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Griffith v. Griffith

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 27, 2020
No. 1 CA-CV 18-0679 FC (Ariz. Ct. App. Feb. 27, 2020)

Opinion

No. 1 CA-CV 18-0679 FC

02-27-2020

In re the Matter of: JULIE L. GRIFFITH, Petitioner/Appellee, v. DAVY W. GRIFFITH, Respondent/Appellant.

COUNSEL Julie L. Griffith, Glendale, AZ Petitioner/Appellee Davy W. Griffith, Grass Valley, CA Respondent/Appellant


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Mohave County
No. L8015DO201207052
The Honorable Steven C. Moss, Judge

AFFIRMED

COUNSEL

Julie L. Griffith, Glendale, AZ
Petitioner/Appellee

Davy W. Griffith, Grass Valley, CA
Respondent/Appellant

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.

PERKINS, Judge:

¶1 Davy W. Griffith ("Father") appeals from the family court's 2018 modification of legal decision making and parenting time, which awarded Julie L. Griffith ("Mother") sole legal decision-making and residential custody of their children. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 The parties married in 2004 and had two children. In 2012, the decree of dissolution entered by default awarded Mother sole legal decision-making and primary residential custody of the children. The decree did not include an award for child support, nor did it contain a community property division or allocation of debts.

¶3 Mother lives in the Phoenix area; Father lives in Grass Valley, California. Both parents have substance and alcohol abuse issues. These issues have led to multiple changes in legal decision-making, residential custody, and parenting time between 2015 and 2017. On December 6, 2017, the parties stipulated that Father would have primary residential parenting of the children until 2020, after which Mother would have the children for the next four years.

¶4 Later that month, Mother filed an emergency petition for modification asserting Father tested positive for several substances in his recent drug test. Father responded. The parties entered a temporary stipulation returning the children to Mother as residential parent and granting her sole legal decision-making authority.

¶5 The court held the four-day dissolution trial beginning in August 2018. Both parents testified and introduced exhibits. Several other witnesses testified. On day one of trial, the court ordered both parents to submit to immediate drug testing. Father tested positive for amphetamine and methamphetamine.

¶6 At the end of trial, the family court explicitly reviewed all of the statutory factors in A.R.S. § 25-403(A) and made detailed findings on the record. The court awarded Mother sole legal decision-making and immediate primary residential custody of the children, as well as $223 per month in child support; it did not award retroactive child support. While the court granted Father visitation, any future visits were subject to his compliance with the court's substance abuse and supervision orders. Finding that Father's positions were "far more unreasonable" than Mother's, the court awarded her attorneys' fees.

¶7 Father filed a timely notice of appeal. This court struck Father's first and second opening briefs for failure to comply with Arizona Rules of Civil Appellate Procedure ("ARCAP") 13 and 14. Mother asserts his third opening brief should be stricken as well. Mother's answering brief asserts that Father has failed to pay child support and the court-ordered attorneys' fees. Because these issues are not properly before us on appeal, we decline to address them. Harris v. Cochise Health Sys., 215 Ariz. 344, 349, ¶ 17 (App. 2007). Mother's brief does not specifically address the substance of Father's appeal. While this court could treat Mother's silence as a confession of error, we decline to do so and rule on the merits. See Nydam v. Crawford, 181 Ariz. 101, 101 (App. 1994); ARCAP 15(c). Likewise, although Father's brief is lacking, in our discretion, we will rule on the merits of his arguments. See AMERCO v. Shoen, 184 Ariz. 150, 154 n.4 (App. 1995).

DISCUSSION

¶8 Father challenges the October 2018 order modifying parenting time and legal decision-making. He objects to several factual and legal conclusions made by the family court and asserts the judge was biased against him.

¶9 In making a custody determination, the family court must consider the factors enumerated in A.R.S. § 25-403(A) to determine what is in the children's best interests. The court need not detail its findings in a written document. Hart v. Hart, 220 Ariz. 183, 187, ¶ 17 (App. 2009).

¶10 We review child custody determinations for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7 (App. 2003). The family court has broad discretion in making this determination, and we will not disturb its decision absent a clear abuse of discretion. Id.; In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 3 (App. 2002). "Our duty on review does not include reweighing conflicting evidence or redetermining the preponderance of evidence." Hurd v. Hurd, 223 Ariz 48, 52, ¶ 16 (App. 2009).

¶11 Father had the burden to provide this court with any trial transcript necessary for resolving this appeal. See ARCAP 11(b)(2), (c)(1)(A). Yet he only provided an excerpt from one of four trial days, which contains the court's oral findings and ruling. Because Father failed to provide any transcripts from the evidentiary and argument portions of the trial, we assume the record supports the court's findings and conclusions. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995).

¶12 The family 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). Here, the family court heard from multiple witnesses and considered many exhibits, including drug testing results, before detailing its findings and conclusions. We find no abuse of discretion.

¶13 As to Father's assertion of judicial bias, he has failed to provide evidence to support that claim. We will not presume bias. A party that challenges a judge must prove bias, prejudice, or interest by a preponderance of the evidence "overcom[ing] the presumption that trial judges are 'free of bias and prejudice.'" Simon v. Maricopa Med. Ctr., 225 Ariz. 55, 63, ¶ 29 (App. 2010) (quoting State v. Rossi, 154 Ariz. 245, 247 (1987)). Adverse rulings, even a pattern of adverse rulings, cannot establish bias. Simon, 225 Ariz. at 63, ¶ 29 ("The bias and prejudice necessary for disqualification generally must arise from an extra-judicial source and not from what the judge has done in his participation in the case.") (citation omitted).

¶14 To the extent that Father asserts a due process violation, due process requires that the court "afford the parties 'an opportunity to be heard at a meaningful time and in a meaningful manner.'" Volk v. Brame, 235 Ariz. 462, 468, ¶ 20 (App. 2014) (quoting Curtis v. Richardson, 212 Ariz. 308, 312, ¶ 16 (App. 2006)). The record shows Father's full participation in the scheduled four-day trial.

CONCLUSION

¶15 We affirm.


Summaries of

Griffith v. Griffith

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 27, 2020
No. 1 CA-CV 18-0679 FC (Ariz. Ct. App. Feb. 27, 2020)
Case details for

Griffith v. Griffith

Case Details

Full title:In re the Matter of: JULIE L. GRIFFITH, Petitioner/Appellee, v. DAVY W…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Feb 27, 2020

Citations

No. 1 CA-CV 18-0679 FC (Ariz. Ct. App. Feb. 27, 2020)