Summary
In Mendoza, this court found the family court did not consider the mother's domestic violence, but only considered the father's.
Summary of this case from Okubena v. MontagOpinion
No. 1 CA-CV 13-0576
01-29-2015
In re the Matter of: YOLANDA MENDOZA, Petitioner/Appellee, v. CUAUHTEMOC BOGARIN, Respondent/Appellant.
COUNSEL Yolanda Mendoza, Tempe Petitioner/Appellee Law Office of Alicia Montoya-Sanchez, Phoenix By Alicia Montoya-Sanchez Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
Nos. FC2009-000048, FC2010-006445 (Consolidated)
The Honorable John R. Hannah, Jr., Judge
REVERSED AND REMANDED
COUNSEL Yolanda Mendoza, Tempe
Petitioner/Appellee
Law Office of Alicia Montoya-Sanchez, Phoenix
By Alicia Montoya-Sanchez
Counsel for Respondent/Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Michael J. Brown joined. SWANN, Judge:
¶1 Cuauhtemoc Bogarin ("Father") appeals from a superior court order granting sole legal decision-making authority to Yolanda Mendoza ("Mother"). The superior court determined that it was in the child's best interests to modify the parties' parenting time and grant Mother sole legal decision-making authority, in part based on the presumptions set forth in A.R.S §§ 25-403.03 and -403.04. The trial court found that these domestic violence and substance abuse presumptions "weigh[ed] heavily against [Father], as a matter of law." We hold that the trial court abused its discretion when it applied these presumptions, and therefore reverse and remand for a proper determination of legal decision-making authority.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father have one child together ("Child") who was born in 2008. In 2009, Mother filed a petition to establish paternity, child custody, child support, and parenting time. The superior court appointed a Parenting Conference Provider ("PCP") to interview the parents and issue a report detailing his findings regarding the child-custody determination. The PCP completed the report and concluded that it was in Child's best interests for Mother to have sole custody. The report noted that both Father and Mother had been arrested for domestic violence offenses, Father admitted to past alcohol abuse, "is likely in denial that he abuses alcohol," and that "Father physically disciplines the children with what can be described as excessive force with hands and objects."
The report further noted that Father had recently been investigated for abusing his child from another relationship.
¶3 Accordingly, the PCP prepared an agreement for parenting time, which the parties signed, providing that Child would primarily reside with Mother and have weekly visits with Father, initially in the presence of a third party. The superior court adopted the agreement as a final order, but left a trial date in place for a determination of child support.
¶4 Two months later, however, Father and Mother submitted a stipulated order, prepared by Father's attorney, which contrary to the initial agreement provided for joint custody, equal parenting time, and no child support. Mother later testified that the order was written in English, of which she understands very little, and that no one explained to her in Spanish the contents and implications of the document she was signing. At the time the order was submitted, however, the case calendar had been reassigned to a new judge—who was presumably unaware of the prior final order—and who adopted the stipulated order as the final order of the court and vacated the trial date.
¶5 After sharing legal decision-making authority and parenting time for almost three years, Father filed a petition to modify the order, seeking sole legal decision-making authority with no parenting time for Mother. Father's petition was based on concerns over Child's safety, including his discovery that Mother was in a relationship with her ex-husband, Camilo Villegas, who had been accused of inappropriate sexual conduct toward Mother's older daughter. In the dissolution proceedings between Mother and Mr. Villegas, the court found "credible testimony of inappropriate sexual conduct toward Mother's seven-year-old child by [Mr. Villegas] to the extent that . . . the children and Mother would be seriously endangered were [Mr. Villegas] to have unsupervised visitation with the parties' child."
¶6 The superior court appointed the same PCP to conduct a new investigation and write another report. This time, the PCP concluded that it was in the best interests of Child to reside primarily with Father. The PCP noted that since his last meeting with Mother and Father in 2009, domestic violence and alcohol abuse by Father have not recurred. The PCP ultimately based his conclusion on "Mother's alleged non-compliance with the Court's orders, poor parenting judgment, and concerns regarding the Mother's parenting and the parties' co-parenting actions. . . ."
¶7 After an evidentiary hearing, the superior court found that Father had behaved coercively toward Mother, that he has used the police to bully her, and that he misled the court. The court also found that Father's "history of substance abuse, domestic violence and excessive discipline weigh[ed] heavily against him, as a matter of law." Therefore, the court entered an order awarding Mother the majority of parenting time and sole legal decision-making authority. Father was awarded parenting time on alternating weekends, vacations, and holidays. The order prohibited Father from consuming alcohol during parenting time and for twenty-four hours prior to parenting time. The order also prohibited contact between Mother's ex-husband and Child, except under Mother's direct supervision. Father appealed the superior court's order.
Because the superior court's order did not resolve the issue of child support and did not certify the remaining issues as final pursuant to ARFLP 78(B), the order is not appealable under A.R.S. § 12-2101. Natale v. Natale, 234 Ariz. 507, 510, ¶ 11, 323 P.3d 1158, 1161 (App. 2014). However, because the best interests of a child are at stake, we exercise our discretion and treat Father's appeal as a special action. See Dep't of Econ. Sec. v. Powers, 184 Ariz. 235, 236, 908 P.2d 49, 50 (App. 1995) (taking jurisdiction over a case involving child support enforcement).
DISCUSSION
¶8 We review the superior court's order regarding parenting time and legal decision-making authority for abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11, 304 P.3d 1093, 1096 (App. 2013); In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶3, 38 P.3d 1189, 1191 (App. 2002). I. APPLICATION of A.R.S. § 25-403
¶9 When considering a petition for modification of legal decision-making or parenting time, the court must decide whether a change in the current agreement would be in the child's best interests. A.R.S. § 25-403(A). In determining the child's best interests, the court must consider and make specific findings on the record regarding all factors relevant to the child's physical and emotional well-being, including the factors enumerated in A.R.S. § 25-403(A). A.R.S. § 25-403(B). Failure to make such findings on the record constitutes an abuse of discretion. Hart v. Hart, 220 Ariz. 183, 186, ¶ 9, 204 P.3d 441, 444 (App. 2009).
¶10 Father argues that the superior court failed to consider all the relevant factors in A.R.S. § 25-403(A), and failed to make specific findings on the record regarding these factors. We disagree.
¶11 Although not clearly delineated in its ruling, the superior court did consider the factors set forth in A.R.S. § 25-403(A), and did make findings on the record regarding all the factors relevant to its decision. First, it addressed § 25-403(A)(1) and (2) by stating that both parents have bonded relationships with Child and that Child has a healthy bond with her half-siblings on both sides of the family. With regard to § 25-403(A)(3) the court found that "the parties differ in their assessment of the child's adjustment," both blaming the other for Child's issues. With regard to § 25-403(A)(5), the court found that Father's history of substance abuse weighed against him and in favor of granting legal decision-making to Mother. Under § 25-403(7), the court found that Father has behaved coercively and that he intentionally misled the court. Under § 25-403(8), the Court found that Father's history of domestic violence and excessive discipline weighed against him, in favor of Mother. Finally, regarding § 25-403(A)(9), the court found that Father had manipulated Mother to get their current parenting plan, bullied her, and had behaved coercively toward her to get his way.
¶12 Though best practices would involve clearer delineations of the superior court's statutory findings, it is evident on this record that the court did consider all the relevant factors and did make specific findings. II. APPLICATION of A.R.S. §§ 25-403.03 and -403.04
¶13 Arizona law creates a rebuttable presumption that sole or joint legal decision-making by a parent who has committed domestic violence is contrary to the child's best interests. However, this presumption "does not apply if both parents have committed an act of domestic violence." A.R.S. § 25-403.03(D).
¶14 Likewise, Arizona law creates a rebuttable presumption that sole or joint legal decision-making by a parent who has abused drugs or alcohol within the past twelve months is contrary to the child's best interests. A.R.S. § 25-403.04(A).
¶15 Father argues that the superior court misapplied the domestic violence statute and the substance abuse statute and, therefore, improperly presumed that awarding him legal decision-making was not in Child's best interests. We agree.
¶16 In this case, the superior court applied both presumptions against Father. The court found that "Father's history of substance abuse, domestic violence and excessive discipline weighs heavily against him, as a matter of law. See A.R.S. §§ 25-403.03 (domestic violence) and 25-403.04 (substance abuse)."
¶17 The domestic violence presumption does not apply here because the record contains evidence that both Father and Mother committed acts of domestic violence. See A.R.S. § 25-403.03(D). We acknowledge that conflicting evidence in the record makes it difficult to determine the truth of the parties' accusations and the root of the Tempe Police Department's repeated involvement in the exchange of Child. However, the court weighed Father's prior acts of domestic violence heavily against him, even though the superior court had previously quashed Mother's order of protection against Father because she failed to demonstrate that he had actually committed acts of domestic violence, and Mother was arrested for domestic violence around the same time as Father. And the PCP reported evidence of Mother's physical aggression towards Father and that Mother was the one wrongfully initiating conflict between the parties. Nonetheless, despite evidence in the record that Mother has committed acts of domestic violence, the court only considered Father's acts of domestic violence and resolved the case based upon the statutory presumption.
We note that although the presumption does not apply, the family court must still treat domestic violence as a factor of "primary importance" in determining which party should have legal decision-making authority. See A.R.S. §§ 25-403(A)(8); 25-403.03(B); Christopher K. v. Markaa S., 233 Ariz. 297, 301, ¶ 19, 311 P.3d 1110, 1114 (App. 2013).
A review of the record reveals that Father and Mother have taken every opportunity to paint each other in the worst possible light, rendering it difficult to ascertain the truth of the contradictory allegations. And the PCP reversed his opinion concerning which parent should have legal decision-making authority and the majority of parenting time. The superior court was not bound by the PCP's recommendation in either instance. See Nold, 232 Ariz, at 273-74, ¶ 14, 304 P.3d at 1096-97 (explaining that the family court should exercise its own independent judgment).
¶18 Similarly, the substance abuse presumption does not apply because there is insufficient evidence in the record to support its application. Although there is evidence of Father's past alcohol abuse, no evidence was presented that he abused alcohol within the twelve-month period preceding his petition, as required by the statute. See A.R.S. § 25-403.04(A).
Mother presented testimony that Father was drinking in May 2010 at the latest.
--------
¶19 Because the court improperly applied the domestic violence presumption and the record lacks sufficient evidence to support application of the substance abuse presumption, the superior court abused its discretion in applying them.
CONCLUSION
¶20 For the foregoing reasons, we reverse and remand the matter to determine Child's best interests with regard to legal decision-making authority without applying the presumptions in A.R.S. §§ 25-403.03 and - 403.04.