Opinion
1 CA-CV 23-0261 FC
03-14-2024
In re the Matter of: CHAD CAMERON, Petitioner/Appellant, v. STATE OF ARIZONA, ex rel., DEPARTMENT OF ECONOMIC SECURITY, Petitioners/Appellees, and BRIDGETT CHEVELIA LEWIS, Respondent/Appellee.
Chad Cameron, Gilbert Petitioner/Appellant Bridgett Chevelia Lewis, Brookshire, TX Respondent/Appellee Arizona Attorney General's Office, Phoenix By Amber Pershon Counsel for Petitioners/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Court in Maricopa County No. FC2013-007736 The Honorable Monica Edelstein, Judge
Chad Cameron, Gilbert Petitioner/Appellant
Bridgett Chevelia Lewis, Brookshire, TX Respondent/Appellee
Arizona Attorney General's Office, Phoenix By Amber Pershon Counsel for Petitioners/Appellees
Judge Andrew M. Jacobs delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Judge Angela K. Paton joined.
MEMORANDUM DECISION
JACOBS, JUDGE:
¶ 1 Chad Cameron ("Father") appeals the superior court's April 2023 Order granting Bridgett Chevelia Lewis ("Mother") primary legal decision-making authority, making their child S.C.'s ("Child") primary residence Mother's home in Texas, and granting her more parenting time. Father argues that in fashioning that relief, the court: (1) lacked jurisdiction to hold the hearing leading to it; and (2) failed to analyze A.R.S. § 25-408(I). He also claims the court violated his rights to due process in earlier hearings and erred by denying his motion to disqualify the trial judge. Because the court's April 2023 Order is supported by the law and facts of record and Father's other issues lack merit, we affirm the court's ruling.
FACTS AND PROCEDURAL HISTORY
A. After Father's Arrest in March 2022, Mother Enrolled Child in School in Texas, Precipitating a Series of Motions and Temporary Orders Concerning Child.
¶ 2 Before the disputes giving rise to this appeal, the superior court awarded sole legal decision-making to Father and joint parenting time under which Child would reside with Father in Arizona and Mother in Texas during Child's school breaks. During March 2022, Child confided in Mother that Father had hurt Child, and Mother sent a tip to the Department of Child Safety ("DCS"). Following this, DCS intervened, and Father was arrested on March 9, 2022. He was released the next day. Mother then came to Arizona to pick up Child to stay in Texas with Mother during Child's spring break, consistent with her parenting time. Mother enrolled Child in a Texas school.
¶ 3 Father sought an emergency order without notice to retrieve Child, on the grounds that Mother was exceeding her court-ordered parenting time by keeping Child in Texas past Child's spring break. The court issued April 2022 Temporary Orders allowing Father to retrieve Child and "ensure that [C]hild is able to attend her prior school as soon as possible," thus minimizing disruption in Child's life.
B. In May 2022, the Court Heard Mother's Request to Modify Legal Decision-Making and Parenting Time, and After Issuing Temporary Orders, Set a Final Hearing on Those Subjects.
¶ 4 After issuing the April 2022 Orders, the court ordered Mother and Father to appear at a May 2022 Temporary Orders Hearing ("May 2022 Hearing") to manage legal decision-making and parenting time, given the events of March and April 2022. The court explained that failing to timely file exhibits could result in sanctions. Father failed to timely submit his exhibits. Despite this, the court allowed Father to fully explain any relevant exhibits on the record.
¶ 5 At the May 2022 Hearing, the court denied Father's request to cross-examine Mother, citing time limits and the court's familiarity with the record. Nonetheless, the court gave Father substantial time to explain his positions, and to argue his views concerning Mother's statement of the facts. After the hearing, the court awarded Mother and Father joint legal decision-making and parenting time, and made Father the primary residential parent. It also scheduled temporary orders hearings for October and December 2022 to consider legal decision-making and parenting time, and a hearing for February 2023 to decide Mother's April 2022 petition to modify legal decision-making and parenting time.
C. At the December 2022 Temporary Orders Hearing, the Court Found Sufficient Evidence to Temporarily Grant Mother Primary Parenting Time.
¶ 6 The court ordered Mother and Father to appear at the December 2022 Hearing, cautioning them that untimely exhibits would not be marked. Though Father failed to submit exhibits on time, the court allowed him to present testimony concerning them. Following the December 2022 Hearing, the court issued the December 2022 Temporary Orders ("December 2022 Orders"). The court found Mother presented evidence, including Father's erratic behavior towards the court, noncompliance with court orders, and abusive comments towards Child, which justified temporary modification of legal decision-making, parenting time, and Child's relocation. The court did not reference A.R.S. § 25-408(I) when it authorized Child to be relocated principally to Texas.
¶ 7 Father then moved to disqualify Judge Edelstein, complaining of the judge's orders and asserting partiality in the court's decisions. A different judge denied Father's motion, noting that it alternately: (1) raised substantive issues better addressed to this court; and (2) did not provide sufficient facts to support conclusory assertions that the judge was "running a kangaroo court" or otherwise exhibiting bias. Father filed a special action seeking relief from the December 2022 Orders, asserting the court: (1) failed to analyze A.R.S. § 25-408(I); and (2) denied his rights to due process by not marking his untimely submitted exhibits. This court declined to accept jurisdiction of the special action.
D. In February 2023, the Court Held an Evidentiary Hearing to Determine Legal Decision-Making and Parenting Time and Issued the April 2023 Order.
¶ 8 In February 2023, the court held an evidentiary hearing to determine legal decision-making and parenting time. Father moved twice to stay the case, citing his special action. The court denied both motions. Father renewed his objection at the hearing, asserting the court lacked jurisdiction because he had asked the Arizona Supreme Court to review this court's denial of his petition for special action. Father and Mother both appeared and testified about their relationships with Child and their positions as to why they would be better suited to be Child's primary residential parent.
¶ 9 On April 3, 2023, the court ruled on legal decision-making and parenting time. The April 2023 Order found a material change in circumstances from the time before Father's arrest in March 2022. It ruled that Mother met her burden to show a material change in circumstances because there had been allegations Father was physically abusing Child and threatening Child's well-being, and because Father was disruptive and did not comply with court orders. The April 2023 Order also analyzed A.R.S. § 25-403, finding Mother and Child had a loving relationship, Child had more family and support at Mother's home, and Mother was more likely to comply with court orders, all of which supported relocation. Under A.R.S. § 25-408(I), the court found that Mother acted in good faith when she sought relocation because she sought it after DCS got involved, Child would have less emotional and mental distress with Mother, and Child had more substantial ties to Texas. The court found that both A.R.S. §§ 25-403 and 25-408(I) supported permanently modifying legal decisionmaking, parenting time, and Child's residence.
¶ 10 Father timely appealed the April 2023 Order. We have jurisdiction under Article VI, Section 9 of the Arizona Constitution and A.R.S. § 12-2101(A)(1).
DISCUSSION
¶ 11 Father argues the court: (1) lacked jurisdiction to hold the February 2023 Hearing; (2) failed to appropriately analyze the statutory factors under A.R.S. § 25-408(I); (3) violated his rights to due process through temporary orders and at proceedings before the February 2023 Hearing; and (4) was biased towards Mother, requiring disqualification.
I. The Court Had Jurisdiction to Hold the February 2023 Hearing on Temporary Orders While Father's Special Action Was Pending.
¶ 12 Father argues that the court lacked jurisdiction to hold the February 2023 Hearing because he had filed a petition for special action seeking review of the superior court's temporary orders concerning legal decision-making and parenting time. Father cites In re Marriage of Flores and Martinez, 231 Ariz. 18, 21 ¶ 10 (App. 2012), to claim his special action filing divested the superior court of jurisdiction over his case. Father's argument fails because he filed a special action seeking review of temporary orders, while Flores concerns appeals from final judgments. See id. Because there was not yet a final judgment to appeal, the superior court had jurisdiction to hold the February 2023 hearing to determine legal decision-making and parenting time. See id.
II. The Superior Court's April 2023 Order Properly Analyzes the Child's Best Interest Under A.R.S. § 25-408(I), and Father's Challenge to the December 2022 Temporary Orders For Failing to Do So Is Now Moot.
¶ 13 Father raises two different challenges grounded in A.R.S. § 25-408(I) to the court's orders relocating Child to Texas. As to the December 2022 Orders, Father argues the court erred by not analyzing Child's best interests under A.R.S. § 25-408(I). As to the April 2023 Order, Father contends the evidence did not support the relocation of Child.
¶ 14 As Father notes, in issuing the December 2022 Orders the court did not analyze A.R.S. § 25-408(I). While courts issuing temporary orders are not required to include detailed findings under A.R.S. § 25-408(I), courts must consider the statute's factors. Layne v. LaBianca in and for Cnty. of Maricopa, 249 Ariz. 301, 303 ¶ 8 (App. 2020) (explaining that the court must at least consider best interests factors in a temporary order). But we do not address whether the court erred because the issue became moot when the court issued the April 2023 Order. See Gutierrez v. Fox, 242 Ariz. 259, 264 ¶ 12 (App. 2017) (explaining that temporary orders are preparatory in nature and thus not appealable) (quoting Villares v. Pineda, 217 Ariz. 623, 624-25 ¶¶ 10-11 (App. 2008)).
¶ 15 To decide a request for relocation of a child, such as Mother's here, a court must determine the child's best interests under A.R.S. § 25-408(G). Determining the child's best interests requires analyzing the factors in A.R.S. §§ 25-403 and 408(I). Layne, 249 Ariz. at 302-03 ¶ 6; A.R.S. § 25-408(I). To decide a request for relocation, the court must determine whether there has been a material change in circumstances justifying relocation. See Canty v. Canty, 178 Ariz. 443, 449 (App. 1994). We review the court's decision to relocate a child for abuse of discretion. Layne, 249 Ariz. at 302 ¶ 5. We defer to the court's determination of witness credibility and weight of evidence. Guterriez, 242 Ariz. at 272 ¶ 49 (App. 2017).
¶ 16 Father argues the court erred in issuing the April 2023 Order relocating Child, asserting the court gave undue weight to suggestions of child abuse, asserted underfeeding of Child, and alleged verbal threats to Child, all of which Father argues were false. The court found the material change in circumstances necessary before it could order relocation because there was a physical abuse allegation against Father, evidence of threats to Child's well-being, and Father failed to comply with court orders (as by keeping Child in Arizona during January 2023 during Mother's parenting time). See Canty, 178 Ariz. at 448 (explaining that the court must determine material change in circumstances). After finding a material change in circumstances, the court analyzed A.R.S. § 25-403 and found it was in Child's best interest to reside primarily with Mother. Under A.R.S. § 25-408(I), the court also found that Mother acted in good faith when she sought relocation. The court found Mother met her burden to relocate Child to Texas. Pollock v. Pollock, 181 Ariz. 275, 277 (App. 1995) (explaining that party moving for relocation bears the burden of establishing child's best interests).
¶ 17 Because reasonable evidence supported the court's findings of materially changed circumstances and as to Child's best interests, we find no abuse of discretion in those findings. See Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982) (explaining that the family court does not abuse its discretion if it uses evidence to "support its actions"). Additionally, because the court complied with A.R.S. § 25-408(G) by determining Child's best interests before relocating Child, and complied with A.R.S. § 25-408(I) by analyzing its factors in the April 2023 Order, we likewise find no abuse of discretion in the court's legal analysis. See Layne, 249 Ariz. at 302 ¶ 6.
III. Father's Other Claims of Due Process Violations in Temporary Orders Became Moot When the Court Entered the April 2023 Order.
¶ 18 Father argues the court abused its discretion and violated his rights to due process when it ordered him to retrieve Child from Texas and re-enroll Child in the school Child had been attending in Arizona. Father's remedy for claims that the hearings giving rise to the temporary orders violated his rights to due process was to file a special action. See Gutierrez, 242 Ariz. at 254 ¶ 12 (explaining that temporary orders can only be reviewed by special action). Father did file special actions disputing the May and December 2022 Orders. However, this court declined to exercise its discretionary jurisdiction, and those orders were superseded by the April 2023 Order, making these issues moot. See A.R.S. § 25-316(D)(4) (temporary order terminates when final decree is entered). As such, we cannot address any asserted issues arising from the temporary orders.
IV. The Superior Court Did Not Err By Denying Father's Requests to Disqualify the Trial Judge Based Upon Father's Conclusory Assertions of Bias.
¶ 19 Father, who moved to disqualify Judge Edelstein in January 2023 for supposed bias and partiality against him, argues the court abused its discretion by denying his motion. We presume judges are not biased or prejudiced. State v. Medina, 193 Ariz. 504, 510 ¶ 11 (1999) (quoting State v. Rossi, 154 Ariz. 245, 247 (1987)). A judge is prejudiced or biased if they act hostile or sympathetic towards a specific party. In re Guardianship of Styer, 24 Ariz.App. 148, 151 (App. 1975). The movant bears the burden of showing bias by a preponderance of the evidence, through specific and non-conclusory facts. Medina, 193 Ariz. at 510 ¶ 11. We review a decision on disqualification for abuse of discretion. Stagecoach Trails MHC, LLC v. City of Benson, 232 Ariz. 562, 568 ¶ 21 (App. 2013).
¶ 20 Father's arguments for error are conclusory and not supported by specific, non-conclusory facts. He argues the judge showed bias because, among other accusations, she is "incompeten[t] in the law" and was "running a kangaroo court." Conclusory assertions of a litigant's beliefs about a trial judge are not enough to establish bias. Nor are rulings against a litigant, or with which they disagree. The superior court did not abuse its discretion in denying Father's motion to disqualify.
CONCLUSION
¶ 21 For these reasons, we affirm. In our discretion, we decline to award costs to either party.