Adkisson v. Keith
| Decision Date | 26 January 2021 |
| Docket Number | No. 1 CA-CV 20-0193 FC,1 CA-CV 20-0193 FC |
| Parties | In re the Matter of: AUDREY ADKISSON, Petitioner/Appellee, v. JOSH KEITH, Respondent/Appellant. |
| Court | Arizona Court of Appeals |
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
The Honorable Justin Beresky, Judge
AFFIRMED
Burt Feldman & Grenier, Scottsdale
By Mary K. Grenier
Modern Law PLLC, Mesa
By Darin R. Colburn
Counsel for Petitioner/Appellee
MEMORANDUM DECISIONJudge Jennifer B. Campbell delivered the decision of the Court, in which Presiding Judge D. Steven Williams and Judge James B. Morse Jr. joined.
¶1 Josh Keith ("Father") appeals the divorce decree designating Audrey Adkisson ("Mother") as the primary residential parent and awarding her "presumptive decision-making authority," arguing both legal error and insufficient factual findings. Because these orders were within the court's discretion, we affirm. Father also appeals the trial court's allocation of debts, arguing that the trial court erroneously burdened him with the entirety of the community debt. Because the allocation of debt was within the court's discretion to equitably divide community property, we affirm.
¶2 Mother and Father married in November 2014. Their son, Brandon,1 was born two years later. Brandon was born prematurely, is developmentally delayed, and has special needs.
¶3 Mother discovered evidence of affairs, numerous pornographic images and videos, and emails from Father soliciting sex from various sources on Father's computer and a flash drive. After this discovery, Mother filed for divorce. Mother asked that Father undergo a full psychological evaluation with risk assessment, asserting that he had a history of "hyper-sexual" and "unusual" behaviors. Father agreed to complete an evaluation. Dr. Celice Korsten reviewed the materials provided by both parents and interviewed Father. Dr. Korsten, in her psychosexual evaluation, determined that although Father had "a sadistic sexual interest . . . there was no evidence provided that these interests would be a risk to the child."
¶4 Dr. Korsten did, however, express some concerns over the well-being of the child. As part of the evaluation, Dr. Korsten reviewedaudio recordings of the family. Although Dr. Korsten concluded that there was no objective information suggesting Father "would be unable to provide a safe environment," she did note that the recordings suggested Father "becomes easily frustrated with [Brandon]."Dr. Korsten also noted that Mother had potentially "engaged in behaviors that could negatively interfere with [Father's] relationship with [Brandon] in the future." For example, Mother was recorded telling Brandon "I know you love me the most, but daddy is good too."
¶5 At trial, Mother testified that Brandon had exhibited sexualized behavior. Mother reported that Brandon developed a fascination with pinching her nipples and trying to tickle her private parts. Mother reported an incident where Brandon had simulated oral sex with a toy. She also testified that, after asking Brandon how Father plays with his girlfriend, Brandon responded by making humping motions and moaning.
¶6 After trial, the court designated Mother as the primary residential parent and awarded Father parenting time every other weekend. The court also found that joint legal decision-making was in the child's best interests, subject to the following conditions:
[E]ach parent shall give good faith considerations to the views of the other and put forth best efforts to reach a consensus decision. . . . [I]f they cannot agree after making a good faith effort to reach an agreement, [Mother] shall have 'presumptive decision-making authority.' This level of authority shall allow [Mother] the right to make a preliminary decision that the party shall then communicate to [Father]. If [Father] believes that [Mother's] decision is contrary to the best interests of the child, the party shall have the right to seek review through the Court. [Father] shall have the burden to demonstrate that [Mother's] decision is contrary to the child's best interests. It shall not be sufficient to demonstrate that an alternative decision may have also been in the interest of the child.
¶7 The court also divided the couple's property and debts. In distributing the community debt, the court ordered Father to be responsible for his student loan, a Citibank credit card, and the outstanding I.R.S. tax debt from 2016 and 2017. The court ordered that Mother be responsible for the five credit cards in her name. Father timely appeals the decree.
¶8 We review legal decision-making and parenting time orders for an abuse of discretion. Nold v. Nold, 232 Ariz. 270, 273, ¶ 11 (App. 2013). An abuse of discretion exists when the trial court makes an error of law, State v. Bernstein, 237 Ariz. 226, 228, ¶ 9 (2015), or when "the 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 (1999) (citation omitted). "We review matters of law, including the interpretation of statutes and court rules, de novo." Woyton v. Ward, 247 Ariz. 529, 531, ¶ 5 (App. 2019).
¶9 In determining parenting time, the court must make its decision "in accordance with the best interests of the child." A.R.S. § 25-403(A). Additionally, the court is required to "adopt a parenting plan that . . . maximizes [the parents'] respective parenting time." A.R.S. § 25-403.02(B). Here, the court designated Mother as the primary residential parent, and awarded Father parenting time every other weekend. The court found that the "parenting plan is practical and also maximizes each parent's parenting time to the extent it is in the child's best interests."
¶10 Father contends the trial court erred when it made this order "without any finding that equal or near-equal parenting time was contrary to the child's best interests and without any finding that Mother had met her presumption that an equal parenting time order was not in [Brandon's] best interest." To support his position, Father cites the language of A.R.S. § 25-403.02(B) requiring the court to maximize each parent's "respective parenting time." Father also cites A.R.S. § 25-103(B)(1), in which the Arizona legislature determined "it is in a child's best interest . . . [t]o have substantial, frequent, meaningful and continuing parenting time with both parents." What Father appears to be arguing is that, without a specific finding that equal parenting time is not in the best interests of the child, the court failed to maximize both parties' parenting time as required by statute.
¶11 We are not persuaded. To be sure, Father is correct that Arizona public policy favors equal parenting time. Consequently, "[a]s a general rule equal or near-equal parenting time is presumed to be in a child's best interests." Woyton, 247 Ariz. at 531, ¶ 6. However, neither A.R.S.§ 25-403.02(B) nor A.R.S. § 25-103(B)(1) mandate equal parenting time. Gonzalez-Gunter v. Gunter, 249 Ariz. 489, 492, ¶ 11-12 (App. 2020). But, the trial court "has discretion to determine parenting time based on all the evidence before it," and is only required to maximize parenting time insofar as it is consistent with the child's best interests. See id. That is precisely what the trial court did here, finding that the parenting plan "maximize[d] each parent's parenting time to the extent it is in the child's best interests." Moreover, Father fails to identify any legal authority requiring the trial court to specifically find that an equal parenting plan is contrary to the child's best interests. The trial court did not err when it ordered unequal parenting time.
¶12 The trial court also awarded the parties joint legal decision-making authority. However, the court determined that if the parties could not come to an agreement after good faith efforts, Mother would have the "presumptive decision-making authority."
¶13 Father argues the trial court erred. Specifically, Father argues the order grants Mother too much discretion, and ultimately renders his shared decision-making authority illusory. Father points out that he can only overturn Mother's decision by showing it was contrary to the child's best interests, and that merely showing an alternative course would also be consistent with the child's best interests is not sufficient. Father argues that this is an unfair burden and even if he successfully met that burden, Mother's decision may be irreversible by the time he could obtain a court determination.
¶14 However, as Mother correctly points out, A.R.S. § 25-401(2) permits the court to grant joint legal decision-making authority subject to "specified decisions as set forth . . . in the final judgment or order." (Emphasis added). The Arizona Supreme Court has interpreted this provision to allow the trial court to award tie-breaking authority to one parent when such an arrangement is in the child's best interests. See Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 13 (2019). Further, granting tie-breaking authority does not transform a joint decision-making order into a sole decision-making order. Id.
¶15 Father contends that Nicaise is distinguishable. He notes that Nicaise involved an order granting tie-breaking authority over a limited number of issues. See id. at 568-69, ¶¶ 14-16. This, he claims, supports that the supreme court limited its holding to specific grants of tie-breakingauthority. Father also points to A.R.S. § 25-401(2) to support his claim that the trial court can only grant such authority with respect to "specified decisions." Father argues that the "specified decisions" language in ...
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