Opinion
No. 1 CA-CV 20-0193 FC
01-26-2021
In re the Matter of: AUDREY ADKISSON, Petitioner/Appellee, v. JOSH KEITH, Respondent/Appellant.
COUNSEL Burt Feldman & Grenier, Scottsdale By Mary K. Grenier Counsel for Respondent/Appellant Modern Law PLLC, Mesa By Darin R. Colburn Counsel for Petitioner/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. FC 2018-006251
The Honorable Justin Beresky, Judge
AFFIRMED
COUNSEL Burt Feldman & Grenier, Scottsdale
By Mary K. Grenier
Counsel for Respondent/Appellant Modern Law PLLC, Mesa
By Darin R. Colburn
Counsel for Petitioner/Appellee
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined. CAMPBELL, Judge:
¶1 Josh Keith ("Father") appeals the divorce decree designating Audrey Adkisson ("Mother") as the primary residential parent and awarding her "presumptive decision-making authority," arguing both legal error and insufficient factual findings. Because these orders were within the court's discretion, we affirm. Father also appeals the trial court's allocation of debts, arguing that the trial court erroneously burdened him with the entirety of the community debt. Because the allocation of debt was within the court's discretion to equitably divide community property, we affirm.
BACKGROUND
¶2 Mother and Father married in November 2014. Their son, Brandon, was born two years later. Brandon was born prematurely, is developmentally delayed, and has special needs.
We use a pseudonym for the child's name throughout this decision to protect the child's identity. --------
¶3 Mother discovered evidence of affairs, numerous pornographic images and videos, and emails from Father soliciting sex from various sources on Father's computer and a flash drive. After this discovery, Mother filed for divorce. Mother asked that Father undergo a full psychological evaluation with risk assessment, asserting that he had a history of "hyper-sexual" and "unusual" behaviors. Father agreed to complete an evaluation. Dr. Celice Korsten reviewed the materials provided by both parents and interviewed Father. Dr. Korsten, in her psychosexual evaluation, determined that although Father had "a sadistic sexual interest . . . there was no evidence provided that these interests would be a risk to the child."
¶4 Dr. Korsten did, however, express some concerns over the well-being of the child. As part of the evaluation, Dr. Korsten reviewed audio recordings of the family. Although Dr. Korsten concluded that there was no objective information suggesting Father "would be unable to provide a safe environment," she did note that the recordings suggested Father "becomes easily frustrated with [Brandon]."Dr. Korsten also noted that Mother had potentially "engaged in behaviors that could negatively interfere with [Father's] relationship with [Brandon] in the future." For example, Mother was recorded telling Brandon "I know you love me the most, but daddy is good too."
¶5 At trial, Mother testified that Brandon had exhibited sexualized behavior. Mother reported that Brandon developed a fascination with pinching her nipples and trying to tickle her private parts. Mother reported an incident where Brandon had simulated oral sex with a toy. She also testified that, after asking Brandon how Father plays with his girlfriend, Brandon responded by making humping motions and moaning.
¶6 After trial, the court designated Mother as the primary residential parent and awarded Father parenting time every other weekend. The court also found that joint legal decision-making was in the child's best interests, subject to the following conditions:
[E]ach parent shall give good faith considerations to the views of the other and put forth best efforts to reach a consensus decision. . . . [I]f they cannot agree after making a good faith effort to reach an agreement, [Mother] shall have 'presumptive decision-making authority.' This level of authority shall allow [Mother] the right to make a preliminary decision that the party shall then communicate to [Father]. If [Father] believes that [Mother's] decision is contrary to the best interests of the child, the party shall have the right to seek review through the Court. [Father] shall have the burden to demonstrate that [Mother's] decision is contrary to the child's best interests. It shall not be sufficient to demonstrate that an alternative decision may have also been in the interest of the child.
¶7 The court also divided the couple's property and debts. In distributing the community debt, the court ordered Father to be responsible for his student loan, a Citibank credit card, and the outstanding I.R.S. tax debt from 2016 and 2017. The court ordered that Mother be responsible for the five credit cards in her name. Father timely appeals the decree.
DISCUSSION
I. Parenting Time and Decision Making
¶8 We review legal decision-making and parenting time orders for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). An abuse of discretion exists when the trial court makes an error of law, State v. Bernstein, 237 Ariz. 226, 228, ¶ 9 (2015), or 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 (1999) (citation omitted). "We review matters of law, including the interpretation of statutes and court rules, de novo." Woyton v. Ward, 247 Ariz. 529, 531, ¶ 5 (App. 2019).
A. Parenting Time Order
¶9 In determining parenting time, the court must make its decision "in accordance with the best interests of the child." A.R.S. § 25-403(A). Additionally, the court is required to "adopt a parenting plan that . . . maximizes [the parents'] respective parenting time." A.R.S. § 25-403.02(B). Here, the court designated Mother as the primary residential parent, and awarded Father parenting time every other weekend. The court found that the "parenting plan is practical and also maximizes each parent's parenting time to the extent it is in the child's best interests."
¶10 Father contends the trial court erred when it made this order "without any finding that equal or near-equal parenting time was contrary to the child's best interests and without any finding that Mother had met her presumption that an equal parenting time order was not in [Brandon's] best interest." To support his position, Father cites the language of A.R.S. § 25-403.02(B) requiring the court to maximize each parent's "respective parenting time." Father also cites A.R.S. § 25-103(B)(1), in which the Arizona legislature determined "it is in a child's best interest . . . [t]o have substantial, frequent, meaningful and continuing parenting time with both parents." What Father appears to be arguing is that, without a specific finding that equal parenting time is not in the best interests of the child, the court failed to maximize both parties' parenting time as required by statute.
¶11 We are not persuaded. To be sure, Father is correct that Arizona public policy favors equal parenting time. Consequently, "[a]s a general rule equal or near-equal parenting time is presumed to be in a child's best interests." Woyton, 247 Ariz. at 531, ¶ 6. However, neither A.R.S. § 25-403.02(B) nor A.R.S. § 25-103(B)(1) mandate equal parenting time. Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 492, ¶ 11-12 (App. 2020). But, the trial court "has discretion to determine parenting time based on all the evidence before it," and is only required to maximize parenting time insofar as it is consistent with the child's best interests. See id. That is precisely what the trial court did here, finding that the parenting plan "maximize[d] each parent's parenting time to the extent it is in the child's best interests." Moreover, Father fails to identify any legal authority requiring the trial court to specifically find that an equal parenting plan is contrary to the child's best interests. The trial court did not err when it ordered unequal parenting time.
B. Decision Making
¶12 The trial court also awarded the parties joint legal decision-making authority. However, the court determined that if the parties could not come to an agreement after good faith efforts, Mother would have the "presumptive decision-making authority."
¶13 Father argues the trial court erred. Specifically, Father argues the order grants Mother too much discretion, and ultimately renders his shared decision-making authority illusory. Father points out that he can only overturn Mother's decision by showing it was contrary to the child's best interests, and that merely showing an alternative course would also be consistent with the child's best interests is not sufficient. Father argues that this is an unfair burden and even if he successfully met that burden, Mother's decision may be irreversible by the time he could obtain a court determination.
¶14 However, as Mother correctly points out, A.R.S. § 25-401(2) permits the court to grant joint legal decision-making authority subject to "specified decisions as set forth . . . in the final judgment or order." (Emphasis added). The Arizona Supreme Court has interpreted this provision to allow the trial court to award tie-breaking authority to one parent when such an arrangement is in the child's best interests. See Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 13 (2019). Further, granting tie-breaking authority does not transform a joint decision-making order into a sole decision-making order. Id.
¶15 Father contends that Nicaise is distinguishable. He notes that Nicaise involved an order granting tie-breaking authority over a limited number of issues. See id. at 568-69, ¶¶ 14-16. This, he claims, supports that the supreme court limited its holding to specific grants of tie-breaking authority. Father also points to A.R.S. § 25-401(2) to support his claim that the trial court can only grant such authority with respect to "specified decisions." Father argues that the "specified decisions" language in the statute limits the trial court's ability to grant tie-breaking authority to only a subset of decisions, not all parenting decisions. Father goes on to draw the conclusion that a grant of decision-making authority in all disputes transforms a joint decision-making order into a sole decision-making award, as sole decision-making "means one parent has the legal right and responsibility to make major decisions for a child." Nicaise, 245 Ariz. at 567, ¶ 8.
¶16 We are not persuaded. First, contrary to Father's contention, Mother still has an obligation to act in good faith. The decree grants Mother preliminary decision-making authority only after making a good faith effort to negotiate with Father. The failure to do so would violate the decree. Thus, Mother does not have complete decision-making discretion, and Father is still guaranteed input into all important decisions. See id. at 569, ¶ 14 (finding that an obligation of good faith efforts is an indication of shared authority). Father asserts that the good faith efforts requirement in the decree is illusory because Mother does not have to prove she made good faith efforts before exercising her preliminary decision-making authority. However, it would be impractical to require Mother to prove good faith efforts first, and such a burden would undermine the point of granting a parent tie-breaking power.
¶17 Also, Father still retains the right to participate in making important decisions regarding the child. A parent with shared decision making retains the "legal right and responsibility to make all nonemergency legal decisions for a child." A.R.S. § 25-401(3). As explained by our supreme court:
[A] parent with joint legal decision-making authority who does not have final legal decision-making authority on an issue . . . would maintain the legal right, subject to consultation and the other parent's approval, to establish a bank account for the child, take the child to a doctor, and exercise other nonemergency legal authority on behalf of the child.Nicaise, 245 Ariz. at 569, ¶ 15. This still holds true, even if the other parent has unfettered tie-breaking authority.
¶18 Finally, as previously mentioned, the trial court is required to "determine legal decision-making . . . in accordance with the best interests of the child." A.R.S. § 25-403(A). The child's best interests are the primary considerations in custody determinations. Hays v. Gama, 205 Ariz. 99, 102, ¶ 18 (2003).
¶19 The trial court properly exercised its discretion in awarding Mother tie-breaking authority where the parties reach an impasse after good-faith negotiations.
C. Findings of Fact
¶20 Father also argues the court did not make sufficient findings of fact to support either the parenting time or legal decision-making portions of the decree. "In a contested legal decision-making or parenting time case, the court shall 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). As previously mentioned, we view the evidence in the light most favorable to sustaining the trial court's findings and will uphold the decision so long as the record reasonably supports the decision. Little, 193 Ariz. at 520, ¶ 5; Gutierrez v. Guttierrez, 193 Ariz. 343, 346, ¶ 5, (App. 1998).
¶21 Regarding parenting time in particular, Father asserts that the trial court's order was based upon nothing more than Mother' statements about the child's alleged behavior. Father contends that Mother's observations are unsubstantiated, self-serving, and doubtful, especially considering that none of the child's 30-plus service providers testified to corroborate Mother's observations. Additionally, Father notes that although Dr. Korsten concluded Father has certain sexual interests, she ultimately concluded that "there was no evidence provided that these interests would be a risk to the child." Perhaps for this reason, the court found that "there are no definitive findings which would warrant Father having restrictive parenting time." Father implies this contradicts the court's ultimate award of unequal parenting time. If anything, Father contends, the weight of the evidence actually favors a "plan that equalized Father's parenting time to mitigate the impact of Mother's negative influences and her intent on interfering in the father/son relationship."
¶22 While at the time of the psychosexual evaluation, Dr. Korsten found no reason to doubt Father's ability to parent, the behavior Mother reported occurred after the evaluation was conducted. Although Father doubts that this behavior actually happened, "[t]he trial court is in the best position to judge the credibility of the witnesses, the weight of evidence, and also the reasonable inferences to be drawn therefrom." Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 171 (1971). Moreover, where the court states there was no reason to award restrictive parenting time, we interpret this to mean that the court found no reason to award Mother's request that Father only receive supervised visitation. Gonzalez-Gunter, 249 Ariz. at 492, ¶ 13 (holding that a diminution of parenting time is not a restriction on parenting time rights for the purposes of A.R.S. § 25-411(J)).
¶23 Regarding legal decision making, Father argues that the trial court erred in giving mother presumptive legal decision-making authority because it made this decision without "first making any findings as to why this decision was made or why the family court had to reach this conclusion," other than the court's finding that "joint legal decision-making will be difficult for these parents." However, this is an oversimplification of the trial court's findings. The trial court also found that the previous decision-making order, which gave Mother final legal decision-making authority if Father did not respond within 24 hours, proved unworkable. The trial court cited Mother's testimony that father operates on an "oppositional agenda," meaning that Father habitually takes the opposite position to Mother's suggestion regardless of the issue. The trial court also cited Mother's testimony that Father made doctor appointments difficult by demanding he dictate all appointment times regardless of the impact on Mother. While Father's testimony was to the contrary we defer to the trial court's credibility determinations, and construe the facts in favor of upholding the decision. Goats, 14 Ariz. App. at 171; Little, 193 Ariz. at 520, ¶ 5.
¶24 Father also argues that the court failed to give proper weight to his testimony. For example, Father points out that he had been actively involved in Brandon's life, Brandon was close to Father's family, and that Father actively participated in Brandon's preschool activities. Father also points out that Dr. Korsten found some evidence Mother had "engaged in behavior that could negatively interfere with Father's relationship with the child in the future."
¶25 However, the record reflects that the court considered the best interests factors under A.R.S. § 25-403(A), as well as the additional joint decision-making factors under A.R.S. § 25-403.01. Although the details Father highlights weigh in his favor, we will not find an abuse of discretion unless "the record [is] devoid of competent evidence to support the decision of the trial court." Borg v. Borg, 3 Ariz. App. 274, 277 (1966) (quoting Fought v. Fought, 94 Ariz. 187, 188 (1963)). Here, because the record reveals facts that support the court's decision, the trial court did not abuse its discretion.
II. Community Debt Distribution
¶26 After identifying the community debt, the trial court ordered Father responsible for his student loan debt, the Citibank credit card, and the I.R.S. tax debt from 2016 and 2017. The court ordered Mother responsible for five credit cards. Father argues the trial court erred in its distribution of community debt. In a dissolution proceeding, the trial court must divide the community property equitably, "though not necessarily in kind." A.R.S. § 25-318(A). "Equitable" is a concept of fairness "dependent upon the facts of particular cases." Toth v. Toth, 190 Ariz. 218, 221 (1997). "In determining an equitable division, the family court has broad discretion in the specific allocation of individual . . . liabilities." In re Marriage of Flower, 223 Ariz. 531, 535, ¶ 14 (App. 2010). Accordingly, this court reviews division of community debt for an abuse of discretion. Id. Although the trial court did not provide a specific explanation of its community debt allocations, we "may infer that the trial court has made the additional findings necessary to sustain its judgment . . . as long as the additional findings are reasonably supported by the evidence and are not in conflict with any of the trial court's express findings." Elliott v. Elliott, 165 Ariz. 128, 135 (App. 1990).
¶27 Father argues that Mother presented no evidence that the debts assigned to her, specifically the credit cards in her name, were in fact community debt. Mother testified that there was no balance on the cards on the date of service. Thus, according to Father, any balance on the credit card was actually Mother's separate debt. As Mother's credit cards were the only debts assigned to Mother, Father argues that the court effectively assigned him 100% of the community debt.
¶28 Also, Father asserts that the decree underreported the I.R.S. tax debt by $10,000. Father asserts that this amount must be corrected and warrants a remand so the trial court can reweigh the allocation using the correct figure.
¶29 Again, we are not persuaded. The trial court has broad discretion in assigning liability for community debt. Father assumes that Mother's post service credit card debt was used to offset the community debt allocated to Father. However, the record reveals equitable reasons to support the court's debt allocation.
¶30 The I.R.S. tax debt allocated to Father is derived from a number of deductions the parties took in 2016 and 2017 that were ultimately rejected by the I.R.S. after an audit. The parties owed $20,890.13 for 2016, and $ 2,231.71 for 2017. Mother asserted in her pretrial statement that this debt is primarily derived from transactions related to Father's LLCs, all of which were awarded to Father as his separate property. Father never refuted Mother's assertion that these debts arose from Father's business dealings. Instead, Father argues that the community benefited from these businesses by utilizing funds from them to make mortgage payments on Mother's sole and separate property. The court appears to have accounted for these mortgage payments when it imposed a community lien on Mother's separate property. Father was credited for his portion of the community lien when the court calculated equalization payments.
¶31 Moreover, however, Mother's expert determined that the majority of I.R.S. debt resulted from rejected claims from his business and not from any community underreporting. And, even though the court may have incorrectly listed the tax debt, this does not warrant a remand. Given this record, it was within the trial court's discretion to allocate these debts to Father as they were derived from his sole and separate business activities.
¶32 Father graduated with his college degree about three months prior to Mother's petition for divorce. We begin with the assumption that debt incurred by the community is community debt and should be satisfied by both parties when the community is divided. Hrudka v. Hrudka, 186 Ariz. 84, 91-92 (App. 1995), superseded in part by statute on other grounds as recognized in Myrick v. Maloney, 235 Ariz. 491, 494, ¶ 8 (App. 2014). Here, the student loans appear to have been dedicated to education-related costs. The community did not have the opportunity to receive any benefit from Father's newly acquired degree. Because Father will be the sole beneficiary of the related student loan, the trial court did not err in allocating the entirety of this debt to Father.
¶33 Finally, Father was allocated the Citibank credit card which he claims should be credited against his portion of the community debt. However, at trial Father admitted that the charges on the card were used to pay for an air conditioning unit for his condominium, which is his sole and separate property, and marketing expenses related to his sole and separate realty business. Father also identified this debt as "realtor expenses" in his Affidavit of Financial Information. Since Father's businesses and the condo were awarded to him as his sole and separate property, the court did not abuse its discretion in allocating this debt to Father.
CONCLUSION
¶34 For the foregoing reasons, we affirm the trial court's orders. Both parties request attorneys' fees under A.R.S. § 25-324. In our discretion, we deny both requests, but award Mother costs upon compliance with ARCAP 21.