Opinion
2 CA-CV 2023-0006-FC
07-07-2023
Tonya Evon Wells, Appellant, v. Jared James Johns, Appellee.
Tonya Wells, Safford In Propria Persona Channen Day, Safford Counsel for Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Graham County No. DO201800320 The Honorable Daniel Martin, Judge
Tonya Wells, Safford In Propria Persona
Channen Day, Safford Counsel for Appellee
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, JUDGE:
¶ 1 Tonya Wells appeals the denial of her petition to modify a legal decision-making, parenting time, and child support order concerning the minor child she shares with Jared Johns. Wells argues that the trial court erred by not properly considering the child's best interests. She also argues that the court erred by not properly analyzing Johns's charges for aggravated assault and assault, as well as the results of a subsequent plea agreement, under title 25's domestic-violence framework. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 We view the facts in the light most favorable to sustaining the trial court's judgment. Boyle v. Boyle, 231 Ariz. 63, ¶ 8 (App. 2012). Wells and Johns are parents of a child born in 2017. In 2018, Wells filed a petition to establish legal decision-making, parenting time, and child support. The following year, the court approved an agreement pursuant to Rule 69 of the Arizona Rules of Family Law Procedure that granted both parents substantially equal parenting time and joint legal decision-making.
¶ 3 In 2021, Johns filed a petition to modify legal decision-making, parenting time, and child support. The parties resolved this dispute in March 2021, when the trial court approved another Rule 69 agreement, which awarded Johns sole legal decision-making and most of the parenting time. Wells received supervised parenting time every other weekend, which would increase to substantially equal time after twelve consecutive months of clean drug tests.
¶4 In August 2021, Wells petitioned to modify legal decision-making, parenting time, and child support. She asserted that Johns was facing four felony charges, based on an incident in April 2021 when he had shot three of his stepchildren in their legs with a rifle BB gun. The parties' child had not been present. After an evidentiary hearing in October 2021, the trial court found no evidence that Johns was a threat to the child and denied Wells's motion for temporary orders. The court also found that Wells's petition to modify, which had been filed within one year of the prior Rule 69 agreement, failed to satisfy the standard under A.R.S. § 25-411(A) for modifications within one year. The court dismissed Wells's petition.
¶ 5 As a result of the BB-gun incident, Johns pled guilty to aggravated assault on a minor, as well as assault. The trial-court record contains limited information about the subsequent proceedings, but the parties do not appear to dispute that under the agreement, if Johns successfully completed probation on the assault charge, the aggravated assault charge would be dismissed with prejudice.
¶ 6 Upon learning of Johns's conviction, Wells filed in July 2022 another petition to modify legal decision-making, parenting time, and child support. She asserted that the conviction itself constituted a sufficient basis for the modification. In October 2022, after another evidentiary hearing, the trial court concluded that "the law of the case is that Mr. Johns was found to not have committed significant domestic violence or to have a significant history of domestic violence with the parties' child." The court also found no "substantial change of circumstances," and dismissed Wells's petition to modify.
¶ 7 This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
MATERIAL CHANGE IN CIRCUMSTANCES
¶ 8 We review the trial court's denial of Wells's petition to modify for an abuse of discretion and defer to the court's factual findings unless clearly erroneous. See Backstrand v. Backstrand, 250 Ariz. 339, ¶ 14 (App. 2020); Ariz. R. Fam. Law P. 82(a)(5). The trial court has broad discretion to determine whether a material change of circumstances has occurred. Id. We will not reverse its judgment "absent a clear abuse of discretion, i.e., a clear absence of evidence to support its actions." Id. (quoting Pridgeon v. Superior Court, 134 Ariz. 177, 179 (1982)). "An abuse of discretion results when the record is 'devoid of competent evidence to support the decision,' or when the court commits an error of law in the process of reaching a discretionary conclusion." Engstrom v. McCarthy, 243 Ariz. 469, ¶ 4 (App. 2018) (quoting Hurd v. Hurd, 223 Ariz. 48, ¶ 19 (App. 2009)).
¶ 9 Wells argues that the trial court erred by not making specific findings of fact on the record about whether her proposed modification was in the child's best interests. A.R.S. § 25-403(B) provides that if legal decision-making or parenting time is contested, the court must make specific findings on the record about all relevant factors and the reasons why its decision is in the best interests of the child. However, on a petition to modify, the court must first determine whether a change in circumstances that materially affects the child's welfare has occurred. Backstrand, 250 Ariz. 339, ¶ 14. The court looks to whether such a change has occurred since the last legal decision-making or parenting-time order. Pridgeon, 134 Ariz. at 179 (using prior term "custody"). Only if it finds such a change does it analyze Section 25-403's best-interest factors. See Backstrand, 250 Ariz. 339, ¶ 14.
¶ 10 Importantly, in the trial court, Wells did not assert that the incident with the BB gun constituted a material change in circumstances. The court confirmed that the "only change of circumstance mother is pleading is father's conviction." To the extent Wells argues differently now, we consider the argument waived. See Phillip B. v. Ariz. Dep't of Child Safety, 253 Ariz. 295, ¶ 11 (App. 2022) (noting general rule that reviewing court will not consider issues raised for first time on appeal).
¶ 11 We therefore turn to whether the trial court abused its discretion in concluding that the conviction was not a material change in circumstances. Our review is hampered by Wells's failure to provide a transcript of either the October 2021 or September 2022 evidentiary hearings. We must therefore presume that the evidence and testimony support the court's findings and conclusions. See Baker v. Baker, 183 Ariz. 70, 73 (App. 1995); Ariz. R. Civ. App. P. 11(c)(1).
¶ 12 Applying that presumption and the abuse-of-discretion standard, we conclude there is no basis for reversing the trial court's conclusion. Wells does not point to any limits the conviction imposes on Johns's ability to care for their child, such as incarceration or relevant probation conditions. Nor has Wells pointed to any other effect of the conviction itself that would affect the child's welfare. Because we cannot say the court erred in determining that no material change of circumstances had occurred, we also cannot say the court erred by failing to make findings under Section 25-403(A). See Backstrand, 250 Ariz. 339, ¶ 14.
DOMESTIC VIOLENCE
¶ 13 Wells also argues that the trial court erred by failing to consider evidence of domestic violence. She argues at length that the assault charges to which Johns pled guilty were domestic-violence offenses. See A.R.S. §§ 13-3601, 25-403.03(A), (D) (defining domestic violence). We agree. Thus, if the court were required to conduct a best-interests analysis under Section 25-403, it would have to consider domestic violence and child abuse. §§ 25-403(A)(8), 25-403.03; see also Christopher K. v. Markaa S., 233 Ariz. 297, ¶ 16 (App. 2013) (providing that evidence of domestic violence "carries substantial weight" in determining child's best interest).
¶ 14 However, Wells's arguments also imply that when domestic violence has occurred, the trial court need not determine whether there has been a material change in circumstances affecting the child's welfare. We disagree. A material change in circumstances is the precursor to a best-interests analysis in any modification proceeding, even one that involves domestic violence. See Backstrand, 250 Ariz. 339, ¶ 14; see also Christopher K., 233 Ariz. 297, ¶¶ 15-17 (noting, in case involving domestic violence, court must first determine whether material change in circumstance has occurred).
¶ 15 Undoubtedly, domestic violence is often a material change affecting the child's welfare. But as noted, Wells did not argue in the trial court that the BB-gun incident constituted such a change. Nor are we convinced that if she had raised the issue, the court would have abused its discretion if it disagreed with her-especially absent transcripts that would allow us to consider the testimony. The parties' child was not present during the incident, and the court had previously found that there was "no evidence regarding [Johns] being a threat to the child."
¶ 16 Relatedly, Wells argues that the trial court abused its discretion in concluding that Johns had not committed significant domestic violence. The court apparently reasoned that it had created the law of the case on significant domestic violence by finding in November 2021 that Johns was not a threat to the child. We question whether the court properly applied the law-of-the-case doctrine. The November 2021 finding said nothing about significant domestic violence, and the doctrine applies only to "questions previously decided in the same case." Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278 (App. 1993).
¶ 17 However, we will affirm the trial court's ruling if it was correct for any reason. In re Marriage of Gibbs, 227 Ariz. 403, ¶ 16 (App. 2011). And here, in light of Wells's failure to supply us with transcripts, we must presume that the court's judgment was supported by the evidence. See Baker, 183 Ariz. at 73. Hence, we find no reversible error in the court's conclusion that Johns did not commit significant domestic violence.
ATTORNEY FEES AND COSTS
¶ 18 Johns requests an award of attorney fees and costs on appeal under A.R.S. §§ 12-341, 12-349, 12-350 and Rule 25 of the Arizona Rules of Civil Appellate Procedure. In our discretion, we decline his request. Nevertheless, as the prevailing party, Johns is entitled to his costs on appeal upon compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedure. See Doherty v. Leon, 249 Ariz. 515, ¶ 24 (App. 2020).
DISPOSITION
¶ 19 For the foregoing reasons, we affirm the trial court's denial of Wells's petition to modify legal decision-making, parenting time, and child support.