Opinion
No. 1 CA-CV 13-0718
12-02-2014
In re the Matter of: FALECIA DAVILA, Petitioner/Appellant, v. CARLOS B. DAVILA, Respondent/Appellee.
COUNSEL Falecia Davila, New River Petitioner/Appellant Carlos B. Davila, Queen Creek Respondent/Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. FC2011-091545
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL Falecia Davila, New River
Petitioner/Appellant
Carlos B. Davila, Queen Creek
Respondent/Appellee
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined. BROWN, Judge:
¶1 Falecia Davila ("Mother") appeals the family court's ruling awarding Carlos B. Davila ("Father") sole legal decision-making authority and designating Father as the primary residential parent of their minor child. For the following reasons, we affirm.
BACKGROUND
¶2 Father and Mother were married in 2009 and had a child that same year. Mother filed for dissolution in 2011. Following a bench trial, the family court entered a decree of dissolution ("Decree") awarding joint legal custody and designating Mother as the primary residential parent. Explaining its reasoning, the court stated:
As of January 1, 2013, the Arizona legislature changed all references to "legal custody" in title 25, chapter four to "legal decision-making." See 2012 Ariz. Sess. Laws, ch. 309, § 4 (2d Reg. Sess.); Ariz. Rev. Stat. ("A.R.S.") § 25-401(3). The revised statutes apply to these proceedings. Court rules, however, still use the term "custody" and, thus, we use the terms interchangeably here.
Were it possible, the Court would award equal parenting time. That is not possible, as Father is still in active [military] duty. . . . The Court finds that Mother has unreasonably frustrated Father's meaningful and continuous contact with the minor child. Father has asked for equal parenting time, but the Court does not have the prerequisite facts necessary to develop a workable parenting plan that meets the best interests of the minor child and proves to be the most practicable for the parents.Accordingly, the court directed the parties to establish a parenting plan, or, in the alternative, to submit a joint post-decree petition to establish a parenting time schedule. The parties failed to do either.
¶3 Six months after the Decree was entered, Father left active military service and returned to reside permanently in Arizona. One month after his return, Father filed a Petition for Contempt, to Modify Legal Decision-Making, Set Parenting Time, Modify Child Support, and Correct Child Support Arrearage, seeking to become the primary residential parent. The petition alleged that Mother had refused Father any parenting time since his return to Arizona and had refused to cooperate in preparing a joint petition to establish a parenting time schedule. Father simultaneously filed a Motion for Temporary Orders Regarding Legal Decision-Making, Parenting Time, and Child Support ("Motion for Temporary Orders"). Father later amended his petition ("Amended Petition") to request that the court award him sole legal decision-making authority.
¶4 First, the family court held an evidentiary hearing on Father's Motion for Temporary Orders and adopted a "week on/week off" parenting time schedule. Mother did not appear at the hearing. Despite the court's temporary order granting Father equal parenting time, Mother persisted in withholding the child from Father. Upon motion by Father, the court issued a warrant instructing the Maricopa County Sheriff to take physical custody of the child and deliver him to Father.
¶5 Thereafter, the court held an evidentiary hearing on Father's Amended Petition. Both Father and Mother were present and represented by counsel. Applying the factors set forth in A.R.S. § 25-403(A), the court awarded Father sole legal decision-making authority and designated him the primary residential parent. Mother appealed the family court's order.
Because the family court's order did not resolve the issue of child support and did not certify the remaining issues as final pursuant to Arizona Rule of Family Law Procedure 78(B), the order is not appealable under A.R.S. § 12-2101. See Natale v. Natale, 234 Ariz. 507, 510, ¶ 11, 323 P.3d 1158, 1161 (App. 2014). Nonetheless, we exercise our discretion and treat Mother's appeal as a special action because the best interests of a child are at stake. See Ariz. Dep't of Econ. Sec. v. Powers, 184 Ariz. 235, 236, 908 P.2d 49, 50 (App. 1995) (exercising special action jurisdiction over a case involving an issue significant to child support enforcement).
DISCUSSION
¶6 We review the family court's decision modifying legal decision-making and parenting time for an abuse of discretion. See In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3, 38 P.3d 1189, 1191 (App. 2002). "An abuse of discretion exists when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision." Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999) (internal quotation omitted). Applying this standard, we consider Mother's arguments that the family court failed to provide her with an opportunity to present her case and that the court's ruling awarding Father sole legal decision-making authority and designating him the primary residential parent is not supported by the evidence.
I. Mother Had Sufficient Opportunity to Present Her Case.
¶7 Mother argues she was denied an opportunity to present her case, alleging: "Being pro se during several hearings, I was never allotted time to present my case with evidence or witnesses as requested." The record does not support Mother's assertion.
¶8 Mother retained three different attorneys during the course of the proceedings, and at times represented herself. At a resolution management conference in May 2013, Mother requested that her second attorney be removed as counsel of record, and the court granted her request. At that same conference, the court announced the date and time of the hearing on Father's Motion for Temporary Orders. Despite having been present in the courtroom for that announcement, Mother failed to appear at the hearing.
A civil litigant who represents herself is held to the same standards as one represented by counsel. Higgins v. Higgins, 194 Ariz. 266, 270, ¶ 12, 981 P.2d 134, 138 (App. 1999).
¶9 Thereafter, in preparation for the hearing on Father's Petition, Mother retained her third attorney, who represented Mother at the hearing. Mother testified at that hearing and four of her five proffered exhibits were admitted into evidence. The pretrial statement reflects that Mother did not intend to call any witnesses other than herself and Father, who also testified. Accordingly, the record indicates that Mother had sufficient opportunity to present her case.
II. The Family Court Did Not Abuse its Discretion.
¶10 Mother argues that the family court's decision to award Father sole legal decision-making authority and to designate him as the primary residential parent is not supported by the evidence. She asserts that "[t]here has been NO evidence presented to the court that I am unfit as a Mother and my son needed to be taken away." Notably, Mother has not provided a transcript of the hearing on Father's Petition. As the appellant, Mother is responsible for ensuring that the record on appeal "contains all transcripts or other documents necessary for us to consider the issues raised on appeal." Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995); see also ARCAP 11(b)(1). Accordingly, we assume the missing transcript supports the trial court's findings and ruling. See Baker, 183 Ariz. at 73, 900 P.2d at 767.
¶11 In considering a motion to modify legal decision-making and parenting time, the court must make two determinations: (1) whether there has been a material change in circumstances occurring since the last order; and (2) whether modification is in the best interests of the child. See Black v. Black, 114 Ariz. 282, 283, 560 P.2d 800, 801 (1977) (citations omitted).
A. Material Change in Circumstances
¶12 "[A] condition precedent to the modification of the custody provisions is a showing of changed circumstances affecting the welfare of the child." Galbraith v. Galbraith, 88 Ariz. 358, 361, 356 P.2d 1023, 1026 (1960). A court may consider a parent's failure to comply with parenting time orders as a change in circumstances. See Stapley v. Stapley, 15 Ariz. App. 64, 70-71, 485 P.2d 1181, 1187-88 (1971).
¶13 Here, the court found a material change in circumstances, "namely, Mother's regular and continuous efforts to cut off Father's parenting time with the minor child, as well as her efforts to destroy Father's parenting relationship with the child." The documentary evidence admitted at the hearing supports this finding. Thus, the family court did not abuse its discretion in determining there had been a material change in circumstances affecting the welfare of the child.
As explained in his petition to modify, Father's release from active military service and subsequent relocation to Arizona also constituted a change in circumstance, which Mother does not contest.
B. Best Interests of the Child
¶14 When modifying legal decision-making and parenting time, the family court must determine the best interests of the child by considering the factors enumerated in A.R.S. § 25-403(A). In a contested case, the court must make "specific findings on the record about all the relevant factors and the reasons for which the decision is in the best interests of the child." A.R.S. § 25-403(B).
¶15 Here, the family court's ruling addressed each of the factors set forth in § 25-403(A). In so doing, the court focused its attention on Mother's deliberate obstruction of Father's relationship with the child.
Mother has regularly and consistently undercut Father's relationship with the minor child and prevented Father's access to the minor child. Mother's fiancé and extended family have also engaged in concerted efforts to threaten and intimidate Father simply for wanting to exercise parenting time. Unless some substantial changes are effectuated, Mother will continue to undercut Father's relationship in the future.The court also considered the factors set forth in A.R.S. § 25-403.01(B) and concluded that "joint legal decision-making is not logistically possible, given the geographic locations of the parties, the poor co-parenting skills demonstrated by the parents, and Mother's regular and consistent violation of Court orders and Father's due process rights as a parent."
¶16 The right of a parent to the custody of a minor child is "both a natural and a legal right." LeRoy v. Odgers, 18 Ariz. App. 499, 501, 503 P.2d 975, 977 (1972) (citation omitted). Arizona law prohibits parents who have joint legal custody from withholding the child from the other parent. See A.R.S. § 13-1302(A)(3). In issuing the Decree, the family court's inclination was to provide Father and Mother with joint legal decision-making and equal parenting time. The court, however, had difficulty establishing an equal parenting time schedule because, at the time, Father was in active military duty. Accordingly, the court invited Father and Mother to work together to prepare a joint parenting plan. They failed to do so. Thereafter, Mother repeatedly withheld the child from Father, in violation of court orders.
¶17 The evidence before us establishes that Father and Mother were unable to cooperate in their roles as joint legal decision makers. Moreover, Mother has shown herself unwilling to honor Father's parenting time or to support Father's relationship with the child. Mother has failed to show how the family court abused its discretion in awarding Father sole legal decision-making authority and designating him the primary residential parent. We will therefore not disturb the court's ruling on appeal.
Mother also argues that "Judge Ryan did not follow his decision with an Order nor did he give an explanation as to why the change of custody." Contrary to Mother's assertion, the judge signed his ruling as a formal order pursuant to Arizona Rule of Family Law Procedure 81 and explained in detail why he awarded sole legal decision-making authority to Father.
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CONCLUSION
¶18 We affirm the order of the family court awarding Father sole legal decision-making authority and designating him as the primary residential parent.