BETHAY v. MOORE
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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 DIVISION ONE FILED: 9/12/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE In re the Matter of: ) ) No. 1 CA-CV 12-0658 AUSTEN G. BETHAY, DEPARTMENT E ) Petitioner/Appellee, ) ) v. ) ) JACQUELINE N. MOORE, ) ) Respondent/Appellant. ) ) __________________________________) Maricopa County Superior Court No. FC2011-052424 DECISION ORDER Respondent/Appellant, Jacqueline N. Moore ( Mother ), has filed an appeal seeking relief from the family court s joint custody order (filed May 9 and August 24, 2012) and denial of her amended motion for new trial. Among other issues, Mother raises several arguments concerning the medical marijuana use of Petitioner/Appellee, whether the court Austen erred by G. Bethay not fully ( Father ), including considering Father s compliance with the medical marijuana statutes and prior court orders. Father responding debatable has to not any issues filed of and an an answering Mother s arguments. appellee fails to brief on When file an appeal there are answering brief, we may consider such failure a confession of reversible error on the part of the appellee. See United Bonding Ins. Co. v. Thomas J. Grosso Inv., Inc., 4 Ariz. App. 285, 285, 419 P.2d 546, 546 (1966); Hoffman v. Hoffman, 4 Ariz. App. 83, 85, 417 P.2d 717, 719 (1966); ARCAP 15(c). The record also indicates that Father has not complied with prior court orders, including the court s order that he obtain a letter from his prescribing medical marijuana physician showing that he is being treated in accordance with the Arizona Medical Marijuana Act, see Ariz. Rev. Stat. ( A.R.S. ) §§ 36-2801 to 2819, and is using medical marijuana in accordance with the prescription. Given Father s apparent noncompliance with those court orders, which raises a question whether Father may properly rely on the non-discrimination provision of A.R.S. § 36-2813(D), we exercise our discretion to consider Father s failure to file a brief a confession of error as it relates to these issues. Additionally, since the time of the court s order, the statutes related to child custody and visitation (now titled legal decision-making and parenting time ), including A.R.S. §§ 25-403 and -403.04, have been substantially revised. See, e.g., 2012 Ariz. Sess. Laws, ch. 309, §§ 1, 5, 10 (2nd Reg. Sess.) (eff. Jan. 1, 2013). Accordingly, 2 IT IS ORDERED vacating the family court s joint custody order and order denying Mother s amended motion for new trial. IT IS FURTHER ORDERED remanding this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the clerk of this court provide a copy of this Decision Order to the Honorable Gerald J. Porter, a Judge of the Superior Court, and to each party appearing herein. _________________/S/___________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: _______________/S/_________________ MARGARET H. DOWNIE, Judge ______________/S/__________________ JON W. THOMPSON, Judge 3
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