Opinion
1 CA-CV 11-0465
05-17-2012
In re the Matter of: MICHELE LEE DUFF, Petitioner/Appellant, v. GARY A. DUFF, JR., Respondent/Appellee.
Michele Lee Duff Petitioner/Appellant Phoenix Gary A. Duff, Jr. Respondent/Appellee Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 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(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)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 Maricopa County
Cause No. FC2010-006591
The Honorable M. Scott McCoy, Judge
AFFIRMED
Michele Lee Duff
Petitioner/Appellant
Phoenix
Gary A. Duff, Jr.
Respondent/Appellee
Phoenix GOULD , Judge
¶1 Michele Lee Duff ("Mother") appeals from the family court's decree awarding sole custody of two of her children to Gary A. Duff ("Father"). For the reasons discussed below, we affirm.
Factual and Procedural Background
¶2 Mother and Father married in 1998 and are the parents of two minor children. Besides these children, Mother has an older son ("Older Son") who was born prior to her marriage to Father. Father assumed full-time care of Mother's Older Son and the two children after Mother moved out of the family residence.
¶3 Mother eventually filed a petition for dissolution, seeking sole custody of the two children. At trial, Mother stated that she trusted Father to make good decisions for the benefit of their children, but that as a couple, they "wouldn't be able to cooperate to make the big decisions."
¶4 After thoroughly analyzing all of the factors under Arizona Revised Statutes ("A.R.S.") section 25-403, the family court awarded sole legal custody of the two children to Father. It also awarded supervised parenting time to Mother. Mother timely appeals.
Discussion
¶5 The family court is given broad discretion in determining what will be most beneficial for the children, and it is in the best position to determine what is in the children's best interest. Orezza v. Ramirez, 19 Ariz. App. 405, 409, 507 P.2d 1017, 1021 (1973). We review the family court's custody decisions for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003). We will not disturb those determinations unless it clearly appears the court has misunderstood or ignored the evidence. Hutchison v. Hutchison, 3 Ariz. App. 592, 593-94, 416 P.2d 1013, 1014-15 (1966). To determine there has been an abuse of discretion, "the record must be devoid of competent evidence to support the decision of the trial court." Borg v. Borg, 3 Ariz. App. 274, 277, 413 P.2d 784, 787 (1966) (quoting Fought v. Fought, 94 Ariz. 187, 188, 382 P.2d 667, 668 (1963)). "A difference in judicial opinion is not synonymous with 'abuse of discretion.'" Quigley v. City Court of Tucson, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982) (citation omitted).
¶6 In determining custody, A.R.S. § 25-403(A) requires the family court to consider: (1) the parents' wishes; (2) the child's wishes; (3) the child's relationship with his parents, siblings and other persons who may affect the child's best interest; (4) the child's adjustment to home, school and community; (5) the mental and physical health of all persons involved; (6) which parent is more likely to allow the child meaningful and continuous contact with the other parent; (7) the identity of the primary care provider; (8) the nature and extent of coercion used by a parent in obtaining an agreement regarding custody; and (9) whether a parent has complied with domestic education program requirements.
¶7 We turn to Mother's specific arguments, which relate to the third, fourth, and fifth statutory factors. Mother argues the trial court erred by (1) improperly relying on Older Son's interview after having previously vacated it, (2) failing to allow Mother's witness to testify, (3) believing Father's testimony over her own, and (4) mentioning Mother's prior felony forgery conviction and "ma[king] [the] accusation that these cases are normally drug related." We address these issues based on our understanding of Mother's arguments. See Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 143, 750 P.2d 898, 901 (App. 1987) (stating that it is not the role of the appellate court to decipher, develop, and address arguments not clearly presented).
Although Father has not filed an answering brief, we are not required to regard his failure to respond as a confession of reversible error. Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982). We consider this case on its merits based on the record and the opening brief.
Older Child's Interview
¶8 Mother argues that the trial court erred in relying on the report of Older Child's interview that had been conducted by Conciliation Services. Mother argues that admission of the interview report was prejudicial because Older Child referenced the criminal history of Mother's boyfriend, Mitchell Guess ("Guess"). While analyzing the interaction between child and parents, siblings and others, the court noted in the Decree that "Mother's new boyfriend, Mitchell 'Gator' Guess has told Mother's older son . . . that he has warrants out for his arrest." The court cited Older Child's interview as support for this statement and noted that "[Guess] also has a 2004 conviction for identity theft in CR 2004-037696."
Mother also complains that the court vacated the interview of the Older Child, but then, without notifying Mother, went forward with the interview. A review of the record shows that on March 14, 2011, the court granted Father's Motion for a court interview of Older Child to take place on March 21, 2011. This interview was then rescheduled to March 29. On March 24, Mother filed a motion contesting this interview, which the court granted in a minute entry dated March 29 and filed on April 1. However, the interview was conducted by Conciliation Services on March 29, 2011. When Mother pointed out that the court had granted her motion to vacate the interview, the court replied "But it was probably too late by the time I granted it."
Because we find that the court's consideration of Older Child's interview was harmless error, we also find that any prejudice Mother may have suffered arising from the April 1 Order vacating the interview was harmless. Ariz. R. Fam. Law P. 86 ("No error in. . . the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice.").
The court did not identify the source of its knowledge regarding Guess's 2004 conviction. It may be that the court took judicial notice of this fact from its own records. See In re Sabino R., 198 Ariz. 424, 425, ¶ 4, 10 P.3d 1211, 1212 (App. 2000) ("It is proper for a court to take judicial notice of its own records or those of another action tried in the same court."). Once again, we find no reversible error on the admission of Guess's criminal history, because the court appears to have placed little or no weight on Guess's conviction in reaching its custody decision.
¶9 The trial court also referenced Older Child's interview at the hearing when it questioned Mother regarding the statements made by Older Child in the interview. Mother protested, arguing that any statements allegedly made by Guess and reported by Older Child were untrue and hearsay. The trial court later remarked, "You know, one thing [Older Child] mentioned was that your boyfriend has some warrants out or that your boyfriend told him - told [Older Child] that your boyfriend has warrants for his arrest[.]" Mother responded, "No sir, he does not. He's here and he can testify to that."
¶10 The admission of Guess's criminal history was, at most, harmless error. Creach v. Angulo, 189 Ariz. 212, 214-15, 941 P.3d 224, 226-27 (1997) (stating that error is harmless unless prejudice to party's substantial rights is apparent from record); see also Ariz. R. Fam. Law P. 86. A review of the record shows that the court placed little or no weight on this evidence, and in fact based its decision primarily on the mental health of Mother. See A.R.S. § 25-403(A)(5). In reaching its decision, the court stated that "Mother's mental health is a serious concern at this time," and noted that Mother had been "treated for depression for approximately five years." The court further stated that Mother's condition worsened in June 2010, "prompting a change in medication," and that in "August 2010, Mother stopped taking medication altogether." The court also noted that Mother left the marital residence in August 2010, was homeless for a period of time, and was subsequently convicted and sentenced for "felony forgery" in May 2011. Having considered this evidence, the court found that "unsupervised parenting time with Mother would endanger seriously the physical, mental, moral, or emotional health" of the two children.
The fact that the Older Child's statements would technically be considered hearsay are of no consequence because under Arizona Rule of Family Law Procedure 2(B)(2), the evidentiary rules pertaining to hearsay (Rules 801-806) are replaced with a general rule that "all relevant evidence is admissible" unless "its probative value is outweighed by the danger of unfair prejudice . . . undue delay, waste of time, needless presentation of cumulative evidence, lack of reliability or failure to adequately and timely disclose same." This rule applies unless one of the parties demands strict compliance with the Arizona Rules of Evidence, which did not occur here. R. Fam. Law P. 2(B)(1).
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Mother's Witness
¶11 Mother argues that Older Child "perjured" himself in the interview and that if Guess had been permitted to testify, he would have proven that Older Child's statements were false. However, Mother herself testified that Guess had been convicted of "taking the identity of another." She further stated, "He pled to it because it was seven years ago. He had no evidence. There's no - the people that were involved were gone, so there was no way he could defend himself. Therefore, he pled to it and they gave him, I believe, probation." The court explained that it had run out of time to hear witnesses, and stated that even if what the parties had told it the witnesses would testify to was true, the court did not think it would alter its decision. The court did not allow either parent to call witnesses, but limited testimony to that of Mother and Father.
¶12 Given the court's inherent authority to impose reasonable time limits on the trial proceedings and avoid needless consumption of time, it was well within the court's discretion to refuse to permit third parties such as Guess to testify. See Ariz. R. Evid. 611(a). Moreover, the court made it clear, based on the proffers of both parties, that the anticipated testimony of the subject witnesses would not have affected its decision regarding child custody.
Credibility
¶13 Mother argues that the trial court improperly believed Father instead of her regarding whether she used to take depression medication and whether she currently needed such medication given that no medical doctor testified during the proceeding. See supra, ¶ 10. However, we defer to the trial judge on issues of credibility, given that the trial judge is the one who had the opportunity to observe the parties firsthand when they testified. See State v. Gallagher, 169 Ariz. 202, 203, 818 P.2d 187, 188 (App. 1991) (explaining that determining the credibility of witnesses is for the trial court, not the appellate courts). It would therefore be inappropriate for us to weigh conflicting evidence below or to set aside a court's findings of fact unless they are clearly erroneous and unsupported by any credible evidence. See Kocher v. Dep't of Revenue of Ariz., 206 Ariz. 480, 482, ¶ 9, 80 P.3d 287, 289 (App. 2003).
¶14 Given that the court's conclusions were supported by Father's testimony, we cannot say the trial court abused its discretion in finding Father a more credible witness than Mother. Here, the court's findings are supported by Father's testimony. He stated that Mother has "been on medication for about five years, but it got worse back in June." He also testified that in August, "[t]hey changed her medication" and "she told me she didn't want to take the medication no more[;] it made her sick and [she] didn't feel good." He also stated that "at this point, it came up to August, and that's when she left." Mother's own testimony corroborates that she had depression, at least prior to November. She spontaneously admitted that she had stopped taking her depression medication in November because she claimed she no longer needed it.
Mother's Felony Forgery Conviction
¶15 Mother contends that the family court was biased against her because it mentioned her prior felony forgery conviction and asked her whether this conviction was drug-related. We disagree. It was not unreasonable for the court to follow up regarding the nature of Mother's felony after Father pointed out Mother's felony conviction. The judge merely stated that when he had been on a prior criminal rotation, "a lot of people that were pleading guilty to charges of this nature . . . had drug problems[.]" His question to Mother, "[i]s that something I need to be concerned about?" was not an unreasonable question, and did not display any bias against Mother.
¶16 Mother has failed to show there was anything improper about the court asking her questions. A court may question witnesses. Ariz. R. Evid. 614(b). In addition, Mother has failed to demonstrate bias or prejudice on the part of the court. A presumption exists that a judge is free of prejudice and bias, and a party challenging a judge's impartiality must overcome a strong presumption that judges are free of bias and prejudice. State v. Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2005). The record does not reflect impropriety in the substance or tone of the court's questioning.
Conclusion
¶17 For the foregoing reasons, we find no abuse of discretion; the decree of dissolution is affirmed.
ANDREW W. GOULD, Judge
CONCURRING:
MICHAEL J. BROWN, Presiding Judge
MARGARET H. DOWNIE, Judge