Opinion
No. 1 CA-CV 13-0170
01-30-2014
In re the Matter of: DANA L. STELL, Petitioner/Appellant, v. KISHA C. SIMMONS, Defendant/Appellee.
COUNSEL Dana L. Stell, Mesa Petitioner/Appellant In Propria Persona Wilson-Goodman Law Group, PLLC, Gilbert By Aarti Bhaga Counsel for Respondent/Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. FC2010-094869
The Honorable Paul J. McMurdie, Judge
AFFIRMED
COUNSEL
Dana L. Stell, Mesa
Petitioner/Appellant In Propria Persona
Wilson-Goodman Law Group, PLLC, Gilbert
By Aarti Bhaga
Counsel for Respondent/Appellee
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined. GEMMILL, Judge:
¶1 Dana L. Stell ("Father") appeals from a judgment granting sole legal decision-making authority to Kisha C. Simmons ("Mother") and ordering Father to pay $358.71 in monthly child support. Finding no abuse of discretion, we affirm.
BACKGROUND
¶2 Father and Mother are the parents of three-year-old son, E. At an early resolution conference in 2011, Father agreed to pay $511.97 per month in child support. At that time, Father anticipated making $12.75 per hour while Mother was working as a clinical lab specialist earning $3,859.58 per month. The family court's temporary orders awarded joint legal custody of E., with parenting time for Father, ordered joint legal decision-making, and set Father's child support obligation at $511.97 per month. Father's anticipated hourly wage did not materialize, however, and he petitioned the court to modify the temporary order of child support.
We view the evidence in the light most favorable to upholding the family court's judgment. In re Marriage of Yuro, 192 Ariz 568, 570, ¶ 3, 968 P.2d 1053, 1055 (App. 1998). Father fails to consistently cite the record as required by Rule 13(a)(4) of Arizona Rules of Civil Appellate Procedure. Thus, we could deem his arguments waived, but in our discretion we choose to address the merits of the issues raised and we rely on our review of the record. See State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 257 n.1, ¶ 2, 963 P.2d 334, 336 n.1 (App. 1998). Also, Mother did not file an appellate brief. We could treat the failure to file an answering brief as a confession of error by Mother, but in our discretion we choose to address the merits "because a child's best interests are involved." See In re Marriage of Diezsi, 201 Ariz. 524, 525, ¶ 2, 38 P.3d 1189, 1190 (App. 2002); see generally Ariz. R. Civ. App. P. 15(c).
¶3 Following trial on January 8, 2013, the family court issued a 14-page decree that awarded Mother sole legal decision making authority and set Father's child support obligation at $358.71 per month. This pro se appeal followed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1).
DISCUSSION
I. Legal Decision-Making Authority
¶4 Father challenges the award of sole legal decision-making authority to Mother pursuant to A.R.S. §§ 25-403 and 403.01. We review that decision for an abuse of discretion. Owen v. Blackhawk, 206 Ariz. 418, 420, ¶ 7, 79 P.3d 667, 669 (App. 2003).
¶5 Legal decision-making means "the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions." A.R.S. § 25-401(3). The award of sole legal decision-making "does not allow the parent designated as sole legal decision-maker to alter unilaterally a court-ordered parenting time plan." A.R.S. § 25-403.01(C). Arizona statutes require the family court to determine legal decision-making authority in accordance with the child's best interests, after considering eleven factors in A.R.S. § 25-403(A)(1-11) and four factors in A.R.S. § 25-403.01(B)(1-4).
¶6 Father asserts that the family court erroneously based its decision on his "financial status." On this record, we find no support for this contention. Father did not provide a certified transcript of the hearing and, in the absence of a transcript, we presume that the record supports the family court's rulings. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).
¶7 Father argues that the family court ignored evidence concerning Mother's living circumstances, including drugs in her home, clutter, and the presence of "unfavorable people." In the parties' joint pre-trial statement in family court, Father did not raise these issues. Without a trial transcript, we cannot determine whether Father presented evidence concerning these issues. We presume that the record supports the family court's resolution of Mother's fitness, Id., and that the family court was familiar with all evidence contained in the record. Fuentes v. Fuentes, 209 Ariz. 51, 55-56, ¶ 18, 97 P.3d 876,880-81 (App. 2004). Father's disagreement with the family court's analysis of the statutory factors does not establish an abuse of discretion. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16, 219 P.3d 258, 262 (App. 2009); see also Jesus M. v. Ariz. Dep't of Econ. Sec., 203 Ariz. 278, 280, ¶ 4, 53 P.3d 203, 205 (App. 2002) (explaining that the trier of fact is in the best position to weigh the evidence).
¶8 Finally, Father argues that the family court's ruling on legal decision-making deprives him of a constitutional liberty interest, an issue we review de novo. State v. McGill, 213 Ariz. 147, 159, ¶ 53, 140 P.3d 930, 942 (2006). Parents have "a fundamental liberty interest protected by the Fourteenth Amendment in the care, custody, and management of their children." Diana H. v. Rubin, 217 Ariz. 131, 134, ¶ 12, 171 P.3d 200, 203 (App. 2007) (internal quotation omitted). A parent's right to custody and control, however, "is not without limit or beyond regulation" and "[u]nder their constitutional powers, states may regulate the well-being of children." Graville v. Dodge, 195 Ariz. 119, 124, ¶ 20, 985 P.2d 604, 609 (App. 1999). On this record, Father has not shown that the family court violated his constitutional rights. See Baker, 183 Ariz. at 73, 900 P.2d at 767.
II. Child Support
¶9 Father also contends that the family court erroneously set his child support obligation. The family court has discretion in determining child support, and we will not disturb its decision absent an abuse of discretion. Little v. Little, 193 Ariz. 518, 520, ¶ 5, 975 P.2d 108, 110 (1999). This court reviews de novo the family court's interpretation of the Arizona Child Support Guidelines, A.R.S. § 25-320 App. (Supp. 2013) (the "Guidelines"). See In re Marriage of Robinson and Thiel, 201 Ariz. 328, 331, ¶ 5, 35 P.3d 89, 92 (App. 2001).
¶10 Father objects to the family court's calculation and asserts that the court failed to apply the self-support reserve test. Under § 5(E) of the Guidelines, the family court may attribute income to the parent ordered to pay child support. In making the decision to reduce Father's support obligation from $511.97 and to set his obligation in the decree at $358.71 per month, the family court attributed monthly income to Father of $1,352 notwithstanding his lack of employment. Father had admitted during discovery that he had the earning ability to support himself.
¶11 On the incomplete record before us, we cannot say that the family court abused its discretion in not further reducing Father's child support obligation. Without a transcript, we have no way of knowing whether Father made an objection concerning the self-support reserve and preserved that argument on appeal. See Baker, 183 Ariz. at 73, 900 P.2d at 767.
¶12 Finally, Father argues that (1) the decision does not incorporate a worksheet, and (2) the family court made an unspecified error as to "tax years." The family court did file a worksheet, and its decision incorporates the document by reference. Because Father failed to develop the tax year argument, we decline to address it. See ARCAP 13(a)(6) (brief shall contain arguments "with citations to the authorities, statutes and parts of the record relied on"); Polanco v. Indus. Comm'n, 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (holding that an issue was waived on appeal because the party mentioned it in passing, cited no supporting legal authority, and failed to develop it further).
CONCLUSION
¶13 On this record, Father has not shown that the family court abused its discretion. Accordingly, the family court's decree is affirmed.