Opinion
1 CA-CV 21-0156 FC
02-03-2022
In re the Matter of: JEREMIAH RIOJAS, Petitioner/Appellant, v. GLORIA MEJIA, Respondent/Appellee.
State 48 Law Firm, Scottsdale By Robert Hendricks, Stephen Vincent, Bryce Johnson Counsel for Petitioner/Appellant The Ber Law Firm, Phoenix By Hershel Ber Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. FC2020-005819 The Honorable Monica Edelstein, Judge
State 48 Law Firm, Scottsdale
By Robert Hendricks, Stephen Vincent, Bryce Johnson
Counsel for Petitioner/Appellant
The Ber Law Firm, Phoenix
By Hershel Ber
Counsel for Respondent/Appellee
Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge David D. Weinzweig and Judge Paul J. McMurdie joined.
MEMORANDUM DECISION
SWANN, JUDGE
¶1 Jeremiah Riojas ("Father") appeals the superior court's orders awarding Gloria Mejia ("Mother") final joint legal decision-making authority, designating her as the primary residential parent of their minor child, and ordering Father to pay child support. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Mother and Father are the biological parents of a child, born in 2013. They were never married. Mother had two sons and a daughter from a previous relationship. Father also had a son and a daughter from a previous relationship. Mother and Father ended their relationship in 2017 after they discovered that Mother's oldest son had sexually abused Father's daughter. Father's daughter later committed suicide. The Department of Child Safety later removed Mother's oldest son from Mother's home.
¶3 Mother and Father shared parenting time with their biological child until 2020, when Father petitioned to establish paternity, legal decision-making, parenting time, and child support.
¶4 Father sought sole legal decision-making and equal parenting time. Father acknowledged that he would pay child support. Mother requested sole legal decision-making and to be designated the primary residential parent with Father having parenting time several weekends a month, one weekday per week, and during the summer. Mother also requested that Father pay child support.
¶5 Applying the factors set forth in A.R.S. § 25-403(A), the superior court awarded Mother and Father joint legal decision-making with Mother having final authority if the parties could not agree after a good-faith effort. The court designated Mother as the primary residential parent and gave Father parenting time every other weekend (up to three weekends a month) and every Wednesday to Thursday afternoon. The court also ordered Father to pay Mother child support. The court later amended the child support order to comply with the Arizona Child Support Guidelines.
¶6 Father appeals.
DISCUSSION
I. THE SUPERIOR COURT'S MANNER OF CONDUCTING THE TRIAL WAS NOT IMPROPER.
¶7 Father argues that the superior court's manner of conducting the trial was inconsistent with the Arizona Rules of Evidence. He contends the court prevented him from presenting evidence and cross-examining Mother, depriving him of due process.
¶8 Courts typically conduct trials with attorneys calling witnesses to elicit testimony on direct examination and cross examination. This is not, however, the only way to conduct a trial; indeed, many family court litigants do not have attorneys. The superior court has broad discretion in managing a trial. Gamboa v. Metzler, 223 Ariz. 399, 402, ¶ 13 (App. 2010). The court may call witnesses and exercise reasonable control over the trial to develop the truth. See Ariz. R. Evid. 611, 614; State v. Mendez, 2 Ariz. App. 77, 79 (1965). But the court must conduct the trial in a way that ensures due process. Smart v. Cantor, 117 Ariz. 539, 542 (1977). Due process requires "notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Curtis v. Richardson, 212 Ariz. 308, 312, ¶ 16 (App. 2006); see also Volk v. Brame, 235 Ariz. 462, 466, ¶ 14 (App. 2014) ("[D]ue process requires the court to allow parties a reasonable opportunity to present testimony whenever resolution of a material contested issue hinges on credibility.").
¶9 Father argues that by asking all the questions, the court prevented him from presenting his evidence, claiming the judge led him to believe, as an unrepresented party, that she had already elicited the only important information. Father contends that this may have had a chilling effect on the evidence each party presented at trial. But Father presented evidence. Neither party had counsel to call witnesses and elicit testimony, so the court called the parties as witnesses and asked relevant questions to determine the child's best interests. The court informed the parties how it planned to conduct the trial at the beginning of the trial. Neither party objected. Still, the court provided the parties with several opportunities to supplement their testimony or ask questions. Father seized every opportunity. The parties also had the opportunity to present exhibits to the court. The court admitted four of Father's exhibits and seven of Mother's exhibits. The court set aside one hour for the trial, and the parties had eighteen minutes left after presenting all their evidence. Neither party informed the court that they had more evidence to present or other witnesses to call.
¶10 The court also did not prevent Father from cross-examining Mother. Due process affords parties an opportunity to cross-examine a witness if desired. Volk, 235 Ariz. at 469, ¶ 24 ("[D]ue process requires an opportunity to confront and cross-examine adverse witnesses." (citation omitted)); see Ariz. R. Evid. 614. Neither Father nor Mother requested to cross-examine the opposing party.
¶11 The court's manner of conducting the trial was reasonable given the parties' unrepresented status. The parties had the opportunity to present their cases in a meaningful time and manner. How Father used this opportunity does not amount to a denial of due process.
II. THE SUPERIOR COURT'S LEGAL DECISION-MAKING, PARENTING TIME, AND CHILD SUPPORT ORDERS WERE PROPER.
¶12 Father argues the superior court erred by awarding Mother final joint legal decision-making authority and designating Mother as the primary residential parent. He also argues the child support order should be amended, and that the court's orders are not supported by the evidence.
¶13 The superior court must determine legal decision-making and parenting time in accordance with the best interests of the child. A.R.S. §§ 25-403(A), -403.01(B), -403.02(B). We review the court's legal decisionmaking, parenting time, and child support orders for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013); Engel v. Landman, 221 Ariz. 504, 510, ¶ 21 (App. 2009). We will affirm if the record has competent evidence to support the court's orders. See Little v. Little, 193 Ariz. 518, 520, ¶ 5 (1999).
A. The Superior Court Did Not Abuse Its Discretion in Awarding Mother Final Joint Legal Decision-Making Authority.
¶14 The court found that it was in the child's best interests to award Mother final joint legal decision-making authority because "Mother is the Primary Residential Parent and has been involved with securing counseling and other services for Child." Father argues the superior court's finding that Mother secured counseling for the child was unsupported by the evidence.
¶15 The record indicates that the child's teacher was concerned with the child's behavior and suggested to the parties that the child attend counseling. Mother testified that the parties had already agreed the child needed counseling. Father contends he should have final joint legal decision-making authority because he secured counseling and, initially, Mother did not want the child to attend counseling. But these are not the facts that Father presented below. The court found that Mother was involved in securing counseling. Mother's involvement does not mean Father was not also involved. The court considered the factors in A.R.S. § 25-403.01(B), and the record supports the court's order. We discern no abuse of discretion.
B. The Superior Court Did Not Abuse Its Discretion in Designating Mother as the Primary Residential Parent.
¶16 Father argues the superior court violated Barron v. Barron, 246 Ariz. 580 (App. 2018), by designating Mother as the primary residential parent based on the child's need for stability and consistency. Father contends the court's parenting time order rewarded Mother for withholding the child from Father and gave Father less parenting time than Mother offered.
Mother contends that Barron is no longer good law. Although a portion of the case was overturned by the supreme court in Barron v. Barron, 246 Ariz. 449, 452, ¶ 21 (2019), that portion of the case is not relevant to our analysis here.
¶17 Generally, Arizona law presumes that equal or near-equal parenting time is in a child's best interests. Woyton v. Ward, 247 Ariz. 529, 531, ¶ 6 (App. 2019); A.R.S. § 25-403(B). The superior court, however, must decide parenting time based on all the evidence before it. Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 492, ¶ 11 (App. 2020).
¶18 In Barron, we held that there is "no place in a parenting-time order for a presumption that 'stability and continuity' require the children to spend more time in one home than the other." 246 Ariz. at 585, ¶ 11. The superior court did not violate Barron. The court designated Mother as the primary residential parent because it was in the child's best interests, not because it presumed that residing with Mother would provide more stability in the child's life. Mother and Father both testified that the child resided with Mother during the pendency of Father's petition, and Father had only seen the child once in 121 days. The parties agreed they wanted to maintain stability and consistency in the child's life, given the family trauma the child suffered. Accordingly, the court found it was in the child's best interests to "maintain as much stability and consistency in Child's life as possible" because the child "ha[d] been through a lot." Because the child resided with Mother for at least four months, the court reasonably found that residing primarily with Mother would maintain stability and consistency.
¶19 Although Father argues equal parenting time would maintain stability and consistency in the child's life because the parties practiced equal parenting time for three years, the record is unclear on this. Father testified that he would have had parenting time the week of the trial, but Mother had been withholding the child. He did not present further evidence of their parenting time schedule. The court noted that there was also evidence that Father had refused parenting time that Mother had offered, and we have no basis upon which to reject the superior court's resolution of this credibility question.
¶20 The record is also unclear as to why Father did not see the child during the pendency of his petition. In the superior court, Father argued that Mother withheld the child from him. Mother argued that she offered Father weekend parenting time with the child, but he declined. Father now argues that by designating Mother as the primary residential parent, the court rewarded Mother for withholding the child. Father's argument misconstrues the court's findings. The court was not concerned with rewarding Mother when it designated her as the primary residential parent; rather, the court determined parenting time based on the child's best interests.
¶21 Although Father did not get parenting time for the entire summer as Mother offered, the court still awarded Father more parenting time than he had in the last four months to ensure the child would have consistent, meaningful, and frequent contact with Father.
¶22 The court considered each of the best-interest factors in A.R.S. § 25-403(A) and made specific findings on the record as required under § 25-403(B). Although it received contrary evidence, the record supports the court's decision to designate Mother as the primary residential parent. Thus, the court based its parenting time order on all the evidence before it, and we discern no abuse of discretion.
C. The Child Support Order Should Not Be Amended.
¶23 Father does not challenge the superior court's calculation of child support under the Arizona Child Support Guidelines. Instead, Father argues we should amend the child support order because the court's parenting time order was erroneous. Because we affirm the superior court's parenting time order designating Mother as the primary residential parent, we affirm the court's child support order.
CONCLUSION
¶24 We affirm for the reasons set forth above. Both parties request an award of attorney's fees under A.R.S. § 25-324. In the exercise of our discretion, we decline to award attorney's fees to either party on appeal.