Opinion
No. 1 CA-CV 13-0399
04-22-2014
In re the Marriage of: DAISY MARIE KARKRUFF, Petitioner/Appellant, v. JAMES ROBERT KARKRUFF, Respondent/Appellee.
Daisy Marie Karkruff, Lake Havasu City Petitioner/Appellant in Propria Persona James Robert Karkruff, Lake Havasu City Respondent/Appellee in Propria Persona
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Mohave County
No. L815DO201207221
The Honorable Randolph A. Bartlett, Judge
AFFIRMED
COUNSEL
Daisy Marie Karkruff, Lake Havasu City
Petitioner/Appellant in Propria Persona
James Robert Karkruff, Lake Havasu City
Respondent/Appellee in Propria Persona
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Donn Kessler and Judge Patricia K. Norris joined. PORTLEY, Judge:
¶1 Daisy Marie Karkruff ("Mother") appeals from the decree of dissolution filed on June 5, 2013. She specifically challenges the custody determination and argues that the superior court: (1) improperly doubted her testimony; (2) overlooked evidence that her former husband, James Karkruff ("Father"), lied to the court; and (3) improperly considered hearsay and gossip. Based on our review of the record, we affirm the judgment of the superior court.
FACTUAL AND PROCEDURAL BACKGROUND
"We view the facts in the light most favorable to sustaining the family court's ruling." Bell-Kilbourn v. Bell-Kilbourn, 216 Ariz. 521, 522 n.1, ¶ 2, 169 P.3d 111, 112 n.1 (App. 2007).
¶2 The parties were married in December 2004, and have one child. Mother filed a petition to dissolve the marriage on June 27, 2012. Father accepted service and filed a response. After receiving unsettling information, Father sought and received an emergency temporary child custody order. The superior court subsequently held a hearing on the emergency order and, after hearing testimony from both parties, made findings of fact after considering the factors in Arizona Revised Statutes sections 25-403 and -403.01. Specifically, the court found that it would be in the child's best interests that Father have sole custody and be the sole decision making authority on a temporary basis. The court also granted Mother supervised parenting time.
¶3 The parties unsuccessfully tried to mediate the issues and a trial was scheduled. After the dissolution trial, the superior court dissolved the marriage and divided the community debt. Additionally, the court made findings and awarded sole legal decision making authority to Father and granted Mother supervised parenting time. Mother then filed this appeal.
Mother was represented by counsel only at the trial.
After suggesting that it intended to remove the requirement of "supervised visitation" for Mother during the August 12, 2013 review hearing, the superior court decided it could not act because of the pending appeal. The court, however, retained jurisdiction to "modify or amend the custody provisions relating to minor children." Anderson v. Anderson, 14 Ariz. App. 195, 198, 481 P.2d 881, 884 (1971); accord Kabat v. Nordensson, 152 Ariz. 438, 439, 733 P.2d 635, 636 (App. 1986) ("The Arizona courts have long recognized a trial court's continuing authority concerning the issues of spousal maintenance and child custody pending appeal, including attorney's fees, where these issues are not the subject of the appeal.").
DISCUSSION
¶4 We review the superior court's child custody ruling for an abuse of discretion. Hurd v. Hurd, 223 Ariz. 48, 51, ¶ 11, 219 P.3d 258, 261 (App. 2009). We also review evidentiary objections for an abuse of discretion. Ruben M. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 236, 239, ¶ 13, 282 P.3d 437, 440 (App. 2012). "An abuse of discretion exists when the [trial] 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) (internal quotation marks omitted). We, however, do not reweigh the evidence because the superior court, as the trier of fact, has to determine the credibility of witnesses and the facts to make its decision. Mary Lou C. v. Ariz. Dep't of Econ. Sec., 207 Ariz. 43, 47, ¶ 8, 83 P.3d 43, 47 (App. 2004).
¶5 Mother argues that the superior court improperly called into question her testimony regarding the last occasion that she consumed alcohol. Specifically, Mother contends that she testified consistently about her alcohol use, but the court improperly continued to question her on the topic of her drinking. We disagree.
Mother also argues that the court erred by failing to question Father regarding his consumption of alcohol. The trial transcript, however, shows that the court specifically questioned Father about his "use of alcohol" and whether he went "out to the bars on a regular basis."
¶6 Here, the transcript of the trial reveals that after Mother's lawyer had finished asking her questions, the superior court asked Mother a number of questions, as it can do pursuant to Arizona Rule of Evidence 614(b). Some of the court's questions sought to clarify the exact timeframe when she had stopped drinking because her testimony at trial was "inconsistent" with her testimony at an earlier hearing. Mother testified that she had not consumed alcohol since 2011, when she was intoxicated and cited for offensive conduct. The transcript does not indicate that the court asked Mother an excessive number of questions regarding her drinking nor does it reveal that the court did not believe her. Instead, the transcript reveals that the court was attempting to understand if there was a difference between her trial testimony and testimony at the earlier hearing. Because the court may ask questions of the witness at a bench trial, the transcript does not reveal that the court abused its discretion.
¶7 Mother next asserts that Father lied to the court and the court erred by ignoring his purported lies. Specifically, Mother alleges that Father's testimony about his consumption of alcohol and the status of his mental health was untrue.
Because Mother testified as to her belief that Father had continuing issues with alcohol and mental health, we presume that the superior court did not ignore the evidence. Fuentes v. Fuentes, 209 Ariz. 51, 55, ¶ 18, 97 P.3d 876, 880 (App. 2004) ("[E]vidence is presumed to have been fully considered by the court prior to issuing its decision.").
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¶8 We believe that Mother is asking us to reconsider and reweigh the evidence, which we will not do. See Hurd, 223 Ariz. at 52, ¶ 16, 219 P.3d at 262. If Mother had information to impeach Father about his drinking habits and mental health status, she needed to have presented any such information to the superior court at the trial because the superior court, as the trier of fact, had to determine the facts based on the evidence and credibility of the witnesses. Because we will not reweigh the evidence, we find no abuse of discretion. See Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) ("[T]he trier of fact . . . is in the best position to weigh the evidence, observe the parties, judge the credibility of the witnesses, and make the appropriate findings.").
¶9 Mother also challenges the admission of a letter written by her stepmother on behalf of Father and a printout of an online conversation between her sister and stepmother on the grounds of hearsay and gossip. Mother only objected to the letter during the trial on the grounds that it was circumstantial evidence; that objection, however, did not preserve the hearsay objection she raises on appeal. Ruben M., 230 Ariz. at 239, ¶ 13, 282 P.3d at 440 ("[A]n objection on one ground does not preserve the issue on another ground." (citation omitted) (internal quotation marks omitted)). Because she did not raise the hearsay objection or that the gossip was unduly prejudicial, the arguments are waived. See Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) ("As a general rule, a party cannot argue on appeal legal issues not raised below."). Moreover, because she did not object to the printout at the time of trial, she waived the issue on appeal. See id.
CONCLUSION
¶10 Based on the foregoing, we affirm the superior court's custody determination.