separately filed for divorce in November 2010 and the cases were consolidated. Husband also sought to have parenting time with his stepdaughter 1 pursuant to Arizona Revised Statutes ( A.R.S ) section 25-415 2 (2007). Following a trial, the court divorced the parties and resolved all related issues. The court also denied Husband s request for visitation with his stepdaughter, and awarded Wife a portion of her requested attorneys fees. We have jurisdiction over Husband s appeal pursuant to A.R.S. § 122101(A)(1) (West 2013). 1 Husband was present at his stepdaughter s birth, was listed as the father on her birth certificate, and acted as her father during the term of the marriage. 2 The in loco parentis statute was amended and renumbered effective January 1, 2013. See S.B. 1127, 50th Leg., 2d Reg. Sess. (Ariz. 2012). 2 DISCUSSION A. ¶3 Husband lacked contends jurisdiction court his over the erred visitation by determining request. He it also contends the court erred by finding that he failed to provide sufficient notice to his stepdaughter s putative father under A.R.S. § 25-415(E). We review de novo the court s interpretation and application of the statute and are not bound by the court s conclusions of law that combine both fact and law when there is an error as to the law. Riepe v. Riepe, 208 Ariz. 90, 92, ¶ 5, 91 P.3d 312, 314 (App. 2004). Section 25-415(C)(2) provides that in loco parentis 3 ¶4 visitation may be awarded to a non-parent if visitation is in the child s best interests, and the child s biological parents are not married filed. to each Additionally, other [n]otice at the of a time the custody petition or is visitation proceeding filed pursuant to this section must be served on the child s parents. ¶5 and Husband other John A.R.S. § 25-415(E). served Does, the by putative publishing Alexander and all potential fathers. 3 father, a Ryan summons Alexander, directed to The summons was published In loco parentis is defined as a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time. A.R.S. § 25-415(G)(1). 3 in a newspaper of general circulation in Maricopa County, Arizona, and in Douglas County, Georgia, where Alexander may be residing. Despite the publication of the summons, the court found that because Husband failed to give notice of the trial to the [child s] biological Father, the court did not have jurisdiction over his request. ¶6 Husband contends the publication of the summons giving notice of the proceeding was sufficient and that A.R.S. § 25415(E) does not require a notice of trial. Wife concedes that Husband was not required to serve Alexander with notice of the trial, and we agree. ¶7 Section 25-415(E) provides that notice of the in locos parentis proceeding shall be served on the child s parents. To determine whether the court erred by finding that notice of the trial had to be served, we must interpret the statute. We look first to the provision s language and will ascribe [a] plain meaning to its terms unless the legislature [has] assigned a special meaning to [it]. Ariz. 583, 587, ¶ 16, 96 W. Corrs. Grp., Inc. v. Tierney, 208 P.3d 1070, 1074 (App. 2004). To determine a term s plain meaning, we refer to established and widely used dictionaries. Id. at ¶ 17. Webster s II New Riverside University Dictionary (1994) defines a proceeding as [t]he act of instituting and conducting litigation. Similarly, Black s Law Dictionary (9th ed. 2009) indicates that 4 a proceeding is [a]n act or step that is part of a larger action. ¶8 We presume that the legislature means what it says. See In re Marriage of Downing, 228 Ariz. 298, 300, ¶ 7, 265 P.3d 1097, 1099 (App. 2011). If the legislature wanted a party to give notice of a hearing or trial it would have said so because it has mandated such a requirement in other cases. See, e.g., A.R.S. hearing § 8-111 (West 2013) (requiring notice of be served [a]fter a petition to adopt has been filed ); A.R.S. § 8-872(B) (West 2013) (requiring notice of the hearing be given to all parties in a permanent guardianship action); A.R.S. § 8-535(A) (West 2013) (requiring [n]otice of the initial hearing be given to child s parents in a termination action); A.R.S. § 8-522(G) (West 2013) (special advocate shall be given notice of all hearings in a dependency action). Consequently, it is clear that § 25-415(E) only requires that the unmarried parent of the child be served with notice of the in loco parentis action. ¶9 Here, the published summons informed fathers of Husband s in loco parentis suit. the potential The summons warned that a judgment may be taken against any individual if they failed to file a response. Accordingly, the published summons was sufficient under § 25-415(E) and gave notice of the in loco parentis proceeding. Consequently, and because Wife was never 5 married to the child s father, see A.R.S. §§ 25-409(A)(3) (2007), and -415(C)(2), the family court had jurisdiction to address Husband s request to visit his stepdaughter. ¶10 After determining that it did not have jurisdiction, the court entered an jurisdiction existed. meet the statutory alternative ruling in the event The court found that Husband failed to requirements for visitation because the child s father was neither deceased nor missing under A.R.S. § 25-409(A). The court, however, failed to consider that Husband would be entitled to have visits with his stepdaughter under § 25-409(A)(3) concedes. because she Accordingly, was born because out of Husband wedlock, has as satisfied Wife the requirements of § 25-409(A), we vacate the determination that the court did not have jurisdiction over the issue and the alternative ruling, and remand the matter for a determination of whether visitation with Husband would be in the child s best interests. A.R.S. §§ 25-409(C), -415(C). B. ¶11 by Husband also contends the court abused its discretion awarding Wife presumptive their biological daughter. ¶12 decision-making authority over We disagree. As the trier of fact, the family court is in the best position to weigh the evidence, observe the parties, judge the credibility of witnesses, and 6 make appropriate findings. Christina G. v. Ariz. Dep t of Econ. Sec., 227 Ariz. 231, 234, ¶ 13, 256 P.3d 628, 631 (App. 2011). reweigh the evidence and will Accordingly, we will not affirm reasonable evidence supports it. the court s order if Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009). ¶13 The family court of their child. caregiver presumptive decision-making found As that Wife such, the authority only was the court if, primary gave after a Wife good faith effort, Husband and Wife could not agree on a decision involving the child. 4 The court was in the best position to weigh the evidence and make the determination, and we will not second guess its findings. See Bergman v. Bergman, 1 Ariz. App. 209, 213, 401 P.2d 163, 167 (1965) ( This court will not attempt to substitute its judgment for that of the [Family] Court. ). ¶14 erred In a related issue, Husband also contends the court by parent. naming Wife as their child s primary residential He contends that because they share joint custody and have equal parenting time with her, neither should be listed as the child s primary residential parent. Husband, however, cites no legal authority which restricts the court from designating a primary residential parent in such a case. Moreover, Wife cites A.R.S. § 25-403.07, which recognizes valid reasons for making 4 Per the court s order, Husband may also seek judicial review if he believes Wife s decision is not in the best interests of the child. 7 the primary caretaker designation in this case. Consequently, we find no abuse of discretion. C. ¶15 Finally, Husband contends the court erred by awarding Wife a portion of her attorneys fees. for an abuse of discretion. We review a fee award Mangan v. Mangan, 227 Ariz. 346, 352, ¶ 26, 258 P.3d 164, 170 (App. 2011). ¶16 A court resources of positions each may, both after parties party has and taken considering the 2013). reasonableness throughout award attorneys fees to either party. the the financial of the proceedings, A.R.S. § 25-324 (West In making its award, the court is obliged to consider the degree of the resource disparity between the parties [and] the ratio of the fees owed to the assets and/or income of each party. Magee v. Magee, 206 Ariz. 589, 592, ¶ 17, 81 P.3d 1048, 1051 (App. 2004). If the trial court finds such a disparity, it is then authorized to undertake its discretionary function of determining whether an award is appropriate. Id. at 593, ¶ 18, 81 P.3d at 1052. ¶17 Here, the court considered the economic disparity between the parties as well as Wife s contention that Husband had unreasonably forced their case to go to trial. The court considered the income of the parties, Wife s request for more than $21,000 in fees, as well as its knowledge of the case in 8 deciding to only award her a portion of the requested fees. See Baum v. Baum, 120 Ariz. 140, 146-47, 584 P.2d 604, 610-11 (App. 1978). Consequently, we cannot say the court abused its discretion by awarding Wife a portion of her attorneys fees. D. ¶18 Wife requests her attorneys fees on appeal pursuant to A.R.S. § 25-324. Based on the disparity of income of the parties, we will, in the exercise of our discretion, award Wife a portion of her reasonable attorneys fees upon compliance with Arizona Rule of Civil Appellate Procedure 21. CONCLUSION ¶19 Based on the foregoing, we affirm the court s orders pertaining to custody attorneys fees to Wife. of their daughter and the award of We, however, vacate the determination that the court did not have jurisdiction over Husband s in loco parentis request and remand for proceedings consistent with this decision. /s/ _____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Presiding Judge /s/ ___________________________________ PHILIP HALL, Judge 9

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