Opinion
1 CA-CV 12-0264
03-14-2013
In re the Matter of: BETHANNE G. BOWLES, Petitioner/Appellee, v. LARRY T. BOWLES, Respondent/Appellant.
Rowley Chapman Barney & Buntrock Ltd. by Scott R. Rowley Attorneys for Petitioner/Appellee Mesa Larry T. Bowles Respondent/Appellant Pro Se Prescott
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 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(Not for Publication -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 Yavapai County
Cause No. P1300DO20080233
The Honorable Kenton D. Jones, Judge
AFFIRMED
Rowley Chapman Barney & Buntrock Ltd.
by Scott R. Rowley
Attorneys for Petitioner/Appellee
Mesa Larry T. Bowles
Respondent/Appellant Pro Se
Prescott GOULD, Judge ¶1 Respondent/appellant Larry T. Bowles ("Father") appeals from a decision by the family court approving the relocation of petitioner/appellee Bethanne G. Bowles ("Mother") and the couple's four children to Michigan. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father were married in 1997 and entered into a consent decree dissolving the marriage in 2010. The marriage produced four children. Under a Mediated Parenting Plan, the parties agreed they would share physical custody of the children, but that Mother would have sole legal custody of the children. ¶3 In June 2010, based upon Mother's application, the court entered an order of protection against Father. In support of the application Mother alleged that Father had been arrested for breaking into her vehicle, stealing her credit cards, and subsequently using them. ¶4 In March 2011, Father sought a change in custody, seeking sole custody with limited parenting time to Mother. Father's request was based on the court's decision to affirm an injunction against Mother's boyfriend. The court's ruling was based on the testimony of a Child Protective Services ("CPS") caseworker, who testified that on two occasions the boyfriend had harmed the eldest son. The caseworker also testified that during these incidents Mother had been present and had not intervened to protect her son. ¶5 In April 2011, Mother filed an emergency motion to modify Father's parenting time from unsupervised to supervised. The motion alleged the couple's minor daughter had written a letter stating that Father had whipped both her and her older brother. After an evidentiary hearing and after interviewing the daughter, the court determined that the daughter had been struck with a belt, and limited Father's contact with the child. Father disputed that determination and filed a petition to restore custody and parenting time, attaching a letter from a therapist who met with the child and concluded that the statements the child had made about being whipped were not true. Upon stipulation of the parties, Father's parenting time with respect to his daughter was restored. ¶6 In June 2011, Mother filed a second Petition for Order of Protection citing Father's earlier theft of her credit cards as well as several incidents of burglary and vandalism that occurred between May 2010 and March 2011, for which she suspected Father but had no proof. The court entered an order directing Father to have no contact with Mother. ¶7 In September 2011, Mother filed a third Petition for Order of Protection, explaining that on August 6, 2011, Father had been caught on video in a parking garage vandalizing Mother's car while having a text message conversation with their daughter and waiting for more than an hour for Mother to return to the vehicle. She attached the police report detailing the incident, as well as a list of forty-six incidents that she claimed were acts of harassment and violence by Father. The court denied the petition as to the children, but affirmed that the existing order of protection as to Mother would remain in place. ¶8 On September 23, 2011, Mother filed a Motion for Immediate Relocation of Minor Children pursuant to Arizona Revised Statutes ("A.R.S.") section 25-408 (Supp. 2012). Mother alleged that the order of protection had not protected her from Father. Mother stated that she feared for her life, and believed the lives of her children were at risk if she were to remain with them in Arizona. Mother sought to move the children to Michigan where she was raised, where she still had family, and where she had ready employment in several family-owned businesses. ¶9 Father responded and filed a cross-motion for relief asking the court for an order directing Mother, who had already gone to Michigan, to return the children immediately to Arizona, and sanctioning Mother for having left the state with the children without providing notice to Father. ¶10 At trial, Mother described incidents where Father violated orders of protection in 2007, 2008, and 2009, one of which resulted in a misdemeanor conviction for contempt of court and another of which involved a charge of using a telephone to threaten and harass. She noted that her purse and credit cards were stolen a few days after an order of protection had expired, and that while on probation for that offense, Father was caught on video vandalizing her vehicle, for which he was charged with a felony. She testified that she believed she could not safely live in Arizona, noting Father did not abide by orders of protection and she had no doubt he intended to harm her. She also testified that being in Arizona would not be in the best interest of the children because Father involved the children in their conflict and used them as a weapon against her, noting that he used their daughter to locate her the night that he vandalized her vehicle. She testified that the children were safe and happy living in Michigan, whereas in Arizona they were aware of Father's conduct and were afraid that Father would hurt her. She also testified that the children love Michigan, that she has a large family support system there, that the children had made friends, and that Michigan offered her better financial opportunities. ¶11 Father testified that he was given no notice before Mother moved with the children and that she moved more than a week prior to filing her motion for relocation. He testified that before she left with the children, he was with them half the time, was closely involved with their schoolwork, went to their sports practices and events, and participated in field trips. He testified that the children had a close relationship with his family, that they saw Mother's parents only once a year, that they never saw any of Mother's other relations, and that they did not talk to them on the telephone. He testified that he spoke to the children by telephone approximately six times since they moved and that the children would weep and beg him to come get them. Father also testified that a 2009 custodial evaluation concluded that the children were well-connected to Father and should continue to see him, and that they should stay in Arizona in proximity to Father. ¶12 The court found that Mother had violated the notice requirement of A.R.S. § 25-408, but that she had not done so "without good cause," specifically finding that she had a legitimate concern for her safety. The court noted that it had witnessed Father's conduct "escalate from misdemeanors to non-violent felonies to the probation violation and property damage" and concluded that, based on the court's history with the case, Mother's fears for her health and safety if she remained in Arizona were legitimate. The court noted that, regarding the theft and use of Mother's credit cards, Father told the court he was embarrassed by what he had done, did not know why he did it, and it would not happen again, but almost immediately was seen on video vandalizing Mother's vehicle. After considering the statutory factors articulated in A.R.S. §§ 25-403(A) and 25-408(I), the court determined that it continued to be in the best interest of the children for Mother to have sole custody and that "for health and safety reasons good cause has been shown that a relocation by [Mother] and the Parties' children to the State of Michigan is appropriate." Father appealed. This court has jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (Supp. 2012).
DISCUSSION
¶13 On appeal, we are bound by the trial court's findings of fact unless they are demonstrated to be clearly erroneous. Sabino Town & Country Estates Ass'n v. Carr, 186 Ariz. 146, 149, 920 P.2d 26, 29 (App. 1996). We view the evidence and reasonable inferences from the evidence in the light most favorable to the prevailing party and must affirm if any evidence supports the trial court's judgment. Inch v. McPherson, 176 Ariz. 132, 136, 859 P.2d 755, 759 (App. 1992). We defer to the trial court's determination of witness credibility. Gutierrez v. Gutierrez, 193 Ariz. 343, 347-48, ¶ 13, 972 P.2d 676, 680-81 (App. 1998). We do not reweigh conflicting evidence, but determine only if the record contains substantial evidence to support the trial court's decision. In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704, 709 (1999). Substantial evidence is evidence from which a reasonable person could reach the same result as the trial court. Id. ¶14 Father initially argues that Mother's Motion for Immediate Relocation was improper because it included statements Father claims were untrue and because Mother did not sufficiently address why the move was in the best interests of the children. Father also argues that Mother violated A.R.S. § 25-408 because she had already left Arizona when she filed the motion; A.R.S. § 25-408 requires a parent intending to relocate a child out of state to provide advance notice to the other parent. A.R.S. § 25-408(B), (F). ¶15 The basis of Father's complaints regarding the content of the motion is unclear. The court conducted a hearing on Mother's motion and took evidence; therefore, the content of the motion is not significant to the ultimate resolution of the case. As for the notice requirement of A.R.S. § 25-408, the court recognized that Mother did not comply with the statute, but concluded that her failure to comply was not without good cause given Father's conduct. ¶16 Father argues that Mother failed to provide any documents to support her motion or her testimony and asserts that her testimony was inconsistent. Although Father acknowledges this court does not determine credibility, he asks the court to do just that. Mother was not required to provide documentation to support her testimony and any inconsistencies in her testimony go to her credibility, on which we defer to the trial court. Gutierrez, 193 Ariz. at 347-48, 972 P.2d at 680-81. ¶17 Father also argues that Mother's claim that she feared for her and the children's safety lacked supporting evidence, and that the court failed to appropriately consider Mother's striking of Father and CPS's substantiated claim of child neglect against Mother based on her boyfriend's manhandling of her son. ¶18 Mother's claim she feared Father was adequately supported by the evidence. Mother testified that Father had been harassing her for five years, had violated orders of protection, had stolen her purse and used her credit cards, and while on probation for that offense had been seen on video damaging her vehicle. Father has admitted the criminal offenses. ¶19 As for Father's assertion the court failed to consider Mother's conduct, the court in fact did note that CPS had substantiated a claim of neglect against Mother and also noted that "the ongoing problems between the Parties have not been entirely one-sided." The weight the court gave to those factors is within the trial court's discretion, and we will not reweigh that evidence. Pouser, 193 Ariz. at 579, ¶ 13, 975 P.2d at 709. ¶20 Father argues that the court failed to make adequate specific findings required by A.R.S. § 25-408(I) regarding relocation of the children. In deciding whether to permit a parent to relocate a child, the court must determine whether relocation is in the child's best interests. A.R.S. § 25-408(G). In making that decision, the court must consider the factors enumerated under A.R.S. § 25-403, pertaining to child custody, as well as the factors under A.R.S. § 25-408(1), pertaining to relocation. A.R.S. § 25-408(I). The court is required to make specific findings as to each factor and to explain why the decision is in the best interests of the child. A.R.S. § 25-403(B); Owen v. Blackhawk, 206 Ariz. 418, 421, ¶ 9, 79 P.3d 667, 670 (App. 2003); In re Marriage of Diezsi, 201 Ariz. 524, 525-26, ¶ 4, 38 P.3d 1189, 1191 (App. 2002). The court is granted broad discretion in determining what is in the best interests of a child. Porter v. Porter, 21 Ariz. App. 300, 302, 518 P.2d 1017, 1019 (1974). We review a family court's decision regarding relocation of a child for abuse of discretion. Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 19, 219 P.3d 258, 262 (App. 2009). ¶21 Father argues that, when considering the statutory factors, the court applied facts arbitrarily, ignored evidence, and failed to properly evaluate the evidence. Father presents a factor-by-factor analysis, apparently contending that based on this evidence the court should have reached a different result. ¶22 Father, in essence, is asking this court to reweigh the evidence, which we do not do. See Pouser, 193 Ariz. at 579, ¶ 13, 975 P.2d at 709. We therefore do not address those factors for which Father argues only that the court should have considered other evidence or evaluated the evidence differently. ¶23 Father also argues that the court failed to make any required findings with respect to some of the factors. For example, Father argues that the court failed to make any findings regarding the wishes of the children as to their custodian. See A.R.S. § 25-403(A)(2). The court, however, did make findings on this point.
[T]he children have been so involved in the process of the infighting between the Parties that any opinion stated by any of the four (4) children in regard to their wishes as to a custodian would most probably be based in their desire to ameliorate the serious and ongoing conflict between the Parties. These are bright, articulate, intelligent kids who love both of their parents and, most likely, simply want the fighting and conflict to stop.Although it did not determine who each child would choose as custodian, the court, which had been involved in the case since at least November 2009, clearly gave thoughtful consideration to this factor. ¶24 Father argues that Mother did not present evidence of and the court did not consider the children's interaction with Mother's family in Michigan. A.R.S. § 25-403 requires the court to consider the interaction and interrelationship of a child with the child's parents, siblings, and "any other person who may significantly affect the child's best interest." A.R.S. § 25-403(A)(3). The statute does not require the court to make a determination regarding the interaction with the child of every person that might come in contact with the child. In any event, the court heard testimony from Mother that the children loved living in Michigan, that the children often gathered with Mother's family for family dinners, and that the eldest son frequently spent time with Mother's brother. Other than contending that the children previously had infrequent contact with Mother's relatives, Father has not argued that any issues of concern exist regarding the children's interactions with Mother's family in Michigan. Nothing in the record suggests that the court erred in not specifically addressing the children's interaction with their maternal relatives such that remand would be warranted. ¶25 Father also argues that the court failed to make findings regarding which parent had provided primary care for the children, the nature and extent of coercion used by a parent to obtain a custody agreement, and whether a parent complied with attending the parenting education program. See A.R.S. § 25-403(A)(7), (8), and (9). Contrary to Father's contention, however, the court did address these factors.
In regard to the primary caregiver, while [Mother] has legal custody of the children . . . the Parties have, over time, had substantially equal parenting time. . . . Further, there is no agreement regarding custody that is under consideration and compliance with Chapter 3, article 5 of title 25 is not germane to these proceedings.¶26 Father argues that the court erred in finding that Mother had not engaged in false reporting of child abuse or neglect. A.R.S. § 25-403 requires the court to consider "whether either parent was convicted of an act of false reporting of child abuse or neglect under § 13-2907.02." A.R.S. § 25-403(A)(10). ¶27 Father contends Mother engaged in false reporting of child abuse when she filed an emergency motion seeking modification of parenting time on the grounds that her daughter had written a letter stating that Father had whipped her and her older brother with a belt and made a similar report to CPS. The child's therapist later concluded that some of the daughter's statements to the court were not true and that she had not been whipped. Father contends Mother fabricated the story, but points to nothing in the record establishing that she did so. In any event, § 25-403(10) requires the court to consider whether a parent has been convicted under the criminal statute. Whatever the truth regarding the child's claim of a whipping, the record contains no evidence that Mother was ever criminally charged, much less convicted of the offense. The court did not err therefore in concluding that neither parent had been convicted of false reporting. ¶28 Father also argues that the court erred in evaluating the factor concerning whether domestic violence or child abuse had occurred, contending that, although the court had addressed Father's "single conviction of domestic violence" involving Father's vandalizing Mother's vehicle, the court failed to properly consider Mother's acts of domestic violence. See A.R.S. § 25-403(A)(11). Father specifically cites the incident in October 2007, in which he alleges Mother struck him in the face, and the incidents of neglect substantiated by CPS related to Mother's failure to protect her son from her boyfriend. The trial court, however, did recognize the claim of child neglect against Mother; the court then proceeded to make its decision based on the totality of the circumstances. The weight to be given to the competing claims of misconduct as well as the other circumstances falls within the discretion of the court. We will not reweigh the evidence. ¶29 Father argues that no competent evidence exists to support the trial court's finding that Mother will comply with parenting time orders. See A.R.S. § 25-408(I)(4). After concluding that, under the totality of the circumstances, Mother's motion for relocation was made in good faith and not to interfere with Father's relationship with the children, the court found that Mother will comply with parenting time orders. Neither party testified as to their willingness to comply with parenting orders. The court, however, could certainly have concluded that, given Father's history of failure to comply with orders of protection and limitations of his probation, Father was less likely than Mother to respect and comply with orders of the court. ¶30 We find no abuse of the court's broad discretion in determining that relocation to Michigan with Mother was in the children's best interest. Mother testified that she feared for her safety and that orders of protection had not been effective against Father, that the children were aware of the situation between the parents and that when they were in Arizona they were afraid that Father would hurt Mother, that Father involved the children in the dispute between the parents, that the children loved Michigan, were happy, and were doing well, that the eldest son had received an award at his new school, that the children had made new friends and were surrounded by Mother's family, and that Michigan offered Mother more advantages financially than Arizona. The record also showed that Father's hostile conduct toward Mother had escalated to criminal acts of property damage without regard to the legal restraints imposed on him, providing justification for Mother's fear for her safety. See A.R.S. §§ 25-403(A)(4), (5), and (6), 25-408(I)(2), (3), (6), (7) and (8). The trial court's decision is supported by the record.
A.R.S. § 25-408(C) provides that the court shall sanction a parent who violates the notice requirement "without good cause."
In passing, Father contends that the court in its ruling cited exhibits that were not admitted into evidence. Father is apparently referring to exhibits numbered 96, 97, 98, and 99, which consist of newspaper clippings about the children in Michigan that Mother used while testifying. Although the exhibits were not offered into evidence, Mother testified about how the children were doing in Michigan. Although the trial court parenthetically cites the un-admitted exhibits, it specifically references and relies on Mother's testimony. We find no error.
Father also in passing contends that the court did not provide appropriate time to present evidence. The evidentiary hearing was short. The parties each had one-half hour at the hearing. The transcript shows that the court expressed concern as to whether the time was sufficient, asking, "Can we do this in an hour is my question?" Father's counsel did not express similar concern or object to the time constraint, but responded, "We will, your Honor. Let me put it that way." Father waived any complaint regarding the limited time. CDT Inc. v. Addison, Roberts & Ludwig, C.P.A., P.C., 198 Ariz. 173, 178, ¶ 19, 7 P.3d 979, 984 (App. 2000) (we consider only those arguments, theories, and facts properly presented below). Moreover, the court found that the evidence presented was information it already possessed because of its institutional knowledge of the case. Whether additional time would have been productive is therefore questionable. Father does not explain what additional evidence he would have presented that the court did not already have.
Father relies heavily on the custodial evaluation of Dr. Karen Sullivan in asserting that he would be the better custodial parent, that his son wanted to be with him and was angry at his mother, that he presented a better psychological profile, that he would be more likely to allow contact with the other parent, and that the children should remain in Arizona. See A.R.S. § 25-403(A)(1), (2), (3), (5), and (6); A.R.S. § 25-408(I) (3). This report was issued in November 2009, prior to Father's theft of Mother's purse and credit cards and the vandalism of her property. The court acknowledged the report, noting that it demonstrated Mother's long-standing desire to return to Michigan. How much weight to give the report, particularly in light of Father's subsequent conduct toward Mother, was within the discretion of the court. See DePasquale v. Super. Ct., 181 Ariz. 333, 336, 890 P.2d 628, 631 (App. 1995) (the court can consider an expert opinion but must exercise independent judgment-- "the best interests of the child . . . are for the court alone to decide").
A.R.S. § 13-2907.02 (West 2013) provides, "[a] person who knowingly and intentionally makes a false report of child abuse or neglect knowing the report is false" or who coerces another person to do so, is guilty of false reporting of child abuse or neglect, a class 1 misdemeanor.
ATTORNEYS' FEES AND COSTS
¶31 Finally, we address Mother's request for attorneys' fees on appeal pursuant to A.R.S. § 25-324 and Arizona Rules of Civil Appellate Procedure ("ARCAP") 21 and 25. Mother contends that she should be awarded fees because the grounds asserted by Father on appeal are unreasonable. Based on our review of the record, we agree that Father took an unreasonable position on appeal and award Mother reasonable costs and attorneys' fees.
In reaching this conclusion, we note that despite the merits of Mother's arguments, she neglected to cite to the record as required by ARCAP 13(a)(4). While this issue is not grounds to deny Mother's request for attorneys' fees, it is a factor we may consider in determining the amount of fees awarded to her on appeal.
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CONCLUSION
¶32 The family court's decision is affirmed.
____________________
ANDREW W. GOULD, Judge
CONCURRING: _______________
PATRICIA K. NORRIS, Presiding Judge
_______________
RANDALL M. HOWE, Judge