SUSSER v. THOMAS

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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: ) ) FREDRIC J. SUSSER, ) ) Petitioner/Appellee, ) ) v. ) ) PAULA M. THOMAS, ) ) Respondent/Appellant. ) ) __________________________________) DIVISION ONE FILED: 10/3/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CV 12-0319 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. FC2009-006060 The Honorable David J. Palmer, Judge AFFIRMED The Baker Law Firm, L.L.C. By Michael S. Baker Ashley A. Donovan Attorneys for Respondent/Appellant Phoenix Fredric J. Susser, Petitioner/Appellee In Propria Persona Phoenix D O W N I E, Judge ¶1 Paula M. Thomas ( Mother ) appeals the denial of her motion for new trial. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Mother and Fredric J. Susser ( Father ) were married in Maui, Hawaii, in September 2009. Two days later, they argued over money issues in their hotel room. Both had been drinking. Mother threw her wedding ring at Father and, according to the police report, slapped him. Father struck back several times, grabbed Mother by the neck, and forced her from the room. year-old H., born observed these to the events. parties The prior to their marriage, arrived, police parties, and arrested Father. Two- spoke with the Both parties declined medical treatment. ¶3 Father pled no contest family or household member. to misdemeanor abuse of a The Hawaii court sentenced him to two days in jail (time served) and ordered him to attend an anger management class in Arizona and to pay a fine and a fee. Father complied with these terms and also completed domestic violence offender and substance abuse treatment programs. He tested negative for alcohol and illegal drugs over a four-month period. ¶4 The parties obtained orders of protection against each other after returning to Arizona. The Scottsdale City Court denied Mother s request to include H. as a protected person on the order entered against Father. 2 ¶5 Without notice to Father, Mother left Arizona with H. at the end of September 2009. Washington. She filed a divorce petition in Mother refused Father telephonic contact with H. for the next ten months. ¶6 Meanwhile, Arizona. state Father filed a dissolution petition in In response, Mother conceded Arizona was H. s home under 25-1002(7) Arizona and agreed custody jurisdiction. 1 Revised Statutes Arizona could ( A.R.S. ) exercise section initial child Pursuant to the family court s May 2010 temporary order, H. returned to Arizona to live with Father. ¶7 The court dissolved the parties marriage by order filed July 26, 2011, reserving various issues for a later trial. In November 2011, it held a hearing regarding custody, Mother s request to relocate H. to Washington, and other issues. court permitted one of Mother s witnesses, Steven Davis, The to remain in the courtroom throughout trial and to testify as an expert regarding domestic batterers. But the court sustained Father s objection to Davis testifying about his observations of Father during the course of trial. 2 1 We cite the current version of statutes because no revisions material to this decision have occurred. 2 The court permitted Mother to make an offer of proof that Father exhibited certain characteristics of domestic batterers who engage in denial, blame shifting, minimization ; mischaracterize[] what caused the violence ; engage in stalking behaviors ; and use[] the court system to get what 3 ¶8 In a detailed 22-page ruling, the court: (1) made findings pursuant to A.R.S. §§ 25-403(A), -403.01(B), -403.03, and -408; (2) awarded joint legal custody to the parties, with Father serving decision-making request. trial. as primary authority; residential and (3) denied parent with Mother s final relocation Mother moved to amend the decree and also sought a new She contended, inter alia, that the court erred by: (1) limiting Davis s testimony; (2) stating that her actions had alienated domestic H. from violence had certain findings. adjusted expense Father; (3) occurred; ruling and (4) that no failing significant to support After receiving Father s response, the court responsibilities, and clarified certain findings. addressed property issues, It, however, denied the motion for new trial. ¶9 Mother appealed from the denial of her motion for new trial. We have jurisdiction pursuant to A.R.S. § 12-2101.01(A)(5). DISCUSSION I. ¶10 Motion For New Trial We review an order denying a motion for new trial for an abuse of discretion. Pullen v. Pullen, 223 Ariz. 293, 296, ¶ 10, 222 P.3d 909, 912 (App. 2009) (citation omitted). Mother they want, and then once they have it, to prevent the victim from exercising their proper role as a parent. 4 bears the burden of demonstrating an abuse of discretion. id. See An erroneous ruling does not justify a new trial unless it affects a party s substantial rights. ( Rule ) 86. See Ariz. R. Fam. L.P. We likewise review the exclusion of evidence for an abuse of discretion and resulting prejudice. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506, 917 P.2d 222, 235 (1996) (citation record. omitted). [T]he prejudice must appear from the Dykeman v. Ashton, 8 Ariz. App. 327, 329, 446 P.2d 26, 28 (1968). A. Precluded Testimony ¶11 Davis According to Mother, the court erred by not allowing to offer his expert opinion about domestic violence, common dynamics and public misconceptions, and the adequacy of Father s rehabilitation counseling. ¶12 following his completion of TASC The record does not support this contention. The court permitted Davis to testify about the general characteristics dynamics, of domestic including rehabilitated. For how example, batterers they he and act their when testified that behavior successfully rehabilitated batterers do not engage in blaming, minimizing or justifying conduct or attribute their conduct to substance abuse. Unrehabilitated batterers, he testified, manifest power through controlling social the victim s networking. finances Davis and opined 5 stalking that them anger through management counseling is inappropriate for domestic batterers because it teach[es] them how to manipulate. Davis also offered his opinion regarding Father s litigation conduct, stating: After reviewing the initial records, I found so many things that really kind of popped out at me as being just morally and questionable, and . . . I have a real issue with victims being re-victimized, and I have a real issue with the fighting that goes on, and especially about the child. My ideal would be that we d all just get along, but that s not our reality. So I looked at a lot of things. There were a lot of things in this case. The judge s prior decisions, I was uncomfortable with some of those. I was uncomfortable with the idea that the child was kind of a tool manipulation. I was uncomfortable with a lot of those things, and I felt like it needed to be heard again, and that perhaps I could help by educating the Court on domestic violence intervention. ¶13 Despite contends the Davis s exclusion of rather his extensive trial-based testimony, Mother observations about Father rewarded Father for lying in wait with a disclosure objection -- a tactic rejected in Allstate Insurance Co. v. O Toole, 182 Ariz. 284, 288, 896 P.2d 254, 258 (1995). We disagree. ¶14 Mother listed Davis as a witness in the joint pretrial statement filed in July 2011, without describing the substance of his testimony, as required by Rule 49(H). object at the time. Father did not At trial, though, he objected to Davis 6 testifying about his in-court observations of Father. According to Father s counsel, Davis told him during a pretrial meeting: [T]hat he had not interviewed these two parties and could not make an opinion based on that. Now, to hit me now, to have him make an opinion based on what he s seen today, and then use that against my client, I think it s just unfair. It s inherently unfair. And I would have to have the opportunity to then rebut that with another witness. Mother did not dispute that Davis made this representation to Father s counsel. ¶15 The record also does not support Mother s characterization of Father lying in wait with his disclosure objection - especially when he was never advised Davis planned to observe him in court and then offer opinions based on those observations. Nor has Mother established how she was prejudiced by the ruling. litigation Davis was permitted to testify about Father s conduct, the behavioral patterns of rehabilitated batterers, and the dynamics of the victim-batterer relationship. We find no abuse of discretion relating to the scope of Davis s trial testimony. II. Section 25-403.03 ¶16 Mother contends the court failed to properly apply A.R.S. § 25-403.03 in rendering its joint custody determination. 3 3 January 2013 revisions to § 25-403.03(A) changed the term joint custody to joint legal decision-making. 2012 Ariz. 7 We review custody decisions for abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003) (citation omitted). a legal error in A court abuses its discretion if it commits the process of exercising its discretion. Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004) (citation omitted). ¶17 Joint custody is improper if the court finds significant domestic violence pursuant to § 13-3601 or if the court finds by a preponderance of the evidence that there has been a significant § 25-403.03(A). history of domestic violence. A.R.S. Mother contends this statute precluded joint custody here because Father committed aggravated assault -- one of the offenses listed in § 13-3601(A). (including aggravated assault, See A.R.S. § 13-3601(A) A.R.S. § 13-1204, in the supports the definition of criminal domestic violence). ¶18 Evidence in the record, though, determination that Mother and Father assaulted each other in an isolated incident, though Father s retaliatory actions were of greater magnitude. of her nasal Mother contends the court ignored evidence fracture, diagnosed one week after the Maui incident, which she claims is proof Father committed aggravated assault and significant domestic violence. See A.R.S. Sess. Laws ch. 309, § 9 (2d Reg. Sess.). For the sake of consistency, we refer to joint custody - the term used by the family court. 8 § 13-1204(A)(3) (defining aggravated assault to include assault by any means of force that causes . . . a fracture of any body part ). ¶19 Father has denied causing the nasal fracture. To some extent, it appears the family court disbelieved Mother s version of events because it found Father s acts were not significant as contemplated by the statute, nor does the Court find that there has been a significant history of domestic violence between the parties. As the court noted, Mother told the Washington court she was a bloody heaping mess after the Maui incident, when the circumstances were not in fact as she avowed. The court also labeled other claims by Mother not credible, indicating concerns about her veracity. The family court was in the best position to weigh the conflicting evidence and assess the parties credibility, including their divergent claims about Mother s condition. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13, 972 P.2d 676, 680-81 (App. 1998) (citation omitted) (deferring to trial court s assessment of conflicting evidence). ¶20 Because the family court s findings are supported by a reasonable interpretation of the record, A.R.S. § 25-403.03(A) did not preclude an award of joint custody. III. Other Findings ¶21 § Mother 25-403.01(B) argues -- the the statute 9 court misapplied enumerating factors A.R.S. to be considered in determining whether sole or joint legal custody is appropriate. agreement One factor regarding influenced by joint an issue A.R.S. interests. is § whether custody not a parent s is related lack unreasonable to 25-403.01(B)(2). the of an or is best analyzing In child s this factor, the family court stated: The Court does not find that Mother s refusal to agree to joint legal custody is based solely on the best interests of the child. This concern is based upon Mother s actions in this case that clearly alienated [H.] from Father for an extended period of time. To illustrate, the Court cannot conceive any possible reason why Mother would refuse to allow Father to speak with [H.] on her birthday; such an action is clearly not in [H. s] best interest. Mother objected to the finding she had alienated H. from Father. In a later order, the court clarified that its use of the term alienat[ed] did not refer to clinical alienation, but to Mother s decision to isolate H. from Father by taking her to Washington and denying even telephonic contact with Father for ten months, including on the child s birthday. The record court unsupported supports this determination. ¶22 Finally, findings Mother regarding contends certain the factors made enumerated in A.R.S. §§ 25-403(A) and -408(H), which resulted in the joint custody award, denial of her relocation request, Father as primary residential parent. 10 and designation of We view the evidence in the light findings most and favorable determine to sustaining whether reasonably supports them. there the family court s was evidence that Mitchell v. Mitchell, 152 Ariz. 317, 323, 732 P.2d 208, 214 (1987) (citation omitted); Gutierrez, 193 Ariz. at 346, ¶ 5, 972 P.2d at 679 (citation omitted). ¶23 Mother argues the court erroneously concluded that: (1) Father was by far the more likely parent to allow frequent and meaningful continuing contact between H. and her other parent; and (2) the likelihood that Mother would comply with parenting time orders was not high. ¶24 According to A.R.S. § 25-403(A)(6), the factor regarding likelihood of allowing contact with the other parent does not apply if a parent acts in good faith to protect the child from witnessing an act of domestic violence. The family court acknowledged that Mother s move was in good faith to the extent she wishes for [H.] to live with her and believes it is in [H. s] best interest. Nevertheless, it found she displayed little to no regard for any resulting damage to the fatherdaughter relationship by not permitting even telephone contact for a period of ten months. reasoned, did not justify Mother s fear of Father, the court this action. Reasonable evidence supports the family court s application of A.R.S. § 25-403(A)(6) and its conclusion Father was more likely than Mother to allow H. meaningful contact with her other parent. 11 ¶25 We also cannot conclude that the court erroneously assessed the likelihood that Mother would comply with parenting time orders if H. were allowed to relocate. Although Mother testified she would comply, the family court was in the best position to assessment. evaluate her credibility, and we defer to its See Rowe v. Rowe, 154 Ariz. 616, 620, 744 P.2d 717, 721 (App. 1987) (deferring to the family court s credibility determinations). ¶26 Mother further argues the court failed to acknowledge a previous finding that H. was well-adjusted to her prior home in Washington. However, we assume the family court considered all evidence presented and was familiar with the record. See Fuentes, 209 Ariz. at 55-56, ¶ 18, 97 P.3d at 880-81 (appellate court assumes trial judge considered evidence presented before making decision). Moreover, Mother s living circumstances at the time of trial were not developed, leading the family court to note that she now lives in an undisclosed place with an undisclosed boyfriend in undisclosed conditions. ¶27 other Mother takes issue with the family court s weighing of relevant relocation factors under A.R.S. § 25-408(I). Appellate courts, though, do not reweigh the evidence. O Hair v. O Hair, 109 Ariz. 236, 240, 508 P.2d 66, 70 (1973) (citations omitted). [T]he duty of a reviewing court begins and ends with the inquiry whether the trial court had before it evidence which 12 might reasonably support its action viewed in the light most favorable to sustaining the findings. Id. (citations omitted). The family court s relocation findings are amply supported by the record. ¶28 Finally, Mother challenges the award of final decision-making authority to Father, notwithstanding the court s finding that long-distance parenting was feasible. The record, though, reflects a history of conflict between these parents, leading to disruptions in H. s life. We find no abuse of discretion in permitting Father to have final decision-making authority if, after good faith consideration to the views of [Mother] . . . [and] best efforts to reach a consensus decision, the parties are unable to agree. CONCLUSION ¶29 We affirm the judgment of the superior court and deny Mother s request for attorneys fees incurred on appeal pursuant 13 to A.R.S. § 25-324(A). Father is entitled to recover his costs on appeal, contingent on compliance with ARCAP 21. _/s/______________________________ MARGARET H. DOWNIE, Judge CONCURRING: _/s/_____________________________ PETER B. SWANN, Presiding Judge _/s/_____________________________ PATRICIA K. NORRIS, Judg 14

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