Opinion
2 CA-CV 2021-0102-FC
01-14-2022
In re the Marriage of Angela Christine Erceg Mitchell, Petitioner/Appellant, and Curtis Wayne Mitchell Jr., Respondent/Appellee.
The Shaw Law Group PLLC, Gilbert By Matthew Black and Bryan C. Shaw Counsel for Petitioner/Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100DO2019020292 The Honorable Richard T. Platt, Judge Pro Tempore
The Shaw Law Group PLLC, Gilbert By Matthew Black and Bryan C. Shaw Counsel for Petitioner/Appellant
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Eckerstrom and Judge Espinosa concurred.
MEMORANDUM DECISION
VÁSQUEZ, CHIEF JUDGE
¶1 Angela Mitchell appeals from the trial court's decree of dissolution of her marriage to Curtis Mitchell. She argues that the court abused its discretion when it found no relevant evidence of substance abuse "as to Mother or Father" under A.R.S. § 25-403.04, and therefore, it committed reversible error by not applying the statute. She also contends that the court erred by inequitably dividing community property, summarily ignoring community debts, and failing to find Curtis's 401(k) retirement account was community property subject to division. For the following reasons, we vacate the decree in part and remand for further proceedings consistent with this decision but otherwise affirm.
Although Curtis's failure to file an answering brief could constitute a confession of reversible error, we exercise our discretion to resolve this appeal on the merits, especially because it involves the best interests of the children. See Adams v. Valley Nat. Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) ("We recognize that courts prefer to decide each case upon its merits rather than to dismiss summarily on procedural grounds."); In re Marriage of Diezsi, 201 Ariz. 524, ¶ 2 (App. 2002) (declining to consider failure to file answering brief confession of error where child's best interests are involved).
Factual and Procedural Background
¶2We view the facts in the light most favorable to affirming the decree. In re Marriage of Foster, 240 Ariz. 99, ¶ 2 (App. 2016). The parties were married in 2015 and have two minor children. In December 2019, Angela petitioned for the dissolution of their marriage and, after a bench trial, the court issued its under-advisement ruling in June 2021. As relevant here, the court awarded Angela and Curtis joint legal decision-making, finding it was in the children's best interests. The court awarded each party the vehicle they had in their possession at the time of the dissolution and ordered Angela to pay an offset amount to Curtis for "his community share in the vehicle" awarded to her. It awarded Curtis his 401(k) retirement plan "and any loan thereon as his sole and separate property." The court also found the parties had one community debt and divided it equally between them.
¶3 Angela appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
Substance Abuse Finding Under A.R.S. § 25-403.04
¶4 Angela argues the trial court abused its discretion by finding "[t]here is no relevant evidence concerning substance abuse" as to either party. She maintains that in doing so, it failed to apply the rebuttable presumption that "sole or joint legal decision-making by [Curtis] is not in the children's best interest" and impermissibly shifted the burden of providing the court with six months of clean drug tests for Curtis to her. In determining legal decision-making, the court must consider the best interests of the children. A.R.S. § 25-403. Section 25-403.04 creates a rebuttable presumption that it is contrary to the children's best interests for the court to award sole or joint legal decision-making to a parent who the court determines has abused drugs within twelve months before the petition for legal decision-making is filed. We review the court's legal decision-making order for an abuse of discretion, Nold v. Nold, 232 Ariz. 270, ¶ 11 (App. 2013), and defer to its factual findings unless they are clearly erroneous, Ariz. R. Fam. Law P. 82(a)(5).
¶5 Angela contends the trial court's finding regarding § 25-403.04 is clearly erroneous because the "record is clear" that Curtis abused drugs within twelve months of her filing for dissolution. Specifically, she maintains that the April 2019 photograph of Curtis's prescribed buprenorphine naloxone "for opiate addiction" and urinalyses from a drug addiction program showing he tested positive for benzodiazepine, oxycodone, THC, and amphetamine between April 2019 and February 2020 is "substantial evidence of [his] drug abuse."
¶6 Evidence of Curtis's drug use was introduced at both a temporary orders hearing and at trial. Curtis testified that he had immediately and voluntarily entered a drug addiction program after learning he had "consumed" fentanyl, and as part of his treatment he was prescribed buprenorphine naloxone and completed weekly drug tests. He further testified that he had active prescriptions which were monitored by a physician for the benzodiazepine, amphetamine, and oxycodone during the times in which he had tested positive. He also presented evidence that he had a medical marijuana card. As Angela concedes, the trial court had the discretion to consider Curtis's explanation for the positive drug tests and the details surrounding his drug addiction program in determining whether Curtis abused drugs for purposes of applying § 25-403.04. Although Angela contends that "none of [Curtis's] evidence disputes the fact that he abused drugs," she is essentially requesting that we reweigh the evidence on appeal, which we will not do. See Hurd v. Hurd, 223 Ariz. 48, ¶ 16 (App. 2009). Because the record supports the court's determination that § 25-403.04 does not apply, it did not abuse its discretion. And because § 25-403.04 does not apply, we need not address Angela's remaining arguments concerning its application.
Distribution of Property
¶7 Angela contends the trial court abused its discretion by not reducing the offset amount she was ordered to pay to Curtis for the value of the vehicles by the amount of the lien she paid on her vehicle, by summarily ignoring uncontested evidence of community debts, and by finding Curtis's 401(k) was his separate property. We review the court's division of property and debts for an abuse of discretion. Hefner v. Hefner, 248 Ariz. 54, ¶ 6 (App. 2019). The court abuses its discretion if its ruling is not supported by the evidence. Little v. Little, 193 Ariz. 518, ¶ 5 (1999).
¶8 Property acquired during the marriage is presumed to be community property. A.R.S. § 25-211(A). Section 25-318(A), A.R.S., governs the division of community property and, generally, the equal division of such will be the most equitable. In re Marriage of Inboden, 223 Ariz. 542, ¶ 6 (App. 2010). However, a trial court has broad discretion in apportioning the parties' property and debt. Id. ¶ 7. Furthermore, "[t]he valuation of assets is a factual determination that must be based on the facts and circumstances of each case." Kelsey v. Kelsey, 186 Ariz. 49, 51 (App. 1996). When there is conflicting evidence, "[w]e will defer to the trial court's determination of witnesses' credibility and the weight to give conflicting evidence." Gutierrez v. Gutierrez, 193 Ariz. 343, ¶ 13 (App. 1998).
¶9 Angela first argues that the trial court erred by failing to reduce her offset payment by the amount of the lien on her vehicle that she had paid off after filing the petition for dissolution. During trial, she testified that in 2019 she paid off an $18,000 lien on her vehicle. However, no further evidence of this amount was offered. And, as Curtis testified, Angela's Affidavit of Financial Information states there was no loan on her vehicle. Relying on the Kelly Blue Book average values for both vehicles, which were admitted as exhibits, the court determined and ordered that Angela should pay an offset to Curtis for half of the difference. Thus, there is a factual basis for the court's valuation of the vehicles, and we find no abuse of discretion in the offset amount Angela was ordered to pay.
¶10 Angela next argues that the trial court erred by summarily ignoring two community debts. The trial testimony and an admitted exhibit identified two credit card accounts, one for Home Depot and one for American Express, that both parties had used during the marriage. The exhibit included two credit card statements from December 2019, the same month Angela petitioned for dissolution, which reflect a total debt of $13,117.92. Angela testified that she paid off these two credit card accounts and was seeking reimbursement for half the amount she had paid. In his pretrial statement, Curtis listed these credit card accounts as community debts. However, the court found the parties had only one community debt, the Wells Fargo credit card account that Curtis presented into evidence. We therefore cannot say the court's finding that the parties had only one community debt is supported by the record, and its ruling on this issue constitutes an abuse of discretion. We vacate that part of the court's order and remand this issue to the trial court for further proceedings consistent with this decision.
¶11 Finally, Angela argues that despite testimony being presented at trial, the court "has made no determination about whether the 401k is [Curtis's] sole and separate property or subject to community division." Angela appears to have overlooked the trial court's findings and order regarding Curtis's 401(k). In its under-advisement ruling, the court found that Curtis had a 401(k) and that he took a loan out against it to pay the mortgage on the marital property. The court then ordered that "[Curtis] shall be awarded the 401k retirement plan through Empower Retirement and any loan thereon as his sole and separate property. [Angela] shall not have an offset on the retirement plan." To the extent Angela maintains the court should have equitably divided Curtis's 401(k), we need not address this issue because she does not develop any meaningful argument on appeal. See Ariz. R. Civ. App. P. 13(a)(7) (argument must contain "[a]ppellant's contentions concerning each issue presented for review, with supporting reasons for each contention"); see also Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007) (failure to develop argument waives issue on appeal). Because the court did make a finding as to Curtis's retirement account that is supported by the record, it did not abuse its discretion.
Attorney Fees on Appeal
¶12 Angela has requested an award of attorney fees and costs on appeal pursuant to Rule 21, Ariz. R. Civ. App. P., and A.R.S. § 25-809(G). In our discretion, we deny the request for fees, but award her costs on appeal upon compliance with Rule 21.
Disposition
¶13 For the reasons stated above, we affirm the decree in part, vacate it in part and remand the case for further proceedings.