Opinion
No. 1 CA-CV 13-0017
01-07-2014
In re the Matter of: JUAN ARISTIZABAL, Petitioner/Appellee, v. ANDREA ARISTIZABAL, Respondent/Appellant.
Browning Law Office, PLLC, Peoria By Rebecca E. Browning Counsel for Petitioner/Appellee Andrea Aristizabal, Gilbert Respondent/Appellant In Propria Persona
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 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. FC2011-071886
The Honorable Michael W. Kemp, Judge
AFFIRMED
COUNSEL
Browning Law Office, PLLC, Peoria
By Rebecca E. Browning
Counsel for Petitioner/Appellee
Andrea Aristizabal, Gilbert Respondent/Appellant In Propria Persona
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Maurice Portley and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 Andrea Aristizabal ("Mother") appeals from a decree of dissolution of marriage in which the superior court allowed Juan Aristizabal ("Father") to travel to Colombia once each year for ten-days with the parties' daughter. Mother argues the court erred in its assessment of several facts underlying its decision to allow the international travel. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mother and Father were married in 2006, and their only child, a daughter, was born in 2008. Father filed for dissolution of marriage when the child was three years old.
¶3 Mother and Father agreed to share joint legal custody of the child with approximately equal parenting time. The parties disagreed, however, on whether Father should be permitted to travel with the daughter to visit his family in Colombia.
¶4 At an evidentiary hearing on the matter, the superior court heard from Mother, Father, and Dr. Michael Zent, who is an acquaintance of the parties who volunteered to accompany Father and the child to Colombia to ease Mother's concerns that Father might fail to return with the child to the United States and to facilitate communication with Mother during the trip. At the close of the hearing, the court found that Mother's concern was legitimate, but on balance determined that there were adequate protections in place to overcome the concern, and authorized the requested travel.
¶5 The court acknowledged a concern that Colombia, although a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, "doesn't have the best record with regard to [enforcing foreign custody decrees]." The court found, however, that Father's substantial ties to Arizona—specifically ongoing employment in Arizona, permanent resident status, and an immediate intention to apply for citizenship—together with Father's willingness to travel with a third-party companion, sufficiently alleviated this generalized concern.
¶6 In light of these findings, the superior court authorized one, ten-day trip to Colombia each year, with Dr. Zent to accompany Father and the child. The court required Father to provide Mother notice at least 30 days before the trip, including a written itinerary and all travel and contact information, and allowed Mother daily telephonic contact with the child in addition to two three-hour in-person visits if Mother chose to travel to Colombia while the daughter was there. Additionally, the court ordered Father to certify the decree of dissolution with the Colombian government.
¶7 After the superior court denied Mother's motion for new trial or for reconsideration on the subject of travel to Colombia, Mother timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).
Absent material revisions after the relevant date, we cite a statute's current version unless otherwise indicated.
DISCUSSION
¶8 Mother challenges the factual underpinnings of the superior court's order allowing Father to travel to Colombia with their daughter. Mother does not dispute any other aspect of the dissolution decree, including the parties' joint custody parenting plan agreement as accepted by the court.
¶9 We review the superior court's custody or parenting time decisions for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013). Because the superior court is better situated to evaluate testimony and other evidence, Acuna v. Kroack, 212 Ariz. 104, 113, ¶ 35, 128 P.3d 221, 230 (App. 2006), we assess only whether "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) (citation omitted).
¶10 Mother first argues the court erred by allowing travel to Colombia because, in her view, Father meets several risk factors for international child abduction. At the evidentiary hearing, however, Mother did not present competent evidence delineating risk factors for international child abduction. Although Mother offered to produce expert evidence as part of her motion for new trial, she offered no explanation for her failure to do so at the evidentiary hearing. Cf. Ariz. R. Fam. Law P. 83(A)(4) (authorizing new trial on basis of newly discovered material evidence that could not have been produced at time of trial even with reasonable diligence). Moreover, Mother's testimony at the hearing was directed more toward her perception of ineffective enforcement mechanisms in Colombia (in the event Father were to violate the superior court's order) and less toward documenting a risk that Father would violate the decree.
¶11 Although the parties apparently are at times less than cordial in their relationship with each other, Mother agreed Father had never threatened to abduct the daughter in Colombia, and Father presented substantial evidence that he does not intend to do so and in fact plans to continue to live in the United States. Accordingly, the record supports the superior court's assessment of the risk associated with Father's proposed travel to Colombia.
¶12 Mother also contends the court erred because the evidence established Colombia's non-compliance with the Hague Convention requirement that countries honor foreign child custody decrees. The superior court explicitly acknowledged Mother's "legitimate concern" with Colombia's record of compliance with the Hague Convention. This finding was based on Mother's presentation of State Department reports on compliance with the Hague Convention from 2007 to 2012. Although the earliest report shows a demonstrated "pattern[] of noncompliance," subsequent reports do not establish noncompliance or that Colombia lacks "prompt and effective enforcement mechanisms." Contrary to Mother's stated concern regarding prompt enforcement, the reports only list four cases that remained, for various reasons, unresolved for an extended period of time. The record thus supports the superior court's consideration of this issue.
¶13 Mother next argues the superior court erred in its assessment of Father's "substantial ties to Arizona." The court based its consideration of Father's ties to Arizona on his employment, legal residency, intended application for citizenship, and his background and length of time in the United States. During the hearing, Father testified to completing his master's degree in social work at Arizona State University in 2003 and to over ten years working in Arizona for a substance abuse prevention organization with which he expects to continue working. Father stated that he had lived in the United States for 12 years, was a legal permanent resident, and that he would file for citizenship immediately after finalizing the divorce because he "intend[s] to stay here and [his] daughter lives here and [he] do[es]n't intend to go anywhere." In contrast, Mother testified regarding her view that Father has a "high opinion of Colombia," has two degrees from there, and all of his family is there, and she asserted that Father's current girlfriend is from Colombia. Notwithstanding Mother's conflicting evidence, the superior court's finding that substantial ties bind Father to this country is supported by the record, and we will not substitute our judgment for that of the trial court or reweigh the evidence on appeal. Cf. Little, 193 Ariz. at 520, ¶ 5, 975 P.2d at 110.
¶14 Mother also asserts that the court's decision is contrary to the child's best interests because the ten-day period allowed is too long for the child to be away from her primary caregiver. Mother, who is a child behavioral health specialist, testified that the daughter was too young to be away from a parent for such a long time. But the parties, in their joint custody parenting plan with equal parenting time, agreed to two non-consecutive weeks of vacation with each parent during the summer. Mother does not explain why two week-long trips with only one parent (to which Mother agreed) would be acceptable, while one ten-day trip (as authorized by the court) would be detrimental to the child. Moreover, the court's order allows Mother two in-person visitation periods during the trip as well as daily telephone contact to alleviate this concern. Under the circumstances presented, and in light of the court's order allowing Mother contact with the child even in Colombia, the court did not abuse its discretion in its consideration of this factor.
¶15 Finally, Mother argues that the court abused its discretion because Dr. Zent, even if he accompanies Father and the child to Colombia, lacks authority to ensure the child's return and is not an adequate substitute for the child's primary caregiver. But Dr. Zent's presence will, at a minimum, facilitate communication between the parties while the child is with Father in Colombia. Although Mother correctly notes that Dr. Zent lacks legal authority to force the child to return to the United States, the court did not abuse its discretion by tailoring its order to mitigate any perceived risk from travel to Colombia.
¶16 Father requests an award of attorney's fees and costs on appeal pursuant to A.R.S. § 25-324(A). Having considered the relevant factors, in our discretion we deny Father's request for attorney's fees. Father is entitled to his costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶17 For the foregoing reasons, we affirm the superior court's judgment.