Opinion
1 CA-CV 12-0103
03-21-2013
In re the Marriage of: FRANK A. PRATHER, II, Petitioner/Appellant, v. NORMA E. PRATHER, Respondent/Appellee.
Mary Katherine Boyte, P.C. by Mary K. Boyte Henderson Attorney for Petitioner/Appellant Torok Law Office P.L.L.C. by Gregory T. Torok Attorney for Respondent/Appellee
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
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Yuma County
Cause No. S1400DO201000740
The Honorable Lisa W. Bleich, Judge Pro Tempore
VACATED AND REMANDED
Mary Katherine Boyte, P.C.
by Mary K. Boyte Henderson
Attorney for Petitioner/Appellant
Yuma Torok Law Office P.L.L.C.
by Gregory T. Torok
Attorney for Respondent/Appellee
Yuma THUMMA, Judge ¶1 In this child custody case, Frank A. Prather (Father) appeals from an order awarding sole legal custody of the parties' minor child to Norma E. Prather (Mother). Because the evidence does not support the conclusions in the custody order, the order is vacated and the matter remanded for proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
¶2 The parties married in 2004, and their child was born in 2006. Father petitioned for dissolution in June 2010, seeking joint legal and primary physical custody of the child. Mother requested sole legal and physical custody, with parenting time for Father. In February 2011, pursuant to the parties' stipulation, the court issued temporary orders awarding Father primary physical custody of the child. ¶3 Trial was held in September and October 2011 and lasted three days. Mother admitted at trial that she had assaulted Father twice. The first assault occurred in March 2010, when Mother attempted to stop Father from leaving their home and tore his shirt. The child was present, saw the altercation and cried. After Father left, Mother drove after Father with the child in the car. This altercation resulted in Mother's arrest for disorderly conduct and domestic violence criminal damage for allegedly damaging Father's car. Prosecution was deferred after Mother agreed to a screening assessment and a series of counseling sessions with Dr. Martin Lara, and the charges later were dismissed. ¶4 Mother and Father worked for the same employer. Mother's second admitted assault of Father occurred at their employer's office in July 2010, after Father had obtained an order of protection against Mother. Mother accused Father, the office information technology manager, of deleting files from her computer. When Father attempted to leave, Mother grabbed his arm and scratched him "with her long nails." Police arrested Mother for "corporal infliction on a spouse" under California law, but the charges later were dismissed. ¶5 Evidence at trial, including police reports, showed Mother had assaulted Father on other occasions during their marriage. Father testified that in March 2008, Mother choked him in front of the child, who was approximately two years old at the time. The child tried to get between Father and Mother to block Mother's attack, saying "Don't hit my Papi, don't hit my Papi." Father reported the incident to the police, but no charges were filed. Father testified that, in November 2008, Mother grabbed him around the neck, again in front of the child. As a result, Mother was taken into custody for disorderly conduct; she posted bail and no further action was taken. ¶6 Mother alleged that Father viewed what she termed pornography, had gone to strip clubs and solicited prostitutes in Mexico. Mother, however, presented no evidence regarding the nature of the material she claimed Father viewed, presented no evidence that Father solicited prostitutes and presented no evidence about the impact these alleged activities may have had on Father's ability to parent. Instead, Mother admitted that Father was a "good" parent and loved the child. ¶7 Mother explained that her reservations about Father having primary physical custody of the child stemmed from his infidelity with other women. Mother admitted, however, that the child was not affected by the infidelity because Father insolated the child from that conduct. Dr. Lara testified that even if Mother's allegations were true, Father's behavior would not "impact the best interest of the child" because the child remained unaware of Father's alleged conduct. ¶8 After hearing the evidence, pursuant to Arizona Revised Statutes (A.R.S.) section 25-403 as relevant here, the court found the child is bonded to both parents; both parents have provided primary care of the child; both parents have complied with domestic relations education requirements and the child would prefer to live with Father. Although finding Mother committed acts of domestic violence against Father, the court noted Father knew how to provoke Mother; that Father "had committed an act of domestic violence" against Mother and, "under the circumstances, [Mother] has not acted in an unreasonable manner." ¶9 In discussing the mental and physical health of the parents, the court found that "Father has a history of sexual behavior that causes concern for his mental health," including viewing pornography and relationships with prostitutes. The court further found that "Father is not suitable to be the primary custodial parent of a five year old child as his priorities are not conducive to raising a child." Although noting Mother suffered from depression and anger toward Father, the court concluded that "Mother presents obvious indications of being a victim of mental abuse" and had addressed her mental health issues. ¶10 The court awarded Mother sole legal and physical custody, subject to parenting time for Father every other weekend and one weekday overnight, and expressly admonished Mother (but not Father) "to not subject the child to any foul language." The court entered a decree incorporating the custody determinations. Father filed a timely appeal from that decree and this court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. This decision applies A.R.S. §§ 25-403 and -403.03 in place at the time of the superior court's 2012 decision. Subsequently, the legislature amended the statutes, effective January 1, 2013.
DISCUSSION
¶11 Child custody decisions are reviewed for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). A court abuses its discretion by reaching a decision unsupported by the evidence, Borg v. Borg, 3 Ariz. App. 274, 277, 413 P.2d 784, 787 (1966), or by committing legal error in the process of exercising discretion, Fuentes v. Fuentes, 209 Ariz. 51, 56, ¶ 23, 97 P.3d 876, 881 (App. 2004).
I. The Superior Court Failed To Properly Apply The Domestic Violence Statute And Made Domestic Violence Findings Unsupported By The Evidence.
¶12 Father contends that the superior court failed to properly apply the domestic violence statute codified in A.R.S. § 25-403.03. When the court finds that a parent seeking custody has committed domestic violence against the other parent, A.R.S. § 25-403.03(D) requires the offending parent to rebut a presumption that awarding custody to him or her is contrary to the child's best interests. Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 13, 219 P.3d 258, 261 (App. 2009). The presumption does not apply, however, if both parents have committed acts of domestic violence against each other. A.R.S. § 25-403.03(D). ¶13 Without referencing A.R.S. § 25-403.03, the superior court found both parents had committed acts of domestic violence against each other, specifically finding Father "had committed an act of domestic violence" against Mother. The statute describes domestic violence as:
1. Intentionally, knowingly or recklessly causes or attempts to cause sexual assault or serious physical injury.A.R.S. § 25-403.03(D). The only order of protection applicable here was obtained by Father against Mother for one year. The superior court's findings do not specify what "act of domestic violence against" Mother it found Father had committed. Mother did not testify that Father had ever been violent toward her, no act of domestic violence appears in evidence at trial and Mother does not cite evidence of any such act. ¶14 Dr. Lara did not testify that Mother was an abuse victim. Instead, he testified that Mother's statements, "if true," would lead him to believe that she was a victim of abuse. Dr. Lara also conceded that he had conducted only a screening, not a psychological evaluation, and could not provide a clinical diagnosis for Mother. At trial, Mother did not testify that Father had assaulted her or committed any form of domestic violence toward her. ¶15 The record clearly shows Mother assaulted Father several times, at times in front of the child and resulting in criminal charges. Although the court concluded that no "serious domestic violence" occurred, that phrase is not used in A.R.S. § 25-403.03 and the addition of the term "serious" is significant, given Mother's admitted assaults of Father, evidence that Mother had assaulted Father on other occasions and Father's one-year order of protection against Mother. ¶16 The superior court found Mother's behavior was "not unreasonable" because Father "knows how to provoke" her and Mother's "conduct has been in response to her lack of control over the situation." Accepting the premise that Father knows how to provoke Mother and that Mother is frustrated given a perceived lack of control, the conclusion by the court does not follow. As Father notes, "Arizona law does not recognize any 'you deserved it' or 'you asked for it' defenses" to domestic violence. ¶17 Without citation to specific evidence, the superior court concluded that Mother had made "good progress in therapy" and would not assault Father again. Mother, however, assaulted Father, in violation of an order of protection, shortly after her eighth treatment session with Dr. Lara. At trial, Dr. Lara noted a change from "damaged self-esteem" to "depression" between the sixth and eleventh sessions, and opined that Mother was still in need of treatment for depression. In fact, in his last session with Mother, Dr. Lara referred Mother for treatment and medication, but Mother apparently did not follow up on the referral. Such action and inaction, coupled with the lack of other evidence, does not support a "good progress in therapy" finding. ¶18 On this record, without specific findings and given the absence of any record support for a finding that Father directed domestic violence at Mother, the A.R.S. § 25-403.03(D) rebuttable presumption would not apply against Father. By contrast, the record demonstrates domestic violence against Father by Mother, indicating the A.R.S. § 25-403.03(D) rebuttable presumption could apply against her. The superior court did not make findings concerning these incidents, whether any of these incidents constituted "an act of domestic violence," whether the A.R.S. § 25-403.03(D) rebuttable presumption applied and, if so, whether either parent had rebutted the presumption under A.R.S. § 25-403.03(E). Accordingly, and because the record on appeal does not facilitate such findings by this court, the superior court's lack of relevant findings was an abuse of discretion. See Downs v. Scheffler, 206 Ariz. 496, 499, ¶¶ 8-9, 80 P.3d 775, 778 (App. 2003); In re Marriage of Diezsi, 201 Ariz. 524, 525-26, ¶¶ 4-5, 38 P.3d 1189, 1191 (App. 2002).
2. Places a person in reasonable apprehension of imminent serious physical injury to any person.
3. Engages in a pattern of behavior for which a court may issue an ex parte order to protect the other parent who is seeking child custody or to protect the child and the child's siblings.
The closest thing to hint at such an incident was Dr. Lara's testimony that Mother told him there had been "pushing, shoving among each other, both of them." The instigator of such contact, however, was not noted and Dr. Lara noted Mother's statement that Father acted "intelligent, making proper decisions . . . and I'm the one making the wrong decisions." Similarly, although an intake form from October 2009 has Mother self-reporting she had been "shoved/threw/shook," Mother told Dr. Lara that Father was an equal participant, and there is no indication Father was the instigator.
II. The Record Fails To Support The Superior Court's A.R.S. § 25-403(A)(5) Findings.
¶19 As applicable here, in assessing custody, A.R.S. § 25-403(A) requires the superior court to consider all factors relevant to the child's best interests, including, among other enumerated factors, "[t]he mental and physical health of all individuals involved." A.R.S. § 25-403(A)(5). In a contested case, the court must "make specific findings on the record about all relevant factors and the reasons for which the decision is in the best interests of the child." A.R.S. § 25-403(B). Father argues the court misapplied the statute by considering his alleged infidelities as a factor relevant to his mental health. Given the remand on the A.R.S. § 25-403.03 issue, the court addresses this mental health argument. ¶20 No mental health professional evaluated Father, and Mother never requested such an expert evaluation. No expert testimony was offered to show that any conduct by, or mental health issue with, Father had any impact on the child or impaired Father's ability to parent. Nevertheless, the superior court concluded that "the child's moral welfare is at risk" because the child had "prior access to pornographic material" on a mobile device belonging to Father and because Father had visited prostitutes. ¶21 The record shows the child's access to the mobile device occurred once, prior to the parties' separation, when the child was in Mother's care. Despite being aware of its contents, Mother permitted the child to use the mobile device and the child "accidentally hit the wrong button and [the material] came up." The record does not describe what the child may have observed. Moreover, the record does not indicate that Father was present during the incident or that Father ever allowed the child access to whatever material was on the mobile device. ¶22 Although Father admitted to visiting strip clubs and being unfaithful during the marriage, he denied having sex with prostitutes. There was no other evidence on the point. Moreover, there is no evidence that Father exposed the child to any inappropriate materials or behavior. Dr. Lara testified that, even assuming Mother's allegations were true, Father's conduct would not have affected the child because the child was never exposed to Father's alleged improprieties. In the absence of such evidence, the court improperly evaluated Father's alleged conduct. Cf. Higgins v. Higgins, 194 Ariz. 266, 271, ¶ 21, 981 P.2d 134, 139 (App. 1999) (holding that claimed ill effects of parent's cohabitation are not "so generally known or accurately and readily determined that it can be proved by judicial notice" and that, absent proof of harm, cohabitation could not provide basis for custody determination). Accordingly, on this record -- where there is no evidence supporting an adverse mental health finding regarding Father -- the superior court abused its discretion in making such a finding. See id.
The electronic media device is neither named nor described, but is called a "mobile device" in Father's opening brief.
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CONCLUSION
¶23 Because the superior court abused its discretion in awarding Mother sole legal and physical custody of the child, those portions of the Decree addressing and awarding custody are vacated. The matter is remanded for further proceedings so that the superior court can apply A.R.S. §§ 25-403 and -403.03 consistent with this decision. Because Mother did not prevail on appeal, her request for fees and costs is denied.
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SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ______________
MICHAEL J. BROWN, Judge
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DIANE M. JOHNSEN, Judge